York v. Performance Auto Inc.

• Decision Date: 04 August 2011
• Docket Number: No. 20100783–CA.,20100783–CA.
• Citation: 688 Utah Adv. Rep. 47,2011 UT App 257,264 P.3d 212
• Parties: William YORK and Nathan York, Plaintiffs and Appellant,v.PERFORMANCE AUTO, INC. and James K. Slavens, Defendants and Appellee.
• Court: Utah Court of Appeals

264 P.3d 212

688 Utah Adv. Rep. 47

2011 UT App 257

William YORK and Nathan York, Plaintiffs and Appellant,

v.PERFORMANCE AUTO, INC. and James K. Slavens, Defendants and Appellee.

No. 20100783–CA.

Court of Appeals of Utah.

Aug. 4, 2011.

William York, Delta, Appellant Pro Se.James K. Slavens, Fillmore, Appellee Pro Se.Before Judges ORME, VOROS, and CHRISTIANSEN.

OPINION

VOROS, Judge:

¶ 1 Appellant William York's appeal was dismissed by per curiam decision of this court on January 27, 2011. See York v. Slavens, 2011 UT App 25 (per curiam) (vacated by order dated April 6, 2011). That decision dismissed the appeal without prejudice on the ground that the order appealed from was not final and, consequently, that this court lacked jurisdiction. See id. ¶ 3. York filed a “Rule 60(b) Motion To Reinstate Appeal.” We construed this motion as a petition for rehearing filed pursuant to rule 35 of the Utah Rules of Appellate Procedure. See Utah R.App. P. 35(a); see also id. R. 2. At the request of the court, Appellee James K. Slavens filed a response.¹ We then granted the petition and, by order dated April 6, 2011, vacated our decision in York.² Having considered York's motion and Slavens's response, we now reaffirm our earlier decision.

¶ 2 For reasons stated in York, if the trial court has not yet entered a final order, this court lacks jurisdiction and must dismiss the appeal. See York, 2011 UT App 25, ¶ 2 (citing Loffredo v. Holt, 2001 UT 97 ¶¶ 10, 15, 37 P.3d 1070; Bradbury v. Valencia, 2000 UT 50 ¶ 9, 5 P.3d 649); see also Utah R.App. P. 3(a) (“An appeal may be taken from ... all final orders and judgments....”). The case at bar has generated several orders, but we see only two possible candidates for a final order: the May 28, 2009 order dismissing the only served defendant, and the August 11, 2010 order holding York in contempt.

I. The May 28, 2009 Order of Dismissal

¶ 3 York and his co-plaintiff filed the complaint in 2009. The complaint named as defendants Performance Auto, Inc.; “Karl”; Slavens; and ten John Does. Only Slavens was served.³ On May 28, 2009, the 120th day after the complaint was filed, the trial court entered an order dismissing Slavens as a defendant in this case. York filed a timely notice of appeal from this order.

¶ 4 “For an order or judgment to be final, it must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case. In other words, a judgment is final when it ends the controversy between the parties litigant.” Bradbury, 2000 UT 50 ¶ 9, 5 P.3d 649 (citations and internal quotation marks omitted); see also Utah R. Civ. P. 54(b). The question here is whether named but unserved defendants are “parties litigant” for purposes of this rule.

¶ 5 York contends that they are not. He draws our attention to Otteson v. Department of Human Services, 945 P.2d 170 (Utah Ct.App.1997). In Otteson, this court held that “[t]he dismissal of all defendants who had been served with process and brought within the district court's jurisdiction was a final and appealable judgment.” Id. at 172. Failure to dismiss additional named but unserved defendants “did not leave claims pending in the district court or prevent the entry of final judgment since the unserved defendants were not made parties to the action prior to dismissal.” Id. (citing Bristol v. Fibreboard Corp., 789 F.2d 846, 847 (10th Cir.1986) (per curiam)).

¶ 6 Bartel v. DeBry, 2001 UT App 321U, 2001 WL 1287048 (mem.) (per curiam), follows the holding of Otteson. The plaintiff, Bartel, served some but not all defendants within 120 days of the filing of his complaint in 1992. See id. ¶ 2. By 1999 all served defendants had either been dismissed from the case or had a default judgment entered against them. See id. Six months after entry of a default judgment against the last served defendant, Bartel served one of two remaining unserved defendants. See id. In 2001 the trial court dismissed all claims against both the served and the unserved defendants. See id. Following Otteson, this court held that the 1999 default judgment against the last remaining served defendant “was the final judgment and commenced the running of the appeal time.” Id. ¶ 4. Because the two remaining defendants had not yet been served, the 1999 order “resolved all claims between the named defendants who had been served and actually made parties and it ended the controversy before the court.” Id. The “belated service of [one of the two defendants unserved as of 1999] did not revive the previously dismissed case in order to allow the appeal.” Id.

¶ 7 Otteson and Bartel stand for the proposition that an order dismissing all served defendants, though fewer than all named defendants, is a final judgment for purposes of appeal. We now consider whether these two cases remain good law after our supreme court's decision in Hunter v. Sunrise Title Co., 2004 UT 1, 84 P.3d 1163.

¶ 8 Hunter construed rule 4(b) of the Utah Rules of Civil Procedure.⁴ See 2004 UT 1, ¶ 7, 84 P.3d 1163. Rule 4(b) provides that, where the action is commenced by filing a complaint, the summons and complaint “shall be served no later than 120 days after the filing of the complaint unless the court allows a longer period of time for good cause shown.” Utah R. Civ. P. 4(b)(i). “If the summons and complaint are not timely served, the action shall be dismissed, without prejudice on application of any party or upon the court's own initiative.” Id. Dismissal is not automatic at the expiration of 120 days but “depends upon some action, namely, the ‘application of any party or upon the court's own initiative.’ ” Callahan v. Sheaffer, 877 P.2d 1259, 1262 (Utah Ct.App.1994) (quoting Utah R. Civ. P. 4(b)) (contrasting the current version with the earlier version of the rule, which provided that the cause of action was “deemed dismissed”). Rule 4(b) also addresses the circumstance of multiple defendants: where a plaintiff has timely served some but not all defendants, “the plaintiff may proceed against those served,” and “the others may be served or appear at any time prior to trial.” Utah R. Civ. P. 4(b)(ii).

¶ 9 The Hunter court did not address the question of finality directly. See generally Hunter, 2004 UT 1, 84 P.3d 1163. However, it did examine the status of a case after all served defendants, but not all named defendants, were dismissed. See id. ¶ 11. The plaintiff, Hunter, sued several defendants. See id. ¶¶ 2–3. Two were timely served but later dismissed. See id. Eleven months later, Hunter served the lone remaining defendant, Sunrise Title. See id. ¶ 5. The trial court dismissed the complaint against Sunrise Title on the ground that rule 4(b)'s “any time prior to trial” provision did not apply where the served defendants had all been dismissed. See id.

¶ 10 The supreme court affirmed. See id. ¶ 1. It held that once the served defendants were dismissed, “Hunter's original three-defendant lawsuit became a single-defendant action, with Sunrise Title the sole remaining defendant. Consequently, the co-defendant provision of rule 4(b) allowing service ‘at any time prior to trial’ ceased to apply....” Id. ¶ 10. “Where all served co-defendants are formally dismissed,” the court held, “rule 4(b) requires service upon at least one of the remaining unserved defendants within 120 days of filing of the complaint, absent the district court's grant of an extension for good cause.” Id. ¶ 11. Hunter also states that the plaintiff must “petition the district court for an extension prior to the dismissal of the served co-defendants, if the 120–day period has already expired.” Id. ¶ 12. Because the plaintiff in Hunter did neither, the trial court properly dismissed the complaint. See id.

¶ 11 To resolve the case at bar, we must determine whether Hunter effectively overruled Otteson and Bartel. See State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994) (“Vertical stare decisis ... compels a court to follow strictly the decisions rendered by a higher court.”). As noted above, Otteson and Bartel hold that an order dismissing all served co-defendants is a final judgment because any remaining unserved defendants are not legally parties to the dispute. This holding is irreconcilable with Hunter. Hunter squarely holds that “[w]here all served co-defendants are formally dismissed,” leaving one named but unserved defendant, the action is converted into “a single-defendant action.” 2004 UT 1, ¶¶ 10–11, 84 P.3d 1163. If, as Hunter holds, dismissal of all served co-defendants converts the action into one against the remaining unserved defendant, it does not “dispose of the case as to all the parties,” see Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649. It is therefore not a final judgment. Accordingly, insofar as Otteson and Bartel are inconsistent with Hunter, we conclude that they have been overruled by implication.⁵

¶ 12 Under Hunter, the order of May 28, 2009, dismissing Slavens as a defendant in this case is not a final order. By dismissing the only served co-defendant, the trial court did not dispose of the case but converted it into an action against the remaining unserved defendants. It may well be that service on the unserved defendants is now impracticable or legally foreclosed. Nevertheless, until the trial court enters an order concluding the litigation as to all litigants, including unserved defendants, York has no final order from which to appeal.

II. The August 11, 2010 Order of Contempt

¶ 13 On August 11, 2010, the trial court entered an order of contempt against York.⁶ York filed a timely notice of appeal “from all the orders and judgments entered in this action—the final being signed on Aug 11, 2010.” As noted above, the May 28, 2009 order of dismissal is not final. Nevertheless, York would still be able to appeal from the August 11, 2010 order of contempt if that order qualified as a final, appealable order. However, we conclude that it does not.

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