Legal Memorandum: Final Order or Judgment

Issue: Whether a judgment may be considered final if claims remain pending.

A final order or judgment ‘must dispose of the case as to all the parties, and finally dispose of the subject‑matter of the litigation on the merits of the case.’"  Miller v. USAA Cas. Ins. Co., 44 P.3d 663, 671 (Utah 2002) (quoting Kennedy v. New Era Indus., Inc., 600 P.2d 534, 536 (Utah 1979)).  "In other words, to be a final judgment, the order ‘must end the controversy between the litigants.’"  Id. at 671 (citation omitted).  If claims remain pending, an order is not final.  Id.  Cf. Bowen Trucking, Inc. v. Pub. Serv. Comm’n, 559 P.2d 954 (Utah 1977) (discussing the analogous situation where a commission/administrative board has issued an order but maintains continuing jurisdiction to modify the order, in which case there is no final judgment for res judicata purposes).

In order for a court’s decision to be considered a final judgment on the merits, the court must issue both findings of fact and conclusions of law.  See Hartford Accident & Indem. Co. v. Clegg, 103 Utah 414, 135 P.2d 919, 922 (1943).  In addition, the courts of Colorado have specifically recognized that orders of the nature involved here do not constitute final judgments.  In O’Neill v. Irwin, 414 P.2d 122 (Colo. 1966), for instance, the court held that an order denying a petition for removal of an executor was not a final judgment.  And in Peters v. Peters, 261 P. 874 (Colo. 1927), the reviewing court held that the […]