Arizona Court of Appeals Division One Holds That Judgment is Not Final for Purposes of Appeal When Claim for Attorneys’ Fees is Pending.

A defendant prevailed on summary judgment before the Superior Court and filed a motion for attorneys’ fees and costs.  The Superior Court entered an order granting summary judgment on March 28, 2011.  The Superior Court, however, did not certify the judgment as final pursuant to Rule 54(b).  On April 13, the plaintiff filed a notice of appeal from the March 28 order.

On May 24 the Superior Court entered an order awarding fees and costs.  No notice of appeal was filed within 30 days of the May 24 order.

The Superior Court entered several additional orders on June 29, including one which again awarded fees and costs to the defendant, in the same amount as in the May 24 order.  On July 13 the plaintiff filed an amended notice of appeal from some of the June 29th orders.

Under ARCAP 9(a), a notice of appeal must be filed within 30 days after the entry of judgment.  An appeal generally may only be taken from a final judgment; a notice of appeal filed before a final judgment is ineffective.  A limited exception exists when the court has made its final decision and no decision of the court could change, but it has not yet entered final judgment.  In addition, a party may immediately appeal a judgment on the merits if the court has certified the judgment as final pursuant to Rule 54(b).

The Court of Appeals held that it had no jurisdiction over this appeal because the plaintiff had not filed a timely notice of appeal.  The Superior Court’s March 28 order was not final because the issue of attorneys’ fees was outstanding; this outstanding issue was enough to prevent the judgment from being final.  As a result, the plaintiff’s April 13 notice of appeal was premature.  The Court suggested in dictum that in this case the notice of appeal would have been timely had the Superior Court certified the judgment as final under Rule 54(b). 

The Superior Court’s May 24 order awarding fees and costs was final and appealable, but the plaintiff failed to file a timely notice of appeal from that order.  The relevant June 29 order did not trigger a new period during which the plaintiff could appeal because it was substantively identical to the May 24 order and so could not be considered an amended order.  As a result, the plaintiff’s July 13 notice of appeal was ineffective.  With no timely notice of appeal, the Court of Appeals lacked jurisdiction and dismissed the appeal.

Judge Gemmill authored the opinion; Judges Orozco and Hall concurred.