744 P.2d 1365 - Galloway v. Mangum

¶1Memorandum of Decision

HALL, Chief Justice:

¶2When this matter proceeded to trial, defendants AFCO Development Corporation and Grant Affleck were not present, the matter having been stayed as to them because they had each filed a petition in bankruptcy in the federal court. At the conclusion of trial, the judge entered a money judgment against only defendant Kim Mangum based upon a finding of negligent misrepresentation concerning the collateral for plaintiffs’ investment.

¶3At the time this case was originally calendared in this Court, it was observed that the judgment did not appear to be final and, in the absence of a determination by the trial court of no just reason for delay and the entry of a final judgment pursuant to the provisions of Utah Rule of Civil Procedure 54(b), that this Court was without jurisdiction. As a consequence, counsel were requested to brief the issue.

¶4The supplemental brief of appellant asserts that Rule 54(b) has no application in this case since AFCO and Affleck have since been discharged in bankruptcy. The brief of respondent simply suggests that in *1366this instance, we decline to apply the rule. Neither of the positions taken by counsel is consistent with our recent decisions on this point.

¶5Just as in Freegard v. First Western National Bank,1dispositive of this appeal is the fact that at the time the appeal was taken, plaintiffs’ cause of action against AFCO and Affleck had not been resolved and therefore remained pending. The judgment against Mangum was thus not final and not appealable in the absence of a proper certification by the trial court.2

¶6In Freegard, counsel represented that the trial court had since dismissed the action against the remaining party defendant. However, we concluded that the subsequent dismissal, having occurred after the fact, did not cure the procedural defect which deprived this Court of jurisdiction. The same holds true in the instant case, and the subsequent adjudication in bankruptcy of AFCO and Affleck does not confer jurisdiction on this Court after the fact.

¶7The appeal is dismissed as it was not taken from a final judgment.3

STEWART, Associate C.J., ZIMMERMAN, J., and SCOTT DANIELS, District Judge, concur.HOWE, J., having disqualified himself, does not participate herein.

¶8DANIELS, District Judge, sat.

DURHAM, J., having disqualified herself, does not participate herein.

¶9. 738 P.2d 614 (Utah 1987).

¶10. See Olson v. Salt Lake City School Dist., 724 P.2d 960, 964-65 (Utah 1986).

¶11.See Williams v. State, 716 P.2d 806, 807-08 (Utah 1986); Pate v. Marathon Steel Co., 692 P.2d 765, 767-68 (Utah 1984).