Arizona Supreme Court Holds That A Notice of Appeal Filed in the Absence of a Final Judgment, or While a Time-Extending Motion Is Pending, Is a Nullity Requiring Dismissal for Lack of Jurisdiction.

On September 9, 2008, the trial court entered a signed final decree of dissolution.  Husband filed a motion for new trial or to amend the decree.  Before the court ruled on Husband’s motion, Wife filed a notice of appeal.  Husband then cross-appealed.  The trial court denied the motion for new trial, and neither Husband nor Wife filed a new or amended notice of appeal.  The Court of Appeals dismissed both appeals for lack of jurisdiction.  Wife filed a petition for review, which the Arizona Supreme Court granted because the scope of appellate jurisdiction is a recurrent issue of statewide importance.

In a unanimous opinion, the Supreme Court affirmed.  At the outset, the Court discussed the applicable statutes and procedural rules.  The statutes provide that a party may appeal from “a final judgment entered in . . . superior court,” A.R.S. § 12-2101(B) – including a dissolution decree – or may appeal from an order granting or denying a new trial, A.R.S. § 12-2101(F)(1).  ARCAP 9(a) provides that a notice of appeal must be filed within thirty days after “the entry of the judgment from which the appeal is taken,” “unless a different time is provided by law.”  ARCAP 9(b) provides that if a party files a motion for new trial (or other specified post-judgment motion), the “time for appeal for all parties is extended” and does not begin to run until the motion has been decided.

The Court then turned to the Arizona cases addressing the interplay between the statutes and rules.  In Barrasi v. Matison, the Court stated that appellate courts lack jurisdiction if “a litigant attempts to appeal where a motion is still pending in the trial court” because such an appeal would disrupt the trial process, cause appellate courts from considering issues that may be addressed later, and cause inefficiency.  130 Ariz. 418, 421, 422, 636 P.2d 1200, 1203, 1204 (1981).  In Performance Funding, LLC v. Barcon Corp., 197 Ariz. 286, 3 P.3d 1206 (App. 2000), however, the Court of Appeals declined to follow Barrasi, and instead exercised jurisdiction over an appeal filed by a party while the other party’s time-extending motion was still pending. 

Citing Smith v. Arizona Citizens Clean Elections Commission, 212 Ariz. 407, 132 P.3d 1187 (2006), the Court confirmed that Barrasi, rather than Performance Funding, applies when a non-moving party files a notice of appeal while a time-extending motion is pending.  The Court explained that the final judgment rule applies except in the rare situation where “no decision of the court could change and the only remaining task is merely ministerial.”  Id. at 415 ¶ 37, 132 P.3d at 1195.

The Court rejected Wife’s argument to resuscitate Performance Funding because the reasoning, in that case, made little sense. The Court also rejected Wife’s argument that ARCAP 9(b) be read the same as Federal Rule of Appellate Procedure 4(a)(4)(B)(i) – which specifically allows parties to file a notice of appeal after entry of a judgment, but before the disposition of a time-extending motion – because the two rules use different language.

Notwithstanding its holding, the Court noted that because the parties agreed that their appeals should be considered on the merits, the trial court should grant their stipulated request under Arizona Rule of Family Law Procedure 85(C)(1)(f), which would result in reinstatement of the dissolution decree so the parties could file fresh notices of appeal.

Vice Chief Justice Hurwitz authored the unanimous opinion.