This opinion is subject to revision before final

Publication in the Pacific Reporter

2014 UT 42

IN THE

SUPREME COURT OF THE STATE OF UTAH

DAVID AND KATHERYN GARVER,

Appellants,

v.

THOMAS ROSENBERG, M.D., et. al.,

Appellees.

No. 20140197

Filed October 10, 2014

Third District, Salt Lake

The Honorable Denise P. Lindberg

No. 070901824

Attorneys:

Clark Newhall, Salt Lake City, for appellants

Elliott J. Williams, Carolyn Stevens Jensen, Jesse A. Frederick, 

Salt Lake City, for appellees

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which

ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM, 

JUSTICE PARRISH, and JUSTICE LEE joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 This matter comes before the court on an appeal following 

the district court’s entry of an order purporting to reissue a 

judgment pursuant to rule 60(b) of the Utah Rules of Civil 

Procedure. We conclude that the district court erred in reissuing the 

judgment and that we lack jurisdiction to address the underlying 

merits of the appeal. 
GARVER v. ROSENBERG

Opinion of the Court

2

Background

¶2 David and Katheryn Garver filed a medical malpractice 

action against Dr. Thomas Rosenberg and several other medical 

providers. The claims brought by David Garver were referred to 

arbitration. The claims brought by Katheryn Garver were stayed 

pending the outcome of the arbitration proceedings. The Garvers 

filed an appeal in this court shortly after the arbitration panel issued 

its decision but prior to the district court confirming that arbitration 

ruling or disposing of Katheryn Garver’s separate claims. According 

to the district court’s subsequent observation, the Garvers’ counsel 

nonetheless ―continued filing motions in the case, and those matters 

were fully briefed and addressed by the court without [any party 

asserting] that the court lacked jurisdiction.‖ 

¶3 On March 15, 2013, the district court entered a judgment 

confirming the arbitration decision and dismissing the remainder of 

the pending claims. That judgment resolved all claims as to all 

parties. We subsequently dismissed as premature the appeal that 

had preceded the March 15 judgment. The Garvers failed to file a 

separate timely appeal of the March 15 judgment.

¶4 On May 21, 2013, more than sixty days after entry of the 

March 15 judgment, the Garvers filed a motion pursuant to 

rule 60(b) of the Utah Rules of Civil Procedure. That motion 

presumed that the district court had been divested of jurisdiction by 

the Garvers’ premature notice of appeal and that it lacked 

jurisdiction to enter the March 15 judgment. The district court agreed 

with those contentions and purported to reissue the judgment. In so 

doing, it purported to ―amend‖ the judgment, but it did not grant 

any affirmative relief other than reissuance of the original judgment, 

and it did not substantively alter the original decision. 

¶5 The Garvers then filed another notice of appeal. We agreed 

to retain the case but also noted that our appellate jurisdiction may 

be limited to reviewing the district court’s order purporting to 

amend and reissue the judgment dismissing the case. We requested 

that the parties file supplemental briefing addressing the question of 

―whether a premature notice of appeal divests a district court of 

jurisdiction to enter subsequent rulings on the merits of the case 

before it.‖ We have jurisdiction pursuant to Utah Code section 78A3-102(3)(j).
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Opinion of the Court

3

Standard of Review

¶6 ―Whether a trial court has subject matter jurisdiction [is] a 

question of law, which this Court reviews under a correction of error 

standard. . . .‖1

Analysis

¶7 As discussed below, the Garvers’ premature appeal did not 

divest the district court of jurisdiction to enter its March 15 

judgment. Accordingly, the Garvers’ deadline for filing a notice of 

appeal expired thirty days later, and it was error for the district court 

to rule otherwise. Our rules of civil and appellate procedure provide 

a set of mandatory, and jurisdictional, prerequisites that must be met 

before jurisdiction transfers from the district court to the appellate 

court. Where a party fails to comply with the rules, jurisdiction 

remains with the district court.

¶8 We begin by emphasizing, as we have done in a number of 

recent decisions, that parties ―may appeal only from a final, 

appealable order‖2 issued in accordance with rule 7(f)(2) of the Utah 

Rules of Civil Procedure,3 unless an exception to the rule applies.4

1 J.M.W. v. T.I.Z. (In re Adoption of Baby E.Z.), 2011 UT 38, ¶ 10, 266 

P.3d 702 (second alteration in original) (internal quotation marks 

omitted).

2 Cent. Utah Water Conservancy Dist. v. King, 2013 UT 13, ¶ 9, 297 

P.3d 619; see also UTAH R. APP. P. 3(a) (―An 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 . . . .‖ (emphasis 

added)). 

3 UTAH R. CIV. P. 7(f)(2) (―Unless the court approves the proposed 

order submitted with an initial memorandum, or unless otherwise 

directed by the court, the prevailing party shall, within 21 days after 

the court’s decision, serve upon the other parties a proposed order in 

conformity with the court’s decision.‖). 

4 See Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (―An appeal 

is improper if it is taken from an order or judgment that is not final, 

unless it fits within an exception to the final judgment rule.‖ (citation 

omitted)); A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325 

(Utah 1991) (―[T]here are exceptions to the final judgment rule when 

the order in question is eligible for certification under Utah Rule of 

Civil Procedure 54(b) and has been properly certified or when we 

have given permission in advance to the parties to take an appeal 

(continued)
GARVER v. ROSENBERG

Opinion of the Court

4

This ―rule is a mandatory prerequisite to appellate jurisdiction,‖ and 

―[c]ompliance with rule 7(f)(2) is not discretionary. The rule must be 

satisfied before a district court’s decision is considered final and 

appealable.‖5 If ―the final judgment rule is not satisfied, we lack 

jurisdiction over the appeal and must dismiss it.‖6 As we stated in 

Powell v. Cannon, where an arbitration panel’s decision is at issue, the 

decision is not final and appealable ―[u]ntil the district court enters 

judgment on the arbitration award.‖7 This is because, by statute, 

―[a]n agreement to arbitrate providing for arbitration in this state 

confers exclusive jurisdiction on the court to enter judgment on an 

award under this chapter.‖8

¶9 Rule 4 of the Utah Rules of Appellate Procedure also 

imposes strict jurisdictional limitations on the exercise of the right to 

appeal. Once a final judgment on the merits is entered in a civil case, 

parties have only thirty days to file a notice of appeal from the 

judgment,9 though the district court may extend this time period 

under certain circumstances.10 Although a party may toll this period 

by filing certain postjudgment motions, filing a motion under 

 

from an interlocutory order under Utah Rule of Appellate Procedure 

5.‖).

5 King, 2013 UT 13, ¶¶ 10, 25.

6 Powell v. Cannon, 2008 UT 19, ¶ 12, 179 P.3d 799. 

7 Id. ¶ 18. 

8 UTAH CODE § 78B-11-127(2).

9 UTAH R. APP. P. 4(a) (―In a case in which an appeal is permitted 

as a matter of right from the trial court to the appellate court, the 

notice of appeal required by Rule 3 shall be filed with the clerk of the 

trial court within 30 days after the date of entry of the judgment or 

order appealed from.‖). 

10 Id. 4(e) (―The trial court, upon a showing of excusable neglect or 

good cause, may extend the time for filing a notice of appeal upon 

motion filed not later than 30 days after the expiration of the time 

prescribed by paragraphs (a) and (b) of this rule.‖). Additionally, as 

of November 1, 2013, an amendment to rule 4 provided district

courts with the authority to reinstate the period for the filing of a 

notice of appeal, provided certain strict requirements specified by 

the new subparagraph (g) are satisfied.
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Opinion of the Court

5

rule 60(b) of the Utah Rules of Civil Procedure does not toll the time 

period to appeal the judgment.11 

¶10 Once a notice of appeal is filed, jurisdiction transfers from 

the district court to the appellate court for most matters in the case.12

But the notice must be timely—an untimely notice may ―trigger stern 

consequences,‖ precluding the appellate court from exercising 

jurisdiction.13 To be timely, a notice of appeal cannot be filed too late, 

but it also cannot be filed too early. At the very earliest, the notice 

may be filed ―after the announcement of a decision, judgment, or 

order.‖14 If it is filed before the court announces its decision, there is 

no ―final order[] [or] judgment[]‖15 to appeal from. At the very latest, 

11 Thomas v. Thomas, 2014 UT App 72, ¶ 2, 323 P.3d 612 (per 

curiam); see also UTAH R. APP. P. 4(b) (providing an exclusive list of 

postjudgment motions that toll the time for appeal).

12 As we recently clarified in Wisan v. City of Hildale, district courts 

retain authority to deny motions under rule 60(b) even after a notice 

of appeal is filed. 2014 UT 20, ¶ 21, 330 P.3d 76 (―Notwithstanding 

the filing of a notice of appeal, the district court still had jurisdiction 

to rule on the 60(b) motion pending before it.‖). ―However, if the 

district court is inclined to grant the motion, the movant must obtain 

an order of remand from the [appellate] court before an appropriate 

order or judgment is actually entered.‖ Baker v. Western Sur. Co., 757 

P.2d 878, 880 (Utah Ct. App. 1988) (emphasis added).

We also note that if the district court finds a valid basis for relief 

under rule 60(b), and elects to grant that relief in a manner that alters 

the original judgment, any such modification may be challenged by a 

separate appeal. See White v. State, 795 P.2d 648, 649–50 (Utah 1990)

(per curiam). And, to the extent the underlying judgment is revoked 

by a ruling on the rule 60(b) motion, any pending appellate 

challenges to the revoked portion of the judgment may be mooted 

unless the rule 60(b) ruling is reversed on appeal. See id.

District courts retain jurisdiction over other similar postjudgment proceedings, including the issuance of stays pending 

appeal and orders relating to enforcement of a judgment when a 

judgment is not stayed pending appeal. See, e.g., Cheves v. Williams, 

1999 UT 86, ¶¶ 45–49, 993 P.2d 191; White, 795 P.2d at 649–50. 

13 State ex rel. M.M. v. State, 2003 UT 54, ¶ 3, 82 P.3d 1104.

14 UTAH R. APP. P. 4(c). 

15 Id. 3(a).
GARVER v. ROSENBERG

Opinion of the Court

6

the notice of appeal may be filed thirty days from entry of the 

judgment, unless the time to appeal is extended under rule 4(e).16

Otherwise, jurisdiction remains with the district court.17

¶11 The parties cite to language in several of our previous 

decisions, including in Wood v. Turner, that suggests that any notice 

of appeal—whether premature or not—still divests district courts of 

jurisdiction.18 Several of these opinions predate the current version 

of our rules of appellate procedure, however, which now clarifies 

that a notice of appeal must be filed, at the earliest, after the court 

announces its judgment.19 And none of the cases that the Garvers cite 

16 Supra ¶ 9.

17 Federal courts, under a nearly identical federal rule of appellate 

procedure, have concluded that a premature notice of appeal does 

not divest the district court of jurisdiction over the case. Riggs v. 

Scrivner, Inc., 927 F.2d 1146, 1148 (10th Cir. 1991) (―While the filing of 

a timely notice of appeal divests the district court of jurisdiction, a 

premature notice of appeal is ineffective to transfer jurisdiction from 

the district court to the court of appeals.‖ (citation omitted)), 

superseded by rule, FED. R. APP. P. 3(c)(4) (1993), as recognized in 

Hehemann v. City of Cincinnati, 45 F.3d 430 (6th Cir. 1994)

(unpublished); Century Laminating, Ltd. v. Montgomery, 595 F.2d 563, 

567 (10th Cir. 1979) (―An attempt to appeal a non-final decision of a 

district court remains just that, an attempt. It is a nullity and does not 

divest the trial court of its jurisdiction.‖). 

A number of Utah cases also reference the importance of a timely

notice of appeal in connection with their discussion of divestment of 

jurisdiction. See, e.g., State v. Bisner, 2001 UT 99, ¶¶ 29, 39, 37 P.3d 

1073 (describing the ―timely‖ filing of notice of appeal as the act that 

divested a district court of jurisdiction); State v. Brown, 856 P.2d 358, 

362 (Utah Ct. App. 1993) (noting that ―timely notice of appeal 

generally divests the trial court of further jurisdiction over a matter‖

(internal quotation marks omitted)); State v. Sampson, 806 P.2d 233, 

233 (Utah Ct. App. 1991) (per curiam) (same); cf. Hi-Country Estates

Homeowners Ass’n. v. Foothills Water Co., 942 P.2d 305, 307 (Utah 1996) 

(per curiam) (holding premature remittitur could not have the effect 

of transferring jurisdiction from the court of appeals to the district 

court). 

18 419 P.2d 634, 635 (Utah 1966). 

19 UTAH R. APP. P. 4(c). In its memorandum before us, the Garvers 

cite Wood, which states that a ―premature filing of the notice of 

appeal . . . should not be regarded as a defect which will ipso facto 

(continued)
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Opinion of the Court

7

deemed valid a premature filing of a notice of appeal where the 

filing was before the announcement of the judgment.20 Still, we 

recognize the confusion that the language in these opinions may 

have caused. Accordingly, we now clarify that any of our prior 

decisions generally stating that a notice of appeal divests the district 

court of jurisdiction should be construed as referring to timely notices 

of appeal. And to the extent our prior decisions state or imply that a 

notice of appeal filed before announcement of the judgment divests a 

district court of jurisdiction, we disavow such statements.

¶12 In sum, jurisdiction transfers from the district court to the

appellate court only where: (1) the district court has at the very least 

announced its decision, and a subsequent final judgment is entered 

in conformity with the announcement; and (2) the appealing party 

files a timely notice of appeal. In other words, the timing of a party’s 

appeal is central to the transfer of jurisdiction from the district court 

to the appellate court.

¶13 Here, the Garvers’ timing was significantly off, and 

jurisdiction over the case therefore never transferred to the appellate 

court. After the district court compelled arbitration and after the 

arbitration panel announced its decision, the Garvers filed a notice of 

appeal on November 16, 2012, challenging only the district court’s 

order that compelled arbitration. We dismissed this appeal as 

premature on May 8, 2013,21 because there was neither a ―final 

 

entirely deprive the appellate court of jurisdiction. It is an 

irregularity which would be grounds for dismissal of the appeal 

within the discretion of the court.‖ 419 P.2d at 635. But rule 4(c) has 

since clarified that although a premature notice of appeal will relate 

forward, it will do so only when the notice is filed between the 

announcement of the judgment and the entry of the judgment. If it is 

filed before the judgment is even announced, it is considered ―a 

nullity.‖ Montgomery, 595 F.2d at 567 (clarifying the notice of appeal 

timing requirements under a nearly identical federal rule of 

appellate procedure).

20 See Nelson v. Stoker, 669 P.2d 390, 392–93 (Utah 1983); Kennedy v. 

New Era Indus., Inc., 600 P.2d 534, 536 n.3 (Utah 1979). 

21 This court’s dismissal of the first appeal is now the law of the 

case and cannot be challenged in the context of this appeal. 
GARVER v. ROSENBERG

Opinion of the Court

8

order[]‖

22 in the case, nor did the Garvers properly seek 

interlocutory relief.23

¶14 Before we dismissed the appeal, however, the district court 

affirmed the arbitration panel’s decision on March 15, 2013, in what 

became the necessary final judgment in the case, disposing of all 

claims as to both Mr. and Mrs. Garver. Although the Garvers had 

thirty days to appeal from this judgment, they failed to do so. 

Instead, they filed a motion under rule 60(b), contending that the 

district court lacked jurisdiction to enter its March 15 judgment. In 

essence, they argued that their premature notice of appeal filed on 

November 16, 2012, divested the district court of jurisdiction, so the 

district court’s March 15 judgment was improper. The district court 

agreed and entered a ruling on February 21, 2014, granting the 

Garvers’ rule 60(b) motion and purporting to ―reissue‖ the 

judgment.

¶15 This was error. As described above, a premature notice of 

appeal does not effectuate a transfer of jurisdiction to review the 

merits of a case. Accordingly, the district court in this case retained 

jurisdiction. Parties cannot circumvent the jurisdictional deadlines 

prescribed by rule 4 of the Utah Rules of Appellate Procedure with a 

postjudgment motion under rule 60(b) of the Utah Rules of Civil 

Procedure asking the district court to reissue the judgment. And 

district courts lack the authority to acquiesce to such a request. 

Where an appeal is patently premature, district courts need not be 

concerned that they lack jurisdiction to proceed with a case. And 

where the jurisdictional question is in doubt, district courts have 

tools at their disposal, including the power of a stay, to resolve these 

concerns.24

22 UTAH R. APP. P. 3(a); see Powell, 2008 UT 19, ¶ 18 (―[T]he order 

compelling arbitration and staying litigation neither ended the 

controversy between the litigants nor disposed of the subject matter 

of the litigation. Indeed, the district court retained jurisdiction over 

the case by staying the litigation pending the completion of the 

arbitration.‖). Furthermore, no exception to the final judgment rule 

applied.

23 Although section 78B-11-129 of the Utah Code permits a direct 

appeal of certain interlocutory decisions pertaining to arbitration, an 

order compelling arbitration is not one of them. 

24 It is true that an appellate court is the ultimate judge of its own 

jurisdiction. See Powell, 2008 UT 19, ¶ 9. Thus, a district court cannot 

enter an order declaring an appeal to be premature that would be 

(continued)
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Opinion of the Court

9

Conclusion

¶16 The district court erred in assuming it was divested of 

jurisdiction by the Garvers’ premature notice of appeal. That court 

had jurisdiction to issue the March 15, 2013, judgment; and, because 

the Garvers failed to timely appeal that judgment, we lack 

jurisdiction to address any challenge to the merits. The district 

court’s ruling on the rule 60(b) motion also did not substantively 

alter the March 15 judgment, nor could it under the Utah Court of

Appeals’ ruling in Baker.

25 Thus, there is no issue that remains for us 

to review and we dismiss the appeal.

 

binding on an appellate court. Nonetheless, district courts retain 

inherent authority to manage their proceedings to promote efficiency 

in the judicial process and to prevent attempts (conscious or 

otherwise) to abuse that process. To that end, a district court may 

stay proceedings pending an appellate decision on the jurisdictional 

issue. Lewis v. Moultree, 627 P.2d 94, 96 (Utah 1981) (―It lies 

within the inherent power of the courts to grant a stay of 

proceedings. It is a discretionary power, and the grounds 

therefor necessarily vary according to the requirements of each 

individual case.‖) And rule 8 of the Utah Rules of Appellate 

Procedure provides an independent mechanism for appellate courts 

to stay a ―judgment or order‖ of a district court in any circumstance 

where it appears a district court has exceeded its discretion by

declining to acknowledge a timely appeal or by declining to grant a 

stay.

25 Baker v. W. Sur. Co., 757 P.2d 878, 880 (Utah Ct. App. 1988) 

(requiring district courts to obtain an order of remand from the 

appellate court before granting a rule 60(b) motion).