Phoenix Indemnity Insurance Co v. Yardley Inn

1 Phoenix Indemnity Insurance Company ("Phoenix") appeals the trial court's denial of its motion for partial summary judgment made prior to stipulated settlement of the case and entry of a final order of dismissal. Marlene Smith, a.k.a. Marlene Yardley ("Yardley"), moves for summary disposition for lack of jurisdiction pursuant to rule 10(a)(1) of the Utah Rules of Appellate Procedure. We grant Yardley's motion for summary disposition and dismiss the appeal.

Background and Procedural History

2 This appeal arises out of an automobile accident that occurred between David Merrill ("Merrill") and Yardley on October 27, 1997. On July 20, 1998, Merrill's insurance company, Phoenix, filed a subrogation action against Yardley. On December 3, 1999, Phoenix moved the trial court for partial summary judgment, arguing that the undisputed facts entitled Phoenix to relief based upon a theory of indemnification. Yardley opposed this motion by filing a responsive memorandum of law. The trial court denied Phoenix's motion for partial summary judgment and treated Yardley's memorandum of law in opposition to Phoenix's motion as a cross-motion for partial summary judgment, which it granted. The case then continued to trial before a jury. After a two-day trial, the jury returned a verdict that apportioned liability to Merrill and Yardley and determined Merrill's damages. Subsequently, the parties were unable to resolve their disagreements regarding the form of the proposed order of judgment, and as a result, a final judgment on the jury verdict was never signed or entered by the trial court. Eventually, the parties were able to agree that rather than submitting a proposed order of judgment to the trial court, Yardley and Phoenix would settle the case and the parties would file a stipulated motion to dismiss pursuant to Utah Rule of Civil Procedure 41(a)(2). Phoenix drafted the stipulated motion, and both parties signed it. The trial court granted the stipulated motion to dismiss and signed the order of dismissal on August 3, 2000. On September 1, 2000, Phoenix filed a notice of appeal, seeking review of the trial court's prior denial of its motion for partial summary judgment. In response, on September 28, 2000, Yardley moved this court for summary disposition for lack of jurisdiction pursuant to Utah Rule of Appellate Procedure 10(a)(1). We deferred ruling on this motion until briefing and oral argument had been completed.

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¶6 Because the parties settled their dispute and voluntarily stipulated to dismiss the underlying action, Phoenix does not have the right to appeal the trial court's prior denial of its motion for partial summary judgment and the issue is moot. Therefore, Yardley's motion for summary disposition for lack of jurisdiction pursuant to Utah Rule of Appellate Procedure 10(a)(1) is granted, and the appeal is dismissed.

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