Baumann v. Tuton
| Decision Date | 18 October 1994 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 884 P.2d 256,180 Ariz. 370 |
| Parties | Leo BAUMANN, as Trustee of the Nancy Hopkins Irrevocable Trust, Plaintiff-Appellee, v. James D. TUTON and Robert D. Almquist, Defendants-Appellants. 92-0386. |
| Court | Arizona Court of Appeals |
In this case we consider whether the filing of a notice of appeal while a motion for new trial is pending in the trial court confers jurisdiction upon this Court and therefore has the effect of abandoning the pending motion. We hold that the notice of appeal was premature and, because this Court lacked appellate jurisdiction, appellee did not abandon his motion for new trial.
James D. Tuton and Robert D. Almquist ("appellants") formed a limited partnership to purchase a parcel of land for investment and offered units of the partnership for sale. Leo Baumann ("Baumann"), trustee of the Nancy L. Hopkins Irrevocable Trust, required appellants to guarantee a ten percent return on the trust's cash contributions to the partnership before the trust would purchase units in the partnership. Appellants agreed to the guaranty and the trust purchased five units of the partnership.
In June 1991, Baumann, as trustee, sued appellants, alleging that they breached the guaranty. Appellants filed a motion to dismiss in which they asserted that the guaranty was unenforceable.
On August 23, 1991, following oral argument, the trial court granted the motion to dismiss in an unsigned minute entry. On August 28, 1991, Baumann filed a motion for new trial pursuant to Rule 59, Arizona Rules of Civil Procedure, or, in the alternative, a motion to vacate or set aside the judgment pursuant to Rule 60. On October 8, 1991, before ruling on the motion for new trial, the trial court entered its order granting the motion to dismiss and entering judgment in favor of appellants. On October 31, 1991, still before the trial court ruled on the motion for new trial, Baumann filed a notice of appeal from the October 8 judgment.
On November 5, 1991, Baumann filed a second complaint against appellants, again alleging breach of guaranty. Shortly thereafter, appellants filed in this Court a motion to dismiss the appeal arguing that, by filing the second complaint below, Baumann had abandoned his appeal. Baumann responded that he did not object to dismissing the appeal because he did not consider the trial court's order on the first complaint to be a determination on the merits. This Court granted the motion to dismiss the appeal, stating that Baumann's response indicated that he did not object to the motion.
On January 21, 1992, Baumann filed in the trial court a motion reurging his pending motion for new trial, or, in the alternative, a motion to vacate or set aside judgment. In response, appellants argued that Baumann had abandoned his first motion for new trial by filing a notice of appeal and that the deadline for filing a second motion for new trial had long since expired. The trial court heard oral argument on the motion for new trial and granted it. In the formal order granting a new trial, the court found that a new trial was warranted because there had been sufficient evidence presented to withstand summary judgment. The court therefore vacated the judgment entered in October 1991. Appellants timely appealed from that order.
Appellants argue that Baumann's filing of a notice of appeal prior to a ruling on his motion for new trial constituted an abandonment, waiver, or withdrawal of the motion for new trial. They further assert that, after the notice of appeal was filed, the trial court was without jurisdiction to consider a motion for new trial because the time for filing such a motion had expired.
Appellants base their arguments primarily on dicta in Bryan v. Inspiration Consol. Copper Co., 27 Ariz. 188, 195, 231 P. 1091, 1093 (1925), in which the court stated that filing an appeal effectively terminated the superior court's jurisdiction. The court noted that "since the right to move for a new trial was created for the benefit of the litigant dissatisfied with the judgment of the trial court, such acts [by the dissatisfied litigant] can only be treated as a withdrawal or abandonment of his motion." Id.
In response, Baumann argues that the filing of a motion for new trial suspends the finality of the judgment while the motion is pending, and, because the judgment is not final, an appellate court has no jurisdiction over the appeal. For support, Baumann cites dicta from Barassi v. Matison, 130 Ariz. 418, 636 P.2d 1200 (1981): "It should be noted that the Arizona appellate courts will dismiss for lack of jurisdiction the case where a litigant attempts to appeal where a motion is still pending in the trial court or where there is no final judgment." 130 Ariz. at 422, 636 P.2d at 1204. It becomes our task to resolve the conflicting dicta of Bryan and Barassi.
First, we hold that Bryan does not squarely support the proposition that a party can, by implication only, abandon a motion for new trial by merely filing a notice of appeal. In Bryan, 27 Ariz. at 195, 231 P. at 1093, our supreme court stated:
A litigant who feels that the trial court has not given him what he is entitled to may ask for a new trial or not, as he sees fit, and when he does make such a request he may withdraw it any time previous to action upon it.
(Emphasis added.) Thus, the Bryan court indicated that a motion for new trial may be withdrawn. The term "withdrawn" means to "take back or away: remove ... [or] retract." Webster's Ninth New Collegiate Dictionary 1355 (1988). Such definition implies an act of volition. A motion for new trial, therefore, cannot be withdrawn merely by the act of filing a notice of appeal; it must be expressly withdrawn by the moving party.
Second, we hold that Barassi supports the proposition that a notice of appeal, filed while a motion for new trial is pending, does not constitute abandonment of the trial court's proceedings. In Barassi, the supreme court held only that "a premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised, need not be dismissed." 130 Ariz. at 422, 636 P.2d at 1204. The narrow holding in Barassi, therefore, is that where a notice of appeal is filed after a minute entry order denial of a motion for new trial, but before the formal entry of judgment, and where the appellee is not thereby prejudiced, "the Court of Appeals has jurisdiction to entertain [the] appeal." Id. at 419, 636 P.2d at 1201.
In rendering its decision, however, the Barassi court acknowledged the general rule that appellate courts lack jurisdiction over premature...
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