McDonald v. Ford

LEONARD J. MCDONALD, AS TRUSTEE, Plaintiff/Appellee, v. BETH FORD, PIMA COUNTY TREASURER, Defendant/Appellee.

ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM, Applicant/Appellee, v. CYNTHIA FLORES-HUES, Applicant/Appellant.

No. 2 CA-CV 2020-0138

ARIZONA COURT OF APPEALS DIVISION TWO

April 29, 2021

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pima County

No. C20183906

The Honorable Leslie Miller, Judge

APPEAL DISMISSED

COUNSEL

Laura Conover, Pima County Attorney

By Kathryn Ore, Deputy County Attorney, Tucson

Counsel for Defendant/Appellee

DeConcini McDonald Yetwin & Lacy P.C., Tucson

By Gary F. Urman

Counsel for Applicant/Appellee

Diaz Law Offices PLLC, Tucson

By Suzanne L. Diaz

Counsel for Applicant/Appellant

MEMORANDUM DECISION

Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Espinosa concurred.

EPPICH, Presiding Judge:

¶1 Cynthia Flores-Hues appeals from the trial court's order denying her application for distribution of excess proceeds following a trustee's sale. Because we lack jurisdiction, we dismiss this appeal.

Factual and Procedural Background

¶2 In 2018, Leonard McDonald conducted a trustee's sale of a residence. The sale resulted in $45,827.22 in excess proceeds. McDonald subsequently filed a complaint and the excess proceeds were deposited with the Pima County Treasurer, Beth Ford.¹ The complaint listed two lien holders for the excess proceeds—a judgment lien holder in second lien position and Arizona Health Care Cost Containment System (AHCCCS) inthird lien position. The trial court ordered $7,239.61 in proceeds to be distributed to the second position lien holder and $38,587.61 remained.²

¶3 Flores-Hues, in her capacity as personal representative of the estate of the former owner of the residence, filed an application for distribution of the excess proceeds pursuant to A.R.S. § 33-812(G). AHCCCS subsequently filed a competing application for distribution.³ In August 2020, the trial court denied Flores-Hues' application for distribution on the grounds that "[a]s a lienholder with an interest as of the date of the sale, AHCCCS has priority over Flores[-Hues]." Flores-Hues appealed that order. In October 2020, the court issued another order, directing the Pima County Treasurer to release the excess proceeds to AHCCCS.

Discussion

¶4 Flores-Hues asserts we have jurisdiction over this appeal pursuant to A.R.S. § 12-2101(A)(3), and AHCCCS contends that we lack jurisdiction because the order from which Flores-Hues "appeals was not a final judgment and did not prevent the entry of a final order or judgment from which an appeal might be taken." Flores-Hues did not support her claim of jurisdiction or respond in her reply to AHCCCS's argument, but in any event, "we have an independent obligation in every appeal to ensure we have jurisdiction, and we must dismiss an appeal over which we lack jurisdiction," Robinson v. Kay, 225 Ariz. 191, ¶ 4 (App. 2010) (citations omitted). The legislature defines, and limits, our jurisdiction, and so we must determine whether any statutory provision grants us jurisdiction in this circumstance. Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, ¶ 4 (App. 2016). For the following reasons, we conclude none does, and we therefore lack jurisdiction over this appeal.

¶5 Section 12-2101(A) lists various instances from which an appeal may be taken, but the statutory provisions do not account for the August order from which Flores-Hues appeals. See § 12-2101(A)(1)-(11). Flores-Hues relies on § 12-2101(A)(3), which allows an appeal from an "order affecting a substantial right made in any action when the order in effect determine[d] the action and prevent[ed] judgment from which an appeal might be taken."

¶6 The order from which Flores-Hues appeals was unsigned by the judge and not certified as final under Rule 54(b), Ariz. R. Civ. P. See Klebba v. Carpenter, 213 Ariz. 91, ¶ 6 (2006) (Rule 58(b), Ariz. R. Civ. P., requires that "all judgments must be in writing and signed by a judge" and applies to any order made appealable by statute.). But, "compliance with Rule 54(b) or 54(c) is not required for [a ruling under] § 12-2101(A)(3)." Brumett, 240 Ariz. 420, ¶ 19. Flores-Hues has not, however, explained how the order prevents a judgment from which an appeal could be taken. Indeed, as detailed above, the trial court entered a further order to release the funds in October 2020. See Bekelian v. JP Morgan Chase Bank NA, 246 Ariz. 352, ¶¶ 4-5 (App. 2019) (accepting appeal of excess proceeds award under subsection (A)(1), not under subsection (A)(3)).

¶7 The order here, however, solely denied Flores-Hues' application for distribution and determined AHCCCS had priority as a lienholder. Although the order noted that "AHCCCS's Application will deplete the excess proceeds," the trial court still had to distribute the funds, which it subsequently ordered in October.⁴ Thus, the challenged order was not a final judgment. See § 12-2101(A)(1).

¶8 Instead, the order was interlocutory. Rule 54(b), (c) compliance is not required for rulings under § 12-2101(A)(6)-(8) to be appealable, Brumett, 240 Ariz. 420, ¶ 17, but this order is not an appealable "interlocutory judgment" because it did not "direct[] partition to be made," § 12-2101(A)(7), nor did it clearly "direct[] an accounting or other proceeding to determine the amount of the recovery," § 12-2101(A)(6), (8); see Bilke v. State, 206 Ariz. 462, ¶ 18 (2003) (under § 12-2101(A)(6), formerly § 12-2101(G), the order mustinclude some express language that the only issue remaining is the amount of recovery).

¶9 Further, to the extent this action could be seen as a formal proceeding under title 14, see § 12-2101(A)(9), we still lack jurisdiction.⁵ "The Civil Rules apply to probate proceedings unless they are inconsistent with the[] probate rules or A.R.S. Title 14." Ariz. R. Prob. P. 4(a)(1); see also A.R.S. § 14-1304 ("Unless specifically provided for to the contrary . . . the rules of probate procedure govern formal proceedings under [title 14]."). Because the order appealed from was not signed, nor certified as final under Rule 54(b), it is not appealable under § 12-2101(A)(9). See Brumett, 240 Ariz. 420, ¶ 13 (an order entered in formal title 14 proceedings is not appealable absent compliance with Rule 54(b), (c)); Klebba, 213 Ariz. 91, ¶ 6 (order must be signed). Accordingly, we lack jurisdiction over this appeal.

Disposition

¶10 For the foregoing reasons, this appeal is dismissed.

1. The Pima County Treasurer filed a notice with this court stating that she takes no position on the arguments raised in this appeal.

2. In this order, the trial court stated, "There being no further matters pending before this Court, this Order is entered as a final Judgment pursuant to [Rule 54(c)]." However, this judgment was not final pursuant to Rule 54(c) because the court still had before it, and subsequently ruled on, the remaining excess proceeds. See Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236 Ariz. 221, ¶ 6 (App. 2014) ("A statement that a judgment is final pursuant to Rule 54(c) when, in fact, claims remain pending does not make a judgment final and appealable.").

3. Flores-Hues and AHCCCS appear in this appeal as claimants to the excess proceeds.

4. The October order, while signed, does not include language certifying it as final pursuant to Rule 54(c). Final judgments appealed pursuant to § 12-2101(A)(1) are "appealable when 'the court states that no further matters remain pending and that the judgment is entered pursuant to Rule 54(c).'" Brumett, 240 Ariz. 420, ¶ 1 (quoting Ariz. R. Civ. P. 54(c)).

5. "'Formal proceedings' means proceedings that are conducted before a judge with notice to interested persons." A.R.S. § 14-1201(26).