Neerings v. Utah State Bar

817 P.2d 320, 166 Utah Adv. Rep. 13, 1991 Utah LEXIS 64, 1991 WL 144448
CourtUtah Supreme Court
DecidedAugust 2, 1991
Docket890088, 890239, 890425 and 890509
StatusPublished
Cited by11 cases

This text of 817 P.2d 320 (Neerings v. Utah State Bar) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neerings v. Utah State Bar, 817 P.2d 320, 166 Utah Adv. Rep. 13, 1991 Utah LEXIS 64, 1991 WL 144448 (Utah 1991).

Opinions

HALL, Chief Justice:

Plaintiff R. Owen Neerings sought to recover damages caused by the unauthorized publication of private information. Neerings appeals from the entry of summary judgment in favor of defendants the Utah State Bar and Sydnie Kuhre (“the Bar”). We dismiss for lack of jurisdiction.

When reviewing an order granting summary judgment, the facts and all reasonable inferences that can be drawn from the facts are to be viewed in a light most favorable to the party opposing the motion.1

Neerings, as part of his application for membership in the Bar, sat for the February 1988 written examination. It is necessary to successfully complete the bar examination in order to be admitted to the Bar, a prerequisite to engage in the practice of law in the state of Utah. Prior to the time the official results of the examination were released, Kuhre, an employee of the Bar, informed Fasselin, a co-worker of Neerings, that Neerings had failed the examination. Fasselin then informed other co-workers of the results of the examination. Neerings was officially informed that he did not pass the examination on March 25, 1988.

Neerings appealed the result of his bar examination to the Utah State Bar Commission. Again, prior to the time Neerings was officially informed of the disposition of his appeal, Kuhre informed Fasselin that Neerings’ appeal was unsuccessful. Neer-ings was officially informed that his appeal was unsuccessful on May 27, 1988. Although the Bar has enacted no rules concerning the confidentiality of examination results, there is a “long-standing practice and unwritten but strictly-enforced policy” [321]*321that the names of those applicants who do not pass the examination should not be released. However, the names of applicants who pass the examination are published.

On June 9, 1988, Neerings initiated this action, claiming that by publicizing the results of his bar examination, the Bar (1) violated the Utah Archives and Records Service and Information Practice Act, Utah Code Ann. §§ 63-2-59 to -89, (2) violated Neerings’ constitutional right to privacy, (3) negligently breached a duty of confidentiality established by the Bar’s internal policies, and (4) tortiously invaded Neerings’ common law right to privacy. The Bar moved for summary judgment pursuant to Utah Rule of Civil Procedure 56, and on January 12, 1989, the district court, by an initialed minute entry, entered summary judgment dismissing all of Neerings’ claims.

After this minute entry, a number of motions, minute entries, orders, and notices of appeal followed. On January 20, 1989, Neerings filed a motion entitled “Motion/Request for Findings,” requesting that since defendants’ motion was based on more than one ground, the court issue a brief written statement of the grounds for its decision. In this motion, Neerings cited Utah Rule of Civil Procedure 52(a)2 and quoted language from it. However, in the motion, a request was made for the entry of “findings of fact,” which, Neerings now argues, is a request appropriately made under Utah Rule of Civil Procedure 52(b).3 On February 1, 1989, Neerings filed a motion entitled “Motion For New Trial and To Amend Judgment” pursuant to Utah Rule of Civil Procedure 59 wherein he again requested that the court issue a brief written statement of the grounds for its decision. On February 6, 1989, the court entered an order granting summary judgment in favor of the Bar without acting on Neerings’ rule 52(a) and rule 59 motions. On February 15, 1989, the trial judge entered an initialed minute entry denying Neerings’ rule 52(a) motion, stating that “specific findings of fact are not required under the rules for the entry of summary judgment.” The trial judge also stated that he agreed with the argument and citation of authorities stated in each of the Bar’s points in its motion for summary judgment. On February 23, 1989, the court entered an initialed minute , entry denying Neerings’ rule 59 motion.

On March 9, 1989, thirty-one days after the February order granting the Bar’s motion for summary judgment, Neerings filed a notice of appeal. On March 15, 1989, the trial court entered an order denying Neer-ings’ motion for a new trial or to amend the judgment. On May 15, 1989, the Bar filed a motion to dismiss the appeal, in the supreme court, on the ground that the notice of appeal was granted prior to the time the trial court acted on Neerings’ rule 59 motion. Neerings then sent a letter to the trial judge stating that there was only a minute entry denying the January 20 motion entitled “Motion/Request for Findings.” Neerings prepared an order which characterized the January 20 motion as a motion to enter findings under rule 52(b) and enclosed it in the letter. This order was signed and entered on May 24, 1989. On June 6, 1989, Neerings filed a second [322]*322notice of appeal from the February 6, 1989 order granting summary judgment. Neer-ings claimed that the time for appeal was extended pursuant to rule 4(b) of the Rules of the Utah Supreme Court4 by his January 20, 1989 motion, which Neerings characterized as a rule 52(b) motion. The Bar filed a second motion in the supreme court, claiming that the second appeal was not timely. The Bar argued that Neerings’ January 20, 1989 motion was not a rule 52(b) motion but a rule 52(a) motion, which does not extend the time for filing a notice of appeal. Neerings responded by moving to consolidate the two appeals. On August 7, 1989, this court entered a minute entry consolidating the cases and denying defendants’ motion to dismiss, but reserving the Bar’s motion for plenary presentation and consideration.

On August 25, 1989, the trial court entered an order vacating its May 24 order, denying Neerings’ January 20 “Motion/Request for Findings,” and characterizing the January 20 motion as a rule 52(b) motion. On September 27, 1989, Neerings filed a third notice of appeal. On November 1, 1989, the trial court entered an order vacating its August 25, 1989 order, denying Neerings’ January 20 “Motion/Request for Findings,” and characterizing the January 20 motion as a rule 52(a) motion. On November 16, Neerings filed his fourth notice of appeal. On January 23, 1991, the latter two appeals were consolidated with the first two appeals and the issue of whether Neerings had timely filed a notice of appeal was again reserved for plenary presentation.

A A number of substantive issues are presented in this appeal, including whether the Bar is a state agency within the contemplation of the Archives and Records Services and Information Practices Act, Utah Code Ann. §§ 63-2-59 to -89 (1989), and the Public and Private Writings Act, Utah Code Ann. §§ 78-26-1 to -8 (1987). However, this issue has heretofore been resolved by our decision in Barnard v. Utah State Bar.5 In any event, the dispos-itive issue presented is whether Neerings filed a timely notice of appeal. In their briefs, both parties maintain that disposi-tive of the issue of the timely filing of the notice of appeal is whether the January 20, 1989 motion was a rule 52(b) motion, which tolls the time for appeal, or a rule 52(a) motion, which does not toll the time for appeal.

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Neerings v. Utah State Bar
817 P.2d 320 (Utah Supreme Court, 1991)

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Bluebook (online)
817 P.2d 320, 166 Utah Adv. Rep. 13, 1991 Utah LEXIS 64, 1991 WL 144448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neerings-v-utah-state-bar-utah-1991.