McCleary v. Tripodi

403 P.3d 1191

Julie A. MCCLEARY and David A. Robinson, Plaintiffs/Appellees,

v.Josephine TRIPODI, Defendant/Appellant.

No. 2 CA-CV 2016-0145.

Court of Appeals of Arizona, Division 2.

Filed August 29, 2017

Gust Rosenfeld P.L.C., Phoenix, By Charles W. Wirken and Gerard R. O'Meara, Counsel for Plaintiffs/Appellees

The Eagleburger Law Firm, Phoenix, By G. Gregory Eagleburger, Counsel for Defendant/Appellant

Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Howard¹ concurred.

OPINION

ECKERSTROM, Chief Judge:

¶ 1 Josephine Tripodi appeals from the trial court's grant of summary judgment, quieting title to Lot 18 of Lazy Creek I ("the Property"), real property in Pima County, in favor of Julie McCleary and David Robinson ("the Devisees"). We affirm for the following reasons.

Factual and Procedural Background

¶ 2 Viewing the facts in the light most favorable to the non-moving party, Ochser v. Funk , 228 Ariz. 365, ¶ 11, 266 P.3d 1061, 1065 (2011), in May 1996, Dominic Tripodi of Philadelphia, Pennsylvania, named himself trustee of the Dominic Tripodi Living Trust ("the Trust"), which he settled with $92,000 of his own, separate assets for the purpose of acquiring and holding title to real property in Arizona. The Trust directed that upon his death, Jennifer Robinson would receive the balance of the trust estate, if she survived him. A few days later, a deed was recorded with the Pima County Recorder conveying the Property to "Dominic Tripodi, Trustee of the Dominic Tripodi Living Trust."

¶ 3 In October 1997, Dominic died, and his wife, Josephine Tripodi, became the administrator of his estate. In September 2002, Josephine, acting as the administrator, recorded a deed purporting to convey the Property from Dominic's estate to herself. In June 2005, Jennifer, as successor trustee and pursuant to the Trust, recorded a deed conveying the Property from the Trust to herself. In September and December of 2009, Josephine twice more recorded deeds purporting to convey the Property from Dominic's estate to herself.

¶ 4 In February 2015, Jennifer died. In March, the Devisees, acting as personal representatives of her estate and pursuant to her will, executed a deed of distribution conveying the Property to themselves. In April, acting through counsel and pursuant to A.R.S. § 12–1103, the Devisees sought a quitclaim deed to the Property from Josephine for consideration of five dollars.

¶ 5 In June 2015, not having obtained such deed, the Devisees commenced this action to quiet title. On June 28, 2016, the trial court issued an unsigned, under-advisement ruling granting summary judgment and quieting title to the Property in favor of the Devisees. In July, Josephine filed two motions asking the court to reconsider its June 28 order. Later that month, before the court ruled on those motions and before it entered final judgment, Josephine filed two notices of appeal. In August, the court summarily denied the motions for reconsideration.

¶ 6 In September, the Devisees filed a motion to dismiss the appeal, arguing the notices were premature because final judgment had not been entered. The same day, this court independently determined the trial court's order lacked requisite finality language, stayed the appeal, and revested jurisdiction in the trial court. On October 3, the trial court entered final judgment and, a few days later, this court revested jurisdiction in itself and denied the Devisees' motion to dismiss. We have jurisdiction for the following reasons. A.R.S. §§ 12–120.21(A)(1), 12–2101(A)(1) ; Ariz. R. Civ. App. P. 9(c).

Premature Notices of Appeal

¶ 7 As a court of limited jurisdiction, A.R.S. §§ 12–120.21(A)(1), 12–2101(A)(1), we have an independent duty to determine whether we have the authority to consider an appeal. Camasura v. Camasura , 238 Ariz. 179, ¶ 5, 358 P.3d 600, 602 (App. 2015). Generally, only final judgments are appealable. Id. ¶ 6. With limited exceptions not applicable here, a judgment is not final unless the court has signed it, Ariz. R. Civ. P. 58(b)(1), and it "recites that no further matters remain pending and that the judgment is entered under Rule 54(c)." Ariz. R. Civ. P. 54(c). Here, the June 28 order was not final because it was not signed and did not contain Rule 54(c) language of finality. Thus, Tripodi's notices of appeal, filed in July, were premature because they predated the final judgment, entered on October 3.

¶ 8 Ordinarily, a premature notice of appeal is a nullity. Craig v. Craig , 227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011). The question before us, however, is whether an exception for certain premature appeals applies. See Ariz. R. Civ. App. P. 9(c). The Devisees suggest Rule 9(c) merely codifies the narrow, ministerial exception announced in Barassi v. Matison , 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981). Tripodi argues our supreme court, by adopting Rule 9(c) and mirroring it after Rule 4(a)(2), Fed. R. App. P., intended to expand the exception beyond Barassi to include a broader class of premature notices of appeal.

Barassi 's Ministerial Exception

¶ 9 In Barassi , our supreme court recognized an exception for premature notices of appeal when "no appellee was prejudiced" and "a subsequent final judgment was entered." 130 Ariz. at 422, 636 P.2d at 1204. This "limited exception" applies only "if no decision of the court could change and the only remaining task is merely ministerial." Smith v. Ariz. Citizens Clean Elections Comm'n , 212 Ariz. 407, ¶ 37, 132 P.3d 1187, 1195 (2006).

¶ 10 Barassi 's ministerial-defects exception does not cover Tripodi's premature notices of appeal because she had previously filed two pending motions asking the trial court to reconsider its June 28 order over which the court still needed to exercise its discretion. Because the Barassi exception does not apply, we must consider whether Rule 9(c) encompasses a broader range of premature notices of appeal than the exception adopted in Barassi .

Rule 9(c)

¶ 11 Rule 9(c), Ariz. R. Civ. App. P., states, "A notice of appeal ... filed after the superior court announces an order ... but before entry of the resulting judgment that will be appealable—is treated as filed on the date of, and after the entry of, the judgment." By its plain language, Rule 9(c) applies to notices of appeal taken from orders upon which the trial court later enters an appealable, final judgment. Id. The dual references to "the resulting judgment" and "the judgment" limit the rule to orders and decisions that actually culminate in a judgment. Id.

¶ 12 In Camasura , this court observed that Rule 9(c) contains "functionally equivalent" language to Rule 4(a)(2), Fed. R. App. P., and noted that the year before the rule change, the State Bar had petitioned the court to adopt the federal rule. 238 Ariz. 179, ¶ 12, 358 P.3d at 603–04. Applying our supreme court's practice of according " ‘great weight’ to the federal interpretations" of rules upon which state procedural rules are based, the court presumed our supreme court was "aware of and embraced the United States Supreme Court's definitive interpretation" of Rule 4(a)(2) in FirsTier Mortgage Insurance Co. v. Investors Mortgage Insurance Co. , 498 U.S. 269, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). Camasura , 238 Ariz. 179, ¶ 13, 358 P.3d at 604, quoting Edwards v. Young , 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971).

¶ 13 In FirsTier , the Court determined a notice of appeal from an order granting summary judgment was not "fatally premature" under Rule 4(a)(2), even though it was filed not only before final judgment was entered, but also before the prevailing party complied with the district court's order to submit proposed findings of fact and conclusions of law. 498 U.S. at 271–72, 277, 111 S.Ct. 648. There, the Court reasoned that the otherwise premature appeal provided "effective notice from [the] subsequently entered final judgment." Id. at 274, 111 S.Ct. 648.

¶ 14 The Court, however, specified that Rule 4(a)(2) would not apply to all premature appeals; it limited the rule's reach to appeals taken from those orders that "would be appealable if immediately followed by the entry of judgment." Id. at 276, 111 S.Ct. 648 (emphasis omitted). As matters of policy, the Court reasoned: (1) the rule was intended to accommodate a "litigant's confusion" about when to file; (2) "permitting the notice of appeal to become effective when judgment is entered does not catch the appellee by surprise"; and (3) "[l]ittle would be accomplished by prohibiting the court of appeals from reaching the merits." Id.

¶ 15 Applying FirsTier , the court in Camasura determined Rule 9(c) did not save the appellant's premature notice of appeal. Specifically, it concluded that the order from which it was taken could not have resulted in a final judgment inasmuch as it left attorney fees, legal decision-making, and parenting time unresolved. Camasura , 238 Ariz. 179, ¶¶ 7, 15, 358 P.3d at 602–03, 604.

¶ 16 Here, the order from which Tripodi filed her premature notices of appeal disposed of all issues as to all parties and the trial court ultimately entered final judgment upon it. Accordingly, the order comports with the plain language of Rule 9(c).

Intervening Motions for Reconsideration

¶ 17 The Devisees claim that, even if we interpret Rule 9(c) as mirroring the federal rule, Tripodi's intervening, substantive motions for reconsideration render the June 28 order unappealable because those motions "sought to and could have" changed the trial court's decision.

¶ 18 The Supreme Court has not determined whether Rule 4(a)(2) applies when a party has filed an intervening motion for reconsideration.² However, following the Court's approach in FirsTier , Tripodi's motions for reconsideration need not prevent application of Rule 9(c). First, the motions had no effect on whether the June 28 order resolved all issues as to all parties. See FirsTier , 498 U.S. at 276, 111 S.Ct. 648. Although Tripodi...