1. The Honorable Russell W. Bench, Senior Judge, sat by special

assignment as authorized by law. See generally Utah Code Jud.

Admin. R. 11-201(6).

2014 UT App 199

_________________________________________________________

THE UTAH COURT OF APPEALS

DALE K. BARKER CO., PC,

Plaintiff and Appellant,

v.

JOHN K. BUSHNELL AND BUSHNET, PC,

Defendants and Appellees.

Memorandum Decision

No. 20130255-CA

Filed August 21, 2014

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 060909585

Shawn D. Turner, Attorney for Appellant

James C. Lewis, Attorney for Appellees

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum

Decision, in which JUDGE GREGORY K. ORME and SENIOR JUDGE

RUSSELL W. BENCH concurred.1

CHRISTIANSEN, Judge:

¶1 John K. Bushnell hired Dale K. Barker Co., PC (Barker Co.)

to provide tax and accounting services for Bushnell and his

company, Bushnet, PC (collectively, Bushnell). The services

contract between Bushnell and Barker Co. included an attorneyfees provision stating that in the event of a breach, the “nondefaulting party shall be entitled to all costs and attorneys’ fees
Dale K. Barker Co. v. Bushnell

20130255-CA 2 2014 UT App 199

incurred in enforcing this Agreement.” When Bushnell allegedly

failed to pay Barker Co. as agreed under the contract, Barker Co.

sued Bushnell for breach of contract. Bushnell counterclaimed

against Barker Co. for breach of contract and negligence. Bushnell

also filed a third-party complaint against Dale Barker in his

individual capacity, alleging that Barker Co. was Barker’s alter ego,

and seeking to hold Barker personally liable for any judgment

entered against Barker Co.

¶2 Dale Barker moved for a directed verdict on the third-party

complaint during the bench trial on April 3, 2008. The district court

granted Barker’s motion. Barker submitted a request for attorney

fees and costs incurred in defending against the third-party

complaint, but the district court denied his request. After trial, the

district court dismissed Bushnell’s negligence counterclaim, found

against Barker Co. on its breach-of-contract claim, and entered

judgment in favor of Bushnell on its breach-of-contract

counterclaim. Bushnell subsequently submitted a request for

attorney fees and costs, which the district court granted.

¶3 Dale Barker appealed the district court’s denial of his

request for fees and costs that he incurred in defending against the

third-party complaint. Dale K. Barker Co. v. Bushnell, 2009 UT App

385, ¶ 1, 222 P.3d 1188. This court affirmed the district court’s

denial of Barker’s request. Id. ¶ 10. Our supreme court later

affirmed the denial of Barker’s requested attorney fees, but

reversed as to costs. Bushnell v. Barker, 2012 UT 20, ¶ 1, 274 P.3d

968.

¶4 Barker Co. separately appealed the district court’s award of

fees and costs to Bushnell. Dale K. Barker Co. v. Bushnell, 2010 UT

App 189, ¶ 15, 237 P.3d 903. This court reversed the district court’s

award of fees and costs and remanded with instructions that the

district court should “carefully examine the fees requested and

reject any fees for claims in which Bushnell was not successful, i.e.,

his negligence counterclaim and his third-party complaint.” Id.

Additionally, we instructed the court to “make adequate findings
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20130255-CA 3 2014 UT App 199

of fact to support its attorney fee award and the reasonableness of

that award.” Id. We gave similar instructions regarding costs, and

we authorized a partial award of fees incurred on appeal. Id.

¶¶ 18–19. The supreme court declined to review that decision.

Barker v. Bushnell, 245 P.3d 757 (Utah 2010) (denying petition for

writ of certiorari).

¶5 After this court’s remand and purportedly consistent with

our instructions, the district court entered an amended order for

attorney fees and costs in favor of Bushnell in November 2011. The

court also concluded that Bushnell was entitled to additional

attorney fees and costs incurred as of December 2010. In response,

Bushnell filed another request for attorney fees and costs, which

the court granted in an order entered May 14, 2012. This May 2012

order was the final order resolving all issues pertaining to attorney

fees in this case, as reflected by express language to that effect in

the court’s order. However, the district court referenced the

supreme court’s decision regarding Dale Barker’s costs stemming

from the third-party complaint, see Bushnell, 2012 UT 20, ¶ 19,

stating in the May 2012 order, “If [Dale Barker] desires a

determination on costs . . . please submit[] or resubmit those costs

and file a Notice to Submit so the Court may determine the same.”

Barker subsequently filed a request for his costs, and the district

court awarded them on February 6, 2013.

¶6 Barker Co. filed a notice of appeal on March 6, 2013. In its

notice of appeal, Barker Co. asserted that the final order entered in

this case was the district court’s February 2013 order awarding

costs to Dale Barker. However, Barker Co.’s notice of appeal

indicates that it appealed only from the November 2011 amended

order and the May 2012 order, both of which awarded attorney

fees and costs to Bushnell. Barker Co. requests that we either vacate

or modify the November 2011 and May 2012 orders, arguing that

after remand Bushnell improperly categorized the attorney fees in

its fees affidavit submitted to the district court and that some of the

fees requested by Bushnell were unreasonable. Barker Co. makes

a similar argument with regard to the costs awarded to Bushnell.
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20130255-CA 4 2014 UT App 199

¶7 Bushnell argues that Barker Co. failed to timely file its

appeal pursuant to rule 4 ofthe Utah Rules of Appellate Procedure

and that we therefore lack jurisdiction and must dismiss Barker

Co.’s appeal. “Whether this court has jurisdiction to hear an appeal

is a question of law.” Pearson v. South Jordan Emp. Appeals Bd., 2009

UT App 204, ¶ 8, 216 P.3d 996 (citation and internal quotation

marks omitted). Because jurisdiction is a threshold issue, we must

address it before considering the merits of Barker Co.’s appeal. See

id.

¶8 “An appeal may be taken from a district . . . court to the

appellate court with jurisdiction over the appeal from all final

orders and judgments . . . .” Utah R. App. P. 3(a) (emphasis added).

A party wishing to appeal from a final order or judgment must file

its notice of appeal “within 30 days after the date of entry of the

judgment or order.” Id. R. 4(a). Generally, if a party files its notice

of appeal after the thirty-day period has expired, the appeal “is not

timely filed” and “this court lacks jurisdiction.” Foster v.

Montgomery, 2003 UT App 405, ¶ 14, 82 P.3d 191 (citation and

internal quotation marks omitted). But see Utah R. App. P. 4(b)

(listing the motions that would extend the date for filing a notice of

appeal). “When a matter is outside [a] court’s jurisdiction it retains

only the authority to dismiss the action.” Varian–Eimac, Inc. v.

Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

¶9 For an order or judgment to be considered final, it “must

end the controversy between the litigants” or, “[i]n other

words, . . . the trial court’s decision must dispose of the claims of all

parties.” Loffredo v. Holt, 2001 UT 97, ¶ 12, 37 P.3d 1070. In the

context of attorney fees, our supreme court has held that “a trial

court must determine the amount of attorney fees awardable to a

party before the judgment becomes final for the purposes of an

appeal under Utah Rule of Appellate Procedure 3.” ProMax Dev.

Corp. v. Raile, 2000 UT 4, ¶ 15, 998 P.2d 254. However, the same is

not true for an award of costs: In Beddoes v. Giffin, the supreme

court explained that although “disputes as to attorney fees must be
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20130255-CA 5 2014 UT App 199

resolved in order to have a final judgment for appeal, . . . disputes

as to court costs need not.” 2007 UT 35, ¶ 11, 158 P.3d 1102. The

court continued,

The question before us in this case is whether a

motion for an award of costs filed after the entry of

judgment delays the entry of judgment for purposes

of appeal until the motion is resolved. . . . [T]he

answer is no. Only material matters that affect the

substance and character of a judgment must be

resolved before a judgment is final. Court costs and

other matters clerical in nature are not material and

do not need to be resolved for a judgment to be final

for the purposes of an appeal.

Id. ¶ 12.

¶10 Here, the district court’s May 2012 order disposed of the last

remaining attorney-fees claim in this case. By this point, all other

“material matters” had been resolved, including all substantive

claims and attorney-fees issues stemming from the underlying

litigation, attorney-fees issues stemming from fees incurred during

the several appeals taken in this case, and the recalculation of

Bushnell’s fees after remand. As of May 14, 2012, the only

outstanding issue in this case was the calculation of Dale Barker’s

court costs that he incurred in defending against the third-party

complaint. However, “[c]ourt costs . . . are not material and do not

need to be resolved for a judgment to be final for the purposes of

an appeal.” Id. Accordingly, the May 2012 order effectively

“end[ed] the controversy between the litigants,” see Loffredo, 2001

UT 97, ¶ 12, and thus the district court correctly identified that

order as final. Although the court awarded Dale Barker his costs in

February 2013, the final order in this case for purposes of

determining our jurisdiction over Barker Co.’s appeal is the May

2012 order. Because Barker Co. did not file its notice of appeal until

March 6, 2013—more than thirty days after entry of the May 2012

order—or file any motion that would have extended the time for
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20130255-CA 6 2014 UT App 199

appeal, Barker Co.’s appeal is not timely filed. See Foster, 2003 UT

App 405, ¶ 14. We therefore lack jurisdiction and must dismiss. See

Varian–Eimac, Inc., 767 P.2d at 570.

¶11 Appeal dismissed.