2013 UT App 2

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

J EREMY Z IEGENBUSCH

,

Plaintiff and Appellant,

v.

W ESTMINSTER C OLLEGE

,

Defendant and Appellee.

Per Curiam Decision

No. 20120946

‐ CA

Filed January 4, 2013

Third District, West Jordan Department

The Honorable Andrew H. Stone

No. 090415154

Loren M. Lambert, Attorney for Appellant

Robert H. Wilde, Bruce M. Franson, and Michael S. Wilde,

Attorneys for Appellee

Before J UDGES O RME

, D AVIS

, and C HRISTIANSEN

.

PER CURIAM:

¶1 Jeremy Ziegenbusch appeals the entry of judgment against

him. This is before the court on Westminster College’s (Westmin

‐ ster) motion for summary disposition asserting that this court lacks

jurisdiction due to an untimely notice of appeal.

¶2 Ziegenbusch filed his first notice of appeal in October 2011,

after the trial court granted summary judgment in favor of

Westminster and dismissed Ziegenbusch’s claims. At that time,

Westminster’s counterclaim remained pending. The counterclaim

was put at issue before the trial court in mid

‐ 2012. After a hearing,Ziegenbusch v. Westminster College

20120946

‐ CA 2013 UT App 2 2 the trial court granted summary judgment in favor of Westminster

on its counterclaim. The final order on the counterclaim, the sole

remaining issue between the parties, was entered on August 10,

2012. Ziegenbusch filed a second notice of appeal, captioned as a

“renewal of notice of appeal,” on September 28, 2012.

¶3 The issue before the court is whether either of the two

notices of appeal filed in this case properly invokes this court’s

jurisdiction. We determine that both are insufficient but for

different reasons. The October 2011 notice of appeal was filed

before the entry of a final order and was thus premature. The

September 2012 notice was not filed within thirty days of the entry

of the final order and was thus untimely.

¶4 Generally, an appeal taken from an order that is not final is

improper and does not establish jurisdiction in an appellate court.

See Bradbury v. Valencia

, 2000 UT 50, ¶¶ 8–9, 5 P.3d 649. An order

is final when it disposes of all of the issues between the parties and

“ends the controversy between the parties.” Id. ¶ 9. An order of

summary judgment on a plaintiff’s claim will not constitute a final

order where a counterclaim remains pending. See id. ¶ 10. Here, the

October 2011 notice of appeal was filed when Westminster’s

counterclaim was pending. Accordingly, there was no final order

from which to appeal and the October 2011 notice did not invoke

this court’s jurisdiction. See id.

¶5 Appeals from final orders may be taken by filing a notice of

appeal within thirty days after the entry of the judgment or order

appealed. See Utah R. App. P. 4(a). Where an appeal is not timely

filed, this court lacks jurisdiction over the appeal. See Serrato v. Utah

Transit Auth.

, 2000 UT App 299, ¶ 7, 13 P.3d 616. The final order in

this case was entered on August 10, 2012. The notice filed on

September 28, 2012, was beyond the thirty

‐ day time period and,

thus, was untimely. Accordingly, this court lacks jurisdiction over

this appeal.Ziegenbusch v. Westminster College

20120946

‐ CA 2013 UT App 2 3 ¶6 Ziegenbusch argues that the October 2011 notice of appeal

is timely under the savings provision of rule 4(c) of the Utah Rules

of Appellate Procedure. However, rule 4(c) does not apply in this

circumstance. Rule 4(c) provides that a notice of appeal filed “after

the announcement of a decision, judgment or order but before

entry of the judgment or order shall be treated as filed after such

entry and on the day thereof.” Utah R. App. P. 4(c). However, rule

4 applies to appeals taken as a matter of right, e.g., from final

orders. See id. R. 4(a). Here, the October 2011 notice was not filed

after the entry of a final order or after the announcement of a final

decision, but was filed after the entry of an interlocutory order. The

counterclaim was not before the trial court for decision until

months later. Accordingly, the sequence here does not come within

the scope of rule 4(c), i.e., a notice filed after the announcement of

a final decision but before the entry of a formal order. Therefore,

the October 2011 notice of appeal was simply ineffective and

cannot be “renewed” after the entry of a final order.

¶7 Additionally, Ziegenbusch notes that Westminster failed to

comply with rule 58A(d) of the Utah Rules of Civil Procedure

because it failed to serve him with notice of the entry of judgment.

Even if correct, however, the failure to serve notice does not affect

the time for filing a notice of appeal. See Utah R. Civ. P. 58A(d).

¶8 In sum, the October 2011 notice of appeal was filed prema

‐ turely and the September 2012 notice of appeal was filed late.

Neither notice was effective to invoke the jurisdiction of this court.

Where we lack jurisdiction over an appeal, we must dismiss it. See

Bradbury

, 2000 UT 50, ¶ 8.

¶9 Dismissed.

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