¶ 1 Aсting pursuant to rule 54(b) of the Utah Rules of Civil Procedure, the district court sought to certify as final and appealable several orders related to the disposition of mechanic's liens. The plaintiff, Copper Hills Custom Homes, then appealed those orders to this court. But we may not act on an appeal, including an appeal of a putative final order under rule 54(b), unless we are satisfied that we have appellate jurisdiction. And оur review of the 54(b) certifications here reveals them to be flawed. This circumstance is by no means unique to this appeal-improper 54(b) certifications have proven to be a recurring source of jurisdictional complications.
¶ 2 We are not oblivious to the fact that our decision today will leave the parties feeling that form has triumphed over substance. In a sense, they would not be wrong. But "we cannot fabricate the power to hear a case simply because it seems more palatable than acknowledging that we lack jurisdiction." DFI Props. LLC v. GR 2 Enters. LLC ,
I
¶ 3 The germane facts are scant аnd not in dispute. "Copper Hills provided construction contracting services to Morningside Developers ... on eight separate parcels of real property in 2006." Morningside Developers, LLC v. Copper Hills Custom Homes, LLC ,
¶ 4 After two years of inaction and an intervening "order to show cause why the case should not be dismissed[,] ... the district court dismissed the case without prejudice." Id. ¶¶ 3-4. Copper Hills moved to set aside that dismissal. The district court granted the motion. Id. ¶ 4.
¶ 5 After the dismissal had been set aside, "Copper Hills filed an amended complaint adding twenty-five additional parties." Id. ¶ 5. This prompted the district court to issue "a new order to show cause ... ordering the parties to address whether" its prior decision to set aside the order of dismissal should be vacated. Id. And, "[f]ollowing a hearing, the district court issued an order in which it vacated the [order to set aside] and dismissed the case with prejudice." Id.
¶ 6 On appeal, the court of appeals vacated the district court's decision "insofar as it dismisse[d] the case with prejudice." Id. ¶ 12. Then it reinstated the district court's order dismissing the case without prejudice. Id.
¶ 7 One day shy of 180 days from when the court of appeals issued its decision, but more than eight years from when the liens were initially recorded, Copper Hills filed the action that now comes before us. Shortly thereafter, appellees Countrywide Bank and Mortgage Electronic Registration Systems (MERS) moved to dismiss the claims against them, arguing that "Copper Hills ... violated the 180-day limitation" in Utah Code section 38-1-11(2) (2007).
¶ 8 Based on appellees' argument, the district court concluded that several of Copper Hills's liens were "time-barred, void, and unenforceable." And, as a result, it issued the five orders presently before us.
¶ 9 The district court sought to certify each of these orders as final and appealable under rule 54(b). To this end, it sought to grant 54(b) certification to the first three items by an order dated September 27, 2016. And it sought to grant 54(b) certification as to the fourth and fifth orders with language in the orders themselves. As we explain below, each of these certifications was ineffectual.
II
¶ 10 As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that "end[s] the controversy between the litigants." Anderson v. Wilshire Invs., L.L.C. ,
¶ 11 The obvious and "principal rationale for limiting the right to aрpeal in this way is to 'promote [ ] judicial economy by preventing piecemeal appeals in the same litigation to this Court.' " Anderson ,
¶ 12 "This court has consistently upheld the final judgment rule." Bradbury v. Valencia ,
¶ 13 The first exception to the final judgment rule "is when the legislature provides a statutory avenue for appealing nonfinal orders." Powell ,
¶ 14 The second exception is an interlocutory appeal. Our rules of appellate procedure prescribe when an interlocutory appeal may be requested:
An appeal from an interlocutory order may be sought by any party by filing a petition for permission to appeal from the interlocutory order with the clerk of the appellate court with jurisdiction over the case within 20 days after the entry of the order of the trial court, with proof of service on all other parties to the action.
UTAH R. APP. P. 5(a). An interlocutory appeal is a discretionary appeal of a non-final order, meaning that the appellate court has the discretion to hear the appeal as it is not an appeal as a matter of right. See Williams ,
¶ 15 The third exception, and the one with which we concern ourselves in this opinion, is an appeal brought under rule 54(b) of the Utah Rules of Civil Procedure. It provides:
When an action presents more than one claim for relief-whether as a claim, counterclaim, cross claim, or third party claim-and/or when multiple parties are involved, the court may enter judgment as to one or more but fewer than all of the claims or pаrties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties, and may be changed at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
UTAH R. CIV. P. 54(b) ; see also Williams ,
¶ 16 "By the terms of [r]ule 54(b), a ruling must meet three requirements in order to be appealable."
¶ 17 In applying these requirements, we have steadfastly adhered to a "narrow approach to 54(b) certifications" and advised our district courts to do the same. Kennecott ,
¶ 18 In Kennecott , we carefully reviewed the merits of two competing "approaches to determining when a claim is separate and an order disposing of it is eligible for treatmеnt as a 'final' judgment and certification under rule 54(b)."
¶ 19 Upon сompleting our review, we decidedly eschewed the "broad reading" afforded rule 54(b) by the Second Circuit, declaring it to be "inapposite when construing the Utah rule."
¶ 20 In Bennion we took "another step toward building workable guidelines to be used by the [district] courts of this state as they judge whether a claim is separate and whether their decision to certify the claim would pass muster in our appellate courts."
¶ 21 To help address this problem, we reemphasized the importance of complying with Utah Rule of Civil Procedure 52(a), requiring district courts to "enter findings supporting the conclusion that [the certified] orders are final."
¶ 22 And, while we arе by no means tethered to the interpretation afforded by the Tenth Circuit to the federal variant of rule 54(b), we also do not exist in a vacuum. We appreciate that there is often value in having the appellate courts of a particular locale speak consistently when it comes to the interpretation of substantively identical procedural rules, like 54(b). See Kennecott ,
III
¶ 23 When we apply these principles to this case, we conclude that the 54(b) certification orders at issue are deficient. There are four distinct reasons.
¶ 24 First, the stipulation for entry of judgment and order dismissing the case, dated August 30, 2016, does not meet the second Kennecott requirement that this order is not one that would "have been entered on an order that would be appealable but for the fact that other claims or parties remain in the action." Kennecott Corp. v. Utah State Tax Comm'n ,
¶ 25 Paragraph 5 of the August 30 order awards defendants Jason Turner, Primelending, and MERS "an award of reasonable attorney[ ] fees and costs incurred ... on the mechanic[']s liens issues," but leaves open the amount of those fees. Because the ProMax Development rule applies to this appeal,
¶ 27 Third, while the district court did expressly state that "there is no just reason for delay" in certifying the fourth and fifth items,
¶ 28 Fourth, neither the 54(b) certifications nor the underlying orders contain the kind of careful explanation of the lack of factual overlap between the certified and remaining claims that we rеquire to fairly evaluate the district court's certification decisions. By way of example only, there is no discussion of what claims remain, other than attorney fees, and whether none, some, or all of those claims are based on different legal theories or operative facts. While this alone would not create a jurisdictional bar, it is self-evident that we cannot review the district court's analysis in this regard if analysis is not provided.
IV
¶ 29 Nothing in this opiniоn should be interpreted as holding that the parties cannot obtain proper rule 54(b) certification of the relevant orders. Perhaps it shall come to pass. But, for the reasons we have identified, the 54(b) certifications currently before us do not lay a sufficient foundation for the exercise of our appellate jurisdiction.
Notes
Our decision in Palmer v. First National Bank of Layton ,
Below, the district court and the "parties appropriately relied on the version of the mechanic[']s lien statute ... in effect," Uhrhahn Constr. & Design, Inc. v. Hopkins ,
The five relevant orders are: (1) order granting motions to dismiss and declaring mechanic's liens void, dated July 13, 2016; (2) order and judgment awarding attorney fees and costs to defendants Utah Community Federal Credit Uniоn, Stearns Lending, Inc., Marcus Griffin, Diane Griffin, and Eldon Griffin, dated July 13, 2016; (3) order and judgment awarding attorney fees and costs to defendants Countrywide Bank, FSB and Mortgage Electronic Registration Systems, Inc., dated August 1, 2016; (4) stipulation for entry of judgment based on law of the case and order dismissing case as to certain defendants, dated August 30, 2016; and (5) judgment based on the law of the case and order dismissing case as to lot 10 in Dearborne Heights PUD Phase 1, dated October 5, 2016.
Since we find that deficient 52(a) findings hinder our ability to review 54(b) final judgments, we refer this problem to our civil rules committee to consider whether to add language to rule 54(b) requiring something more than just a bare, express determination that there is "no just reason for delay."
We also echo the Tenth Circuit's standards of review "[f]or [r]ule 54(b) certifications." New Mexico v. Trujillo ,
We acknowledge that the certifications at issue here satisfy the first requirement of the rule 54(b) test: the existence of "multiple claims for relief or multiple parties to the action." Butler v. Corp. оf the President of the Church of Jesus Christ of Latter-Day Saints ,
After the 2016 amendments, paragraph (f) of rule 58A reads "[a] motion or claim for attorney fees does not affect the finality of a judgment for any purpose." It then goes on to provide that "under Rule of Appellate Procedure 4, the time in which to file the notice of appeal runs from the disposition of the motion or claim." Utah R. Civ. P. 58A(f). We have some concern that these two clauses are somewhat internally inconsistent. And we invite our advisory committee on the rules of civil procedure to consider a rule in line with the federal variant. See Fed. R. Civ. P. 58(e).
The operative notice of appeal in this matter was filed on October 27, 2016, five days prior to when the 2016 amendments to rule 58A took effect. As a result, the ProMax Development rule pertains. See State v. Clark ,
We own that our decisions vary in the jurisdictional terms they emрloy to describe the issue of whether an order is final. See A.S. v. R.S. ,
The same is true of the September 20, 2016 ruling on request for rule 54(b) certification, which preceded thе September 27 order.
Again, these three items are (1) order dated July 13, 2016; (2) order and judgment dated July 13, 2016; and (3) order and judgment dated August 1, 2016.
The fourth item is the August 30 order; the fifth is dated October 5, 2016.
Copper Hills argues in a Petition for Rehearing, which we have denied, that the lack-of-factual-overlap analysis should be limited to multiple claim (versus multiple party) cases. We agree that in multiple party cases 54(b) certification may still be appropriate even if there is complete overlap between the certified claims and the remaining claims. And nothing in this opinion should be interpreted as being to the contrary. Nevertheless, we still require our district courts to explain whether in any given matter there is factual overlap between the certified claims and the remaining claims and why, despite any overlap, 54(b) certification is appropriate.
Rule 5(a) of the Utah Rules of Appellate Procеdure, allows us, in our discretion, to treat certain improper 54(b) certifications as interlocutory appeals. We decline to exercise that discretion here for three reasons. First, we see no basis in the materials before us to conclude that this "appeal may materially advance the termination of the litigation," an integral showing in any interlocutory appeal. Utah R. App. P. 5(c)(1)(D). Second, the parties have the ability to ask the district court to re-certify the relevant orders. And third, we believe this is an allowance that we should wield judiciously and sparingly.