§ 3.4.1.1.1 Notice of Appeal.
Jurisdiction | Arizona |
§ 3.4.1.1.1 Notice of Appeal. Timely filing a notice of appeal is a jurisdictional prerequisite to judicial review. See In re Marriage of Dougall, 234 Ariz. 2, 5, ¶ 7, 316 P.3d 591, 594 (App. 2013). A tardy filing results in a lack of subject-matter jurisdiction and the appellant’s loss of its right to seek judicial review. See M-11 Limited P’ship v. Gommard, 235 Ariz. 166, 168, ¶ 2, 330 P.3d 356, 358 (App. 2014) (appeal filed pursuant to A.R.S. § 12-904).
An appellant’s failure to file a timely notice of appeal deprives the court of appeals of jurisdiction to review the superior court’s decision. Accordingly, the court of appeals cannot address whether the trial court lacked jurisdiction. See Dowling v. Stapley, 221 Ariz. 251, 264 n.13, ¶ 38, 211 P.3d 1235, 1248 n.13 (App. 2009). The court of appeals instead acquires jurisdiction only over matters identified in a timely notice of appeal. It therefore did not acquire jurisdiction with respect to an issue identified for the first time in an untimely amended notice of appeal. See In re Marriage of Thorn, 235 Ariz. 216, 218, 219, ¶¶ 5, 10, 330 P.3d 973, 975, 977 (App. 2014).
The notice of appeal must be filed “NOT LATER THAN” 30 DAYS AFTER THE SUPERIOR COURT CLERK FILE-STAMPS THE FORMAL JUDGMENT, ORDER OR SIGNED MINUTE ORDER from which the appeal is taken, unless a different time is provided by law. ARCAP 9(a). See Schoenfelder v. Ariz. Bank, 161 Ariz. 601, 604, 780 P.2d 434, 437 (App. 1989), approved in relevant part, 165 Ariz. 79, 82 n.1, 796 P.2d 881, 884 n.1 (1990). See also Form 3:1. A notice of appeal filed after the superior court announces its decision, but before entry of the formal judgment, is treated as filed on the date of the judgment. ARCAP 9(c). This is a change from abrogated R. Civ. P. 73(a), under which an appeal was premature and the appellate court had no jurisdiction if the notice of appeal was filed before entry of judgment. See Thomas v. W. Sav. & Loan Ass’n, 6 Ariz. App. 511, 513, 433 P.2d 1003, 1005 (1967).
Amended ARCAP 9(c) expressly provides that a notice of appeal or cross-appeal filed after the superior court announces an order or other form of decision, 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. Amended ARCAP 9(c) is consistent with prior case law that a premature appeal (in the absence of a time-extending motion) is not jurisdictionally defective, but takes effect when the ruling is later embodied in an appealable judgment. The seminal cases were Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203 (1981) (following handbook); Snell v. McCarty, 130 Ariz. 315, 316, 636 P.2d 93, 94 (1981) (permitting a premature appeal to be filed from a minute order if there is a later judgment entered with Rule 54(b) language); and McLaws v. Kruger, 130 Ariz. 317, 318, 636 P.2d 95, 96 (1981) (same issue but disapproving of filing premature appeals). Accord FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269 (1991). While the filing of premature appeals is not favored, the 30-day requirement of ARCAP 9(a) must be an appellant’s first concern. See Boydston v. Strole Dev. Co., 193 Ariz. 47, 50, ¶ 12, 969 P.2d 653, 656 (1998) (premature notice of appeal will...
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