False Start. Focus on Appellate Law. New Arizona Rules Help Prevent Premature Notices of Appeal

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1 Focus on Appellate Law False Start New Arizona Rules Help Prevent Premature Notices of Appeal BY GARY J. COHEN & NICHOLAS S. BAUMAN SASHKIN SHUTTERSTOCK.COM GARY J. COHEN is a Partner with Mesch, Clark and Rothschild PC in Tucson, and a member of that firm s Trials and Appeals Section. His practice focuses on civil and commercial litigation, personal injury, employment, medical malpractice and appellate law. Gary has been a Judge Pro Tem since 2004 with the Pima County Superior Court, and is the former chair of the State Bar Appellate Practice Section. He also has been an adjunct law professor since 2010 at the James E. Rogers College of Law at the University of Arizona, where he graduated in NICHOLAS S. BAUMAN is a third-year law student at the James E. Rogers College of Law at the University of Arizona, and is a law clerk at Mesch, Clark and Rothschild PC. Arizona appellate courts independently examine whether they have jurisdiction in every appeal, even when neither party raises the issue, and will not turn a blind eye toward jurisdictional violations. 1 Using this power, Arizona appellate courts since January 2012 published nine opinions that discuss premature notices of appeal and the consequences thereof. 2 These decisions illustrate that Court of Appeals judges made a conscious effort to educate lawyers about their strict commitment to the procedures that must be followed before that court has jurisdiction. The result at least temporarily was an increased number of appeals dismissed for lack of jurisdiction. Counsel who litigate in Arizona 40 A R I Z O N A AT T O R N E Y D E C E M B E R w w w. a z b a r. o r g / A Z A t t o r n e y

2 False Start: The Premature Notice of Appeal must understand: (1) the procedures and underlying principles of appellate jurisdiction; and (2) the problems that premature notices of appeal cause, such as needless waste of time, increased expense, delayed resolution, further burdening an already overburdened court and disdain from Arizona s appellate courts. This article also describes new rules, effective January 1, 2014, that aim to help cure jurisdictional defects arising from premature notices of appeal. Shifting Jurisdiction: From Trial Court to Court of Appeals A Notice of Appeal (NOA) transfers jurisdiction of a case from the trial court to the Arizona Court of Appeals. An NOA must state the name of the trial court and action, specify the judgment or order being appealed, name the appellant or appellants, name the court to which the appeal is taken, and be signed by the party appealing or its attorney. 3 The NOA must be filed with the Clerk of the Superior Court, not the Court of Appeals. 4 Appellants are not required to specify which appellees the appeal is being taken against, but when only some appellees are listed, the appellate court does not have jurisdiction over unlisted appellees. 5 Where an opposing party has adequate notice of an appeal, and is not otherwise prejudiced, technical errors in the language of the NOA do not ordinarily prevent appellate courts from reaching the merits of the appeal. 6 For example, an NOA that named parents as appellants, but failed to name the injured child on whose behalf the parents brought the action, nonetheless sufficiently perfected the child s appeal as well. 7 Similarly, an NOA that referred only to a judgment in favor of county defendants, and not to the judgment regarding the city defendants, sufficiently preserved appellant s appeal against both of these government appellees because both received the NOA and participated in post-judgment proceedings pertaining directly to the appeal. 8 Though an NOA should specify the judgment or part thereof appealed from, it need not designate intermediate orders involving the merits of the action and necessarily affecting the judgment. 9 When to File the NOA Appellate court jurisdiction is limited to those circumstances listed in A.R.S The general rule is that the Arizona Court of Appeals lacks jurisdiction until there is a final judgment that disposes of all claims and parties. 10 The underlying rationale of the final judgment rule is to prevent disruptions of the trial process that leave the trial court uncertain about its jurisdiction to decide a pending motion. This rule also prevents the piecemeal appeals that could result if appellate courts decided cases while unresolved motions remained below. 11 A final judgment resolves all issues in the pleadings and fix[es] the parties rights and liabilities as to the controversy between them. 12 All judgments in civil cases must be in writing, and a judge or authorized court commissioner must sign them. 13 The judgment is not usually final until it is filed with the trial court clerk. 14 A minute entry is only a final judgment if it enters judgment or dismisses the action, is signed by a judge, and is filed with the clerk. 15 The trial court ordinarily should not, in accordance with Rule 58(g), enter a final judgment until claims for attorneys fees are resolved. An NOA should be filed no later than 30 days after the entry of a final judgment. 16 An untimely NOA, before the new rules go into effect, does not give the appellate court jurisdiction and, under those circumstances, the appellate court is required to dismiss the attempted appeal. 17 w w w. a z b a r. o r g / A Z A t t o r n e y D E C E M B E R A R I Z O N A AT T O R N E Y 41

3 Focus on Appellate Law The Barassi Exception The final judgment rule is subject to the Barassi exception. 18 This limited exception allows the appellate court to keep jurisdiction when an NOA is filed before a final judgment if the trial court has made its final decisions, no decision of the court could change, the only remaining task is merely ministerial, and no appellee is prejudiced. 19 Remaining tasks are deemed ministerial when the duty to be performed is described by law with such certainty that nothing is left to the exercise of discretion or judgment. 20 The Barassi exception will likely apply if no substantive motions or issues are pending and none are filed thereafter. 21 In all other cases before the new rules go into effect, an NOA filed before a final judgment is ineffective and a nullity. 22 Barassi involved an NOA filed after an unsigned minute entry order that denied a motion for new trial, but before a formal judgment was entered on the motion. 23 Though the NOA should have been filed after the formal judgment was entered, the Court of Appeals decided not to dismiss the appeal. This is because the appellee had sufficient notice of the appellant s intent to appeal, and permitting the appeal did not circumvent the following policy concerns: preventing disruption of the trial process, preventing appellate courts from considering issues that may be considered later in trial, promoting efficiency, and consolidating all potential errors in one appeal. 24 The Barassi Court warned, however, that it was not approving the practice of prematurely filing appeals and that the careful litigant is advised to file an appeal in the 30 days after the final judgment. 25 Motions for Substantive Relief Appeals before the new rules go into effect are premature and dismissed for lack of jurisdiction when a party files an NOA while a motion for substantive relief or an issue requiring a discretionary judicial The general rule is that the Arizona Court of Appeals lacks jurisdiction until there is a final judgment that disposes of all claims and parties. determination is pending in the trial court. 26 This is because the trial court s appealed ruling could change, and thus the judgment is not final. 27 A premature NOA in this circumstance is a nullity, and the trial court retains jurisdiction. 28 Examples of substantive relief motions are those for a new trial, to amend the decree, for rehearing, and for Rule 68(g) offer of judgment sanctions. 29 Attorneys Fees A trial court s remaining task of determining a claim for attorneys fees is not normally, but can sometimes be, a ministerial task. The Ghadimi v. Soraya court reasoned that the determination of attorneys fees made the NOA invalid because that issue was not ministerial since the trial court had to evaluate differing factual presentations and arguments. 30 A different panel of the same court held the exact opposite in Reeck v. Mendoza. The court in Reeck focused on the fact that Civil Rules 54(g) and 58(g), which impose time limits for attorneys fees applications, have no counterpart in the family rules. 31 As such, they reasoned that the Ghadimi rule would let a prevailing party in a family law matter forever preclude an appeal simply by failing to submit an application. 32 Furthermore, the family law rules do not require that attorneys fees claims be resolved before the entry of judgment. 33 The court in Reeck went so far as to conclude that a decree of dissolution is always final, subject to timeextending motions, even without Family Rule 78(B) certification (Civil Rule 54(b) s counterpart) because A.R.S (A) provides that these decrees are final when entered; in addition, a child support order is a final decision as to accruing support obligations because, like a decree of dissolution, its effects are always final under A.R.S (A). 34 Outside the family law context, however, a party can usually only appeal from a judgment on the merits before an outstanding claim for attorneys fees is decided if the [trial] court certifies the judgment as final pursuant to Rule 54(b). 35 A judgment on only some, but not all, of the claims in a case without Rule 54(b) certification is not a final appealable judgment because it is subject to modification. 36 When Rule 54(b) language is lacking, a judgment before the new rules go into effect is final and appealable only when it adjudicates all claims and the rights and liabilities of all parties. 37 Time-Tolling Motions The time to file an NOA is extended when there is a pending motion for substantive relief 38 or the trial court enters an order: 1. Granting or denying a motion for judgment as a matter of law pursuant to Arizona Rules of Civil Procedure 50(b) 2. Granting or denying a motion to amend or make additional findings of fact pursuant to Arizona Rules of Civil Procedure 52(b) or Arizona Rules of Family Law Procedure 82(B), whether or not granting the motion would alter the judgment 3. Granting or denying a motion to alter or amend the judgment pursuant to Arizona Rules of Civil Procedure 59(1) or Arizona Rules of Family Law Procedure Denying a motion of new trial pursuant to Arizona Rules of Civil 42 A R I Z O N A AT T O R N E Y D E C E M B E R w w w. a z b a r. o r g / A Z A t t o r n e y

4 False Start: The Premature Notice of Appeal Procedure 59(a) or Arizona Rules of Family Law Procedure 83(A) 39 The time to file an NOA in these circumstances is computed from the date any of these orders are entered in the trial court. 40 When there are successive orders or judgments, [T]he time for appeal begins to run upon entry of the judgment last in time which completes the resolution of all issues in the litigation. 41 An NOA filed before the new rules go into effect while a party s time-extending motion is pending is a nullity. 42 Adverse Effects of a Premature NOA Litigators have long been advised to appeal early when in doubt to avoid an appeal being procedurally time barred. Not curing a premature NOA is dangerous, however. It can, ironically, result in the appeal being barred as untimely. A premature NOA before the new rules go into effect is a nullity. Therefore, a party that files a premature NOA before the new rules go into effect must file a new or amended NOA within 30 days of the final judgment to avoid waiver (i.e., permanent dismissal) of the appeal. 43 This rule applies even when the party filing the premature NOA is the same party that filed the timeextending motion in the trial court. 44 In other words, a party does not withdraw a time-extending motion by subsequently filing an NOA. In addition and not unimportant a premature NOA makes the filing attorney look bad. The appellate courts do not like wasting their precious time on a null appeal. Clients do not like the resulting delay and unnecessary expense. When a Premature NOA Is Filed When an NOA is filed, the general rule before the new rules go into effect is that the trial court immediately loses jurisdiction and cannot take further action. 45 An appellate proceeding does not terminate until the appellate court issues a mandate, even when the appellate court lacks jurisdiction. 46 Therefore, a party seeking to dismiss an appeal as premature before the new rules go into effect should normally do so in the appellate court. Filing a motion to dismiss with that court helps obtain the dismissal quicker, cheaper, and with less use of resources than raising this issue in the appellate briefs. 47 However, a trial court can determine whether it still has jurisdiction to proceed after an NOA is filed when no real question concerning the invalidity of the notice of appeal exists. 48 The trial court cannot strike an NOA, but it does not lose jurisdiction of the case and can rule on other matters when the NOA is clearly premature. 49 Such is the case when an NOA is filed from a trial court order disposing of all issues except attorneys fees. 50 If, however, there is a fairly debatable question whether the notice of appeal is premature, the trial court must let the appellate court decide the matter. 51 The New Rules Recent judicial decisions about premature notices of appeal resulted in appeals being frequently dismissed for lack of jurisdiction due to technical noncompliance with the rules. Rather than secure a clear path to decisions on the merits, the rules and cases created unnecessary hurdles to review. Practitioners and court experienced tremendous frustration while performing the time-consuming exercise of applying the above-discussed series of decisions to ambiguous procedural facts. Instead of promoting efficiency, clarity or justice, the prior rules and decisions frequently generated extensive wasteful motion practice and consumed significant court resources without serving the public interest all because the Arizona approach required an NOA to be filed at precisely the correct juncture. The new rules help identify the correct time to file an NOA and provide relief w w w. a z b a r. o r g / A Z A t t o r n e y D E C E M B E R A R I Z O N A AT T O R N E Y 43

5 Focus on Appellate Law when the notice is technically filed too early. They are designed to help the court and practitioners identify when a judgment is final and appealable, provide a life preserver that maintains appellate jurisdiction when an NOA is filed prematurely, and establish a process that maintains appellate jurisdiction when an NOA is prematurely filed. Rule 54(c), ARIZ.R.CIV.P., requires the trial court specifically to state, in order to make a judgment final, that no further matters remain pending and that the judgment is entered pursuant to Rule 54(c). The critical life preserver language is in the first sentence of Rule 9(b)(2)(B), ARCAP: A notice of appeal filed after the court announces a decision or order but before the entry of the judgment or order is treated as filed on the date of and after the entry of the judgment or order. The next two sentences explain the process to be followed when an NOA is filed before a final judgment, or before or during the filing of one of the timeextending motions. Under those circumstances, the appellant shall notify the appellate court and the appeal shall be suspended until the motion is decided. Then, appellant shall notify the appellate court when all such motions have been decided, and the notice of appeal shall be reinstated as of the date of the entry of the order disposing of the last remaining motion. Finally, the new rules codify two aspects of pre-existing practice. The last sentence of Rule 9(b)(2)(B), ARCAP, requires a party that wants to appeal a trial court decision made after an NOA was filed to still file a timely amended NOA from that decision. Rule 9.1, ARCAP, authorizes the appellate court on motion, stipulation or its own initiative to suspend an appeal and revest jurisdiction in the trial court to consider and determine specified matters. The appellate court s order in this regard endnotes 1. Sorenson v. Farmers Ins. Co. of Ariz., 957 P.2d 1007, 1008 (Ariz. Ct. App. 1997) (independent duty to determine jurisdiction although neither party raised the issue); see also Craig v. Craig, 240 P.3d 1270, 1273 (Ariz. Ct. App. 2010), aff d, 253 P.3d 624 (Ariz. 2011) ( [W]e favor deciding cases on their merits and try to avoid dismissing appeals on hypertechnical grounds, although we must dismiss if we lack jurisdiction. ). 2. Reeck v. Mendoza, 663 Ariz. Adv. Rep. 12, 7 (App. 2013); In re Marriage of Kassa, 299 P.3d 1290 (Ariz. Ct. App. 2013); Baker v. Bradley, 296 P.3d 1011 (Ariz. Ct. App. 2013); Searchtoppers.com LLC v. TrustCash LLC, 293 P.3d 512 (Ariz. Ct. App. 2012); In re Marriage of Johnson and Gravino, 293 P.3d 504 (Ariz. Ct. App. 2012); In re Marriage of Flores and Martinez, 289 P.3d 946 (Ariz. Ct. App. 2012); Fields v. Oates, 286 P.3d 160 (Ariz. Ct. App. 2012); Ghadimi v. Soraya, 285 P.3d 969 (Ariz. Ct. App. 2012); Santee v. Mesa Airlines Inc., 270 P.3d 915 (Ariz. Ct. App. 2012). Approximately 20 unpublished memorandum decisions have discussed premature notices of appeal since January ARCAP 8(c), 8(e). 4. Id. 8(a), Summit Prop., Inc. v. Wilson, 550 P.2d 104, 109 (Ariz. Ct. App. 1976); ARCAP 8(c) cmt. 6. Schwab v. Ames Constr., 83 P.3d 56, 59 (Ariz. Ct. App. 2004). 7. Udy v. Calvary Corp., 780 P.2d 1055, 1059 (Ariz. Ct. App. 1989). 8. Hill v. City of Phoenix, 975 P.2d 700, 703 (Ariz. 1999); but see Baker v. Emmerson, 734 P.2d 101, (Ariz. Ct. App. 1986) (NOA from judgment in favor of one defendant did not invoke appellate jurisdiction over expanded order in favor of another defendant; amended or additional NOA required). 9. ARCAP 8(c); A.R.S (A); see also Marquette Venture Partners II, LP v. Leonesio, 254 P.3d 418, 421 (Ariz. Ct. App. 2011) (A.R.S applies to Arizona Court of Appeals, as well as Arizona Supreme Court). 10. Garza v. Swift Transp. Co., 213 P.3d 1008, 1011 (Ariz. 2009); A.R.S (A)(1). The Court of Appeals also has jurisdiction over Special Actions, but these appeals are beyond the scope of this article. See Arizona Rules of Procedure For Special Actions. These early appeals are generally allowed where there is no equally plain, speedy or adequate appellate remedy if appellant were to wait until a final judgment is entered before raising the challenged issue. 11. Santee, 270 P.3d at Fields, 286 P.3d at ARIZ.R.CIV.P. 58(a). 14. Id. 15. Baker, 296 P.3d at ARCAP 9(a). 17. James v. State, 158 P.3d 905, 908 (Ariz. Ct. App. 2007) (quoting Edwards v. Young, 486 P.2d 181, 182 (Ariz. 1971)). 18. Barassi v. Matison, 636 P.2d 1200 (Ariz. 1981). 19. Craig, 253 P.3d at (2011); Barassi, 636 P.2d at Fields, 286 P.3d at 164; compare Ghadimi v. Soraya, 285 P.3d at 971 (determination of attorneys fees not ministerial because trial court required to evaluate differing factual presentations and arguments), with Reeck, 663 Ariz. Adv. Rep. 12, 7 ( [B]ecause there is no requirement in the family rules that attorneys fees be resolved before the entry of judgment, there is no reason to suppose that a judgment entered without a decision on fees is not final for purposes of appeal. ). 21. Baker, 296 P.3d at Craig, 253 P.3d at Barassi, 636 P.2d at Id. at Id. at Baker, 296 P.3d at (citing Craig, 253 P.3d at 624 (dismissal when notice of appeal filed while motion for new trial and motion to amend the decree pending); Smith v. Ariz. Citizens Clean Elections Comm n, 132 P.3d 1187, 1195 (Ariz. 2006) (motion for rehearing or review pending); Fields, 286 P.3d at 164 (motion for attorneys fees pending); Ghadimi, 285 P.3d at 971 (determination of attorneys fees pending); Santee, 270 P.3d at (Rule 68(g) motion pending); Engel v. Landman, 212 P.3d 842, 847 (Ariz. Ct. App. 2009) (motion for new trial pending); Baumann v. Tuton, 884 P.2d 256, 256 (Ariz. Ct. App. 1994) (motion for new trial pending)). 27. Baker, 296 P.3d at Johnson and Gravino, 293 P.3d at Baker, 296 P.3d at 1017; Craig, 253 P.3d at 626; Smith, 132 P.3d at 1195; and Santee, 270 P.3d at Ghadimi, 285 P.3d at Ariz. Adv. Rep. 12, A R I Z O N A AT T O R N E Y D E C E M B E R w w w. a z b a r. o r g / A Z A t t o r n e y

6 False Start: Premature Notice of Appeal The new rules help identify the correct time to file a Notice of Appeal and provide relief when the notice is technically filed too early. may include other terms and conditions, such as a date certain for automatic reinstatement of the appeal. A stipulation or motion filed under this rule does not extend any appellate or superior court deadline. Conclusion The Arizona Court of Appeals too frequently grapples with jurisdictional issues because of premature NOAs. 52 Premature NOAs are usually filed because of (1) difficulty ascertaining whether a Superior Court order is, or is intended to be, a final appealable judgment; (2) difficulty determining the extent to which a putative judgment resolves a case as to all claims and parties; and (3) timing complications caused by filing various post-judgment motions. The new rules that go into effect January 1, 2014, should help cure jurisdictional defects arising from premature NOAs. Time will tell if these new rules accomplish their intended effect of providing a more straightforward, predictable and elegant approach to preserving appellate 53 AZ jurisdiction. AT 32. Id. 33. Id. 34. Id. at Fields, 286 P.3d at 163 (emphasis omitted). 36. Id. 37. Nat l Broker Assocs., Inc. v. Marlyn Nutraceuticals, Inc., 119 P.3d 477, 485 (Ariz. Ct. App. 2005). 38. E.g., Baker, 296 P.3d at ARCAP 9(b). 40. Id. 41. Fields, 286 P.3d at Craig, 253 P.3d at Fields, 286 P.3d at 165; Ghadimi, 285 P.3d at (dismissal of appeal where wife filed notice of appeal after decree of dissolution of marriage, but before judgment awarding fees and costs to husband, and wife did not file new or amended notice of appeal after final judgment entered); Santee, 270 P.3d at (dismissal of appeal where notice of appeal filed after minute entry order, but before court ruled on pending motion for relief under Rule 68(g), and appellant never filed new or amended notice of appeal). 44. Craig, 253 P.3d at 626; see also Baumann, 884 P.2d at 258 (holding that an appellant must expressly withdraw a motion for new trial before appealing; a motion for new trial cannot be withdrawn by filing a notice of appeal). 45. Johnson and Gravino, 293 P.3d at Flores and Martinez, 289 P.3d at ARCAP 6 discusses how to file motions properly in Arizona appellate courts. 48. Johnson and Gravino, 293 P.3d at Id. at 507, Id. at Id. at Baker, 296 P.3d at State Bar of Arizona Jan. 8, 2013, Petition to Amend Rules 54 and 58, ARIZ.R.CIV.P., and Rule 9, ARIZ.R.CIV.APP.P.; see also State Bar of Arizona April 2, 2012, Petition to Amend Rule 9, ARIZ.R.CIV.APP.P. w w w. a z b a r. o r g / A Z A t t o r n e y D E C E M B E R A R I Z O N A AT T O R N E Y 45