The court in Reeck went so far as to
conclude that a decree of dissolution
is always final, subject to time-extending motions, even without
Family Rule 78(B) certification
(Civil Rule 54(b)’s counterpart)
because A.R.S. § 25-325(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. § 25-327(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 84
4. Denying a motion of new trial pursuant to Arizona Rules of Civil
The 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
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
Focus on Appellate Law
Barassi 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.
