The Society of Lloyd's,
Plaintiff and Appellee,
Wallace R. Bennett,
Defendant and Appellant.
2004 UT App 122
Third District, Salt Lake Department
The Honorable Robert K. Hilder
Attorneys: Wallace R. Bennett, Salt Lake City, Appellant Pro Se
Michael N. Zundel, James A. Boevers, and Thomas
R. Barton, Salt Lake City, for Appellee
Before Judges Billings, Orme, and Thorne.
This case is before the court on its own motion for summary dismissal based on an untimely notice of appeal. See Utah R. App. P. 10(a)(1). Appellee The Society of Lloyd's (Lloyd's) also filed a motion for summary disposition on the grounds that the notice of appeal was untimely; that the order from which Appellant Wallace Bennett appeals is not final; and that the issues presented on appeal are so insubstantial as to not merit further consideration by the court.
The trial court issued an "Order Denying Defendant's Motion Requesting the Court to take Judicial Notice that State Law and Equity not Federal Determines Enforceability of a Particular Foreign Country Judgment in Utah" on November 26, 2003. The proposed order was served on Bennett, and his representative called the trial court regularly inquiring into whether the order had been signed. While the order was signed on November 26, 2003, the computer generated docket erroneously showed the entry date of the order as December 1, 2003. When Bennett's representative called the court, he was told erroneously that the order issued December 1, 2003. Despite being informed of the error long before the thirty days for filing a notice of appeal had run, Bennett waited until the thirtieth day from December 1, 2003, to file his notice of appeal, relying on the docket entry to determine when the time for appeal would end.
At the outset Bennett argues that Lloyd's motion for summary disposition is untimely because not filed within ten days of filing of the docketing statement. See Utah R. App. P. 10. However, because this court also issued a sua sponte motion, this argument is unavailing. Moreover, the lack of subject matter jurisdiction can be raised at any time. See Glezos v. Frontier Invs., 896 P.2d 1230, 1233 (Utah Ct. App. 1995).
Bennett argues, in response to the claim that the notice of appeal was untimely, that he detrimentally relied on erroneous information from the clerk and, as a result, he should be excused. This court is bound by the date stamp on the notice of appeal. See In re M.S., 781 P.2d 1287, 1288 (Utah Ct. App. 1989). Moreover, perfecting an appeal is the responsibility of the litigant, not the clerk of the court. See Prowswood Inc. v. Mountain Fuel Supply Co., 676 P.2d 952, 957 (Utah 1984). Even assuming that reliance on information from the court clerk constituted excusable neglect, "the exclusive procedure for extending the time for filing a notice of appeal" is a motion for an extension pursuant to rule 4(e) of the Utah Rules of Appellate Procedure In re M.S., 781 P.2d at 1288.
After receiving the sua sponte motion, Bennett contacted the trial court ex parte, and obtained an unsigned minute entry from the trial judge directing the clerk to "change the date stamp on said document to reflect the correct entry date of December 1, 2003, and mail a copy of the document to counsel." The minute entry acknowledges that the order was signed on November 26, 2003, and does not state how the date stamp was in error. Absent a motion to extend the time for filing and without affording the opposing party an opportunity to object, the trial court acted outside the scope of its authority pursuant to rule 4(e). As a result, the date stamp of November 26, 2003, stands unchanged and the notice of appeal was untimely filed.
Because we have determined that the notice of appeal was
untimely, we lack jurisdiction over the appeal and have no
authority to reach the remaining issues presented in Lloyd's
motion for summary disposition. See Glezos, 896 P.2d at 1233.
Once a court has determined that it lacks jurisdiction, it
"retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998).
Accordingly, we dismiss the appeal.
Judith M. Billings,
Gregory K. Orme, Judge
I CONCUR IN THE RESULT:
William A. Thorne Jr., Judge