               This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2015 UT 3

                                   IN THE

       S UPREME C OURT OF THE S TATE OF U TAH
                      GLENDA MC GIBBON ,
                            Appellant,
                               v.
                  FARMERS INSURANCE EXCHANGE,
                            Appellee.

                             No. 20120484
                         Filed January 23, 2015

                    Second District, Ogden Dep’t
                   The Honorable Scott M. Hadley
                          No. 090902055

                                Attorneys:
      Erik M. Ward, Lindy W. Hamilton, Robert W. Gibbons
                 Salt Lake City, for applellant
            Lloyd R. Jones, Salt Lake City, for appellee

   JUSTICE DURHAM authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,
             JUSTICE PARRISH , and JUSTICE LEE joined.

JUSTICE DURHAM , opinion of the Court:
                           INTRODUCTION
  ¶1      Glenda McGibbon appeals from a district court order
compelling her to arbitrate her claims against her insurance
company, Farmers Insurance Exchange (Farmers). We conclude that
we lack jurisdiction to consider her appeal and therefore dismiss it
without ruling on its merits.
                            BACKGROUND
   ¶2    Ms. McGibbon filed this lawsuit after being injured in an
automobile accident. At the time of the accident, she owned an
insurance policy with Farmers that included uninsured motorist
coverage.
   ¶3     Because insurers who provide such coverage ultimately
bear the uninsured motorists’ liability, they may contest that liability
by intervening in their policyholders’ lawsuits against the
uninsured. Farmers did so, becoming a defendant and filing an
answer to Ms. McGibbon’s complaint. The parties later stipulated to
dismiss the uninsured driver, leaving Farmers as the sole defendant.
                 MC GIBBON v. FARMERS INSURANCE
                       Opinion of the Court

   ¶4     After filing its answer, Farmers proposed that the parties
stipulate to arbitration, but Ms. McGibbon refused. Farmers then
sought to compel arbitration based on an arbitration clause in
Ms. McGibbon’s policy. The district court granted Farmers’ motion
and dismissed Ms. McGibbon’s complaint.
   ¶5     Ms. McGibbon petitioned this court for interlocutory
review of the district court’s order, and we provisionally granted
review subject to a subsequent determination that we have
jurisdiction over the appeal. For reasons explained below, we
conclude that we lack jurisdiction and therefore dismiss the appeal.
                    STANDARD OF REVIEW
   ¶6     Because we lack jurisdiction, we do not review the decision
of the district court and no standard of review applies.
                            ANALYSIS
   ¶7     The Utah Rules of Appellate Procedure establish two
procedures through which parties before the district court may seek
appellate review. In order to challenge an interlocutory order, a
party must file a petition with the appropriate appellate court. UTAH
R. APP. P. 5(a). A challenge to a final order, on the other hand, may
not be commenced by filing a petition in the appellate court. Rather,
a party wishing to appeal from a final order must file a notice of
appeal in the district court that entered the order. Id. 4(a).
   ¶8     We conclude that Ms. McGibbon has satisfied the
requirements of neither of these procedures. Because she is
challenging a final order, we may not hear her case as an
interlocutory appeal. And because she failed to file a timely notice
of appeal in the district court, we may not hear the case as an appeal
of a final order. We therefore lack jurisdiction and must dismiss
Ms. McGibbon’s appeal.
        I. THE DISTRICT COURT’S ORDER WAS FINAL
   ¶9      In Powell v. Cannon, we held that when a district court
orders a stay of litigation pending the completion of arbitration, the
order is not final if the court retains jurisdiction to resolve any
remaining issues after the conclusion of arbitration proceedings.
2008 UT 19, ¶ 18, 179 P.3d 799. In Zions Management Services v.
Record, however, we clarified that if the only issue before the court
is whether to compel arbitration, an order compelling arbitration is
“a final decision because it effectively end[s] the controversy
between the parties and [leaves] no claims pending before the
district court.” 2013 UT 36, ¶ 26, 305 P.3d 1062 (internal quotation
marks omitted).



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                         Cite as: 2015 UT 3
                        Opinion of the Court

   ¶10 In this case, the district court dismissed Ms. McGibbon’s
lawsuit when it compelled arbitration. It did not retain jurisdiction
over the proceedings because there remained nothing left for it to
resolve once arbitration was finished. The order compelling
arbitration was therefore a final order under Zions Management.
   ¶11 Because the district court’s order was final, we cannot
review it on interlocutory appeal. This is apparent from the plain
language of the rule governing interlocutory appeals, which allows
parties to initiate an appeal by petitioning the appellate court only
when they seek “[a]n appeal from an interlocutory order.” UTAH R.
APP. P. 5(a).
   ¶12 This conclusion is further supported by our precedent. In
Clark v. Archer, we held that rules 3 and 4, not rule 5, “provide the
procedural mechanism for a party to appeal a final order. When a
district court has entered a final judgment [or other final order],
parties to the litigation are bound to follow the procedural
requirements of [rules 3 and 4] in seeking appellate review.” 2010
UT 57, ¶ 9, 242 P.3d 758.
   ¶13 The law is clear: Ms. McGibbon could not appeal the
district court’s final order by following the requirements of rule 5.
The question, then, is whether her filings satisfied the requirements
of rules 3 and 4. We address this question below.
    II. FILING A PETITION FOR INTERLOCUTORY APPEAL
        WITH THE SUPREME COURT DOES NOT SATISFY
                       RULES 3 AND 4
   ¶14 Rules 3 and 4 of the Utah Rules of Civil Procedure make
clear that an appeal from a final order may not be heard unless the
appellant filed a notice of appeal with the district court within thirty
days of the order’s entry. The “[f]ailure of an appellant to take any
step other than the timely filing of a notice of appeal does not affect
the validity of the appeal,” UTAH R. APP. P. 3(a), but the failure of an
appellant to file a notice of appeal prevents the appellate court from
taking jurisdiction of the case. Prowswood, Inc. v. Mountain Fuel
Supply Co., 676 P.2d 952, 955 (Utah 1984) (“It is axiomatic in this
jurisdiction that failure to timely perfect an appeal is a jurisdictional
failure requiring dismissal of the appeal.”), superseded in part on other
grounds by procedural rule, UTAH R. APP. P. 3, as recognized in Clark v.
Archer, 2010 UT 57, ¶ 14, 242 P.3d 758.
    ¶15 In applying this rule, we note that the caption on a court
filing is not dispositive. “When determining whether a notice of
appeal is sufficient, we look to the substance of the notice—not its
caption.” Cedar Surgery Ctr., L.L.C. v. Bonelli, 2004 UT 58, ¶ 12, 96
P.3d 911. If an appellant files an incorrectly captioned document that


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                  MC GIBBON v. FARMERS INSURANCE
                        Opinion of the Court

“otherwise complie[s] with the content and service requirements of
rule 3,” and does so within the deadlines set by rule 4, the
“misdesignation of the appeal . . . [is] harmless.” Id. Under such
circumstances, the appellate court may take jurisdiction of the case.
   ¶16 But in this case, Ms. McGibbon did not file a notice of
appeal with the district court, correctly captioned or otherwise. The
appellant in Cedar Surgery satisfied the requirements of rules 3 and
4 by filing a copy of its petition for permission to appeal in the
district court as well as in the appellate court. Id. ¶¶ 5, 11. But
Ms. McGibbon did not file a copy of her petition in the district court;
indeed, she filed nothing at all in the district court between the entry
of the court’s final order and the thirty-day deadline.
    ¶17 The only notice the district court received of
Ms. McGibbon’s appeal was a routine form letter sent by the
supreme court to the district court after she filed her petition.
Although the language of rule 3 is not entirely clear as to whether a
document that is in the record but not filed by the appellant can
constitute a notice of appeal, we think the better reading of the text
is that it cannot—that the notice of appeal must be a document filed
by the appellant and not merely a letter sent by the appellate court.
In any case, the supreme court’s letter in this proceeding could not
serve as a notice of appeal because it does not contain all the
information required by rule 3. Specifically, it does not “specify the
party or parties taking the appeal,” and it does not “designate the
judgment or order . . . appealed from.” UTAH R. APP. P. 3(d).
   ¶18 We therefore conclude that Ms. McGibbon has not filed a
notice of appeal and that we lack jurisdiction to consider her case.
Had she filed a copy of her interlocutory petition in the district
court, we could have treated it as a notice of appeal if it satisfied the
requirements of rules 3 and 4. See Cedar Surgery, 2004 UT 58, ¶ 11.
But because she failed to file anything in the district court that
satisfied those requirements, her case is disposed of by our holding
in Clark v. Archer: the failure to file a notice of appeal in the district
court “cannot be corrected by the erroneous filing of a petition for
interlocutory appeal” in the appellate court. 2010 UT 57, ¶ 13, 242
P.3d 758.
                            CONCLUSION
   ¶19    Ms. McGibbon’s appeal is therefore dismissed.




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