Craig v. Craig

240 P.3d 1270, 225 Ariz. 508, 594 Ariz. Adv. Rep. 19, 2010 Ariz. App. LEXIS 166

• Court: Court of Appeals of Arizona
• Decided: October 28, 2010
• Docket: 1 CA-CV 08-0776
• Status: Published

Opinions

OPINION

IRVINE, Judge.

¶ 1 The court has reviewed the appellate record filed in the above-captioned ease and has determined that both parties’ appeals must be dismissed for lack of jurisdiction.

¶ 2 This court has an obligation to independently review its jurisdiction. Engel v. Landman, 221 Ariz. 504, 508, ¶ 10, 212 P.3d 842, 846 (App.2009). In Barassi v. Matison, the Arizona Supreme Court held that a notice of appeal filed after the denial of a motion for new trial but before entry of a final judgment provides a basis for appellate jurisdiction. 130 Ariz. 418, 419-22, 636 P.2d 1200, 1201-04 (1981). The rationale was that the superior court’s judgment had become final and dismissal of the premature notice of appeal would punish an appellant for being too diligent. Id. at 421, 636 P.2d at 1203. Nevertheless, appellate courts lack jurisdiction when “a litigant attempts to appeal where a motion is still pending in the trial court or where there is no final judgment.” Id. at 422, 636 P.2d at 1204 (emphasis added).

¶ 3 More recently, our supreme court reaffirmed Barassi explaining that “appellate courts should dismiss a case for lack of jurisdiction while [a time-extending] motion was still pending in the trial court.” Smith v. Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, 415, ¶38, 132 P.3d 1187, 1195 (2006) (citing Barassi 130 Ariz. at 422, 636 P.2d at 1204). Smith also read this court’s opinion in Baumann v. Tuton, 180 Ariz. 370, 884 P.2d 256 (App.1994), to defeat jurisdiction over an appeal commenced while a motion for new trial was pending. Smith, 212 Ariz. at 415, ¶¶ 37-39, 132 P.3d at 1195.

¶ 4 In light of Smith, we lack jurisdiction over both the appeal and cross-appeal. Husband filed a time-extending motion, his motion for new trial or to amend the Decree, on September 24, 2008. See ARCAP 9(b)(3), (4). Wife and Husband filed their respective notices of appeal on October 8, 2008 and October 17, 2008, while Husband’s new trial motion was still pending. The family court denied the motion for new trial in a signed order on November 7, 2008. Neither party filed a notice of appeal from that ruling or an amended notice of appeal. We therefore lack appellate jurisdiction of both parties’ appeals. See Smith, 212 Ariz. at 415, ¶¶ 37-39, 132 P.3d at 1195.

¶ 5 Wife argues, however, that her notice of appeal was valid because she did not file the motion for new trial; Husband did so. She cites Performance Funding, LLC v. Barcon Corp., 197 Ariz. 286, 3 P.3d 1206 (App. 2000), as authority for distinguishing between situations where the notice of appeal and motion for new trial are filed by the same party (rendering the notice of appeal a nullity) and situations where different parties file the two pleadings. In Engel, we found that the supreme court’s analysis in Smith made Performance Funding no longer controlling. 221 Ariz. at 509, ¶¶ 12-13, 212 P.3d at 847. Therefore, we reject Appellant’s argument based on that case.

¶ 6 Accordingly, we dismiss this appeal.

CONCURRING: MICHAEL J. BROWN, Judge.