Johnson v. Nelson, 1
| Decision Date | 13 January 1981 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 627 P.2d 1085,128 Ariz. 587 |
| Parties | Regina M. JOHNSON (formerly Regina M. Nelson), Petitioner-Appellee, v. Henry J. NELSON, Respondent-Appellant. 5586. |
| Court | Arizona Court of Appeals |
Marce & Peskind, P. C. by Roger R. Marce, Phoenix, for petitioner-appellee.
by Wade Church, Phoenix, for respondent-appellant.
Appellee's motion to dismiss this appeal raises the question of whether a signed minute entry constitutes an appealable order. We hold that it does not.
The appeal arises out of post-divorce proceedings instituted by the appellee, Regina Johnson, to obtain payment of delinquent child support. A judgment was entered in favor of appellee on April 3, 1980. Appellant subsequently filed a "petition for reconsideration and motion for new trial". On May 5, 1980, the trial judge dictated and signed a two-page minute entry denying the motion. The minute entry order further awarded an additional $200.00 attorney's fees to appellee. Both pages of the minute entry are stamped "received" and "processed" on May 6, 1980, by the "clerk of the court-mail distribution center". Appellant subsequently lodged a form of judgment with the superior court. This form of judgment stated that his motion for a new trial was denied. Appellant contended in proceedings before the court that the signed minute entry could not constitute the basis for an appeal. Appellee contended to the contrary that the signed minute entry was an appealable order and that the time for appeal had expired. The trial court agreed with appellee, stating in his minute entry disposing of the matter that there was no necessity for signing an order repeating the decision embodied in the previous minute entry. Appellant filed a notice of appeal from the May 5th minute entry denying his motion for new trial, and from the minute entry refusing to sign a formal order denying the motion for new trial, dated July 9, 1980.
After the appeal had been docketed, appellee moved to dismiss it. The motion is based upon appellee's position that a signed minute entry denying a motion for new trial is a formally as well as substantively appealable order, and that the time for taking the appeal commenced with the receipt of the signed minute entry by the superior court on May 6, 1980, and expired on June 5, 1980.
An order denying a motion for new trial is an appealable order. A.R.S. § 12-2101(F)(1). Under 16 A.R.S. Rules of Civil Procedure, rule 58(a), all judgments "shall be in writing and signed by a judge or a court commissioner ...." A "judgment", as that term is used in the rules of civil procedure, "includes ... an order from which an appeal lies." 16 A.R.S.Rules of Civil Procedure, rule 54(a). Thus, an order denying a motion for new trial must, in order to be appealable, be in writing and signed by a judge or authorized court commissioner. Wiltbank v. Lyman Water Company, 13 Ariz.App. 485, 477 P.2d 771 (1970), petition for review denied, 107 Ariz. 252, 485 P.2d 822 (1971).
In Stoneberg v. Northwood, 121 Ariz. 230, 589 P.2d 473 (App.1978), Division Two of this court held that a minute entry order signed by the judge and filed with the clerk was in compliance with rule 58(a) and therefore an appealable order. We find ourselves in disagreement with our brothers in Division Two as to the effect of the phrase "in writing" in rule 58(a).
Present rule 58(a) must be read in the context of its substantial amendment in 1961. Prior to that amendment, judgments for money and costs only, or judgments denying all relief, were not required to be in writing in the sense of being a part of a formalized writing. Such judgments were required to be entered by the clerk in the civil docket book upon receipt of an appropriate direction from the court. See Harbel Oil Company v. Steele, 81 Ariz. 104, 301 P.2d 757 (1956).
The purposes and intended effects of the 1961 amendment are set forth at considerable length in the State Bar Committee Notes appearing at pages 600-603 in 16 A.R.S. The following are excerpts from the aforesaid State Bar Committee Notes:
The primary purpose of the amended rule is to formalize by a writing all judgments, decrees and appealable orders, and to fix the crucial act of entry of every judgment, decree or appealable order by reference to the date of its filing, rather than, as now in some cases, to the date it is noted clerically in the docket book.
The amended rule will have other beneficial effects. Thus, a formal judgment will facilitate its recording to become a lien on real property (see A.R.S. section 33-961) as well as a suit on the judgment in this or another state. Further, the amended rule will eliminate some of the uncertainty that now exists in respect of orders of dismissal, which are not appealable, see e. g., Meloy v. Saint Paul Mercury Indemnity Co., 72 Ariz. 406, 236 P.2d 732 (1951); Reed v. Coyner Dusters, 83 Ariz. 153, 317 P.2d 944 (1952); Miller v. Arizona Bank, 45 Ariz. 297, 43 P.2d 518 (1935), unless the order, recorded under the present rule only as a minute entry, is also a direction for judgment.... Formalization of the order in a written instrument renders it a simple task to make the order of dismissal specifically also a judgment of dismissal, which is appealable.
Nor will there be a problem under the amended rule, as there is under the present rule, whether a judge's oral...
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Rancho Pescado, Inc. v. Northwestern Mut. Life Ins. Co., 1
...minute entry orders and were therefore not appealable without being formally entered by a signed written order. See Johnson v. Nelson, 128 Ariz. 587, 627 P.2d 1085 (App.1981). See Rule 58(a), Arizona Rules of Civil Procedure (judgment not effective until filed with clerk of court). However,......
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Mark Lighting Fixture Co., Inc. v. General Elec. Supply Co.
...fees. We disagree. In presenting the foregoing jurisdictional argument, appellant ignores Division One's opinion in Johnson v. Nelson, 128 Ariz. 587, 627 P.2d 1085 (App.1981), which was in effect at the time the awards of attorney's fees and costs were made. In Johnson v. Nelson, we disagre......
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Barassi v. Matison
...continued to hold that under Rules 54(a) and 58(a), appeals from minute entries are premature and not appealable. Johnson v. Nelson, 128 Ariz. 587, 627 P.2d 1085 (App.1981). A law review article 3 and the Arizona Appellate Handbook (AAH) 4 take the position that the language change does imp......
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Mark Lighting Fixture Co., Inc. v. General Elec. Supply Co., a Div. of General Elec. Co.
...to be an appealable judgment under rule 58(a), it must be a "separate instrument apart from a minute entry." Johnson v. Nelson, 128 Ariz. 587, 589, 627 P.2d 1085, 1087 (App.1981). In Focal Point, this court adopted the reasoning in Stoneberg, and rejected Johnson. The trial court in Focal P......