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

                               2020 UT 44


                                  IN THE

      SUPREME COURT OF THE STATE OF UTAH

                  TRAPNELL & ASSOCIATES, LLC,
                           Petitioner,
                                     v.
LEGACY RESORTS, LLC and AMERICA FIRST FEDERAL CREDIT UNION,
                        Respondents.

                        No. 20190048
                  Heard January 13, 2020
         Supplemental Briefing Received March 6, 2020
                      Filed July 6, 2020

           On Certiorari to the Utah Court of Appeals

                   Fourth District, Heber
            The Honorable Judge Samuel D. McVey
                       No. 140500081

                               Attorneys:
    Matthew G. Grimmer, Jacob R. Davis, Lehi, for appellant
   Peter C. Schofield, Rod N. Andreason, Justin W. Starr, Lehi,
                   for appellee Legacy Resorts
      Mark R. Gaylord, Nathan R. Marigoni, Salt Lake City,
        for appellee America First Federal Credit Union

   JUSTICE PEARCE authored the opinion of the Court, in which
      CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
         JUSTICE HIMONAS, and JUSTICE PETERSEN joined.


   JUSTICE PEARCE, opinion of the Court:
                         INTRODUCTION
   ¶1 Trapnell & Associates, LLC (Trapnell) asks us to review
the court of appeals’ application of the partial subordination
doctrine to a set of liens with circular priority. We love a lien
                  TRAPNELL v. LEGACY RESORTS
                      Opinion of the Court
subordination dispute as much as the next court, but we are
prevented from sinking our teeth into the meat of that question
because we lack jurisdiction.
     ¶2 After the district court entered its final judgment in this
matter, but before the time to appeal expired, Trapnell apparently
purchased the plaintiff’s—Praia, LLC (Praia)—interest in this
litigation. Trapnell announced its arrival to the scene by filing a
notice under Utah Rule of Civil Procedure 17 that it was now the
real party in interest. That same day, Trapnell lodged a notice of
appeal.
    ¶3 Legacy Resorts, LLC (Legacy) and America First Federal
Credit Union (AFCU) asked the court of appeals to summarily
dismiss Trapnell’s appeal. Legacy and AFCU argued that Trapnell
needed to file a motion to substitute pursuant to Utah Rule of
Civil Procedure 25 if it wanted to take the litigation over from
Praia. They further argued that because Trapnell had improperly
inserted itself into the dispute, the notice of appeal it had filed
was ineffective. The court of appeals recognized the potential
problem and remanded to the district court in apparent hopes that
the district court could address the issue. The district court did
not see the problem with Trapnell’s approach and affirmed that,
in its view, Trapnell had properly become a party to the action.
    ¶4 Legacy and AFCU appealed that decision. The court of
appeals addressed Trapnell’s attempted entry in the same opinion
in which it ruled on the merits of Trapnell’s arguments. See
Trapnell & Assocs. LLC v. Legacy Resorts LLC, 2018 UT App 231, 438
P.3d 44. The court of appeals noted the procedural oddities of
trying to substitute into the action through a rule 17 notice but
came to the very pragmatic conclusion that because Trapnell
intended to become a party and the district court had treated
Trapnell as a party, Trapnell had become a party. See id. ¶¶ 16–23.
   ¶5 We cannot follow the court of appeals down that path.
Our rules of civil procedure do not permit Trapnell to make itself
a party to an ongoing action simply by declaring it so. The
consequence of failing to follow the rules is that the notice of
appeal Trapnell filed is invalid. And without a valid notice of
appeal, the court of appeals lacked jurisdiction to render its
decision.
   ¶6 When Legacy and AFCU began to squawk about
Trapnell’s procedural misadventure, Praia attempted to fix
Trapnell’s error by filing a motion to extend the time to file its
own notice of appeal. The district court twice denied that motion,

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                       Opinion of the Court
and Praia lodged a “conditional cross-appeal” to challenge that
decision. We vacate the court of appeals’ decision and remand to
that court so that it can sort out what to do with Praia’s
conditional cross-appeal.
                         BACKGROUND
    ¶7 This case involves various loans secured by Zermatt
Resort in Midway, Utah. The court of appeals did a yeoman’s job
of reciting the facts underlying the dispute, and we refer those
interested in the details to read that opinion. See generally Trapnell
& Assocs. LLC v. Legacy Resorts LLC, 2018 UT App 231, 438 P.3d 44.
For the purpose of our discussion, it suffices to say that a dispute
arose between lienholders regarding the distribution of the
fourteen million dollars a foreclosure sale of Zermatt (Foreclosure
Sale) had generated. See id. ¶¶ 1–13.
    ¶8 A suit was initiated. Praia moved for summary judgment,
arguing that the district court should award it the lion’s share of
the Foreclosure Sale’s proceeds. Id. ¶ 9. Legacy and AFCU
cross-moved for summary judgment, contending that Praia
should, in the words of a judge not involved in this dispute, get
nothing and like it. Id. Since Legacy, AFCU, and Praia all held
liens on the property, resolution of those motions hinged on
whose lien was subordinate to whose and for how much.
    ¶9 The district court concluded that Praia was not entitled to
any proceeds and granted Legacy’s motion for summary
judgment. Id. ¶ 10. The district court dismissed Praia’s remaining
claims and entered a final judgment on August 10, 2016. Id.
   ¶10 According to a document Trapnell filed in the court of
appeals, on August 18, 2016, Praia assigned its interest in the case
to Trapnell. Id. ¶ 11. On August 22, 2016, Trapnell attempted to
enter the litigation by filing a rule 17 “Notice of Substitution of
Real Party in Interest.” Id. The entirety of that pleading stated
       Plaintiff Trapnell & Associates, LLC (“Trapnell”),
       pursuant to Rule 17 of the Utah Rules of Civil
       Procedure, provides notice that Trapnell, as assignee
       of the claims brought by Praia, LLC (the former
       Plaintiff in this matter) against Defendant Legacy
       Resorts, LLC, including the claim for declaratory
       judgment, is the real party in interest who shall
       prosecute this action.
Trapnell filed a Notice of Appeal on the same day. Id. ¶¶ 3, 11.


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                    TRAPNELL v. LEGACY RESORTS
                        Opinion of the Court
    ¶11 Legacy and AFCU quickly moved the court of appeals to
summarily dispose of Trapnell’s appeal. Legacy and AFCU
argued that the court of appeals lacked jurisdiction to hear the
case. They reasoned that if Trapnell wanted to substitute into the
action for Praia, it needed to file a motion pursuant to Utah Rule
of Civil Procedure 25. They further argued that the rule 17 notice
Trapnell filed was an ineffective mechanism to grant Trapnell
party status. Because no “party” had filed a notice of appeal
within the required thirty-day window, the court of appeals
lacked jurisdiction. Or so went the argument Legacy and AFCU
advanced to the court of appeals. 1 Id. ¶ 12.
    ¶12 Praia reemerged to file a motion under Utah Rule of
Appellate Procedure 4(e) for an extension of time to file an appeal
in the district court. It filed this motion on September 26, 2016—
after the original thirty days to file the notice of appeal had
expired but within the window rule 4(e) allows a party to seek
additional time to appeal. 2 Id.; see also UTAH R. APP. P. 4(e)
(permitting a trial court to extend the time for filing a notice of
appeal if the motion is filed no more than thirty days after the
original deadline). Legacy opposed Praia’s motion primarily
claiming that the district court lost jurisdiction over the case when
Trapnell filed its notice of appeal.
    ¶13 On the same day that Praia filed its rule 4(e) motion for
additional time, Trapnell filed, in the court of appeals, a motion to
substitute into the appeal pursuant to Utah Rule of Appellate
Procedure 38. Trapnell included, as an exhibit to a declaration
from Trapnell’s attorney, a copy of the document memorializing
Praia’s assignment of its interest in this litigation to Trapnell. This
appears to be Trapnell’s first attempt in either the district court or
the court of appeals to validate its assertion that Praia had
assigned claims to it. Legacy opposed that motion arguing, among
other things, that because Trapnell had filed the notice of appeal,

__________________________________________________________
   1 The parties filed various other appeals; some of which were
later consolidated into a single court of appeals matter. Among
other things, Praia appealed the district court’s first denial of its
motion for an extension of time to file an appeal, and Legacy and
AFCU appealed the district court’s second denial of Praia’s
motion for an extension.
   2 The same attorneys that represent Trapnell also represented
Praia in both the district court and the court of appeals.


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                        Opinion of the Court
it was attempting to substitute itself for itself. Legacy also claimed
that it would be prejudiced by Trapnell’s substitution into the
case. AFCU joined in Legacy’s opposition to Trapnell’s motion.
     ¶14 On September 29, 2016, the district court denied Praia’s
rule 4(e) motion for an extension of time. The district court gave
little reasoning but stated that after reviewing the motion and
opposition, “the Court notes the final order in this [case] has
already been appealed and is before the Court of Appeals.” Praia
appealed the district court’s denial of its motion for an extension
of time to file an appeal.
    ¶15 On October 21, 2016, Praia joined Trapnell’s rule 38
motion for substitution before the court of appeals. Legacy
opposed the substance of Praia’s motion. Legacy again argued
that Trapnell was trying to substitute itself for itself, that it was
attempting to substitute into an appeal over which the court of
appeals had no jurisdiction, and that the document Trapnell was
using to demonstrate that it was the owner of Praia’s interest in
the litigation failed “to show that Trapnell assumed Praia’s
obligations in this case.” In a reply supporting its joinder in
Trapnell’s motion, Praia argued that Trapnell should be named a
party because it is the real party in interest and substitution
would not prejudice Legacy.
    ¶16 On November 2, 2016, the court of appeals deferred
ruling on Legacy’s and AFCU’s motion for summary disposition
for lack of jurisdiction. It also deferred ruling on Trapnell’s rule 38
substitution motion until it could resolve Praia’s appeal of the
denial of its motion for additional time to file its appeal.
    ¶17 On December 21, 2016, the court of appeals reversed the
district court’s order denying Praia’s motion for an extension of
time to file an appeal. By way of reminder, the district court had
denied that motion noting that it was unnecessary to give Praia
additional time because Trapnell had already lodged an appeal of
the final order in the case. The court of appeals appears to have
read that order to say that the district court believed that it had
lost jurisdiction to grant Praia’s motion when Trapnell filed its
notice of appeal. The appeals court explained that the district
court had jurisdiction to consider the motion because the rules of
appellate procedure allow for “motions for an extension to be
filed in the district court up to thirty days after the original notice
of appeal period expired.” Because of this, reasoned the court of
appeals, “the district court retains jurisdiction to resolve such


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                    TRAPNELL v. LEGACY RESORTS
                        Opinion of the Court
motions.” The court of appeals remanded for the district court to
consider the substance of the rule 4(e) motion for additional time.
    ¶18 On December 27, 2016, the district court again denied
Praia’s motion for an extension of time to file an appeal. 3 The
district court explained its initial ruling in the matter by
reminding the court of appeals that it had “noted the case had
been appealed already” and therefore intended “to imply a
second notice was not necessary.” The district court found that
Trapnell “had already that same day substituted in as the real
party in interest as allowed by rule 17(a) of the Utah Rules of Civil
Procedure” and that as a matter of law, “Trapnell was therefore
the only plaintiff party in interest having been assigned all of
previous-plaintiff Praia’s claims.”
    ¶19 The district court further stated that because “Trapnell
now stands in the place of Praia—as the real party in interest[,] it
has all of Praia’s rights in the case.” It concluded that, “Based on
Trapnell’s representing itself as the real party in interest, meaning it
was the assignee of Praia and was taking over the case, there is no
reason to consider Praia as an entity required to file its own
subsequent notice of appeal.” (Emphasis added.) In essence, the
district court concluded that Trapnell had properly substituted in
as the plaintiff because it filed a rule 17(a) notice, and therefore, its
notice of appeal was valid. According to the district court, it was
unnecessary to accommodate Praia’s request for additional time
to file an appeal because Trapnell was a proper party and had
filed a timely notice of appeal.
   ¶20 Legacy and AFCU both appealed the district court’s
second denial of Praia’s motion for an extension. According to
Legacy and AFCU, the district court erred in concluding that
Trapnell could use rule 17 to declare itself a party to the litigation.
   ¶21 Praia conditionally cross-appealed stating that if “an
appellate court” in any of the active appeals “holds that Trapnell’s
substitution for Praia was ineffective, . . . then Praia and Trapnell
request that the [court’s order] be vacated and the issue of the


__________________________________________________________
   3 The judge signed the order on December 27, 2016, but it was
stamped and filed as December 28, 2017. The parties refer to
various dates in their briefing. We refer to this as the December
27, 2016 order.


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                        Opinion of the Court
extension of time for Praia to appeal again be presented to the
district court.”
    ¶22 The court of appeals consolidated Trapnell’s appeal on
the merits (into which it had already consolidated Legacy’s
motions for summary disposition for lack of jurisdiction) with
Legacy’s and AFCU’s separate appeals regarding the December
27, 2016 order. And it dealt with those issues in the same opinion
in which it reached the merits of Trapnell’s appeal.
     ¶23 The court of appeals concluded that it had jurisdiction to
resolve the matter. Trapnell, 2018 UT App 231, ¶ 23. The court of
appeals acknowledged “it would have been better had Trapnell
filed a motion invoking rule 25(c) instead of a notice invoking rule
17.” Id. ¶ 22. But the court of appeals concluded that Trapnell’s
filing made its intent clear: “it wished to be recognized as the real
party in interest so that it could prosecute the appeal in Praia’s
stead.” Id.
     ¶24 The court of appeals reasoned that the district court had
ruled that Trapnell became a party to the action “after receiving a
filing—properly served on all other parties—in which Trapnell
clearly signaled its intent to be substituted into the case for Praia.”
Id. ¶ 20. The court of appeals noted that a pleading’s caption “is
not necessarily dispositive of its substance” so it was reasonable
for the district court to, in essence, treat the rule 17 notice as a rule
25 motion. Id. ¶ 21. And the court of appeals concluded that
neither Legacy nor AFCU presented any evidence that Trapnell
was not actually Praia’s assignee. Id. ¶ 22. This led the court of
appeals to conclude that Trapnell’s entry into the matter had not
prejudiced its adversaries. Id.
    ¶25 The court of appeals recognized the “unique
circumstances” of the case, but it ultimately affirmed the district
court’s conclusion that Trapnell could enter the ongoing litigation
by declaring itself the real party in interest. Id. ¶ 23.
    ¶26 Any sense of euphoria Trapnell may have felt with that
holding was short-lived, as the court of appeals proceeded to
reject Trapnell’s substantive arguments and affirmed the district
court. 4 Id. ¶¶ 27–37. Trapnell petitioned for a writ of certiorari,

__________________________________________________________
   4 Because we determine we do not have jurisdiction over this
case, we do not delve into the court of appeals’ conclusions and
analysis of the lien priority issue at the heart of this matter. We
                                                     (continued . . .)
                                   7
                   TRAPNELL v. LEGACY RESORTS
                       Opinion of the Court
alleging the court of appeals erred in how it had applied the
partial subordination doctrine. Neither Legacy nor AFCU
cross-petitioned for certiorari on the jurisdictional question. But
Legacy briefly mentioned the jurisdictional issue in a footnote,
indicating that the “jurisdictional concerns have not gone away.”
It further noted that jurisdiction is a “threshold issue” and if we
have questions about jurisdiction, “it will need to be addressed.”
   ¶27 We granted certiorari to consider whether the court of
appeals erred in construing and applying the partial
subordination doctrine.
   ¶28 At oral argument, we questioned the parties about the
process by which Trapnell had entered the litigation. Following
oral argument, we ordered supplemental briefing on whether the
court of appeals erred when it concluded that it had jurisdiction
over Trapnell’s appeal.
             ISSUE AND STANDARD OF REVIEW
     ¶29 The issue before us concerns whether the court of appeals
erred when it determined it had jurisdiction over Trapnell’s
appeal. Or, more precisely, whether the court of appeals erred
when it concluded that Trapnell was a party to the litigation when
it filed a notice of appeal. This presents a question of law that we
review for correctness. See Judge v. Saltz Plastic Surgery, P.C., 2016
UT 7, ¶ 11, 367 P.3d 1006. To the extent this requires us to review
the court of appeals’ application of rules of civil procedure 17 and
25, “the interpretation of a rule of procedure is a question of law
that we review for correctness.” Brown v. Glover, 2000 UT 89, ¶ 15,
16 P.3d 540.
                            ANALYSIS
    ¶30 Neither Legacy nor AFCU cross-petitioned for certiorari
on the issue we address in this opinion. In most instances, that
would be the end of the inquiry. Although we retain the ability to
affirm on any ground apparent in the record, we will normally
consider an issue waived if not raised. See Cochegrus v. Herriman
City, 2020 UT 14, ¶ 36, 426 P.3d 357 (“It is within our discretion to
affirm [a] judgment on an alternative ground if it is apparent in
the record.” (alteration in original) (citation omitted) (internal
quotation marks omitted)); State v. Johnson, 2017 UT 76, ¶ 16, 416


again refer the curious reader to the court of appeals opinion. See
Trapnell, 2018 UT App 231, ¶¶ 27–37.


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                       Opinion of the Court
P.3d 443 (“When a party fails to raise and argue an issue on
appeal, . . . that issue is waived and will typically not be
addressed by the appellate court.”).
    ¶31 But jurisdiction is unique. We have an independent
obligation to ensure that we have jurisdiction over all matters
before us and do not take lightly our responsibility to ensure we
have proper jurisdiction before deciding a case. See Utah Down
Syndrome Found., Inc., v. Utah Down Syndrome Ass’n, 2012 UT 86,
¶ 13, 293 P.3d 241 (“Where an appeal is not properly taken, this
court lacks jurisdiction and we must dismiss.” (citation omitted)).
Legacy’s footnote, coupled with the less-than-definitive answers
we received at oral argument, prompted us to order supplemental
briefing to assure ourselves that this matter is properly before us.
    ¶32 We asked the parties to address four questions:
1) whether the district court erred in concluding Trapnell properly
became a party by filing its rule 17 notice; 2) if the district court
erred, did any subsequent action by any court or party cure the
error; 3) whether the court of appeals had jurisdiction to decide
the matter; and 4) if Trapnell is not a party, what steps could be
taken to ensure that this court has jurisdiction over the matter or
to permit Trapnell to cure any defect.
   ¶33 In supplemental briefing, Legacy and AFCU both argue
we do not have jurisdiction over Trapnell’s appeal. They contend
the district court erred when it concluded that Trapnell could
become a party by declaring itself the real party in interest under
Utah Rule of Civil Procedure 17. They claim that because Trapnell
never became a party to this litigation, its notice of appeal was
ineffective to invoke appellate jurisdiction.
    ¶34 Trapnell argues that the court of appeals correctly
determined that it effectively moved to be substituted into the
matter by filing a rule 17 notice. But Trapnell asserts that if we
decide it was not properly substituted into this case, we should
remand to the district court for full briefing on the issue of
whether Trapnell is a proper party. Trapnell also asks us, in the
alternative, to grant Praia’s conditional cross-appeal for additional
time to file a notice of appeal and remand to the district court.
       I. A Timely Notice of Appeal is a Prerequisite to the
                Exercise of Appellate Jurisdiction
    ¶35 “One procedural prerequisite to invoking appellate court
jurisdiction is the requirement that an aggrieved party file ‘a notice
of appeal with the clerk of the trial court.’ This must be done

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                    TRAPNELL v. LEGACY RESORTS
                        Opinion of the Court
‘within 30 days after the date of entry of the judgment or order
appealed from.’” State v. Collins, 2014 UT 61, ¶ 22, 342 P.3d 789
(emphasis added) (citations omitted). The requirement that a party
file within thirty days is jurisdictional, “meaning that an appellate
court simply has no power to hear the case if a notice of appeal is
untimely.” Id.; see also Wittingham, LLC, v. TNE Ltd. P’ship, 2018 UT
45, ¶ 22, 428 P.3d 1027 (“[W]e cannot confer jurisdiction merely
because parties want us to.”).
     ¶36 In this case, Trapnell is the only entity that timely filed a
notice of appeal of the district court’s final order.5 Thus, for
appellate jurisdiction to exist, Trapnell needed to be a party to the
litigation entitled to file that notice of appeal. See UTAH R. APP. P. 3
(discussing how a “party” may take an appeal). To decide
whether Trapnell was a party when it attempted to appeal, we
need to take a hard look at Utah Rules of Civil Procedure 17 and
25.
                       II. Rule 17 and Rule 25
    ¶37 Rule 17 states that “[e]very action shall be prosecuted in
the name of the real party in interest.” UTAH R. CIV. P. 17(a). It
further mandates that “[n]o action shall be dismissed on the
ground that it is not prosecuted in the name of the real party in
interest until a reasonable time has been allowed” for, among
other things, substitution of the real party in interest. 6 Id. Rule
17(a) concludes by indicating that the substitution “shall have the
same effect as if the action had been commenced in the name of the real
party in interest.” Id. (Emphasis added).
    ¶38 In other words, rule 17 dictates who must prosecute an
action: the real party in interest. And it protects an action from

__________________________________________________________
   5 By way of reminder, after Legacy and AFCU filed a motion
for summary disposition in the court of appeals challenging
Trapnell’s ability to appeal this matter, Praia asked the district
court for an extension of time for it to file a notice of appeal. Also
by way of reminder, the district court twice rebuffed Praia’s
request for additional time.
   6  “The real party in interest is the person entitled under the
substantive law to enforce the right sued upon and who generally,
but not necessarily, benefits from the action’s final outcome.”
Faucheaux v. Provo City, 2018 UT App 150, ¶ 8, 436 P.3d 104
(citation omitted).


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                       Opinion of the Court
improper dismissal until a “reasonable time” has been allowed for
substitution of the proper real party in interest. Id.
    ¶39 We have discussed how rule 17(a) serves important
policy interests. The purpose of having every action prosecuted in
the name of the real party in interest “is to allow defendants the
right to have a cause of action prosecuted by the real party in
interest in order for the judgment to preclude any action on the
same demand by another.” Green v. Louder, 2001 UT 62, ¶ 43, 29
P.3d 638; see also 6A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1541 (3d ed. 2020)
(“Arguably, however, [Federal] Rule 17(a) performs the useful
function of protecting individuals from harassment and multiple
suits by persons who would not be bound by the principles of
claim preclusion if they were not prevented from bringing
subsequent actions by a real-party-in-interest rule.”).
Additionally, rule 17 prevents premature dismissal by mandating
that the court must give a party a reasonable time to add or
substitute the real party in interest.
    ¶40 Commentators on the substantively similar Federal Rule
of Civil Procedure 17 have noted that
      the real party in interest can be joined or substituted
      and the action continued as if it had been instituted
      in that party’s name. The Advisory Committee in its
      Note to the 1966 amendment of Rule 17(a) stated
      that the purpose of the addition was to keep the real
      party in interest provision in line with the law as it
      was developing. “Modern decisions are inclined to
      be lenient when an honest mistake has been made in
      choosing the party in whose name the action is to be
      filed . . . .”
6A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1541 (3d ed. 2020) (citation omitted).
To this end, “Rule 17(a)(3) is designed to avoid forfeiture and
injustice when an understandable mistake has been made in
selecting the party in whose name the action should be brought.”
Id. § 1555 (footnote omitted).
    ¶41 Thus rule 17 protects defendants by requiring that the
action be brought by the real party in interest. And it protects
plaintiffs by providing a reasonable time to cure mistakes before
an action is dismissed. The rule further protects plaintiffs by
allowing the suit to proceed as if it had been brought by the real
party in interest from the get-go. It can be used at any time during

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                        Opinion of the Court
the proceeding based on a transfer that occurred prior to the
commencement of the litigation.
    ¶42 In contrast, rule 25(c) tells a party what to do when there
has been a transfer by the real party in interest while the litigation
is pending. By its express terms, rule 25(c) governs “transfer[s] of
interest.” UTAH R. CIV. P. 25(c). Rule 25(c) states that in the case
“of any transfer of interest, the action may be continued by or
against the original party, unless the court upon motion directs the
person to whom the interest is transferred to be substituted in the
action or joined with the original party.” Id. (Emphases added).
    ¶43 Rule 25(c) explicitly states that a proposed substitution
must be directed by the court for the “person to whom the interest
is transferred” to be “substituted in the action.” Id.; see also Jones v.
Mackey Price Thompson & Ostler, 2020 UT 25, ¶ 91, — P.3d — (“So
substitution is available under rule 25 after service of a motion,
notice of a hearing, and appropriate proceedings on the question
of whether the new party is an entity ‘to whom the [original
party’s] interest is transferred.’” (alteration in original) (emphasis
added) (citation omitted)). This means that rule 25 “is designed to
allow an action to continue unabated when an interest in a lawsuit
changes hands, rather than requiring the initiation of an entirely
new lawsuit.” ELCA Enters., Inc. v. SISCO Equip. Rental & Sales,
Inc., 53 F.3d 186, 191 (8th Cir. 1995) (citation omitted) (internal
quotation marks omitted) (interpreting Federal Rule of Civil
Procedure 25(c), which is substantively similar to Utah’s rule 25).
   ¶44 Rule 25’s requirements promote order and help avoid
confusion by requiring the court to direct that the transferee of a
real party in interest’s right be substituted into the action. And it
requires that this occur by motion. Through this mechanism, the
court can assure itself that the claim has been transferred to the
party seeking to substitute itself into the dispute.
   ¶45 Many courts with similar rules have developed a
shorthand for describing when rule 17 applies and when rule 25
governs. For example, the Montana Supreme Court interpreted its
own versions of rules 17 and 25, which are substantively similar
to ours, and concluded that rule 17(a) should be invoked when
“the interest in a case transfers prior to commencement of the
case” and rule 25(c) “when the interest in a case transfers during
the action.” Reilly v. Citizens State Bank, 822 P.2d 1088, 1091 (Mont.
1991); see also Fed. Deposit Ins. Corp. v. Deglau, 207 F.3d 153, 159 n.2
(3d. Cir. 2000) (interpreting rules 17 and 25 of the Federal Rules of
Civil Procedure, which are substantively similar to the Utah Rules

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                        Opinion of the Court
of Civil Procedure, and stating that rule 25 “governs the
substitution of parties during the pendency of litigation” and rule
17 “requires that an action involve only the real parties in interest,
as determined by transfers prior to the initiation of suit”); Toledo v
CSX Transp., Inc., No. 3:16-CV-475-TAV-DCP, 2018 WL 4923362,
at *4 (E.D. Tenn. Oct. 10, 2018) (interpreting rules 17 and 25 of the
Federal Rules of Civil Procedure, which are substantively similar
to the Utah Rules of Civil Procedure, and concluding that whether
a party uses rule 17 or 25 “depends on when the substitution of
the party in interest occurs” and that rule 25 “applies to cases
where an interest is transferred after litigation has already
commenced” and rule 17 “applies to cases where litigation was
mistakenly filed against a party whose interest in the suit had
already been transferred”); Pacamor Bearings, Inc., v. Minebea Co.,
Ltd., 892 F. Supp. 347, 360 (D.N.H. 1995) (“Where, as here, there
has been a transfer of interest during the pendency of the action,
the court must apply Rule 25(c), rather than Rule 17, to determine
whether a substitution of parties should occur.”).
    ¶46 Commentators draw the same distinction. See 7C
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1958 (3d ed. 2020). Rule 25 “speaks to the
situation in which ‘an interest is transferred’ during the pendency of
an action” and when the interest has been “transferred prior to
commencement of the suit, Rule 17, requiring that an action be
brought in the name of the real party in interest and defining
capacity to sue and be sued, is controlling.” Id. (emphasis added)
(footnote omitted). Simply stated, “[a]fter suit is brought, Rule 25(c)
becomes the relevant provision.” Id. (Emphasis added).
    ¶47 We hinted at this distinction in Estate of Faucheaux v. City
of Provo, 2019 UT 41, 449 P.3d 112. In Faucheaux, a decedent’s heirs
sought damages in a wrongful death suit. Id. ¶ 1. But the woman’s
“estate” and not her heirs initiated the litigation. Id. Six years after
the case was filed, Provo City moved to dismiss on the ground
that the estate lacked legal capacity to assert a wrongful death
claim. Id. Essentially, the problem in Faucheaux was one of lack of
legal capacity or a “species of a standing problem.” Id. ¶ 34. We
said, “the problem is that the wrong party initiated the suit. And
that kind of defect is merely voidable, and curable through
substitution under rule 17(a).” Id.
   ¶48 While a transferee of a right is not required to substitute
in as a party to participate in litigation and be bound by any
judgments, a transferee who chooses to seek substitution may not
do so by simply declaring itself a party. Substitution based on a
                                  13
                   TRAPNELL v. LEGACY RESORTS
                       Opinion of the Court
transfer after the commencement of litigation must be done
according to rule 25’s mandates, which require a motion to the
court and a court order directing the substitution. See UTAH R. CIV.
P. 25(c). Simply stated, rule 25(c)’s plain language sinks Trapnell’s
argument.
       III. The Court of Appeals Erred in Determining it Had
                 Jurisdiction Over Trapnell’s Appeal
    ¶49 The court of appeals erred when it affirmed the district
court’s conclusion that Trapnell had properly substituted itself
into this suit by filing a rule 17 notice declaring it was a party. As
we just explained, Trapnell needed to file a motion under rule
25(c). Its failure to do so means that it was not a party when it
filed its notice of appeal. This means that the court of appeals did
not have jurisdiction over the appeal. Neither do we.
    ¶50 In fairness to the court of appeals, it did not seem wholly
convinced that Trapnell had acted within the rules when it
declared itself a party under rule 17. Trapnell & Assocs. LLC v.
Legacy Resorts LLC, 2018 UT App 231, ¶ 22, 438 P.3d 44. It noted
that “the procedures set forth by rule were not perfectly
followed,” id. ¶ 16, and “it would have been better had Trapnell
filed a motion” instead of a notice, id. ¶ 22. But the court of
appeals ultimately set its qualms aside for three reasons. First, the
court of appeals recognized that Trapnell had expressed a clear
intent to be the substituted party by filing a rule 17 notice and that
the district court had twice approved Trapnell’s participation in
the case. Id. ¶¶ 19–20. Second, the court of appeals reasoned that
the substance of a pleading, and not its caption, should control the
analysis. Id. ¶ 21. Third, the court of appeals determined that the
lack of opportunity to “independently verify Trapnell’s claim that
it was in fact Praia’s assignee” did not prejudice Legacy or AFCU.
Id. ¶ 22.
   ¶51 First, the court of appeals correctly noted that a person
“cannot simply declare itself to be a substituting or intervening
party to a lawsuit.” 7 Id. ¶ 19. But the court of appeals was willing
__________________________________________________________
   7 As with most things in life, there is an episode of The Office
on point. In season four, Michael Scott found himself besieged
with money woes. Seeing no way out of his financial predicament,
and inspired by dodgy advice from Creed Bratton, Michael yelled,
“I declare bankruptcy!” to anyone in earshot. This prompted
Oscar Martinez, one of the Dunder Mifflin accountants, to advise
                                                    (continued . . .)
                                 14
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                        Opinion of the Court
to overlook that because Trapnell’s intent to be substituted into
the action was clear and the district court twice approved
Trapnell’s participation. Id. ¶ 20. The court of appeals referenced
our per curiam decision in Lundahl v. Quinn, 2003 UT 11, 67 P.3d
1000, to support its conclusion. Trapnell, 2018 UT App 231, ¶ 19.
     ¶52 But Lundahl does not really speak to the question at hand.
In Lundahl, we rejected a would-be party’s attempt to join ongoing
litigation by seeking intervention as of right under Utah Rule of
Civil Procedure 24(a). Lundahl, 2003 UT 11, ¶ 11. To be sure,
unlike the district court here, the Lundahl district court did not
acquiesce in Lundahl’s use of the improper procedure. See id.
¶¶ 2, 5, 8. But we never suggested that the district court could
have blessed Lundahl’s ill-advised gambit if it wanted to. To the
contrary, we held that where “rule 25(c) provided the proper
mechanism, if any, for [Lundahl] to obtain the relief she requests,
her petition for extraordinary relief is frivolous on its face.” Id. ¶ 12
(emphasis added) (footnote omitted).
   ¶53 The parties do not cite to any cases, nor do we find any,
where we have endorsed a district court allowing a party to
substitute into an action by its own assertion rather than through
the motion rule 25 contemplates. Nothing in the court of appeals’
opinion nor in Trapnell’s supplemental briefing convinces us that
we should start now.
    ¶54 The court of appeals next reasoned that it could overlook
Trapnell’s misstep because “the caption of a filing is not
necessarily dispositive of its substance.” Trapnell, 2018 UT App
231, ¶ 21. It was not persuaded that Trapnell filed a “notice”
rather than a “motion” as rule 25(c) requires. Id. Because the
district court “eventually authorize[d] the substitution, it [did] not
matter that the filing that triggered that authorization [was]
captioned as a ‘notice’ rather than as a ‘motion.’” Id.
   ¶55 We disagree. Although a pleading’s caption is “not
necessarily” dispositive of its substance, sometimes it can be
pretty solid evidence of what the pleading contains. Trapnell did
not file a motion masquerading as a declaration. The body of



Michael that “you can’t just say the word ‘bankruptcy’ and expect
anything to happen.” Michael countered, “I didn’t say it. I
declared it.” The Office: Money (NBC television broadcast Oct. 18,
2007).


                                   15
                   TRAPNELL v. LEGACY RESORTS
                       Opinion of the Court
Trapnell’s rule 17 notice simply declared itself a party. Trapnell
was “provid[ing] notice that [it], as the assignee of the claims
brought by [the former plaintiff] against [the defendants], . . . is
the real party in interest who shall prosecute this action.” There
was nothing in the pleading that would qualify as a “motion” or
that asked the district court to “direct” Trapnell to be substituted
in the action as rule 25(c) requires. See UTAH R. CIV. P. 25(c); see
also id. 7(c) (describing requirements for the content of a motion
including a concise statement of the relief requested, relevant
facts, and argument citing authority for the requested relief).
    ¶56 A motion implies a burden that a party must meet to be
awarded the relief it seeks. It contemplates that a party will
forward legal and factual support so the court can evaluate
whether it is entitled to what it moves to receive. See UTAH R. CIV.
P. 7. Trapnell did none of this. It, as we have noted, declared itself
a party. If Trapnell had filed a “notice” but asked the court to
recognize it as a party or engaged in rule 7 motion practice, we
might be inclined to side with the court of appeals. But this is a
case where the caption accurately reflected the substance of what
Trapnell was doing. And Trapnell was doing it wrong.
    ¶57 We are likewise unpersuaded by the third reason the
court of appeals was willing to overlook Trapnell’s failure to
abide by the rules. The court of appeals rejected Legacy’s and
AFCU’s argument that they were prejudiced by the lack of a
motion. Legacy and AFCU alleged that they suffered harm
because they were “never afforded an opportunity to respond to
or independently verify Trapnell’s claim that it was in fact Praia’s
assignee.” Trapnell, 2018 UT App 231, ¶ 22. The court of appeals
indicated that Legacy and AFCU could have filed a memorandum
“opposing Trapnell’s assertion” at various times throughout the
appeal. Id. And it noted that Legacy and AFCU had not come
forward at any stage of the litigation, “with any indication that
Trapnell is not actually Praia’s assignee.” Id.
   ¶58 Contrary to the court of appeals’ assertion, Legacy
opposed Trapnell’s declaration that it was a proper party
seemingly at every opportunity. Legacy moved for summary
disposition, opposed Trapnell’s motion to substitute, and opposed
Praia’s motion for additional time to file a notice of appeal. When
Trapnell attempted to introduce evidence of the assignment
before the court of appeals, Legacy objected and argued that the
document evidencing the assignment did not reflect that Trapnell
had assumed Praia’s obligations associated with this action. It is


                                 16
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                        Opinion of the Court
difficult to see what more Legacy could have done to oppose
Trapnell’s entry into the matter.
    ¶59 If what the court of appeals meant was that Legacy never
forwarded evidence that Trapnell was not Praia’s successor in
interest, the court of appeals is both right and wrong. It is right
that Legacy never forwarded such information, but it is wrong to
suggest that it needed to. Indeed, this line of thought only
underscores why it was important that the district court should
have required Trapnell to enter the action through the mechanism
the rules contemplate: a motion under rule 25. Had Trapnell
followed the rules, the burden would have been on Trapnell, as
the moving party, to prove that it had been assigned the interest
in the litigation and was a proper party to continue to litigate the
action. Legacy and AFCU could then have mustered its best
arguments to combat Trapnell’s assertions. Instead, the court of
appeals effectively flipped the burden and faulted Legacy and
AFCU for failing to produce evidence that Trapnell was not a
valid assignee of the claim.
    ¶60 While the burden of presenting evidence of a proper
substitution may not be hard to meet, it is one our rules impose to
prevent mischief. See Utah Down Syndrome Found., Inc. v. Utah
Down Syndrome Ass’n, 2012 UT 86, ¶¶ 5, 9, 293 P.3d 241
(discussing a non-party that filed motions, argued before the
court, and tried to appeal); see also Lundahl, 2003 UT 11, ¶ 12
(“Consequently, the district court’s justifiable refusal to address a
multitude of last-ditch, disruptive legal filings was well within its
discretion and supported by [the prospective party’s] failure to
avail herself of the procedural rule designed to afford her the
relief she claimed.”).
    ¶61 We understand what may have motivated the court of
appeals. Trapnell may well be the assignee of Praia’s interest.
Unlike in the Utah Down Syndrome and Lundahl cases, Trapnell
was not a would-be party who stepped onto the court and
immediately failed to hit the ball back right. Trapnell has acted the
way we would expect a party who was properly assigned claims
to act.
    ¶62 But the only basis we have to conclude that Praia in fact
assigned its interest to Trapnell is the declaration of Praia and
Trapnell’s counsel attesting to the transfer. That declaration
attaches the document evidencing the assignment. Trapnell did
not file that document in the district court; rather, it seems it first
appeared as part of the motion to substitute filed in the court of

                                  17
                   TRAPNELL v. LEGACY RESORTS
                       Opinion of the Court
appeals. And the declaration does nothing to remedy Trapnell’s
failure to file a rule 25(c) motion in the district court. At most, it
could show that any error flowing from that failure was
harmless. 8 But here, the error was far from harmless because it
meant that the only entity that filed the timely notice of appeal
was not actually a party entitled to file that notice. And that
means that the court of appeals did not have jurisdiction to allow
the substitution.
    ¶63 The Tenth Circuit Court of Appeals has dealt with a
similar situation. See Raley v. Hyundai Motor Co. Ltd., 642 F.3d 1271
(10th Cir. 2011). In Raley, a bank was appointed guardian for
Raley and her children. Id. at 1273. Raley moved pursuant to
Federal Rule of Civil Procedure 25(c) to have the bank substituted
in as the real party in interest in her case against Hyundai. Id. The
court granted the motion. Id. at 1274. After Hyundai prevailed, the
district court’s final order mistakenly listed Raley as the defeated
plaintiff. Id. Raley appealed. Id. The Tenth Circuit questioned
whether it had jurisdiction over the matter. Id. at 1274–75. Raley
asserted that the Tenth Circuit could fix any problem by allowing
her to substitute into the appeal for the bank. Id. at 1276. And she
filed a motion to substitute. Id.
   ¶64 The Tenth Circuit rejected Raley’s argument and denied
her motion. Id. The Tenth Circuit concluded
       [t]o entertain a motion to substitute the appellant we
       must first have an appeal. And here we don’t.
       Without a timely notice of appeal from someone we
       can be confident is a party to the appeal, we have no
       authority to hear a challenge to the district court’s
       judgment, let alone grant a motion in such a
       (non-existent) appeal. No court of appeals can reach
       the merits of a motion in an appeal it is without
       jurisdiction to hear. And no more persuasive
__________________________________________________________
   8 Utah Rule of Civil Procedure 61 provides that “[t]he court at
every stage of the proceeding must disregard any error or defect
in the proceeding which does not affect the substantial rights of
the parties.” And “we will not reverse a judgment merely because
there may have been error; reversal occurs only if the error is such
that there is a reasonable likelihood that, in its absence, there
would have been a result more favorable to the complaining
party.” Child v. Gonda, 972 P.2d 425, 431 (Utah 1998).


                                 18
                           Cite as: 2020 UT 44
                          Opinion of the Court
          application of this rule could be found than in this
          case, where the relief sought is essentially to permit
          a district court party [the bank] to file a conforming
          notice of appeal out of time, a result that would
          (quite improperly) “vitiate” the mandatory and
          jurisdictional deadline set forth by Rules 3 and 4.
Id.
   ¶65 Such is the case here. Trapnell was not a proper party
when it filed its notice of appeal. The court of appeals was
therefore without jurisdiction to hear the appeal. And it lacked the
authority to consider the Utah Rule of Appellate Procedure 38
motion to substitute.
    ¶66 In its supplemental briefing, Trapnell raises three main
arguments in an attempt to convince us the court of appeals did
not err. We have already disposed of two of these arguments: that
rule 17 was a proper method to substitute into the action and that
it placed sufficient evidence in front of the court of appeals to
allow it to grant the rule 38 motion to substitute. We will not
rehash what we have already said.
    ¶67 Trapnell also contends that rule 25(c) is permissive, not
mandatory. Rule 25(c) provides that an action “may be continued
by or against the original party.” (Emphasis added.) Trapnell uses
this language to assert that it was not required to file a motion.
We are not persuaded.
    ¶68 In further support of this argument, Trapnell points to
Lundahl where we stated, “[w]hile rule 25(c) speaks in permissive
rather than mandatory terms, it is clear courts cannot be compelled
to recognize a substitution of parties at the whim of the movant.”
2003 UT 11, ¶ 10 (emphasis added). 9

__________________________________________________________
     Trapnell provides authority from other jurisdictions standing
      9

for the proposition that a successor in interest need not file a
motion to substitute into an action. See Fed. Deposit Ins. Corp. v.
SLE, Inc., 722 F.3d 264 (5th Cir. 2013); Wilson v. Deutsche Bank Trust
Co. Americas, No. 3:18-CV-0854-D, 2019 WL 5840325 (N.D. Tex.
Nov. 7, 2019); Fairport Ventures, LLC v. Beneficial Fin. I, Inc., No. H-
16-1038, 2017 WL 7806388 (S.D. Tex. July 6, 2017).
   SLE is a per curiam opinion with scant analysis of the
question. The entire treatment consists of two conclusory
sentences. See 722 F.3d at 268. “The rules of service in Rule 25(a)(3)
                                                       (continued . . .)
                                   19
                   TRAPNELL v. LEGACY RESORTS
                       Opinion of the Court
    ¶69 Trapnell misreads the rule. The permissive aspect of rule
25(c) means that if a transfer occurs, we do not require that the
new party substitute into the action. See 7C CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 1958 (3d ed. 2020) (“The most significant feature of Rule 25(c) is
that it does not require that anything be done after an interest has
been transferred. The action may be continued by or against the
original party, and the judgment will be binding on the successor
in interest even though the successor is not named.”). But if the
new party wants to participate in the litigation, it must do so
under rule 25’s mandates. Rule 25(c) provides that after a transfer
of an interest during litigation, the case proceeds in the name of
the original party unless “the court upon motion directs the person
to whom the interest is transferred to be substituted in the action
or joined with the original party.” UTAH R. CIV. P. 25(c) (emphasis
added); see Lundahl, 2003 UT 11, ¶ 10 (concluding that the
“provision that the action ‘may be continued by or against the
original party,’ unless the court grants a motion for substitution,
preserves the court’s inherent power to manage the case without
undue disruption, confusion, or interference”). That is to say, if a
holder of a transferred interest wants to substitute into the action,
it must file a motion, but the decision to grant that motion lies
within the district court’s discretion.



govern any substitution motion that transferees choose to file, but
neither Rule 25(a)(3) nor (c) require a party to move to substitute.
Simply put, to read a substitution requirement into Rules 25(c)
and (a)(3) misconstrues their plain terms.” Id. The other two cases
simply cite SLE. See Wilson, 2019 WL 5840325, at *3; Fairpoint
Ventures, 2017 WL 7806388, at *2.
    We cannot square SLE’s interpretation with rule 25(c)’s plain
language, which provides that the case may proceed in the name
of the original party “unless the court upon motion” directs
otherwise. UTAH R. CIV. P. 25(c) (emphasis added). Nor can we
square it with our own jurisprudence interpreting rule 25(c). See,
e.g., Jones v. Mackey Price Thompson & Ostler, 2020 UT 25, ¶ 91, —
P.3d — (“So substitution is available under rule 25 after service of a
motion, notice of a hearing, and appropriate proceedings on the
question of whether the new party is an entity ‘to whom the
[original party’s] interest is transferred.’” (alteration in original)
(emphasis added)).


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                       Opinion of the Court
    ¶70 Trapnell next asserts that jurisdiction is proper because it
filed a rule 38 motion for substitution in the court of appeals.10
Trapnell contends this, coupled with Praia’s rule 4(e) motion in
the district court, resulted in the “creation of a record before the
district court and court of appeals that enabled the courts to make
informed rulings confirming Trapnell’s substitution as plaintiff.”
For the reasons we have just discussed, this argument is a
non-starter. Trapnell’s notice of appeal was invalid. Without a
valid notice of appeal, the court of appeals lacked jurisdiction, and
there was no appeal into which Trapnell could substitute. See
Raley, 642 F.3d at 1276.
               IV. Praia’s Conditional Cross-Appeal
    ¶71 Even though we conclude that the court of appeals erred
by determining it had jurisdiction, it would be premature to
dismiss. Praia filed a potentially still-active conditional cross-
appeal of the district court’s denial of its motion for an extension
of time to file an appeal.
    ¶72 After the district court’s second denial of Praia’s motion
for an extension of time to file an appeal, Legacy appealed the
portion of the district court’s order recognizing Trapnell as a
properly substituted party. Praia then conditionally cross-
appealed the district court’s denial of its motion for additional
time. However, this cross-appeal was unique in that it did not
contend that the district court erred, but only asked that if an
appellate court in the active appeals held “that Trapnell’s
substitution for Praia was ineffective, contrary to the district
court’s ruling here, then Praia and Trapnell request that the
December 2[7] order be vacated and the issue of the extension of
time for Praia to appeal again be presented to the district court.”
    ¶73 The court of appeals did not address Praia’s conditional
cross-appeal, likely because it agreed with the district court and
affirmed that Trapnell’s substitution for Praia was effective.
Accordingly, we do not have a sufficient basis to opine on this
__________________________________________________________
   10 Utah Rule of Appellate Procedure 38 permits a party to
substitute into an action. The rule details specific instances when
substitution is permitted, including death of a party,
incompetency of a party, and a change in public officers. See UTAH
R. APP. P. 38. Subsection (c) then provides that “[i]f substitution of
a party is appropriate for any other reason, the court may
substitute the party upon good cause shown.” Id. 38(c).


                                 21
                   TRAPNELL v. LEGACY RESORTS
                       Opinion of the Court
cross-appeal that may or may not be pending before the court of
appeals. We remand to the court of appeals to determine whether
the issue was sufficiently briefed before it, whether it requires
supplemental briefing on this issue, whether it can rule on the
issue, and any other remaining matters related to the conditional
cross-appeal.
                          CONCLUSION
    ¶74 The court of appeals erred in concluding that Trapnell
had properly substituted into this matter. The Utah Rules of Civil
Procedure required Trapnell to move the district court to be
substituted into the case. It did not, and as a result, Trapnell was
not a party when it filed its notice of appeal. Without a valid
notice of appeal, neither the court of appeals nor we have
jurisdiction to resolve the matter. We do not, however, dismiss the
case for lack of jurisdiction because of a potentially pending cross-
appeal Praia filed. Accordingly, we vacate the court of appeals’
decision and remand to that court to address Praia’s conditional
cross-appeal.




                                 22
