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 time-extending 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 jurisdic-
tion 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 juris-
diction. 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 dis-
posing 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 jurisdic-
tion 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 experi-
enced tremendous frustration while per-
forming 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
False Start: The Premature Notice of Appeal
FREE TO MEMBERS
To order additional copies: azbar.org/membership/membershipdirectory
THE ONE
PLACE TO FIND
ALL
LAWYERS
IN ARIZONA
THE ONLY PLACE
TO FIND:
n alphabetical listings
n complete contact
information
n geographically
cross-indexed by
city, town,
state, country
The Only Place
