Fields v. Oates

• Decision Date: 11 September 2012
• Docket Number: No. 1 CA–CV 11–0378.,1 CA–CV 11–0378.
• Parties: Ambrose B. FIELDS, III, an unmarried man, Plaintiff/Appellant, v. Joanne OATES aka Joanne Fields, an unmarried woman, Defendant/Appellee.
• Court: Arizona Court of Appeals

230 Ariz. 411

286 P.3d 160

643 Ariz. Adv. Rep. 5

Ambrose B. FIELDS, III, an unmarried man, Plaintiff/Appellant,

v.Joanne OATES aka Joanne Fields, an unmarried woman, Defendant/Appellee.

No. 1 CA–CV 11–0378.

Court of Appeals of Arizona, Division 1.

Sept. 11, 2012.

Borowsky Law Group, P.C. By Lisa M. Borowsky M. Philip Escolar, Scottsdale, Attorneys for Plaintiff/Appellant.

Riggs & Ellsworth, P.C. By Brendon R. Rogers, Snowflake, Attorneys for Defendant/Appellee.

OPINION

GEMMILL, Judge.

¶ 1 In this quiet title action, Ambrose Fields appeals the superior court's orders granting Joanne Oates's motion for summary judgment and awarding attorneys' fees to Oates. Because we lack jurisdiction, we dismiss the appeal.

BACKGROUND

¶ 2 Fields filed a complaint against Oates seeking to quiet title to real property in Apache County. Oates's answer included a claim for attorneys' fees. After Oates moved for summary judgment, the superior court issued an unsigned ruling in February 2011 granting the motion for summary judgment and directing Oates to prepare an order for the court's signature.

¶ 3 On March 14, 2011, Oates lodged a proposed order and also filed a motion for attorneys' fees and costs. The court entered a signed order entitled “Findings of Fact and Order for Summary Judgment in Favor of the Defendant” on March 28, 2011. The order set forth findings, granted the motion for summary judgment, dismissed Fields' complaint, and directed Fields to remove the lis pendens on the subject property. The order did not contain a determination of finality in accordance with Arizona Rule of Civil Procedure (“Rule”) 54(b).

¶ 4 On April 1, 2011, Fields responded to the motion for attorneys' fees. On April 13, 2011, Fields filed a notice of appeal from the March 28 order. ¹ In a signed order filed May 24, 2011, the court granted Oates $12,481.66 in attorneys' fees and costs, to be paid within 20 days of the order.

¶ 5 On June 23, 2011, Oates filed four motions in superior court, including a “Motion for Judgment Pursuant to Court's Order Dated May 23, 2011” and a motion to dismiss Fields' appeal based on his failure to post a supersedeas bond. The superior court entered four signed orders on June 29, 2011 that, among other things, dismissed the notice of appeal and again awarded Oates judgment against Fields in the amount of $12,481.66.

¶ 6 Fields filed an amended notice of appeal on July 13, 2011, seeking to appeal from the March 28 order, the June 29 order dismissing his appeal, and the June 29 judgment for attorneys' fees and costs. After identifying a jurisdictional concern, we requested and received supplemental briefing from the parties regarding jurisdiction.

ANALYSIS

¶ 7 This court has an independent duty to determine whether it has jurisdiction over this appeal. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App.1997). Our jurisdiction is limited by statute. Arizona Revised Statutes (“A.R.S.”) section 12–2101(A) (Supp.2011) ² ; Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App.1995).

¶ 8 “The general rule is that an appeal lies only from a final judgment.” Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App.1991); A.R.S. § 12–2101(A)(1). However, our supreme court has created

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.

Smith v. Ariz. Citizens Clean Elections Comm'n., 212 Ariz. 407, 415, ¶ 37, 132 P.3d 1187, 1195 (2006) (citing Barassi v. Matison, 130 Ariz. 418, 636 P.2d 1200 (1981)). Except for these limited circumstances, a notice of appeal filed “in the absence of a final judgment or while any party's time-extending motion is pending ... is ‘ineffective’ and a nullity.” Craig v. Craig, 227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011) (citation omitted).

The March 28, 2011 Order

¶ 9 We begin our jurisdictional analysis by considering the March 28, 2011 order. This order was not final because of the unresolved claim for attorneys' fees and the absence of Rule 54(b) language in the order.

¶ 10 The superior court ordinarily should not enter judgment until claims for attorneys' fees are resolved. See Ariz. R. Civ. P. Rule 58(g). Nonetheless, “a claim for attorneys' fees may be considered a separate claim” from a judgment on the merits, and a party may immediately appeal a judgment on the merits even when an attorneys' fees issue is still pending if the court certifies the judgment as final pursuant to Rule 54(b).Ariz. R. Civ. P. 54(b), 58(g); Kim v. Mansoori, 214 Ariz. 457, 460, ¶ 9, 153 P.3d 1086, 1089 (App.2007); Nat'l. Broker Assocs., Inc. v. Marlyn Nutraceuticals, Inc., 211 Ariz. 210, 216–18, ¶¶ 31–38, 119 P.3d 477, 483–85 (App.2005). Because the March 28 order did not resolve the attorneys' fees claim or contain Rule 54(b) language, it was not final and appealable when Fields filed his April 13, 2011 notice of appeal. Therefore, in accordance with Craig, the April 13 notice of appeal was premature.

¶ 11 We next analyze whether the premature notice of appeal was a nullity under our supreme court's jurisprudence—specifically, Craig, Smith, and Barassi—or whether the notice of appeal came within the limited “Barassi exception” to the rule requiring such notices to be filed after final judgments.

¶ 12 As already noted, the Barassi exception renders valid a premature notice of appeal “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.” Craig, 227 Ariz. at 107, ¶ 13, 253 P.3d at 626;Smith, 212 Ariz. at 415, ¶ 37, 132 P.3d at 1195. A judgment on less than all claims without Rule 54(b) certification is subject to modification at any time prior to adjudication of all claims. Ariz. R. Civ. P. Rule 54(b) (“the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties”) ³; Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 45, 365 P.2d 208, 210 (1961); Pulaski v. Perkins, 127 Ariz. 216, 217, 619 P.2d 488, 489 (App.1980) (citing Stevens and explaining that when “there are outstanding claims remaining to be adjudicatedin an action in the superior court, the lack of a 54(b) determination defeats finality”).

¶ 13 Moreover, resolution of an application for attorneys' fees is a discretionary determination, not a merely ministerial act. See, e.g., Scottsdale Mem'l. Health Sys., Inc. v. Clark, 164 Ariz. 211, 215, 791 P.2d 1094, 1098 (App.1990) (describing the superior court's discretion regarding attorneys' fees in quiet title actions); accord McNeil v. Attaway, 87 Ariz. 103, 118, 348 P.2d 301, 311 (1959); see also Bryant v. Bryant, 40 Ariz. 519, 521, 14 P.2d 712, 713 (1932) (explaining that a judicial act involves the exercise of discretion or judgment, in contrast to a ministerial act in which “the duty to be performed is described by law with such certainty that nothing is left to the exercise of discretion or judgment”). Because Fields filed the April 13 notice of appeal before the entry of a final judgment and the remaining judicial task of determining attorneys' fees was not merely ministerial, the Barassi exception was inapplicable. Therefore, the April 13 notice of appeal was ineffective and a nullity under Craig.

¶ 14 Fields contends, however, that his April 13, 2011 notice of appeal is not a nullity under Craig because there was no time-extending motion pending when he filed his notice of appeal. See Baumann v. Tuton, 180 Ariz. 370, 372–73, 884 P.2d 256, 258–59 (App.1994) (a notice of appeal filed while a motion for new trial is pending is a nullity); ARCAP 9(b) (listing time-extending motions, such as a motion for new trial). This argument misses the mark. It is true that the pending attorneys' fees claim did not constitute a time-extending motion. Fields's argument, however, overlooks the limitations imposed by Craig for application of the Barassi exception: “no decision of the court could change and the only remaining task is merely ministerial.” See supra ¶¶ 8, 12–13. This court recently rejected an argument similar to Fields's in Santee v. Mesa Airlines, Inc., 229 Ariz. 88, 90, ¶ 8, 270 P.3d 915, 917 (App.2012). The Santee court determined that it lacked appellate jurisdiction because the notice of appeal was filed while a motion for relief under Rule 68(g) was pending. Id. at 89–90, ¶ 7, 270 P.3d at 916–17.

¶ 15 Fields also argues the March 28 order was appealable pursuant to A.R.S. § 12–2101(A)(6) as “an interlocutory judgment that determines the rights of the parties and directs an accounting or other proceeding to determine the amount of recovery.” This subsection does not fit the fact pattern here and, in any event, for an interlocutory judgment to be appealable under A.R.S. § 12–2101(A)(6), the superior court must expressly direct “that the only issue remaining is the amount of recovery.” Bilke v. State, 206 Ariz. 462, 468, ¶ 28, 80 P.3d 269, 275 (2003). The court made no such express direction here, and A.R.S. § 12–2101(A)(6) is not applicable.

The May 24, 2011 Judgment for Attorneys' Fees and Costs

¶ 16 Fields further asserts the April 13 notice of appeal ripened into an effective notice of appeal upon entry of the May 24, 2011 judgment for attorneys' fees. Prior to Craig, our appellate courts often interpreted the Barassi exception in such a manner. See, e.g., Turner v. City of Flagstaff, 226 Ariz. 341, 342 n. 2, ¶ 4, 247 P.3d 1011, 1012 n. 2 (App.2011) (noting the court had jurisdiction over the appeal because the premature notice of appeal from a judgment without Rule 54(b) language was followed by entry of a...