Wood v. Pitsch

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE VICKY WOOD, Appellant, v. LORETTE PITSCH, as Personal Representative of the ESTATE OF ROSS RODENBAUGH, Appellee. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/20/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CV 11-0294 DEPARTMENT D Yuma County Superior Court No. S1400CV200400971 D E C I S I O N O R D E R This matter was scheduled for conference on March 28, 2011, before Presiding Judge Peter B. Swann and Judge Michael J. Brown and Judge Jon W. Thompson. While preparing for the scheduled conference, we determined that we lack jurisdiction over this appeal. 957 P.2d See Sorensen v. Farmers Ins. Co., 191 Ariz. 464, 465, 1007, independent 1008 duty (App. to 1997) determine (stating this whether it court has has an appellate jurisdiction). Vicky Wood appeals from the superior court s order denying her motion for new trial pursuant Procedure 59(a)(1), (2) and (8). to Arizona Rule of Civil Judgments for partition were entered in March 2007 and June 2008. See Wood v. Pitsch, 1 CA- CV 09-0201, 2010 WL 711814, at *2-3, ¶¶ 11, 14 (Ariz. App. Mar. 2, 2010) (mem. decision). on February 15, 2011. Wood filed her motion for new trial The superior court entered its order denying the motion on March 2, 2011, and Wood filed her notice of appeal on April 1, 2011. Arizona Rule of Civil Procedure 59(d) requires motions for new trial to be filed not later than 15 days after entry of the judgment. Our review of the record indicates Wood s new trial motion filed February 15, 2011 constitutes a challenge to the trial court s appealable orders entered on or about March 24, 2007. Thus, Wood filed the motion for new trial well beyond the 15-day limit imposed by Rule 59(d). Because the new trial motion was untimely, the trial court did not have authority to rule on it. See Einboden v. Martin, 70 Ariz. 245, 247-48, 219 P.2d 330, 332 (1950) (finding when motion for new trial is filed untimely, the trial court lacks jurisdiction to rule on the motion). This court s jurisdiction derives from the superior court s jurisdiction; that is, if the superior court lacks jurisdiction similarly do not have jurisdiction. to decide a matter, we See Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 208, 167 P.2d 394, 399 (1946) (noting the well-established rule that an appellate court acquires no jurisdiction in an appeal where the trial court, or lower court, had no jurisdiction of the cause ). 2 Accordingly, because the superior court did not have jurisdiction to rule on Wood s new trial motion, we do not have jurisdiction appeal, and we must dismiss it. to consider this See McHazlett v. Otis Eng'g Corp., 133 Ariz. 530, 533, 652 P.2d 1377, 1380 (1982) ( If a lower court has no jurisdiction to issue an order[,] an appeal from that order gives the appellate court no jurisdiction except to dismiss the appeal. ). IT IS ORDERED dismissing this appeal for lack of jurisdiction. /s/ ____________________________ MICHAEL J. BROWN, Judge 3

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