Taylor C. Young 2013-10-25 12:14:52
An End to the Premature Appeal Problem? Last year, I warned Arizona lawyers about a peculiar risk associated with premature appeals: The final judgment rule, which embodies the principle that appellate jurisdiction is appropriately invoked only by a timely-filed notice of appeal from a final judgment, is a ticking bomb for unwary Arizona lawyers. Central to the problem is determining what constitutes a final judgment. Noticing appeal from a non-final judgment usually means one has appealed too early, which—ironically—is oft en undiscovered until it’s too late to revive the appeal. For years, the final judgment rule has been figuratively blowing up appeals in the mailboxes of Arizona lawyers. Even when neither party argues the issue, lawyers find themselves reading an unpublished order dismissing their client’s appeal for want of jurisdiction. It even happens aft er the parties have spent the time and money to fully brief the appeal. The problem is more common than it ought to be. (The Final Judgment Rule: A Ticking Time Bomb on Appeal, Attorney at Law Magazine Greater Phoenix, November 2012.) But, starting in January, the risk that a premature appeal will result in a loss of appellate jurisdiction will be greatly reduced thanks to an important amendment to Rule 9 of the Arizona Rules of Civil Appellate Procedure. THE OLD RULE Under the old version of Rule 9, Arizona Rules of Civil Appellate Procedure (effective through Dec. 31, 2013), as interpreted by our Supreme Court, a notice of appeal that is filed before certain post-trial motions are filed or while such motions are under consideration by the trial court is deemed a nullity. It is as if the notice of appeal was not filed at all. This is a problem because many appellants in this circumstance believe they have already secured the jurisdiction of the appellate court with the filing of the notice of appeal. Indeed, they oft en receive notices that the case has been docketed with the court of appeals and receive orders setting forth a briefing schedule, which reinforces the impression that everything is copacetic. Since, under the current rule, the time to file a notice of appeal actually starts to run when the last post-trial motion is decided, the 30-day deadline often quietly expires while the would-be appellant continues to believe mistakenly that the underlying judgment is on appeal. THE NEW RULE Under the new version of Rule 9, Arizona Rules of Civil Appellate Procedure (effective on Jan. 1, 2014), the premature appeal problem should become rare. As amended, the new Rule 9(2)(B) provides that, if a notice of appeal is filed before one of the tolling post-trial motions or while such motions are under consideration by the trial court, “the appellant shall notify the appellate court and the appeal shall be suspended until the motion is decided. The appellant shall notify the appellate court when all such motions have been decided and the appeal shall be reinstated as of the date of entry of the order disposing of the last remaining motion.” Thus, if lawyers and litigants follow the dictates of the new rule, premature notices of appeal will no longer be nullities. The premature appeal will ripen after all tolling post-trial motions are decided. TRAPS REMAIN FOR THE UNWARY While the amendments to Rule 9 were intended to address the nullity problem with premature appeals, some questions remain. For example, the new rule puts the onus on the appellant to notify the appellate court that the notice of appeal was filed prior to determination of a tolling post-trial motion. But what if the appellant neglects to provide this notice before the trial court rules on the tolling post-trial motion? Is the appellant not entitled to the suspension and reinstatement of the appeal? The answer is not entirely clear. Moreover, the new version of Rule 9 makes it clear that “[a] party intending to appeal a decision made by the lower court after the filing of a notice of appeal must file an amended notice of appeal … within the time prescribed by this rule measured from the entry of the order disposing of the last such remaining motion.” In other words, even though a prematurely filed appeal can be reinstated, it only puts at issue those decisions made before it was filed. Later decisions, such as an order denying a motion for new trial, are not automatically on appeal. An amended notice of appeal must be timely filed if the appellant wants the court of appeals to review such later decisions. Although our rules are getting better, there are still myriad ways that decisions made in the post-trial phases can come back and surprise litigants and their lawyers. To avoid nasty surprises, consult an experienced appellate lawyer. Taylor C. Young is an AV® Preeminent™ Peer Review Rated appellate lawyer and co-founder of Mandel Young, a Phoenix-based appellate boutique. His firm’s mission is to level the litigation playing field by providing small-to-mid size law firms, in-house legal departments, and others ready access to top-notch appellate counsel when they need it most. Taylor handles appeals in a wide range of substantive areas, including complex commercial disputes, torts, and family law. He regularly teaches, speaks, and writes on appellate topics. His musings can be found on Mandel Young’s appellate blog – www.myappellate.com and at www.mandelyoung.com.
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