Lopez v. Food City – 2/25/2014

March 3, 2014

Arizona Court of Appeals Division Two Holds That Plaintiff’s Notices of Appeal Were Untimely Under the Prior Version of Ariz. R. Civ. App. P. 9, and That The Newly Enacted Version of the Rule Does Not Apply Because Plaintiff’s Case Was No Longer Pending When The Rule Was Enacted.

Plaintiff appealed the trial court’s ruling granting Defendant’s motion for judgment as a matter of law.  Acting under its general independent duty to determine whether it has jurisdiction to consider an appeal, the Court of Appeals dismissed Plaintiff’s appeal for several reasons.  First, Plaintiff filed his first notice of appeal after the trial court issued a minute entry granting Defendant’s motion, but before the trial court had issued a signed judgment.  In general, a notice of appeal filed before a final judgment is premature and ineffective.  Second, the exception to the final judgment rule in Barassi v. Matison, 130 Ariz. 480, 422, 636 P.2d 1200, 1204 (1981) did not apply because the Court still had a pending motion for sanctions to resolve, and therefore its remaining task was not only ministerial.  Third, the trial court issued a signed judgment on May 3, 2013, but Plaintiff’s second notice of appeal was not filed until June 10, 2013, more than 30 days later.  And the Court of Appeals noted that while it would have jurisdiction under the newly revised Rule 9, Plaintiff’s case was not grandfathered under the new version because it was not “pending” on January 1, 2014, as set forth by Rule 81, Ariz. R. Civ. P., because when the 30-day time period ended on June 3, Plaintiff’s case was no longer appealable. 

Judge Eckerstrom authored the opinion; Presiding Judge Kelly and Judge Espinosa concurred.