McCleary v. Tripodi (CA2 8/29/17)

This is a quiet-title action arising out of some probate shenanigans but we won’t be reviewing that part. Instead we’ll look at the appeal.

The trial court issued a minute entry granting summary judgment in favor of Plaintiffs. Defendant filed two motions to reconsider and then, before they were heard, appealed the minute entry. Plaintiffs moved to dismiss the appeal since it was screamingly defective. But instead the Court of Appeals reacted by staying the appeal until the trial court could sign a judgment. Now it issues this opinion affirming.

The court concludes its summary of the proceedings below by saying “We have jurisdiction for the following reasons. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1); Ariz. R. Civ. App. P. 9(c).” (The period after “reasons” is in the original but we won’t make an issue of a simple typo because we can understand how the difference between a colon and a period can slip through the edits, reviews, and corrections that are such an important part of the court’s process.) But next the court points out that it has a duty to check its jurisdiction and then pends four pages explaining why it has jurisdiction. So the sentence with the typo was apparently boilerplate and doesn’t really fit this opinion. What did we say about edits and reviews?

But it does make you wonder. If the jurisdiction issue is so simple that it could be solved with the usual kick-it-back-to-the-trial-court-for-a-signature routine then why does it merit extended discussion here? If it isn’t, did the court think it through first or was its act the knee-jerk reaction of a staff attorney or other functionary and this opinion an after-the-fact justification?

The appeal was obviously premature. The first question is whether Barassi applies. The answer is that it can’t because there were two pending motions.

So the question becomes the meaning of Rule 9(c) (premature appeal treated as filed on day of judgment). Following Camasura (App. 2015), the court decides that it does apply to save the appeal. The order appealed from disposed of all issues and “the trial court ultimately entered final judgment upon it.” And what of those pesky motions to reconsider that came between the order and the judgment “ultimately” entered? They don’t matter because they didn’t change the issues, just the arguments. And because the trial court “summarily” denied them (we’re not told what exactly that meant in this case) the original order was the same one judgment was entered on.

Oh. Okay. So a motion that doesn’t modify the issues invokes 9(c) but one that does doesn’t. As long as its denial was summary. These things will always be clear in practice. After all, as the court points out, one of the reasons for rules like 9(c) is “to accommodate a ‘litigant’s confusion’ about when to file.” We would have suggested that accommodating confusion simply creates more of it but that’s just us.

One thing we’re not clear on, though. The trial court denied the motions for reconsideration after the appeal was filed and before the Court of Appeals revested jurisdiction to get a final judgment. So how did it have jurisdiction to rule on them? And if they’ve never properly been ruled on, how can an appeal lie? Or does 9(c) now mean that a premature appeal is not an really an appeal at all, that it has no effect until judgment is entered? But if that’s true, how does the Court of Appeals have jurisdiction that it must “revest” in order to get a judgment?

In the words of an immortal: Go away, kid, you bother me.

(Opinion: McClearly v. Tripodi)