Kay v. SUMMIT SYSTEMS, INC.

924 P.2d 338 (1996) Lawrence C. KAY, Joy Kay, Robert L. Kay, and Teresa Kay, Plaintiffs and Appellants, v. SUMMIT SYSTEMS, INC., a corporation, Val E. Southwick, et al., Defendants and Appellees. No. 930626. Supreme Court of Utah. February 9, 1996. Rehearing Denied October 4, 1996. Jackson Howard, Leslie W. Slaugh, Provo, for plaintiffs and appellants. Summit Systems, Inc., and Val E. Southwick, unrepresented on this date. Scott H. Clark, Dee R. Chambers, Stephen C. Tingey, Brent D. Wride, Ronald G. Russell, Donald F. Dalton, Scott Daniels, Reed L. Martineau, Diana J. Huntsman, Salt Lake City, for other defendants and appellees unnamed in the case heading. PER CURIAM: Plaintiffs seek to appeal various issues decided by the district court; however, because we are compelled to dismiss the appeal for lack of jurisdiction, we do not reach the merits. The trial court entered a judgment in favor of plaintiffs, and defendants Val Southwick and Summit Systems filed post-judgment motions that the trial court denied by a minute entry entered November 29, 1993. Later that day, the trial court entered an amended judgment against Southwick and Summit awarding plaintiffs $654,847. On December 7, 1993, the Kays filed a notice of appeal, contesting the trial court's dismissal of their motion to double the damage award and add prejudgment interest and attorney fees. On December 20, 1993, the trial court entered an order denying defendants' motion for a new trial. No notice of appeal was filed thereafter. The issue is whether Rule 4(b) of the Utah Rules of Appellate Procedure permits the premature filing of a notice of appeal so as to confer jurisdiction on this Court. That rule states: A notice of appeal filed before the disposition of any of the above motions [including a motion for a new trial under Rule 59] 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 court disposing of the motion as provided above. Swenson Associates Architects, P.C. v. State, 889 P.2d 415 (Utah 1994), is dispositive of the issue. Swenson squarely ruled that a notice of appeal filed before the trial court disposed of those post-judgment motions stated in Rule 4(b) of the Utah Rules of Appellate Procedure was premature and not effective to initiate appeal. Plaintiffs' arguments for a different construction of Rule 4(b) were addressed and rejected in Swenson. Because no timely notice of appeal was filed and plaintiffs' arguments for a different construction of Rule 4(b) were addressed and rejected in Swenson, the appeal in this case is dismissed. HOWE, Justice, dissenting: I dissent for the reasons stated in my dissenting opinion in Swenson Associates Architects, P.C. v. State, 889 P.2d 415, 417 (Utah 1994). DURHAM, J., having disqualified herself, does not participate herein; STEVEN L. HANSEN, District Judge, sat.