Opinion
Case No. 20050042-CA.
Filed May 19, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, 750226073, The Honorable Leon A. Dever.
Robert J. DeBry, Salt Lake City, for Appellants.
Joseph J. Palmer, Stephen C. Tingey, Elaina M. Maragakis, and Brent D. Wride, Salt Lake City, for Appellees.
Before Judges Billings, Jackson, and Orme.
MEMORANDUM DECISION
This case is before the court on its own motion for consideration of summary dismissal for lack of jurisdiction on the basis that the certification of the trial court's order was improper. See Utah R. App. P. 10; Utah R. Civ P. 54(b). Both parties have filed responses in opposition to summary dismissal. They argue that the judgment of the trial court is a final appealable order and, if not, it is properly certified and, if not properly certified, the notice of appeal should be deemed a petition for permission to appeal an interlocutory order. See Utah R. App. P. 5(a).
For a judgment to be final it "`must dispose of the case as to all parties, and finally dispose of the subject-matter of the litigation on the merits of the case.'" In re Southern Am. Ins. Co., 930 P.2d 276, 278 (Utah Ct.App. 1996) (citations omitted). "In other words, a judgment is final when it `ends the controversy between the parties litigant.'" Id. (citation omitted).
The parties argue that only "ministerial matters" remain. However, that is not the standard for an order to be final. The order from which the parties seek to appeal does not resolve all claims of any party. The order does not determine who the class members are, nor does it resolve the amount each class member shall receive from the judgment. This court has also consistently maintained that an order is not final for purposes of appeal until it resolves the imposition and amount of attorney's fees.See ProMax Dev. Corp. v. Raile, 2000 UT 4, 998 P.2d 257. In this matter, the trial court has not determined counsel's entitlement to a portion of the funds. Further, the fact that the parties acquiesce is insufficient to confer jurisdiction. See A.J. Mackay Co. v. Okland Const. Co. Inc., 817 P.2d 323, 324 (Utah 1991); In re Southern Am. Ins. Co., 930 P.2d at 278 (Utah Ct. App. 1991). Therefore, the order is not final and this court must consider whether an exception to the final judgment rule applies.
The parties contend that the matter was properly certified pursuant to rule 54(b). See Utah R. Civ. P. 54(b). However, the order fails to provide any analysis regarding the factual overlap, nor did it provide any analysis regarding whether there is no just reason for delay. See id. The Utah Supreme Court has indicated that such analysis is necessary to facilitate review of the certification. See Bennion v. Pennzoil Co., 826 P.2d 137, 139 (Utah 1992). The court explained that the trial courts often enter certification orders without seriously addressing the criteria of the rule. See id. at 139. The result is a serious impact on the appellate court docket. The court specifically instructed trial courts to "henceforth" enter findings supporting the conclusion that such orders are final and to explain the lack of factual overlap for certification to be proper. Id.
Even if the certification order had been facially adequate, this order is not one that is proper for certification. The consideration in whether an order is proper for certification is whether "the facts of the certified portion of the judgment differed from those remaining in the trial court." Bennion, 826 P.2d at 138.
[C]ertification [is] generally precluded where there [is] significant" factual overlap" between the operative facts of the certified and unlitigated claims and where the outcome of the appeal of the certified claims theoretically would have a res judicata effect on the unlitigated claims remaining before the trial court.
Id. at 138.
The remaining claims are not factually separate from those already litigated in this case. To the contrary, the determination of who is a class member and what the class members will receive are factually intertwined with those issues already litigated.
The other consideration is whether there is no just reason for delay. See Weiser v. Union Pac. R.R. Co., 932 P.2d 596, 597 (Utah 1997). While it is true that, if this court determined that Washington Mutual was not liable, most, if not all, of the remaining issues would be rendered moot, the opposite possible outcome must also be considered. See id. at 598. If the judgment is upheld on appeal, there would likely be later piecemeal appeals. For example, either party could appeal the determination of the class, and/or the amount each members receives, and/or attorney's fees. The result would be wasted judicial resources. See id.
Appellee requests that the notice of appeal be construed as a petition for permission to appeal an interlocutory order. See Utah R. App. P. 5(a). Whether to deem a notice of appeal as a petition for interlocutory appeal rests exclusively in this court's discretion. See id. In determining whether interlocutory appeal should be granted, the court considers whether the order involves substantial rights and may materially affect the final decision, and whether determination of the correctness of the order before final judgment would better serve the administration of justice. See id.
Treating a notice of appeal from an improperly certified order as a petition for interlocutory appeal is to be done only in the most "extraordinary" cases. A.J. Mackay Co. v. Okland Const. Co. Inc., 817 P.2d 323, 325 (Utah 1991). Further, "we bear a heavy burden of justification when we single out one improperly taken appeal for preferential treatment that has been denied so many others." Id. At minimum, a case must be one in which this court would grant interlocutory appeal to if properly requested. See id. at 326.
The same problem that rendered the order improper for certification is of concern in granting interlocutory review, specifically, the likelihood of piecemeal appeals. This conclusion is further bolstered by the fact that both parties seek to appeal, as a cross-appeal has been filed. Appellee cites the cost to them if class members must be located prior to appeal. However, a second appeal would also be costly, as well as a potentially inefficient use of judicial resources.
This appeal is dismissed for lack of jurisdiction. The dismissal is without prejudice to filing an appeal upon issuance of a final appealable order.
Judith M. Billings, Presiding Judge, Norman H. Jackson, Judge, Gregory K. Orme, Judge, concur.