Arizona Attorney - December 2013

decided, and the notice of appeal shall be
reinstated as of the date of the entry of
the order disposing of the last remaining
motion.”
Finally, the new rules codify two aspects
of pre-existing practice. The last sentence
of Rule 9(b)( 2)(B), ARCAP, requires a
party that wants to appeal a trial court
decision made after an NOA was filed to
still file a timely amended NOA from that
decision. Rule 9. 1, ARCAP, authorizes the
appellate court—on motion, stipulation or
its own initiative—to suspend an appeal
and revest jurisdiction in the trial court to
consider and determine specified matters.

The appellate court’s order in this regard
when the notice is technically filed too
early. They are designed to help the court
and practitioners identify when a judg-
ment is final and appealable, provide a
“life preserver” that maintains appellate
jurisdiction when an NOA is filed prema-
turely, and establish a process that main-
tains appellate jurisdiction when an NOA
is prematurely filed.

Rule 54(c), ARIZ.R.CIV.P., requires the trial court specifically to state, in order to make a judgment final, that “no further matters remain pending and that the judgment is entered pursuant to Rule

54(c).”
The critical “life preserver” language is
in the first sentence of Rule 9(b)( 2)(B),
ARCAP: “A notice of appeal filed after
the court announces a decision or order—
but before the entry of the judgment or
order—is treated as filed on the date of
and after the entry of the judgment or
order.” The next two sentences explain
the process to be followed when an NOA
is filed before a final judgment, or before
or during the filing of one of the time-
extending motions. Under those circum-
stances, “the appellant shall notify the
appellate court and the appeal shall be
suspended until the motion is decided.”
Then, “appellant shall notify the appellate
court when all such motions have been

44 ARIZONA ATTORNEY DECEMBER 2013 www.azbar.org/AZAttorney endnotes

1. Sorenson v. Farmers Ins. Co. of Ariz., 957 P.2d 1007, 1008

(Ariz. Ct. App. 1997) ( independent duty to determine jurisdiction although neither party raised the issue); see also Craig v. Craig, 240 P.3d 1270, 1273 (Ariz. Ct. App. 2010), aff’d, 253 P.3d 624 (Ariz. 2011) (“[W]e favor deciding cases on their merits and try to avoid dismissing appeals on hypertechnical grounds, although we must dismiss if we lack jurisdiction.”).

2. Reeck v. Mendoza, 663 Ariz.

Adv. Rep. 12, ¶ 7 (App.

2013); In re Marriage of Kassa, 299 P.3d 1290 (Ariz.

Ct. App. 2013); Baker v.

Bradley, 296 P.3d 1011

(Ariz. Ct. App. 2013);

Searchtoppers.com LLC v.

TrustCash LLC, 293 P.3d 512

(Ariz. Ct. App. 2012); In re Marriage of Johnson and Gravino, 293 P.3d 504

(Ariz. Ct. App. 2012); In re Marriage of Flores and Martinez, 289 P.3d 946 (Ariz.

Ct. App. 2012); Fields v. Oates,

286 P.3d 160 (Ariz. Ct. App.

2012); Ghadimi v. Soraya, 285

P.3d 969 (Ariz. Ct. App.

2012); Santee v. Mesa Airlines Inc., 270 P.3d 915 (Ariz. Ct.

App. 2012). Approximately 20
unpublished memorandum
decisions have discussed pre-
mature notices of appeal since
January 2012.
3. ARCAP 8(c), 8(e).

4. Id. 8(a), 9.

5. Summit Prop., Inc. v. Wilson, 550 P.2d 104, 109 (Ariz. Ct.

App. 1976); ARCAP 8(c) cmt.

6. Schwab v. Ames Constr., 83 P.3d 56, 59 (Ariz. Ct. App. 2004).

7. Udy v. Calvary Corp., 780 P.2d

1055, 1059 (Ariz. Ct. App.

1989).

8. Hill v. City of Phoenix, 975

P.2d 700, 703 (Ariz. 1999); but see Baker v. Emmerson, 734

P.2d 101, 105-06 (Ariz. Ct.

App. 1986) (NOA from judgment in favor of one defendant did not invoke appellate jurisdiction over expanded order in favor of another defendant; amended or additional NOA required).

9. ARCAP 8(c); A.R.S. § 12-

2102(A); see also Marquette Venture Partners II, LP v.

Leonesio, 254 P.3d 418, 421

(Ariz. Ct. App. 2011) (A.R.S.

§ 12-2102 applies to Arizona Court of Appeals, as well as Arizona Supreme Court).

10. Garza v. Swift Transp. Co., 213 P.3d 1008, 1011

(Ariz. 2009); A.R.S. §

12–2101(A)( 1). The Court
of Appeals also has jurisdiction
over “Special Actions,” but
these appeals are beyond
the scope of this article. See

Arizona Rules of Procedure For Special Actions. These “early” appeals are generally allowed where there is no equally plain, speedy or adequate appellate remedy if appellant were to wait until a final judgment is entered before raising the challenged issue.

11. Santee, 270 P.3d at 916.

12. Fields, 286 P.3d at 164.

13. ARIZ.R.CIV.P. 58(a).

14. Id.

15. Baker, 296 P.3d at 1015.

16. ARCAP 9(a).

17. James v. State, 158 P.3d 905,

908 (Ariz. Ct. App. 2007)

(quoting Edwards v. Young,

486 P.2d 181, 182 (Ariz.

1971)).

18. Barassi v. Matison, 636 P.2d 1200 (Ariz. 1981).

19. Craig, 253 P.3d at 625-26

(2011); Barassi, 636 P.2d at

1204.

20. Fields, 286 P.3d at 164; compare Ghadimi v. Soraya, 285

P.3d at 971 (determination of attorneys’ fees not ministerial because trial court required to evaluate differing factual presentations and arguments), with Reeck, 663 Ariz. Adv.

Rep. 12, ¶ 7 (“[B]ecause there
is no requirement in the family
rules that attorneys’ fees be
resolved before the entry of judg-
ment, there is no reason to sup-
pose that a judgment entered with-
out a decision on fees is not ‘final’
for purposes of appeal.”).

21. Baker, 296 P.3d at 1017.

22. Craig, 253 P.3d at 626.

23. Barassi, 636 P.2d at 1201.

24. Id. at 1203.

25. Id. at 1204.

26. Baker, 296 P.3d at 1016-17 (citing Craig, 253 P.3d at 624 (dismissal when notice of appeal filed while motion for new trial and motion to amend the decree pending); Smith v. Ariz. Citizens Clean Elections Comm’n, 132 P.3d 1187, 1195 (Ariz. 2006) (motion for rehearing or review pending); Fields, 286 P.3d at 164 (motion for attorneys’ fees pending); Ghadimi, 285 P.3d at 971 (determination of attorneys’ fees pending); Santee, 270 P.3d at 916-17 (Rule 68(g) motion pending); Engel v. Landman, 212 P.3d 842, 847 (Ariz. Ct. App. 2009) (motion for new trial pending); Baumann v. Tuton, 884 P.2d 256, 256 (Ariz. Ct. App. 1994)