(concurring and dissenting):
I concur in holding that this appeal was timely filed. I dissent, however, from the reversal of the summary judgment.
As to the timeliness of the appeal, I agree that Rehabilitation’s “motion for reconsideration” was essentially a Rule 59 motion for a new trial. See State v. Parker, 872 P.2d 1041, 1044 (Utah App.) (holding substance of post-judgment motion controls, not caption), cert. denied 883 P.2d 1359 (Utah 1994). We have previously held that a motion for a new trial may properly be filed following entry of a summary judgment. Moon Lake Elec. Ass’n, Inc. v. Ultrasystems W. Constrs., Inc., 767 P.2d 125, 127 (Utah App.1988). Our rules explicitly provide that “the time for appeal for all parties shall run from the entry of the order denying a new trial.” Utah R.App.P. 4(b). The filing of a motion under Rule 59 therefore tolls the time for filing a notice of appeal.
On the merits, I disagree with the main opinion’s analysis and result. The contract between the parties provides that Physicians will share the sale proceeds attributable to “good will” only when Physicians sell the entire Center to a third party. In the transaction involving IHC, Physicians clearly retained an ownership interest in the Center.
The fact that the Center is now operated as a joint venture does not lead to the result reached by the main opinion. The joint venture statute provides that the only way Physicians can participate in a joint venture is if it is a co-owner. See Utah Code Ann. § 48-1 — 3.1(1) (1995) (“[a] joint venture is an association of two or more persons to carry on as co-owners of a single business enterprise.”) (emphasis added). Since Physicians indisputably remains a co-owner of the Center, it has not sold it as contemplated by paragraph eleven of the parties’ agreement.
I would therefore affirm the summary judgment.