McCleary v Tripodi (8/11/2017)

September 25, 2017

Arizona Court of Appeals Division Two holds that a motion for reconsideration does not necessarily prevent ARCAP 9(c) from saving a premature notice of appeal.

In a quiet title action, the superior court entered an unsigned, under-advisement ruling granting summary judgment against Tripodi.  Tripodi filed two motions for reconsideration with the superior court.  She then filed two premature notices of appeal.  The trial court denied the motions for reconsideration and then issued final judgment. 

The Court of Appeals found that it had jurisdiction despite the general rule that a premature notice of appeal is a nullity.  The ministerial exception from Barassi v. Matison, 130 Ariz. 418, 422 (1981), did not apply because the pending motions for reconsideration left the court with a decision to make and not merely the ministerial task of entering judgment. 

ARCAP 9(c) allows a notice of appeal to be considered timely if it is “filed after the superior court announces an order . . . but before entry of the resulting judgment that will be appealable.”  Arizona’s rule is modeled on Federal Rule of Appellate Procedure 4(a)(2), which applies when the court’s decision “would be appealable if immediately followed by the entry of judgment.”  FirsTier Mortgage Insurance Co. v. Investors Mortgage Insurance Co., 498 U.S. 269, 276 (1991).  The question is not whether any issues remain to be litigated—such as motions for reconsideration or proposed findings of fact and conclusions of law.  The relevant inquiry is whether the order could form the basis of a final judgment and whether it actually resulted in final judgment.  After finding that it had jurisdiction, the Court of Appeals affirmed the summary judgment ruling.

Chief Judge Eckerstrom authored the opinion; Judges Vásquez and Howard concurred.