Garver v. Rosenberg

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
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 78A-
3-102(3)(j).

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Opinion of the Court

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

1J.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)
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 GARVER v. ROSENBERG
Opinion of the Court
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.‖).
10Id. 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

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 post-
judgment 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).

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Opinion of the Court
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).
19UTAH 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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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).
See Nelson v. Stoker, 669 P.2d 390, 392–93 (Utah 1983); Kennedy v.
20

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.

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 GARVER v. ROSENBERG
Opinion of the Court
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.
23Although 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

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).

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