Sotomayor v. Sotomayor-Muñoz – 3/28/2016
Arizona Court of Appeals Division Two holds that a motion to set aside the judgment in an eviction action does not toll the notice-of-appeal deadline.
Under ARCAP 9, a notice of appeal must be filed within thirty days of the entry of judgment. Certain motions filed in the trial court toll that deadline, such as a motion for new trial under Ariz. R. Civ. P. 59.
In this eviction case brought by a landowner, the trial court entered an order on April 9, 2015 requiring the tenant to vacate the premises. That same day, the tenant filed a motion to set aside the judgment under Ariz. R. P. Eviction Actions 15(a). The trial court issued an order denying the motion on June 30. On July 1, the tenant filed a notice of appeal for both the April judgment and the June denial of her motion to set aside the judgment.
The Court of Appeals dismissed the appeal, reasoning that it lacked jurisdiction to consider an appeal when notice was filed nearly three months after the underlying judgment. Although Rule 9 provides that the time for filing a notice of appeal is extended if a party timely and properly files certain motions in the lower court, the enumerated motions do not include a motion filed under Ariz. R. P. Eviction Actions 15. Nor could the Court of Appeals consider the motion as one for a new trial under Ariz. R. Civ. P. 59 because the rules of civil procedure do not apply in eviction actions unless specifically incorporated by reference.
The Court also held that A.R.S. § 12-2101, which grants the Court of Appeals jurisdiction to hear appeals from “any special order made after final judgment,” did not grant jurisdiction. Such an order is appealable only if it raises issues that are different from those that would have arisen on appeal. Since the Rule 15 motion to set aside the judgment effectively re-argued the underlying order, it raised no new issues and was not appealable under § 12-2101.
Judge Eckerstrom delivered the unanimous opinion, in which Judges Vásquez and Espinosa concurred.