This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 3

IN THE

SUPREME COURT OF THE STATE OF UTAH

GLENDA MCGIBBON,

Appellant,

v.

FARMERS INSURANCE EXCHANGE,

Appellee.

No. 20120484

Filed January 23, 2015

Second District, Ogden Dep’t

The Honorable Scott M. Hadley

No. 090902055

Attorneys:

Erik M. Ward, Lindy W. Hamilton, Robert W. Gibbons

Salt Lake City, for applellant

Lloyd R. Jones, Salt Lake City, for appellee

JUSTICE DURHAM authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

JUSTICE PARRISH, and JUSTICE LEE joined.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 Glenda McGibbon appeals from a district court order

compelling her to arbitrate her claims against her insurance

company, Farmers Insurance Exchange (Farmers). We conclude that

we lack jurisdiction to consider her appeal and therefore dismiss it

without ruling on its merits.

BACKGROUND

¶2 Ms. McGibbon filed this lawsuit after being injured in an

automobile accident. At the time of the accident, she owned an

insurance policy with Farmers that included uninsured motorist

coverage.

¶3 Because insurers who provide such coverage ultimately

bear the uninsured motorists’ liability, they may contest that liability

by intervening in their policyholders’ lawsuits against the

uninsured. Farmers did so, becoming a defendant and filing an

answer to Ms. McGibbon’s complaint. The parties later stipulated to

dismiss theuninsured driver, leaving Farmers as the sole defendant.
MCGIBBON v. FARMERS INSURANCE

Opinion of the Court

2

¶4 After filing its answer, Farmers proposed that the parties

stipulate to arbitration, but Ms. McGibbon refused. Farmers then

sought to compel arbitration based on an arbitration clause in

Ms. McGibbon’s policy. The district court granted Farmers’ motion

and dismissed Ms. McGibbon’s complaint.

¶5 Ms. McGibbon petitioned this court for interlocutory

review of the district court’s order, and we provisionally granted

review subject to a subsequent determination that we have

jurisdiction over the appeal. For reasons explained below, we

conclude that we lack jurisdiction and therefore dismiss the appeal.

STANDARD OF REVIEW

¶6 Because we lack jurisdiction, we do not review the decision

of the district court and no standard of review applies.

ANALYSIS

¶7 The Utah Rules of Appellate Procedure establish two

procedures through which parties before the district court may seek

appellate review. In order to challenge an interlocutory order, a

party must file a petition with the appropriate appellate court. UTAH

R. APP. P. 5(a). A challenge to a final order, on the other hand, may

not be commenced by filing a petition in the appellate court. Rather,

a party wishing to appeal from a final order must file a notice of

appeal in the district court that entered the order. Id. 4(a).

¶8 We conclude that Ms. McGibbon has satisfied the

requirements of neither of these procedures. Because she is

challenging a final order, we may not hear her case as an

interlocutory appeal. And because she failed to file a timely notice

of appeal in the district court, we may not hear the case as an appeal

of a final order. We therefore lack jurisdiction and must dismiss

Ms. McGibbon’s appeal.

I. THE DISTRICT COURT’S ORDER WAS FINAL

¶9 In Powell v. Cannon, we held that when a district court

orders a stay of litigation pending the completion of arbitration, the

order is not final if the court retains jurisdiction to resolve any

remaining issues after the conclusion of arbitration proceedings.

2008 UT 19, ¶ 18, 179 P.3d 799. In Zions Management Services v.

Record, however, we clarified that if the only issue before the court

is whether to compel arbitration, an order compelling arbitration is

“a final decision because it effectively end[s] the controversy

between the parties and [leaves] no claims pending before the

district court.” 2013 UT 36, ¶ 26, 305 P.3d 1062 (internal quotation

marks omitted).
Cite as: 2015 UT 3

Opinion of the Court

3

¶10 In this case, the district court dismissed Ms. McGibbon’s

lawsuit when it compelled arbitration. It did not retain jurisdiction

over the proceedings because there remained nothing left for it to

resolve once arbitration was finished. The order compelling

arbitration was therefore a final order under Zions Management.

¶11 Because the district court’s order was final, we cannot

review it on interlocutory appeal. This is apparent from the plain

language of the rule governing interlocutory appeals, which allows

parties to initiate an appeal by petitioning the appellate court only

when they seek “[a]n appeal from an interlocutory order.” UTAH R.

APP. P. 5(a).

¶12 This conclusion is further supported by our precedent. In

Clark v. Archer, we held that rules 3 and 4, not rule 5, “provide the

procedural mechanism for a party to appeal a final order. When a

district court has entered a final judgment [or other final order],

parties to the litigation are bound to follow the procedural

requirements of [rules 3 and 4] in seeking appellate review.” 2010

UT 57, ¶ 9, 242 P.3d 758.

¶13 The law is clear: Ms. McGibbon could not appeal the

district court’s final order by following the requirements of rule 5.

The question, then, is whether her filings satisfied the requirements

of rules 3 and 4. We address this question below.

II. FILING A PETITION FOR INTERLOCUTORY APPEAL

WITH THE SUPREME COURT DOES NOT SATISFY

RULES 3 AND 4

¶14 Rules 3 and 4 of the Utah Rules of Civil Procedure make

clear that an appeal from a final order may not be heard unless the

appellant filed a notice of appeal with the district court within thirty

days of the order’s entry. The “[f]ailure of an appellant to take any

step other than the timely filing of a notice of appeal does not affect

the validity of the appeal,” UTAH R.APP.P. 3(a), but the failure of an

appellant to file a notice of appeal prevents the appellate court from

taking jurisdiction of the case. Prowswood, Inc. v. Mountain Fuel

Supply Co., 676 P.2d 952, 955 (Utah 1984) (“It is axiomatic in this

jurisdiction that failure to timely perfect an appeal is a jurisdictional

failure requiring dismissal of the appeal.”), superseded in part on other

grounds by procedural rule, UTAH R. APP. P. 3, as recognized in Clark v.

Archer, 2010 UT 57, ¶ 14, 242 P.3d 758.

¶15 In applying this rule, we note that the caption on a court

filing is not dispositive. “When determining whether a notice of

appeal is sufficient, we look to the substance of the notice—not its

caption.” Cedar Surgery Ctr., L.L.C. v. Bonelli, 2004 UT 58, ¶ 12, 96

P.3d 911. If an appellant files an incorrectly captioned document that
MCGIBBON v. FARMERS INSURANCE

Opinion of the Court

4

“otherwise complie[s] with the content and service requirements of

rule 3,” and does so within the deadlines set by rule 4, the

“misdesignation of the appeal . . . [is] harmless.” Id. Under such

circumstances, the appellate court may take jurisdiction of the case.

¶16 But in this case, Ms. McGibbon did not file a notice of

appeal with the district court, correctly captioned or otherwise. The

appellant in Cedar Surgery satisfied the requirements of rules 3 and

4 by filing a copy of its petition for permission to appeal in the

district court as well as in the appellate court. Id. ¶¶ 5, 11. But

Ms. McGibbon did not file a copy of her petition in the district court;

indeed, she filed nothing at all in the district court between the entry

of the court’s final order and the thirty-day deadline.

¶17 The only notice the district court received of

Ms. McGibbon’s appeal was a routine form letter sent by the

supreme court to the district court after she filed her petition.

Although the language of rule 3 is not entirely clear as to whether a

document that is in the record but not filed by the appellant can

constitute a notice of appeal, we think the better reading of the text

is that it cannot—that the notice of appeal must be a document filed

by the appellant and not merely a letter sent by the appellate court.

In any case, the supreme court’s letter in this proceeding could not

serve as a notice of appeal because it does not contain all the

information required by rule 3. Specifically, it does not “specify the

party or parties taking the appeal,” and it does not “designate the

judgment or order . . . appealed from.” UTAH R. APP. P. 3(d).

¶18 We therefore conclude that Ms. McGibbon has not filed a

notice of appeal and that we lack jurisdiction to consider her case.

Had she filed a copy of her interlocutory petition in the district

court, we could have treated it as a notice of appeal if it satisfied the

requirements of rules 3 and 4. See Cedar Surgery, 2004 UT 58, ¶ 11.

But because she failed to file anything in the district court that

satisfied those requirements, her case is disposed of by our holding

in Clark v. Archer: the failure to file a notice of appeal in the district

court “cannot be corrected by the erroneous filing of a petition for

interlocutory appeal” in the appellate court. 2010 UT 57, ¶ 13, 242

P.3d 758.

CONCLUSION

¶19 Ms. McGibbon’s appeal is therefore dismissed.