Maddox v. Maddox

2024 UT App 130

THE UTAH COURT OF APPEALS

CHAD MADDOX,
Appellant,
v.
KATHLEEN WHETTON MADDOX,
Appellee.

Per Curiam Opinion
No. 20240490-CA
Filed September 12, 2024

Second District Court, Farmington Department
The Honorable Michael S. Edwards
No. 210700689

Rick Rose and Steven W. Call,
Attorneys for Appellant
Joseph E. Minnock and Lloyd R. Jones,
Attorneys for Appellee

Before JUDGES GREGORY K. ORME, RYAN M. HARRIS,
and RYAN D. TENNEY.

PER CURIAM:

¶1 Chad Maddox (Chad), as personal representative for the
heirs of Phoenix Matias Maddox-Plante, seeks to appeal the
district court’s ruling, made on summary judgment, that only a
primary liability insurance policy, and not an excess liability
insurance policy, is available to cover any damages resulting from
the automobile accident at the center of this case. The court
memorialized that ruling in a signed minute entry that was issued
immediately following a hearing held on August 25, 2023. But
because that minute entry did not dispose of all the issues in the
case, it was not a final order and thus not subject to immediate
appeal as of right.
Maddox v. Maddox

¶2 More than seven months later, on April 9, 2024, the court
issued an order certifying its summary judgment ruling as final
pursuant to rule 54(b) of the Utah Rules of Civil Procedure. On
May 1, Chad filed a notice of appeal, and he now asserts that his
appeal is proper and timely under either of two different avenues
for appeal of a non-final order. First, he asserts that this appeal is
proper pursuant to rule 54(b). Second, and in the alternative, he
asks us to construe his notice of appeal as a petition for
interlocutory appeal, lodged pursuant to rule 5 of the Utah Rules
of Appellate Procedure. Even though both parties urge us to take
this appeal and decide the coverage issue now, we are unable to
do so because the district court’s rule 54(b) certification was
improper and because Chad’s attempt to mount a rule 5
interlocutory appeal from the summary judgment ruling is
untimely. We therefore dismiss this appeal, without prejudice to
the filing of a later appeal at the end of the case.

¶3 Generally, appeals may be taken only from final orders. See
Utah R. App. P. 3; Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649.
“To be final, the trial court’s order or judgment must dispose of
all parties and claims to an action.” Bradbury, 2000 UT 50, ¶ 10.
“There are three exceptions to the final judgment rule: (1) when
the legislature has provided a statutory avenue for appealing
nonfinal orders; (2) when the appellate court grants a petition for
interlocutory appeal; and (3) when a district court properly
certifies an order as final under rule 54(b) of the Utah Rules of
Civil Procedure.” Hillam v. Hillam, 2022 UT App 24, ¶ 14, 507 P.3d
380 (cleaned up).

¶4 Proper rule 54(b) certification has three requirements:
(1) “there must be multiple claims for relief or multiple parties to
the action”; (2) “the judgment appealed from must have been
entered on an order that would be appealable but for the fact that
other claims or parties remain in the action”; and (3) the district
court “must make a determination that there is no just reason for
delay of the appeal.” Id. ¶ 16 (cleaned up). With respect to the

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Maddox v. Maddox

third requirement, the district court must enter specific findings
supporting the conclusion that the certified order is final. See id.
¶ 17. “[T]hese findings must detail the lack of factual overlap
between the certified and remaining claims, and they should also
advance a rationale as to why there is no just reason for delay.”
Id. (cleaned up).

¶5 The district court’s April 9, 2024 order does not satisfy the
criteria set forth in Hillam, for two reasons. First, the court’s ruling
on the coverage issue did not adjudicate “one or more but fewer
than all of the claims or parties” involved in the case. See Utah R.
Civ. P. 54(b). Chad asserts that the court’s ruling had the effect of
relieving the excess insurer of any potential liability in the case,
and therefore dismissed “a true party in interest.” But an insurer
for one of the parties is not actually a party to the litigation and
may not be joined as a real party in interest. See Green v. Louder,
2001 UT 62, ¶¶ 40–45, 29 P.3d 638. Thus, a ruling that the excess
insurance policy is not applicable to cover damages in this case is
not a ruling that resolves any party’s claims in the case. Second,
the district court’s rule 54(b) certification order does not contain
any findings that discuss the lack of factual overlap between the
certified and remaining claims. That order simply recites that the
parties have stipulated that immediate appeal of the coverage
issue is warranted, and states that “[t]here is no just reason for
delay” in appealing “because the coverage issue is critical for
disposition of the case” given that “the central issue” in the case
is “the amount of insurance available.” For both of these reasons,
the district court’s attempt, in its April 2024 order, to certify its
August 2023 ruling as final pursuant to rule 54(b) was improper.

¶6 In the alternative, the parties urge this court to construe
Chad’s May 1, 2024 notice of appeal as a petition for interlocutory
appeal pursuant to rule 5(a) of the Utah Rules of Appellate
Procedure. But we are unable to grant the parties’ request,
because Chad’s May 2024 attempt to mount an interlocutory
appeal from the August 2023 ruling is untimely.

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Maddox v. Maddox

¶7 Rule 5 requires that petitions for permission to appeal from
interlocutory orders be filed “within 21 days after the entry of the
trial court’s order” being challenged. Utah R. App. P. 5(a). And
this rule is one of the few that we are not allowed to “suspend” in
extraordinary circumstances. See id. R. 2. Thus, any attempt to
mount an interlocutory appeal from the court’s August 25, 2023
ruling needed to have been filed no later than September 15, 2023.
Chad’s attempt to do so in May 2024 is months too late.

¶8 Chad resists this conclusion by directing our attention to
language in rule 5(a) that provides, in relevant part, that “[a]
timely appeal from an order certified under Rule 54(b), Utah
Rules of Civil Procedure, that the appellate court determines is
not final may, in the appellate court’s discretion, be considered by
the appellate court as a petition for permission to appeal an
interlocutory order.” Id. R. 5(a). But this language refers to an
“appeal from an order certified under Rule 54(b),” and not to an
appeal from a rule 54(b) certification order. There is a difference,
conceptually, between these two things—the “order certified
under Rule 54(b)” is the underlying order containing the ruling
that is to be challenged on appeal, and that order will not always
contain a certification, pursuant to rule 54(b), that it is to be
considered final for purposes of appeal.

¶9 It is certainly possible for a ruling to be certified as “final”
under rule 54(b) in the same order that sets forth the ruling itself,
and when this occurs, we are—as long as the notice of appeal was
filed within 21 days of the target order—able to entertain requests
to convert an appeal involving improper rule 54(b) certification
into a timely petition for interlocutory appeal. But in many cases,
the rule 54(b) certification appears in a second order that is
separate from the order containing the ruling itself, and in such
cases, the rule 54(b) certification order is often entered more than
21 days after the order containing the ruling that the party wishes
to challenge on appeal. When this occurs, we cannot entertain
requests to convert appeals involving improper rule 54(b)

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certification orders into petitions for interlocutory appeal, because
such “petitions” are not filed within 21 days of the order being
challenged and are therefore untimely. And that is the case here.

¶10 Thus, because rule 54(b) certification is improper, and
because Chad’s putative “petition” for permission to mount an
interlocutory appeal is untimely, we have no jurisdiction to
entertain Chad’s appeal. We therefore dismiss the appeal, without
prejudice to the filing of a later appeal at the end of the case.

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