1.  The district court declined to rule on Cody’s motion to reconsider the ruling

dismissing Hutchison from the case because Cody had filed a notice of appeal.  Based

upon our dismissal of this appeal for lack of a final appealable order, the district court is

(continued...)

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

Jason Cody,

Plaintiff and Appellant,

v.

John Blair Hutchison; and

Hutchison and Neider PC,

Defendants and Appellee.

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PER CURIAM DECISION

Case No. 20111000‐CA

F I L E D

(March 1, 2012)

    2012 UT App 63

‐‐‐‐‐

Second District, Ogden Department, 110902684

The Honorable Michael D. DiReda

Attorneys: Jason Cody, Ogden, Appellant Pro Se

‐‐‐‐‐

Before Judges McHugh, Voros, and Orme.

¶1 Jason Cody appeals the ruling granting an order to quash service and dismissing

John Blair Hutchison from the case without prejudice.  This case is before the court on a

sua sponte motion to dismiss the appeal without prejudice because it is not taken from a

final appealable judgment.

¶2 Cody filed a complaint against John Blair Hutchison, individually, and against

Hutchison and Neider PC.  Hutchison and Neider PC was served and filed an answer

to the complaint.  John Blair Hutchison moved to quash service.  In its ruling granting

the motion to quash service, the district court dismissed the case against John Blair

Hutchison individually without prejudice.  However, the case remains pending in the

district court against the remaining named defendant, Hutchison and Neider PC.1
1.  (...continued)

free to consider the motion to reconsider its ruling after remand of this case.  See Utah R.

Civ. P. 54(b) (“[A]ny order . . . that adjudicates fewer than all the claims or the rights

and liabilities of fewer than all the parties shall not terminate the action as to any of the

claims or parties, and the order . . . is subject to revision at any time before the entry of

judgment adjudicating all the claims and the rights and liabilities of all the parties.”);

Gillett v. Price, 2006 UT 24, ¶ 7 n.2, 135 P.3d 861 (stating that a motion to reconsider that

is filed before final judgment is a reargument that the district court “is free to consider

any time before entering the final judgment”).

20111000‐CA 2

¶3 The ruling being appealed is not a final, appealable order because the complaint

is pending in the district court against the remaining defendant, Hutchison and Neider

PC.  Rule 3(a) of the Utah Rules of Appellate Procedure states that “[a]n appeal may be

taken from a district or juvenile court to the appellate court with jurisdiction over the

appeal from all final orders and judgments.”  Utah R. App. P. 3(a).  An order is final and

appealable when it disposes of the case as to all of the parties and disposes of the

subject matter of the litigation on the merits.  See Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5

P.3d 649; see also Loffredo v. Holt, 2001 UT 97, ¶ 12, 37 P.3d 1070; Houston v. Intermountain

Health Care, 933 P.2d 403, 406 (Utah Ct. App. 1997) (“Generally, a judgment is not a

final, appealable order if it does not dispose of all the claims in a case, including

counterclaims.”).  An appeal taken from an order that is not final must be dismissed for

lack of appellate jurisdiction.  See Bradbury, id. at ¶ 8; see also Varian‐Eimac, Inc. v.

Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989) (stating that once a court determines

that it lacks jurisdiction, it “retains only the authority to dismiss the action”).

¶4 Because the appeal is not taken from a final, appealable judgment, we dismiss

the appeal without prejudice to a timely appeal filed after the entry of a final judgment.

____________________________________

Carolyn B. McHugh,

Presiding Judge

____________________________________

J. Frederic Voros Jr.,

Associate Presiding Judge

____________________________________

Gregory K. Orme, Judge