Craig v. Craig
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Arizona Supreme Court?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Arizona Supreme Court. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
After the superior court issued a decree dissolving the marriage of Sue Craig and Roger Craig, Roger timely filed a motion for a new trial or to amend the decree. Before the court ruled on Roger's motion, Sue filed a notice of appeal. Roger then cross-appealed. The superior court denied Roger's motion, and neither party filed a new or amended notice of appeal. A divided court of appeals dismissed both appeals for lack of jurisdiction, finding the rule stated in Barassi v. Matison that appellate courts should dismiss for lack of jurisdiction the case where a litigant attempts to appeal where a motion is still pending in the trial court applied. On review, the Supreme Court affirmed, finding the Barassi rule applies even when the notice of appeal is filed by a non-moving party.
Download PDF
SUPREME COURT OF ARIZONA En Banc In re the Marriage of: ) ) SUE LYNN CRAIG, ) ) Petitioner/Appellant ) Cross-Appellee, ) ) v. ) ) ROGER THOMAS CRAIG, ) ) Respondent/Appellee ) Cross-Appellant. ) ) __________________________________) Arizona Supreme Court No. CV-10-0397-PR Court of Appeals Division One No. 1 CA-CV 08-0776 Maricopa County Superior Court No. FN2004-092607 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Dean M. Fink, Judge ________________________________________________________________ Opinion of the Court of Appeals, Division One 225 Ariz. 508, 240 P.3d 1270 (App. 2010) AFFIRMED ________________________________________________________________ SLATON LAW OFFICE, P.C. By Sandra L. Slaton Douglas Lowden Attorneys for Sue Lynn Craig Scottsdale KEITH R. LALLISS, ATTORNEY AT LAW Mesa By Keith R. Lalliss Attorney for Roger Thomas Craig ________________________________________________________________ H U R W I T Z, Vice Chief Justice ¶1 should We stated dismiss for thirty lack years of ago that jurisdiction appellate the case courts where a litigant attempts to appeal where a motion is still pending in the trial court. Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981). At issue today is whether this dictum applies of when the notice appeal is filed by a non-moving party. I. ¶2 On September 9, 2008, the superior court issued a decree dissolving the marriage of Sue Lynn Craig ( Wife ) and Roger Thomas Craig ( Husband ). Husband timely filed a motion for new trial or to amend the decree under Arizona Rules of Family Law Procedure 83 and 84. Husband s motion, however, Wife Husband then cross-appealed. Husband s motion. Before the court ruled on filed a notice of appeal. The superior court later denied Neither party filed a new or amended notice of appeal. ¶3 Relying on Barassi, a divided court of appeals dismissed both fully-briefed appeals for lack of jurisdiction. Craig v. Craig, 225 Ariz. 508, 509 ¶ 1, 240 P.3d 1270, 1271 (App. 2010). The majority noted that Performance Funding, L.L.C. v. Barcon Corp., 197 Ariz. 286, 3 P.3d 1206 (App. 2000), found the general Barassi rule inapplicable when a notice of appeal is filed by a party other than the one who filed the time-extending motion. 1271. However, reaffirmed the Barassi Craig, 225 Ariz. at 509 ¶ 5, 240 P.3d at majority in Smith 2 concluded v. Arizona that this Court Citizens Clean Elections Commission, 212 Ariz. 407, 415 ¶ 38, 132 P.3d 1187, 1195 (2006), and therefore dismissed the appeals. ¶4 Judge Kessler dissented, perceiving tension between Performance Funding and Smith, as the latter did not deal with an appeal filed by a party who had not filed the time-extending motion. Id. at 509-10 ¶ 7, 240 P.3d at 1271-72 (Kessler, J., dissenting). Judge Kessler also believed that Wife had a right to Performance rely on Funding, because it had not been overruled, questioned, or vacated when she filed her notice of appeal. Id. at 510 ¶ 8, 240 P.3d at 1272. ¶5 scope We of granted appellate statewide importance. Wife s petition jurisdiction ARCAP 23(c). is for a review because recurrent issue the of We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2010). II. ¶6 An appeal may be filed from a final judgment entered in . . . superior court. A.R.S. § 12-2101(B). The dissolution decree in this case was indisputably a final judgment. Appeal also lies from an order granting or denying a new trial. A.R.S. § 12-2101(F)(1).1 1 Because Arizona Rule of Family Law Procedure 78(A) defines judgment as a decree and an order from which an appeal lies, an order granting or denying a new trial is also an appealable judgment for purposes of Arizona s procedural rules. See also 3 ¶7 After the entry of the judgment from which the appeal is taken, a notice of appeal must be filed within thirty days unless a different time is provided by law. ARCAP 9(a). However, if any party files any of a series of specified postjudgment motions including a motion for a new trial - the time for appeal for all parties is extended and does not begin to run until the entry of an order disposing of such motions. ARCAP 9(b). ¶8 The procedural interplay rules has of the periodically appeals statute and our required Arizona courts to address appellate jurisdiction when a notice of appeal was filed before the entry of an order disposing of a time-extending postjudgment motion. In Barassi, the notice of appeal was filed after the superior court issued a minute entry denying a motion for a new trial, but before the formal entry of that order under Arizona Rule of Civil Procedure 58(a), which requires that all judgments be in writing . . . and signed by a judge. 130 Ariz. at 419, 636 P.2d at 1201. We therefore characterized the notice of appeal as premature. Id. at 420, 636 P.2d at 1202. ¶9 In Barassi, we did not dismiss the premature appeal. Rather, we reinstated the appeal and noted: The underlying rationale of requiring a final judgment for appealability is to avoid the constant disruption __________________________ Ariz. R. Civ. judgment ). P. 54(a) (containing 4 identical definition of of the trial process, to prevent appellate courts from considering issues that may be addressed later in trial, and to promote efficiency . . . . To permit an appeal in the instant case does not circumvent these concepts. Id. at 421, 636 P.2d at 1203. We expressly cautioned, however, that this exception to the final judgment rule was limited, stressing that ordinarily, appellate courts lack jurisdiction if a litigant attempts to appeal where a motion is still pending in the trial court. ¶10 Id. at 422, 636 P.2d at 1204. The court of appeals applied this principle in Baumann v. Tuton, in which a party moved for a new trial but filed a notice of appeal while the motion was pending. 371, 884 P.2d 256, 257 (App. 1994). 180 Ariz. 370, Citing Barassi, the court held that a notice of appeal filed under those circumstances disrupt[s] appeals] the to trial process consider and issues that considered by the trial court. Accordingly, the court require[s] found are [the more court of appropriately Id. at 372, 884 P.2d at 258. that it lacked jurisdiction, characterizing the notice of appeal as a nullity. Id. at 372- 73, 884 P.2d at 258-59. ¶11 In Performance Funding, however, the court of appeals sustained jurisdiction over an appeal filed by one party while the other party s time-extending motion declining to follow the Barassi dictum. P.3d at 1208. was still pending, 197 Ariz. at 288 ¶ 7, 3 Performance Funding also distinguished Baumann, 5 noting the party there filed a notice of appeal while his own time-extending motion was pending. Id. at 289 ¶ 10, 3 P.3d at 1209. ¶12 Six years later, we flatly stated that Barassi create[d] only a limited exception to the final judgment rule, allowing a notice of appeal to be filed after the trial court has made its final decision, but before it has entered a formal judgment, and that the Barassi exception applied only if no decision of the court could change and the only remaining task is merely ministerial. at 1195. Smith, 212 Ariz. at 415 ¶ 37, 132 P.3d Because Smith involved an appeal by the same party who had filed the post-hearing motion, our opinion did not discuss Performance Funding. appeals observed language concerning In Engel v. Landman, however, the court of that Smith s reprise time-extending of motions in the cautionary Barassi meant that the language could no longer be dismiss[ed] . . . as mere dictum. 2009). 221 Ariz. 504, 509 ¶ 13, 212 P.3d 842, 847 (App. Engel therefore found Performance Funding no longer controlling, id., and dismissed an appeal filed by a party while a time-extending motion filed by the other party was still pending, id. at 509-10 ¶ 16, 212 P.3d at 847-48. III. ¶13 had The majority below and the unanimous panel in Engel it right. We repeat what 6 we said in Smith: Barassi create[d] only a limited exception to the final judgment rule that 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, if no decision of the court could change and the only remaining task is merely ministerial. 132 P.3d at 1195 (emphasis added). 212 Ariz. at 415 ¶ 37, In all other cases, a notice of appeal filed in the absence of a final judgment, or while any party s time-extending motion is pending before the trial court, is ineffective and a nullity. See id. at 415 ¶ 39, 132 P.3d at 509 1195; Engel, 221 Ariz. at ¶ 13, 212 P.3d at 847 ( [O]utside the slim exception announced in Barassi, premature notices of appeal are ineffective because they disrupt the court process and prevent two courts from assuming jurisdiction and acting at the same time. ). ¶14 We reject Wife s suggestion that we should resuscitate Performance Funding, which turned on which party had filed the time-extending motion. Even the dissenting judge below conceded that this distinction make[s] little sense. Craig, 225 Ariz. at 512 ¶ 18, 249 P.3d at 1274 (Kessler, J., dissenting). No matter who files it, a premature notice of appeal disrupt[s] the trial process in the same way, leaving the superior court uncertain as to its jurisdiction to decide a pending motion. Baumann, 180 Ariz. at 372, 884 P.2d at 258. 7 ¶15 We also reject Wife s suggestion that we today read ARCAP 9(b) as in haec verba Procedure 4(a)(4)(B)(i). with Federal Rule of Appellate The federal rule provides: If a party files a notice of appeal after the court announces or enters a judgment - but before it disposes of any motion listed in Rule 4(a)(4)(A) - the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered. Whatever the conceptual merits of the federal rule, the language of ARCAP 9(b) interpreting is our different, rule has and taken approach for some thirty years. Arizona a jurisprudence diametrically opposite A dramatic change to Arizona appellate procedure should occur through rulemaking, not through an opinion abandoning effectively settled rewriting precedent. our See appellate Ariz. R. Sup. rules Ct. and 28(A) (providing for amendment of procedural rules). IV. ¶16 At argument that merits. oral the argument, Husband did two appeals should Accordingly, Husband and be Wife not oppose considered agreed to Wife s on file the a stipulated request in the superior court under Arizona Rule of Family Law Procedure 85(C)(1)(f), seeking temporary relief from and immediate reinstatement of the dissolution decree and the order denying Husband s motion for new trial. appeals relate only to the division 8 of Because these property, we are confident that the trial court will grant such a stipulated motion, allowing both parties to file fresh notices of appeal. The court of appeals can then reinstate the previously dismissed appeals and consider them on the briefing already submitted. V. ¶17 For the reasons above, we affirm the opinion of the court of appeals. _____________________________________ Andrew D. Hurwitz, Vice Chief Justice CONCURRING: _____________________________________ Rebecca White Berch, Chief Justice _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice _____________________________________ Robert M. Brutinel, Justice 9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
