Kennecott Corp. v. Utah State Tax Com'n
| Decision Date | 14 June 1991 |
| Docket Number | No. 890416,890416 |
| Citation | 814 P.2d 1099 |
| Parties | KENNECOTT CORPORATION; Morton Thiokol, Inc.; Barrick Resources (USA) Inc.; and Hercules, Incorporated, Plaintiffs and Appellants, v. UTAH STATE TAX COMMISSION; R. Hal Hansen, Chairman of the Utah State Tax Commission; Roger O. Tew, Utah State Tax Commissioner; Joe B. Pacheco, Utah State Tax Commissioner; G. Blaine Davis, Utah State Tax Commissioner; Tom L. Allen, Utah State Treasurer; Arthur L. Monson, Salt Lake County Treasurer; and Grant L. Pendleton, Tooele County Treasurer, Defendants and Appellees. |
| Court | Utah Supreme Court |
James B. Lee, Kent W. Winterholler, Maxwell A. Miller, Salt Lake City, for plaintiffs and appellants.
David E. Yocum, Karl Hendrickson, Bill Thomas Peters, Salt Lake City, for county defendants and appellees.
R. Paul Van Dam, Ralph Finlayson, Salt Lake City, for state defendants and appellees.
Ronald L. Elton, Salt Lake City, for Tooele County.
Appellants Kennecott Corp., Morton Thiokol, Inc., Barrick Resources (USA) Inc., and Hercules, Inc. (collectively "the taxpayers"), brought an action against the Utah State Tax Commission and several county and state tax officials (collectively "the tax collectors"). The taxpayers contend that section 17-19-15 of the Code, which imposes a levy to provide funds to cover expenses incurred by Utah's counties in assessing, collecting, and distributing property taxes, is unconstitutional. 1 The taxpayers advance claims of invalidity under three separate constitutional provisions: (i) the fourteenth amendment of the United States Constitution, (ii) article XIII, section 5 of the Utah Constitution, and (iii) article I, sections 7 and 24 of the Utah Constitution. U.S. Const. amend. XIV; Utah Const. art. XIII, § 5; Utah Const. art. I, §§ 7, 24. The complaint seeks an injunction against the enforcement of section 17-19-15 and the recovery of taxes paid under protest.
The taxpayers filed a motion for partial summary judgment, asking for judgment on one of their three claims of unconstitutionality, specifically, a declaration that section 17-19-15 violates article XIII, section 5 of the Utah Constitution. 2 The tax collectors filed a cross-motion for summary judgment, asking the court to hold section 17-19-15 constitutional on all three grounds raised in the complaint.
The district court denied the taxpayers' motion and granted the tax collectors' motion, but only in part. The court held that the taxpayers lacked standing to raise the article XIII, section 5 claim. The court declined to grant summary judgment on the other constitutional claims, and they remain before the trial court. The trial court certified its article XIII, section 5 ruling for immediate appeal under rule 54(b). Utah R.Civ.P. 54(b). The taxpayers then appealed the grant of partial summary judgment.
The first issue we address is not raised by either party, to wit: whether the otherwise unappealable interlocutory order of the district court was properly certified under rule 54(b) and is therefore properly before us. As we have noted previously, the failure of a party to raise an issue of subject matter jurisdiction is not dispositive. "[A]cquiesence of the parties is insufficient to confer jurisdiction and ... a lack of jurisdiction can be raised at any time by either party or by the court." Olson v. Salt Lake City School Dist., 724 P.2d 960, 964 (Utah 1986); see also Utah Restaurant Ass'n v. Davis, 709 P.2d 1159, 1160 (Utah 1985); Bailey v. Sound Lab, Inc., 694 P.2d 1043, 1044 (Utah 1984). We raise it here, sua sponte, as we did in Olson.
The initial question of whether an order is eligible for certification under rule 54(b), i.e., whether the order is "final," is a question of law. See Pate v. Marathon Steel Co., 692 P.2d 765 (Utah 1984); Little v. Mitchell, 604 P.2d 918 (Utah 1979); see also Curtis-Wright Corp. v. General Elec. Co., 446 U.S. 1, 11, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1 (1980). Therefore, we review the trial court's decision on this point for correctness. See, e.g., Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985).
Rule 54(b) of the civil rules permits the trial court to certify certain interlocutory orders and, by so doing, force the appellate court to entertain the appeal. See Pate, 692 P.2d at 767-68. Rule 54(b) reads in pertinent part:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, and/or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination by the court that there is no just reason for delay and upon an express direction for the entry of judgment.
In Pate, we described in different words the three requirements for proper certification under rule 54(b):
First, there must be multiple claims for relief or multiple parties to the action. Second, the judgment appealed from must have been entered on an order that would be appealable but for the fact that other claims or parties remain in the action. Third, the trial court, in its discretion, must make a determination that "there is no just reason for delay" of the appeal.
Pate, 692 P.2d at 767 (quoting 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civ. 2d § 2656, at 47-48 (1983)).
In the present case, we focus on the second of the Pate criteria: Was the order upon which the judgment and certification entered one that would otherwise have been appealable absent the other claims? This is what is meant by the language in rule 54(b) that the certified order be one that could be characterized as a "final judgment as to one or more ... of the claims...." Utah R.Civ.P. 54(b) (emphasis added). Such a final order must " 'wholly' dispose of one or more, 'but fewer than all,' of the claims or parties." Olson, 724 P.2d at 964 (quoting Pate, 692 P.2d at 768). As we stated in Olson:
Catlin v. United States, 324 U.S. 229, 233 [65 S.Ct. 631, 633, 89 L.Ed. 911] ... (1945).
Olson, 724 P.2d at 964-65 (quoting Acha v. Beame, 570 F.2d 57, 62 (2d Cir.1978)) (bracketed material in original).
Although these cases may aid in understanding the term "final" as used in the rule, they do not answer the difficult question of when there is such a final determination of what can be characterized as "a separate claim." As a leading treatise has noted, determining whether the trial court's disposition of some but not all parts of a cause of action is a final judgment for purposes of rule 54(b) is not an easy task:
The line between deciding one of several claims and deciding only part of a single claim is sometimes very obscure. Difficulties even occur in a case that clearly involves multiple claims because the rule requires that the entirety of at least one of those claims be decided with finality. There is no generally accepted test that is used to determine whether more than one claim for relief is before the court.
10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civ.2d § 2657, at 60-61. Although we have addressed rule 54(b) relatively often in recent cases, no Utah decision has considered this issue in depth. See Lane v. Messer, 731 P.2d 488 (Utah 1986); Olson v. Salt Lake City School Dist., 724 P.2d 960 (Utah 1986); Williams v. State, 716 P.2d 806 (Utah 1986); Pate v. Marathon Steel Co., 692 P.2d 765 (Utah 1984).
In determining the standard for "finality" of a separate claim under rule 54(b), some background is useful. The historical rule is that except in a narrow category of situations, no order of a trial court is appealable until a final judgment is entered on all issues. Attorney Gen. of Utah v. Pomeroy, 93 Utah 426, 73 P.2d 1277 (1937). At that point, the final judgment and all preceding interlocutory orders may be reviewed. Pate, 692 P.2d at 767-68. The principle underlying this rule is that interlocutory appeals should be avoided because they present appellate courts with multiple appeals involving narrow issues taken out of the context of the whole case which slow down the final determination of the matter. Pomeroy, 93 Utah at 447-48, 73 P.2d at 1287; see Local P-171, Amalgamated Meat Cutters and Butcher Workmen of N. Am. v. Thompson Farms Co., 642 F.2d 1065, 1070-71 (7th Cir.1986) (); Advisory Committee on Rules for Civil Procedure, Report of Proposed Amendments, reprinted in 5 F.R.D. 437, 472 (1946) (discussing federal rule).
Over the years, however, certain exceptions to this rule against interlocutory appeals have developed in recognition of the fact that under certain circumstances, the reasons for permitting a particular interlocutory appeal or class of appeals are sufficient to overcome the policies underlying the general rule requiring finality. See Pomeroy, 93 Utah at 471-72, 73 P.2d at 1297. One approach to allowing interlocutory appeals is expressed in rule 54(b) of the Federal Rules of Civil Procedure and its Utah counterpart, also denominated rule 54(b). See Fed.R.Civ.P. 54(b); Utah R.Civ.P. 54(b). This approach gives power to the trial court to certify a certain class of orders and thereby make them appealable as of right, effectively forcing the appellate court to review them. The federal rule, adopted in 1937, was essentially copied when the federally modeled Utah Rules of Civil Procedure were first implemented in 1950.
A second approach to allowing interlocutory appeals is contained in Utah Rule of Appellate Procedure 5 and its predecessor, Utah Rule of Civil Procedure 72(b)...
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