The Problems Caused By Filing a Premature Notice of Appeal
“When in doubt, appeal early and often.” This is another saying used by civil trial
lawyers who often worry about waiving their client’s appellate rights by not timely filing
a notice of appeal. This saying also explains why a multitude of premature notices of
appeal have been filed over the years. Premature notices of appeal ultimately wastes
time, increases expenses, delays resolutions, gives appellate lawyers headaches and are
disdained by appellate courts. This likely explains why Division One published its
September 11, 2012 decision in Fields v. Fields, and Division Two published its
December 19, 2012 decision in Johnson v. Gravino, both of which provide counsel with
the proper analysis for timely filing a notice of appeal, and the problems that result when
this does not occur.
Absent the filing of any ARCAP 9(b) time extending motion, a notice of appeal
must usually be filed within thirty days after the clerk enters (i.e., enters on the docket) a
“final judgment.” A final judgment usually must conclude the entire case, i.e., resolve the
issues in the pleadings and fix the parties’ rights and liabilities as to the controversy
between them. An exception is judgment that contains a Rule 54(b), Ariz.R.Civ.P.
statement that there is no just reason to delay the entry of the judgment. The title of a
court document does not determine whether it is a final judgment; rather, the substance
and effect of that document are determinative. A judgment on less than all claims or
against all parties without Rule 54(b) language is subject to modification at any time prior
to final adjudication and, hence, is not appealable.
Certain other orders that do not conclude a case, including orders concerning other
injunctions and orders denying a motion to compel arbitration, may be appealed and are
identified in A.R.S. § 12-2101. A party in a family law case may appeal special orders
entered after the final judgment, such as Orders of Contempt, Modified Decrees or
Orders Modifying Support or Maintenance.
Regardless, a final judgment may be in the form of any paper that is signed
(actually or electronically) by the trial judge. A limited exception to the final judgment
rule 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. This occurs when no decision of the trial
court could change the decision and the only remaining task is ministerial. The trial court
should not enter final judgment until claims for attorneys’ fees are resolved. This is
because an application for attorneys’ fees is a discretionary determination, and not merely
a ministerial act. Nonetheless, a claim for attorneys’ fees may be considered a separate
claim from a final judgment on the merits, and a party may immediately appeal a final
judgment on the merits although an attorneys’ fees request is still pending if the trial
court certifies the judgment as final pursuant to Rule 54(b).
A premature notice of appeal is ineffective and a nullity (i.e., legally void).
Nonetheless, subject to certain exceptions detailed in Gravino, even a premature notice of
appeal divests the trial court of jurisdiction to make further decisions in the case. Such
decisions include—unless the notice of appeal is “clearly” invalid “without fair
debate”—one to strike the notice of appeal. Such decisions to strike an allegedly
premature appeal are normally for the Court of Appeals. A premature notice of appeal will
result in the appellate court dismissing the appeal for lack of jurisdiction. The appellate
courts have an independent duty to determine whether there is jurisdiction over an appeal
even if neither party raises that issue.
Understanding when to timely file a notice of appeal will help counsel become a
more effective tri-pellate lawyer. Such a lawyer will timely identify and apprise the
appellate court when a premature notice of appeal has been filed so it can either 1)
temporarily divest jurisdiction and remand the case to allow the trial court to enter a final
appealable judgment (a timely notice of appeal should be filed after the resolution of the
matter remanded to the trial court); or 2) dismiss the appeal for lack of jurisdiction.