York v. Performance Auto, Inc.
2011 UT App 257
Utah Ct. App.2011Background
- York and Slavens are defendants; Yorks sue Performance Auto, Inc. and Slavens among others; only Slavens served; May 28, 2009 dismissal of Slavens as a defendant; York appeals that dismissal.
- The trial court’s dismissal left unserved named defendants; the court has yet to enter a final order against all parties or subjects of the litigation.
- York contends served defendants’ dismissal ends the case; the court must determine finality under rule 54(b) and related Utah authority.
- The Utah Supreme Court in Hunter v. Sunrise Title Co. held that when all served co-defendants are dismissed, the action against remaining unserved defendants is not final; service extension requirements apply.
- This case applies Hunter to hold that the May 28, 2009 dismissal is not a final order, so no appeal lies from it as of now.
- The August 11, 2010 contempt order is civil, not criminal, thus generally interlocutory and not a final appealable order unless arising from supplemental proceedings after a final judgment, which did not occur here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality of May 28, 2009 dismissal | York argues dismissal of served Slavens ends litigation | Slavens maintains dismissal disposed of all served parties | Not final under Hunter; not appealable presently |
| Appealability of August 11, 2010 contempt | York seeks review of contempt order as final | Contempt is civil and interlocutory unless arising from supplemental proceedings after final judgment | Interlocutory; not appealable as of right |
| Impact of Hunter on Otteson/Bartel | Otteson/Bartel still control finality | Hunter overruled them by implication | Hunter overruled, replacing prior finality rule for served/unserved defendants |
| Jurisdiction for appeal in absence of final order | Court has jurisdiction to review some orders | No final order, no jurisdiction | Court lacks jurisdiction; appeal dismissed under Loffredo |
Key Cases Cited
- Bradbury v. Valencia, 2000 UT 50 (Utah Supreme Court, 2000) (finality under Rule 54(b) and serves served defendants)
- Otteson v. Department of Human Services, 945 P.2d 170 (Utah Ct. App. 1997) (unserved defendants not party to the action; final dismissal of served defendants terminating claims)
- Hunter v. Sunrise Title Co., 2004 UT 1 (Utah Supreme Court, 2004) (where all served co-defendants are dismissed, rule 4(b) requires service on remaining unserved defendants within 120 days; conversion to single-defendant action)
- Loffredo v. Holt, 2001 UT 97 (Utah Supreme Court, 2001) (jurisdictional prerequisite: final order must exist for appeal)
- Giusti v. Sterling Wentworth Corp., 2009 UT 2 (Utah Supreme Court, 2009) (finality requirements; rule-7(f)(2) clarity of order)