Jurisdiction is an ever-present concern for our appellate courts. Case law is replete with opinions discussing the issue, and the jurisprudence continues to evolve. There is little hope that all of the questions regarding appellate jurisdiction will ever truly be resolved. Not surprisingly, confusion persists among members of the bar. In the last year alone, significant rule changes and the precedent flowing therefrom have altered the landscape once again in a way particularly relevant to trial counsel. Here are some of the changes to consider when positioning your case for appeal.
New ARCAP 9 and the Timeliness of a Notice of Appeal The revamped ARCAP 9 clarifies when to file a notice of appeal in a landscape where post-judgment motions are expected. Under ARCAP 9(e), the deadline to file a notice of appeal is calculated from the date of entry of a signed order granting or denying a motion: (1) for judgment as a matter of law; (2) to amend or make additional findings of fact; (3) to alter or amend the judgment; (4) to correct clerical mistakes in the judgment, or from the date of an order denying a motion for new trial; and (5) under Arizona Rule of Civil Procedure 60. Where a party files more than one of these time extending motions or the parties file cross-motions, the deadline to file a notice of appeal is calculated from the entry of the signed order disposing of the last remaining time extending motion. Finally, if any time extending motions have not been resolved by signed court order at the time a party files the notice of appeal, the appeal will be suspended until entry of signed orders as to all such motions. The burden is on the appellant to notify the court of any pending motion and again once the motion has been resolved.
The Recent Appellate Jurisdiction Opinions. The form and language of appealable judgments. ARCP 54(b) details the procedure for entering judgments against fewer than all claims or parties. Last year, ARCP 54 added a companion subsection (c) to address judgments entered as to all claims and all parties. In 2014, the Arizona Court of Appeals construed these two subsections and dispelled a lingering ambiguity regarding the proper form of an appealable judgment under ARCP 54. Madrid v. Avalon Care Ctr.- Chandler, L.L.C., 236 Ariz. 221, 338 P.3d 328 (App. 2014). In dismissing the appeal for want of jurisdiction, the court concluded there is no jurisdiction to review a judgment lacking Rule 54(b) or Rule 54(c) language. An appeal may only be taken when the judgment or dispositive order (1) contains language that all matters have been resolved; (2) contains language that the judgment is made under ARCP 54(c); and (3) disposes of all pending matters. The court also explained it does not have jurisdiction over an appeal from a judgment that did not dispose of all claims as to all parties and did not expressly state there is “no just reason for delay.”
Third party disgorgement orders are appealable. At the close of 2014, the court of appeals also had occasion to explore A.R.S. § 12-2101(A)(4) as a ground for appellate jurisdiction. MCA Fin. Grp., Ltd. v. Enter. Bank & Trust, No. 2 CA-CV 2014-0007 (App. Dec. 30, 2014). Specifically, the court examined whether it has jurisdiction to review a disgorgement order entered against a nonparty. After deconstructing subsection (A)(4) of the statute, which provides appellate jurisdiction from “a final order affecting a substantial right made in a special proceeding or on a summary application in an action after judgment,” the court ruled that it had jurisdiction to hear the appeal.
While the court engaged in an analysis of each clause in the subpart, its teaching that a disgorgement proceeding against a non-party is a special proceeding is interesting from a jurisdictional perspective. According to the court, the definition of special proceeding includes a proceeding that can be maintained independent of the ongoing action. As applied, since the request to disgorge the monies of a non-party could have been brought independent of the pending action, it is tantamount to a special proceeding worthy of appellate jurisdiction, and possibly opening the door to a host of appeals from non-party litigants who can demonstrate that an independent suit, separate from the pending action, is possible.
These are but three of a multitude of sweeping amendments to the ARCAP and the resulting pipeline of cases emanating therefrom. When faced with an unfavorable ruling, consulting with an experienced appellate attorney may be the best way to ensure counsel is confident and informed in proceeding on appeal.