Craig v. Craig

SUPREME COURT OF ARIZONA
En Banc

In re the Marriage of: ) Arizona Supreme Court
) No. CV-10-0397-PR
SUE LYNN CRAIG, )
) Court of Appeals
Petitioner/Appellant ) Division One
Cross-Appellee, ) No. 1 CA-CV 08-0776
)
v. ) Maricopa County
) Superior Court
ROGER THOMAS CRAIG, ) No. FN2004-092607
)
Respondent/Appellee )
Cross-Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Dean M. Fink, Judge
________________________________________________________________

Opinion of the Court of Appeals, Division One
225 Ariz. 508, 240 P.3d 1270 (App. 2010)

AFFIRMED
________________________________________________________________

SLATON LAW OFFICE, P.C. Scottsdale
By Sandra L. Slaton
Douglas Lowden
Attorneys for Sue Lynn Craig

KEITH R. LALLISS, ATTORNEY AT LAW Mesa
By Keith R. Lalliss
Attorney for Roger Thomas Craig
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 We stated thirty years ago that appellate courts

should “dismiss for lack of jurisdiction the case where a

litigant attempts to appeal where a motion is still pending in

the trial court.” Barassi v. Matison, 130 Ariz. 418, 422, 636

P.2d 1200, 1204 (1981). At issue today is whether this dictum

applies when the notice of appeal is filed by a non-moving

party.

I.

¶2 On September 9, 2008, the superior court issued a

decree dissolving the marriage of Sue Lynn Craig (“Wife”) and

Roger Thomas Craig (“Husband”). Husband timely filed a motion

for new trial or to amend the decree under Arizona Rules of

Family Law Procedure 83 and 84. Before the court ruled on

Husband’s motion, however, Wife filed a notice of appeal.

Husband then cross-appealed. The superior court later denied

Husband’s motion. Neither party filed a new or amended notice

of appeal.

¶3 Relying on Barassi, a divided court of appeals

dismissed both fully-briefed appeals for lack of jurisdiction.

Craig v. Craig, 225 Ariz. 508, 509 ¶ 1, 240 P.3d 1270, 1271

(App. 2010). The majority noted that Performance Funding,

L.L.C. v. Barcon Corp., 197 Ariz. 286, 3 P.3d 1206 (App. 2000),

found the general Barassi rule inapplicable when a notice of

appeal is filed by a party other than the one who filed the

time-extending motion. Craig, 225 Ariz. at 509 ¶ 5, 240 P.3d at

1271. However, the majority concluded that this Court

“reaffirmed” Barassi in Smith v. Arizona Citizens Clean

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Elections Commission, 212 Ariz. 407, 415 ¶ 38, 132 P.3d 1187,

1195 (2006), and therefore dismissed the appeals.

¶4 Judge Kessler dissented, perceiving “tension” between

Performance Funding and Smith, as the latter did not deal with

an appeal filed by a party who had not filed the time-extending

motion. Id. at 509-10 ¶ 7, 240 P.3d at 1271-72 (Kessler, J.,

dissenting). Judge Kessler also believed that Wife had a right

to rely on Performance Funding, because it “had not been

overruled, questioned, or vacated” when she filed her notice of

appeal. Id. at 510 ¶ 8, 240 P.3d at 1272.

¶5 We granted Wife’s petition for review because the

scope of appellate jurisdiction is a recurrent issue of

statewide importance. ARCAP 23(c). We have jurisdiction under

Article 6, Section 5(3) of the Arizona Constitution and A.R.S.

§ 12-120.24 (2010).

II.

¶6 An appeal may be filed from “a final judgment entered

in . . . superior court.” A.R.S. § 12-2101(B). The dissolution

decree in this case was indisputably a final judgment. Appeal

also lies from an order granting or denying a new trial. A.R.S.

§ 12-2101(F)(1).1

1
Because Arizona Rule of Family Law Procedure 78(A) defines
“judgment” as “a decree and an order from which an appeal lies,”
an order granting or denying a new trial is also an appealable
“judgment” for purposes of Arizona’s procedural rules. See also
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¶7 After “the entry of the judgment from which the appeal

is taken,” a notice of appeal must be filed within thirty days

“unless a different time is provided by law.” ARCAP 9(a).

However, if any party files any of a series of specified post-

judgment motions – including a motion for a new trial - the

“time for appeal for all parties is extended” and does not begin

to run until the entry of an order disposing of such motions.

ARCAP 9(b).

¶8 The interplay of the appeals statute and our

procedural rules has periodically required Arizona courts to

address appellate jurisdiction when a notice of appeal was filed

before the entry of an order disposing of a time-extending post-

judgment motion. In Barassi, the notice of appeal was filed

after the superior court issued a minute entry denying a motion

for a new trial, but before the formal entry of that order under

Arizona Rule of Civil Procedure 58(a), which requires that all

judgments “be in writing . . . and signed by a judge.” 130

Ariz. at 419, 636 P.2d at 1201. We therefore characterized the

notice of appeal as “premature.” Id. at 420, 636 P.2d at 1202.

¶9 In Barassi, we did not dismiss the premature appeal.

Rather, we reinstated the appeal and noted:

The underlying rationale of requiring a final judgment
for appealability is to avoid the constant disruption
__________________________ 
Ariz. R. Civ. P. 54(a) (containing identical definition of
“judgment”).
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of the trial process, to prevent appellate courts from
considering issues that may be addressed later in
trial, and to promote efficiency . . . . To permit an
appeal in the instant case does not circumvent these
concepts.
Id. at 421, 636 P.2d at 1203. We expressly cautioned, however,

that this exception to the final judgment rule was limited,

stressing that ordinarily, appellate courts lack jurisdiction if

“a litigant attempts to appeal where a motion is still pending

in the trial court.” Id. at 422, 636 P.2d at 1204.

¶10 The court of appeals applied this principle in Baumann

v. Tuton, in which a party moved for a new trial but filed a

notice of appeal while the motion was pending. 180 Ariz. 370,

371, 884 P.2d 256, 257 (App. 1994). Citing Barassi, the court

held that a notice of appeal filed under those circumstances

“disrupt[s] the trial process and require[s] [the court of

appeals] to consider issues that are more appropriately

considered by the trial court.” Id. at 372, 884 P.2d at 258.

Accordingly, the court found that it lacked jurisdiction,

characterizing the notice of appeal as a “nullity.” Id. at 372-

73, 884 P.2d at 258-59.

¶11 In Performance Funding, however, the court of appeals

sustained jurisdiction over an appeal filed by one party while

the other party’s time-extending motion was still pending,

declining to follow the Barassi dictum. 197 Ariz. at 288 ¶ 7, 3

P.3d at 1208. Performance Funding also distinguished Baumann,

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noting the “party there filed a notice of appeal while his own

time-extending motion was pending.” Id. at 289 ¶ 10, 3 P.3d at

1209.

¶12 Six years later, we flatly stated that Barassi

“create[d] only a limited exception to the final judgment rule,”

allowing a notice of appeal to be filed “after the trial court

has made its final decision, but before it has entered a formal

judgment,” and that the Barassi exception applied only “if no

decision of the court could change and the only remaining task

is merely ministerial.” Smith, 212 Ariz. at 415 ¶ 37, 132 P.3d

at 1195. Because Smith involved an appeal by the same party who

had filed the post-hearing motion, our opinion did not discuss

Performance Funding. In Engel v. Landman, however, the court of

appeals observed that Smith’s “reprise of the cautionary

language concerning time-extending motions in Barassi” meant

that the language could no longer be “dismiss[ed] . . . as mere

dictum.” 221 Ariz. 504, 509 ¶ 13, 212 P.3d 842, 847 (App.

2009). Engel therefore found Performance Funding no longer

controlling, id., and dismissed an appeal filed by a party while

a time-extending motion filed by the other party was still

pending, id. at 509-10 ¶ 16, 212 P.3d at 847-48.

III.

¶13 The majority below and the unanimous panel in Engel

had it right. We repeat what we said in Smith: Barassi

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“create[d] only a limited exception to the final judgment rule

that allows a notice of appeal to be filed after the trial court

has made its final decision, but before it has entered a formal

judgment, if no decision of the court could change and the only

remaining task is merely ministerial.” 212 Ariz. at 415 ¶ 37,

132 P.3d at 1195 (emphasis added). In all other cases, a notice

of appeal filed in the absence of a final judgment, or while any

party’s time-extending motion is pending before the trial court,

is “ineffective” and a nullity. See id. at 415 ¶ 39, 132 P.3d

at 1195; Engel, 221 Ariz. at 509 ¶ 13, 212 P.3d at 847

(“[O]utside the slim exception announced in Barassi, premature

notices of appeal are ineffective because they disrupt the court

process and prevent two courts from assuming jurisdiction and

acting at the same time.”).

¶14 We reject Wife’s suggestion that we should resuscitate

Performance Funding, which turned on which party had filed the

time-extending motion. Even the dissenting judge below conceded

that this distinction “make[s] little sense.” Craig, 225 Ariz.

at 512 ¶ 18, 249 P.3d at 1274 (Kessler, J., dissenting). No

matter who files it, a premature notice of appeal “disrupt[s]

the trial process” in the same way, leaving the superior court

uncertain as to its jurisdiction to decide a pending motion.

Baumann, 180 Ariz. at 372, 884 P.2d at 258.

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¶15 We also reject Wife’s suggestion that we today read

ARCAP 9(b) as in haec verba with Federal Rule of Appellate

Procedure 4(a)(4)(B)(i). The federal rule provides:

If a party files a notice of appeal after the court
announces or enters a judgment - but before it
disposes of any motion listed in Rule 4(a)(4)(A) - the
notice becomes effective to appeal a judgment or
order, in whole or in part, when the order disposing
of the last such remaining motion is entered.

Whatever the conceptual merits of the federal rule, the language

of ARCAP 9(b) is different, and Arizona jurisprudence

interpreting our rule has taken a diametrically opposite

approach for some thirty years. A dramatic change to Arizona

appellate procedure should occur through rulemaking, not through

an opinion effectively rewriting our appellate rules and

abandoning settled precedent. See Ariz. R. Sup. Ct. 28(A)

(providing for amendment of procedural rules).

IV.

¶16 At oral argument, Husband did not oppose Wife’s

argument that the two appeals should be considered on the

merits. Accordingly, Husband and Wife agreed to file a

stipulated request in the superior court under Arizona Rule of

Family Law Procedure 85(C)(1)(f), seeking temporary relief from

– and immediate reinstatement of – the dissolution decree and

the order denying Husband’s motion for new trial. Because these

appeals relate only to the division of property, we are

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confident that the trial court will grant such a stipulated

motion, allowing both parties to file fresh notices of appeal.

The court of appeals can then reinstate the previously dismissed

appeals and consider them on the briefing already submitted.

V.

¶17 For the reasons above, we affirm the opinion of the

court of appeals.

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

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