Appellate Jurisdiction, Premature Appeals, and Final Judgment Rule

Securing appellate jurisdiction has been one of the trickier issues for Arizona practitioners over the years. It
shouldn’t be. But it is. 

Appellate jurisdiction is conferred by statute and our appellate courts scrutinize the cases before them to see if they were prematurely initiated. There are two common situations where a notice of appeal is premature: 1) when it is filed before there is a final judgment, and 2) when it is filed while a “time-extending” post-trial motion is pending. With one exception, a premature notice of appeal is a nullity and is ineffective to
secure appellate jurisdiction.

A problem occurs when the final judgment or order denying the post-trial motion is entered after the would-be appellant has filed their null notice of appeal. If a new or amended notice of appeal is not filed within 30 days of that action by the trial court, the deadline to appeal will expire and the appellant will lose their chance for appellate review. This can happen—and often does—while the case is putatively before the court of appeals and the parties are working on their briefs. 

Deciding whether a decision is a final judgment is not as easy as looking at its title. What matters is the substance and effect of the decision, not what it’s called. When there are successive signed orders or judgments, the time for appeal begins to run upon entry of the signed order or judgment that completes the determination of all issues in the litigation. If there remain claims, or parties whose rights and liabilities have
not been determined, according to Arizona Rule of Civil Procedure 54(b), the decision is not final and “is subject to revision at any time before entry of the final judgment.” This is true of “any order or other form of decision, however designated.” 

This leads to numerous opportunities for confusion.

If, for example, attorneys’ fees have been awarded, but not determined, such a ruling probably isn’t a final judgment, even it is signed and otherwise appears final. This was the Court of Appeals’ holding in Fields v. Oates, a summary judgment appeal. When the appellant filed the notice of appeal, the trial court had not yet determined attorneys’ fees. Because the summary judgment order was not a final judgment, the notice of appeal was premature and ineffective to secure appellate jurisdiction.    

Until recently, a premature appeal like the one in Fields might have “ripened” into a timely appeal upon subsequent entry of the fees judgment. Arizona’s appellate courts had occasionally held that, if a premature notice is followed by entry of judgment and there is no prejudice, the jurisdictional defect is cured. But the Arizona Supreme Court sharply limited the application of that rule in 2011. In Craig v. Craig, the court reaffirmed that a premature appeal is effective only when “no decision of the court could change and the only remaining task is merely ministerial.” Otherwise, a notice of appeal filed “in the absence of a final judgment or while a time extending motion is pending is ineffective and a nullity.”

Just to make things even trickier, there are also opportunities for confusion as to whether a time-extending post-trial motion has been filed. The list of time-extending motions can be found in Rule 9 of the Arizona Rules of Civil Appellate Procedure. It includes motions for new trial and motions to amend the judgment. Motions for reconsideration, however, don’t extend the time for appeal. And, in contrast to the final judgment analysis, the title of the motion does matter in deciding whether it tolls the time to appeal. 

The post-trial and post-judgment phases of a case are critically important and fraught with perils for the unwary lawyer. Don’t practice without a net. Be sure. Consult an experienced appellate attorney.

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