Opinion
No. 19278.
September 25, 1985.
Appeal from the Second District Court, Weber County, Ve Noy Christoffersen, J.
Lorin R. Blauer, Bountiful, for plaintiff and appellant.
Gary Gale, Ogden, for defendants and respondents.
Plaintiffs appeal from an order denying their motion to set aside a judgment.
In 1977, plaintiffs sued defendants to quiet title in a condominium unit and to collect rentals due. Defendants counter-claimed to recover amounts paid in completing and decorating the unit and to enforce their lien against the unit. After intermittent settlement negotiations and numerous trial settings and cancellations, trial to the bench was finally conducted on June 7, 1982. Plaintiffs failed to appear or to be represented by counsel. The trial court dismissed plaintiffs' complaint and allowed defendants to proceed on their counterclaim. Defendants obtained judgment against plaintiffs. Findings of fact, conclusions of law, and judgment were signed by the trial court on August 19, 1982, and filed on August 23. A copy of the judgment was mailed to plaintiffs' counsel on September 23, but according to him never received by him. When defendants initiated garnishment proceedings in November of 1982, plaintiffs were first made aware of the outstanding judgment. Counsel for plaintiffs filed a motion under Rule 60(b) of the Utah Rules of Civil Procedure on December 22, 1982. That motion was denied on April 11, 1983. Plaintiffs appointed new counsel who filed a purported "Motion for Rehearing" which was denied on June 8, 1983. Plaintiffs' appeal is dated June 21, 1983.
Plaintiffs' Rule 60(b) motion, motion for rehearing and appeal are based on defendants' failure to comply with Rule 2.9(b) of the Rules of Practice in the District Courts and Circuit Courts of the State of Utah. Rule 2.9(b) states:
Copies of the proposed Findings, Judgments, and/or Orders shall be served on opposing counsel before being presented to the court for signature unless the court otherwise orders. Notice of objections thereto shall be submitted to the court within (5) days after service.
Compliance with Rule 2.9(b) is necessary in order that a judgment be "filed" as we have construed that term under Rule 58A(c) of the Utah Rules of Civil Procedure. Larsen v. Larsen, Utah, 674 P.2d 116, 117 (1983); Bigelow v. Ingersoll, Utah, 618 P.2d 50, 52 (1980). The record indicates that no copies of the proposed judgment and findings were sent to counsel for plaintiffs, and there is nothing in the trial transcript to show that the trial court waived that requirement. Therefore, no judgment has been "filed" within the meaning of the Rule, and this appeal is premature. Utah R. Civil P., Rules 58A(c) and 72(a).
The appeal is dismissed, and the case is remanded to the trial court for a proper filing of the judgment in compliance with Rule 2.9(b), from which plaintiffs may take a timely appeal if they so desire.