Opinion
Case No. 20090211-CA.
Filed May 7, 2009. Not For Official Publication
Appeal from the Fourth District, Provo Department, 090400063 The Honorable Gary D. Stott.
Cyndee Brisk, Salt Lake City, Appellant Pro Se.
Jared L. Anderson and Morgan Fife, Provo, for Appellees.
Before Judges Greenwood, Davis, and McHugh.
MEMORANDUM DECISION
Cyndee Brisk appeals the default judgment entered on January 26, 2009, by the district court. This case is before the court on Danny D. Williams and Michelle Williams's motion for summary disposition based upon lack of jurisdiction due to the failure to file a timely notice of appeal. See Utah R. App. P. 4(a).
A notice of appeal must be filed "with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Id. If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal and must dismiss. See Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616.
The district court entered a default judgment on January 26, 2009. Accordingly, Brisk was required to file a notice of appeal no later than February 25, 2009. Brisk did not file a notice of appeal until March 3, 2009. Thus, the notice of appeal was untimely. Because Brisk did not timely file her notice of appeal, this court lacks jurisdiction and must dismiss. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App. 1989) (stating that if the court lacks jurisdiction over an appeal, it has only the authority to dismiss the action).
The Williamses argue that because their complaint alleged unlawful detainer, Brisk was required to file her notice of appeal within ten days of the default judgment. See Utah Code Ann. § 78B-6-813(1) (2008); Utah R. App. P. 4(a). However, default judgment was awarded on three separate causes of action (breach of contract, unlawful detainer, and unjust enrichment), thereby making the ten-day requirement inapplicable.See Fashions Four Corp. v. Fashion Place Assocs., 681 P.2d 830, 831 (Utah 1984) (concluding "that the hybrid nature of [the] plaintiff's action, containing additional declaratory and equitable causes . . . prevents [section 78B-6-813] from controlling the time for appeal").
The appeal is dismissed.
Pamela T. Greenwood, Presiding Judge, James Z. Davis, Judge, Carolyn B. McHugh, Judge.