Kuhre v. Goodfellow
| Decision Date | 27 March 2003 |
| Docket Number | No. 20010924-CA.,20010924-CA. |
| Parties | Martin J. KUHRE and Sydnie W. Kuhre, Plaintiffs and Appellants, v. Kenneth GOODFELLOW and Susan Goodfellow, Defendants and Appellees. |
| Court | Utah Court of Appeals |
Lincoln W. Hobbs and Kristen M. Johnson, Hobbs & Adondakis LC, Salt Lake City, for Appellants.
Nathan B. Wilcox and Stephen P. Horvat, Anderson & Karrenberg, Salt Lake City, for Appellees.
Before JACKSON, P.J., and BENCH and DAVIS, JJ.
¶ 1 Plaintiffs appeal from the trial court's grant of a motion to dismiss their complaint. Plaintiffs also appeal the trial court's award of attorney fees.
¶ 2 Plaintiffs Martin and Sydnie Kuhre (the Kuhres) purchased a home from Defendants Kenneth and Susan Goodfellow (the Goodfellows). Following the purchase, the Kuhres allegedly discovered problems with the condition of the home. After further investigation, the Kuhres filed a complaint against the Goodfellows, the real estate agent, and the broker involved in the transaction. The claims against the real estate agent and broker were eventually settled or dismissed.
¶ 3 After the Kuhres filed an amended complaint (first amended complaint), the Goodfellows filed a motion to dismiss. The trial court denied the Goodfellows' motion and granted the Kuhres "leave to amend their Amended complaint one more time." The trial court also awarded the Goodfellows their attorney fees because their Motion to Dismiss "has merit [and] Plaintiffs' misrepresentation cause of action is not pled with specificity as required by Rule 9(b), [of the] Utah Rules of Civil Procedure."
¶ 4 Thereafter, the Kuhres filed a second amended complaint. The second amended complaint listed the following causes of action: (1) breach of warranties; (2) breach of contract; (3) confidential relations; (4) negligent and/or intentional misrepresentation; (5) negligence; and (6) rescission. The Goodfellows filed a motion to dismiss the second amended complaint. In response, the Kuhres filed an opposition memorandum that was twenty-two pages long, along with an ex parte motion for leave to file an over-length memorandum. The ex parte motion was denied and the trial court's order stated, "submit brief of proper length." The Kuhres then submitted an opposition memorandum that was thirteen pages long, but failed to request leave to file an over-length memorandum. The Goodfellows moved to strike this memorandum. The trial court struck the Kuhres' opposition memorandum "for failure to conform to the ten page limitation set forth in Rule 4-501" and ordered that the second amended complaint be dismissed. The court ruled that "[t]he plaintiffs have failed to add additional substantive allegations in their Second Amended Complaint properly stating a claim against ... the Goodfellows."
¶ 5 On January 13, 1999, the trial court entered judgment dismissing with prejudice the Kuhres' first four causes of action and certifying the judgment on those claims as final under rule 54(b) of the Utah Rules of Civil Procedure. On February 2, the Kuhres filed a petition for an interlocutory appeal pursuant to rule 5 of the Utah Rules of Appellate Procedure. On February 8, the Kuhres filed a notice of appeal stating that they were appealing the judgment entered on January 13, 1999 (the 54(b) judgment). The supreme court denied the petition for interlocutory appeal pursuant to rule 5 on April 14, 1999, and dismissed the appeal of the 54(b) judgment on December 10, 2001, for failure to file a docketing statement. Following the dismissal of the remaining defendants in an order granting summary judgment dated October 18, 2001, the Kuhres filed this appeal on November 15, 2001.
¶ 6 The Goodfellows challenge our jurisdiction over this appeal. "Whether appellate jurisdiction exists is a question of law...." Pledger v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572.
¶ 7 The Kuhres raise three questions for review. First, did the trial court err in dismissing, without prejudice, their first amended complaint? Second, did the trial court err in granting the Goodfellows' motion to dismiss the Kuhres' second amended complaint with prejudice? "In reviewing a ruling on a motion to dismiss, we ` "accept the factual allegations in the complaint as true and draw all reasonable inferences from those facts in a light most favorable to [the] plaintiff[s]."'" Nebeker v. Utah State Tax Comm'n, 2001 UT 74, ¶ 2, 34 P.3d 180 (citations omitted).
¶ 8 Finally, did the trial court err in awarding the Goodfellows their attorney fees based upon the trial court's "conclusion that the motion to dismiss [the first amended complaint] `has merit,' despite the absence of a finding of bad faith"? "Whether attorney fees are recoverable ... is a question of law, which we review for correctness." Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998).
¶ 9 The Goodfellows dispute whether we have jurisdiction over this appeal, arguing that the Kuhres' appeal is untimely. The Goodfellows claim that all the "matters challenged in this appeal were resolved on January 13, 1999, in a judgment designated as final pursuant to Rule 54(b)." The Goodfellows argue that because the Kuhres failed to pursue their earlier rule 54(b) appeal, they are now precluded from bringing the same issues in this appeal.
¶ 10 "The initial question of whether an order is eligible for certification under rule 54(b) ... is a question of law." Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1100 (Utah 1991). "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." Id.; see also Utah R. Civ. P. 54(b). In determining whether a trial court's rule 54(b) certification is proper, we "`focus[ ] on the degree of factual overlap between the issue[s] certified for appeal and the issues remaining in the district court.'" Kennecott, 814 P.2d at 1103 (quoting Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 860 F.2d 1441, 1445 (7th Cir.1988)). "When this factual overlap is such that separate claims appear to be based on the same operative facts or on the same operative facts with minor variations, they are held not to constitute separate claims for rule 54(b) purposes." Id.; see also FMA Leasing Co. v. Citizens Bank, 823 P.2d 1065, 1066 (Utah 1992)
.
¶ 11 In the case before us, the 54(b) judgment dismissed the Kuhres' claims for breach of warranties, breach of contract, confidential relations, and negligent/intentional misrepresentation. These claims all relate to the Kuhres' purchase of the Goodfellows' home. The Goodfellows argue that the rule 54(b) certification was proper because the remaining claims of negligence and rescission require the Kuhres to prove facts unnecessary to the claims dismissed in the 54(b) judgment. In light of the supreme court's decision in Weiser v. Union Pacific R.R. Co., 932 P.2d 596, 597-98 (Utah 1997), it is inappropriate to place an emphasis on a variation of specific facts needed to prove a claim, such as the Goodfellows do in this case, while ignoring the factual overlap of the overriding operative facts. See also Kennecott, 814 P.2d at 1103
.
¶ 12 In the docketing statement filed in this appeal, the Kuhres stated that "[b]ecause the [rule 54(b) ] appeal ... was taken from an order rendered prior to resolution of all issues in the case between all parties, the Kuhres will file a motion to dismiss that appeal." Four days later, the supreme court dismissed sua sponte the rule 54(b) appeal for failure to file a docketing statement. In light of this dismissal, the factual overlap of the dismissed and remaining claims, and the "principle ... that interlocutory appeals should be avoided because they present appellate courts with multiple appeals involving narrow issues taken out of ... context[, which] slow down the final determination of... matter[s]," we have jurisdiction over this appeal.1 Kennecott, 814 P.2d at 1101.
¶ 13 The Kuhres first argue that "the trial court erred in dismissing, without prejudice, ... [their first] amended complaint." We disagree. The trial court dismissed the first amended complaint "without prejudice" and allowed the Kuhres to file a second amended complaint. By filing their second amended complaint, the Kuhres waived the right to challenge the dismissal of the first amended complaint because an "amended pleading supercedes the original pleading, and the original pleading performs no function." Campbell, Maack & Sessions v. Debry, 2001 UT App 397, ¶ 17 n. 4, 38 P.3d 984; see also Abrams v. Watchtower Bible & Tract Soc., 306 Ill.App.3d 1006, 240 Ill.Dec. 111, 715 N.E.2d 798, 804 (1999)
().
¶ 14 The Kuhres next argue that the trial court erred in dismissing their second amended complaint with prejudice. The Kuhres claim that the "second amended complaint clearly met the pleading requirements."
¶ 15 In granting the Goodfellows' Motion to Dismiss the second amended complaint, the trial court concluded that the Kuhres "failed to add additional substantive allegations properly stating a claim against the Goodfellows in the restated first, second, third, and fourth causes of action ... and they are, therefore, dismissed."2 "[F]or purposes of reviewing the dismissal of plaintiffs' amended complaint, we accept as true the factual allegations in plaintiffs' amended complaint, and we analyze whether a cognizable claim for relief has been stated." Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 39, 54 P.3d 1054.
¶ 16 The Kuhres' claim that their "second amended complaint clearly met the pleading requirements." The Kuhres, however, fail to set forth...
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