Clark v. Archer, 2010 UT 57

Summary

The Utah Supreme Court held that a judgment expressly certified as final under Utah Rule of Civil Procedure 54(b) must be challenged through a timely appeal as of right under Utah Rules of Appellate Procedure 3 and 4. An interlocutory appeal petition does not substitute for a timely direct appeal, and an untimely later appeal deprives the court of appeals of jurisdiction.

Holdings

1. When a district court expressly certifies a judgment as final under Utah Rule of Civil Procedure 54(b), the appellant must file an appeal as of right under Utah Rules of Appellate Procedure 3 and 4, even if the appellant disputes the propriety of the certification.
2. An untimely petition for interlocutory appeal cannot be treated as timely notice of an appeal as of right from an expressly certified rule 54(b) judgment.
3. A rule 54(b) certification starts the appeal period running whether the certification is right or wrong, and failure to file a timely appeal as of right waives the opportunity to challenge the certification.

Questions Presented

1. Whether an order expressly certified as final under Utah Rule of Civil Procedure 54(b) must be appealed as of right under Utah Rules of Appellate Procedure 3 and 4.
2. Whether a petition for interlocutory appeal can serve as timely notice of an appeal as of right from a rule 54(b) judgment.
3. Whether an appellant may challenge the propriety of a rule 54(b) certification after failing to file a timely appeal as of right.

Disposition

affirmed