Nielson v. Gurley, 930327-CA

• Decision Date: 21 November 1994
• Docket Number: No. 930327-CA,930327-CA
• Citation: 888 P.2d 130
• Parties: Parker M. NIELSON, Plaintiff and Appellee, v. Dale GURLEY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 130

888 P.2d 130

Parker M. NIELSON, Plaintiff and Appellee, v. Dale GURLEY, Defendant and Appellant.

No. 930327-CA.

Court of Appeals of Utah.

Nov. 21, 1994.

Rehearing Denied Jan. 30, 1995.

Dennis C. Ferguson, Salt Lake City, for appellant.

Daniel D. Darger, Salt Lake City, for appellee.

Before GREENWOOD, DAVIS and ORME, JJ.

OPINION

ORME, Associate Presiding Judge:

Dale Gurley, an employee of the State of Utah, appeals the trial court's judgment in favor of Parker M. Nielson. We vacate the judgment for lack of subject matter jurisdiction.

FACTS

Nielson trains hunting dogs as a hobby. To facilitate his hobby, Nielson obtained a permit from the Utah Division of Wildlife Resources (DWR) and negotiated a special use lease agreement with the State of Utah, Division of State Lands and Forestry, for the purpose of "releasing and propagating gamebirds for hunting dog training." During the morning of September 8, 1990, Nielson was training his dogs on the leased property with chukar partridges. Nielson completed his activities and left the area around 10:00 a.m.

On the same day, Gurley, a wildlife conservation officer employed by DWR, was patrolling in the area of Nielson's leasehold, checking on hunters on the opening weekend of the hunting season for grouse, chukar, and cottontail rabbit. That afternoon, Gurley forcibly entered a locked bird pen belonging to Nielson. The pen was part of Nielson's licensed game farm. As a result of Gurley's conduct, the chukar within the pen escaped. Gurley then dismantled a device designed to recapture gamebirds and rendered the pen unusable. Gurley also confiscated bird feed, feeders, identification bands, and watering devices. Gurley did not secure a warrant and did not make an arrest or issue a citation.

On September 18, 1990, a mere ten days after the incident, Nielson, a licensed attorney, filed a complaint alleging that Gurley converted his property, tortiously interfered with his contract with the State, and defamed him. ¹ Upon being served, Gurley prepared a report of the incident and fabricated a citation against Nielson, later falsely claiming in his affidavit in opposition to Nielson's motion for partial summary judgment that he mailed the citation to Nielson. Gurley admitted at trial that he had not actually issued a citation to Nielson, nor had he ever intended to do so.

On April 9, 1991, Nielson filed a motion for partial summary judgment. The trial court granted the motion, holding that Gurley had acted without probable cause and that his conduct was unlawful. The trial court also granted Nielson's motion to strike Gurley's affidavit because it was "riddled with untruths."

Subsequently, Nielson filed a second action against Gurley. The two actions were consolidated, as both involved the same parties, the same transaction, the same damages, and identical allegations, except that the second complaint sought an injunction to prevent defendant from interfering with plaintiff's dog-training activities. The case proceeded to trial, after which the court entered judgment against Gurley for $2300, found to be the replacement value of Nielson's property, plus $15,000 in attorney fees pursuant to Utah's bad faith statute. See Utah Code Ann. § 78-27-56(1) (1992).

Gurley asks us to reverse the trial court's ruling on numerous grounds, including lack of subject matter jurisdiction, governmental immunity, misinterpretation of Utah Wildlife statutes and regulations, improper entry of summary judgment, improper award of attorney fees to a pro se litigant, and improper award of bad faith attorney fees. ²

TIMELINESS OF APPEAL

Before reaching the merits of Gurley's appeal, we must first determine whether we have jurisdiction over the appeal. Nielson argues that Gurley failed to file notice of appeal within thirty days following the trial court's entry of final judgment, and that we must therefore dismiss this appeal for lack of jurisdiction. See Utah R.App.P. 4(a).

Of course, we cannot take jurisdiction over an untimely appeal. Nelson v. Stoker, 669 P.2d 390, 392 (Utah 1983). In fact, "[w]hen a matter is outside the court's jurisdiction it retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah App.1989). However, "[t]he right to an appeal is a valuable and constitutional right and ought not to be denied except where it is clear the right has been lost or abandoned." Adamson v. Brockbank, 112 Utah 52, 60, 185 P.2d 264, 268 (1947).

The chronology of the proceedings below is critical in determining whether we have jurisdiction to hear this appeal. On June 24, 1991, the trial court entered partial summary judgment in favor of plaintiff on the issue of liability. On October 21 and 22, 1992, trial was held on the remaining issues of conversion, interference with contract, and damages. On December 18, 1992, the trial court, by memorandum decision, awarded plaintiff $2300 in damages and $15,000 for attorney fees pursuant to Utah Code Ann. § 78-27-56(1) (1992). On the same day, by minute entry, the trial court indicated it would "retain jurisdiction over this matter until the final documents resolving this case are in place."

Apparently unclear as to whether the memorandum decision constituted a final judgment--a peculiar worry in view of the explicit language of the minute entry--Gurley filed a notice of appeal from the memorandum decision on December 21, 1992. On January 7, 1993, the trial court entered judgment awarding plaintiff $2300 in damages and $15,000 in attorney fees. On January 27, the trial court amended the judgment to recite that Nielson was also entitled to his costs. Gurley filed a second notice of appeal, from the amended judgment, on February 26, 1993. Thus, the notice of appeal Gurley filed on February 26, 1993, was filed within thirty days from the date the court entered the amended judgment, but was not filed within thirty days from the date of the original judgment. Therefore, the first question presented by Nielson's motion to dismiss is whether the thirty-day period for Gurley to file his notice of appeal began running as of the date the court entered the original judgment or as of the date the court amended the judgment.

In Utah, the rule of law governing this issue is clear:

[W]here a belated entry merely constitutes an amendment or modification not changing the substance or character of the judgment, such entry is merely a nunc pro tunc entry which relates back to the time the original judgment was entered, and does not enlarge the time for appeal; but where the modification or amendment is in some material matter, the time begins to run from the time of the modification or amendment.

Adamson, 185 P.2d at 268. Accord In re Marriage of Mullinax, 292 Or. 416, 639 P.2d 628, 633-34 (1982). See also Federal Trade Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12, 73 S.Ct. 245, 248-49, 97 L.Ed. 245 (1952) (fact that Court amends judgment in immaterial way does not extend time within which appellant can seek review); C.S. Patrinelis, Annotation, Amendment of Judgment as Affecting Time for Taking or Prosecuting Appellate Review Proceedings, 21 A.L.R.2d 285, 287, 295-304 (1952) (summarizing cases addressing calculation of time for appeal based on whether amendment to judgment was material or simply clerical).

In the instant case, the modification or amendment was purely clerical in nature. The trial court did not enlarge the award of attorney fees; instead, the court merely clarified its order by indicating that Nielson was entitled to his taxable costs in addition to the $15,000 attorney fee award. This amendment was not of sufficient importance to change the character of the judgment. It did not affect any substantive rights running to the litigants. Indeed, the court's amendment to the judgment was completely unnecessary because costs are awarded as a matter of course to the prevailing party unless the court otherwise orders. Utah R.Civ.P. 54(d)(1). The effect of the amendment did not create a new judgment for purposes of determining the timeliness of appeal, and the time in which Gurley could appeal commenced to run from the date of the original judgment. ³

We next consider whether Gurley timely filed notice of appeal from the trial court's original judgment. The trial court issued its memorandum decision on December 18, 1992. On December 21, 1992, Gurley prematurely filed his first notice of appeal. The trial court entered judgment on January 7, 1993. Thus, Gurley filed a notice of appeal after the trial court announced its decision, but prior to the court's entry of judgment. Rule 4(c) anticipates just such a scenario and states that

[e]xcept as provided in paragraph (b) of this rule, a notice of appeal filed after the announcement of a decision, judgment, or order but before the entry of the judgment or order of the trial court shall be treated as filed after such entry and on the day thereof.

Utah R.App.P. 4(c). Therefore, under Rule 4(c), we consider Gurley's notice of appeal to have been filed as of January 7, 1993--the date the court entered its judgment--unless the case is governed by the exception set forth in Rule 4(b).

Rule 4(b) states:

If a timely motion under the Utah Rules of Civil Procedure is filed in the trial court by any party (1) for judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) under Rule 59 to alter or amend the judgment; or (4) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.... A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial...