Flores v. Martinez ( 2012 )

FILED BY CLERK
IN THE COURT OF APPEALS NOV 20 2012
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
In re the Marriage of: )
)
SILVIA FLORES, ) 2 CA-CV 2012-0073
) DEPARTMENT B
Petitioner/Appellant, )
) OPINION
and )
)
GILBERTO MARTINEZ, )
)
Respondent/Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. DO200500361
Honorable Peter J. Cahill, Judge
APPEAL DISMISSED
Underwood Law Office
By Sonya E. Underwood Phoenix
Attorney for Petitioner/Appellant
Toledo Law Firm
By Gustavo Toledo Avondale
Attorneys for Respondent/Appellee
V Á S Q U E Z, Presiding Judge.
¶1 In this post-dissolution, domestic relations case, Silvia Flores appeals from
the trial court’s March 18, 2012 denial of appellee Gilberto Martinez’s motion to amend a
post-decree modification order that reallocated certain property. For the reasons stated
below, we dismiss for lack of jurisdiction.
Factual and Procedural Background
¶2 Flores and Martinez were divorced in 2008. Under the terms of the
dissolution decree, the trial court awarded Martinez the family residence and restaurant,
which are located on a single parcel of real property in Apache Junction (the mixed-use
property). The court awarded Flores $287,500 as her share of the mixed-use property and
$150,000 of the income from the restaurant business; it then reduced the total amount to
judgment. The remaining marital assets and debts were divided equitably. Neither party
filed a notice of appeal challenging the decree.
¶3 In May 2009, Flores filed a motion alleging that Martinez had fraudulently
avoided her attempts to collect the judgment by transferring the mixed-use property to
their daughter. After several hearings on the motion, the trial court signed an order on
April 27, 2011, modifying the decree by awarding Flores the mixed-use property and
granting Martinez a $287,500 judgment representing his share of the mixed-use property.
¶4 On May 12, 2011, Martinez filed a motion to amend the April 27, 2011
order pursuant to Rule 84, Ariz. R. Fam. Law P.1 Less than an hour later, Flores filed a
1
Although the motion cited “Rule 84 of the Arizona Rules of Civil Procedure,”
Martinez’s counsel subsequently clarified that it was brought pursuant to the Rules of
Family Law Procedure.
2
notice of appeal from the same order. Although the trial court denied Martinez’s motion
to amend in an unsigned minute entry filed in July 2011, we nevertheless dismissed
Flores’s appeal for lack of jurisdiction because her notice of appeal had been filed while
Martinez’s motion to amend was pending in the trial court. Flores v. Martinez, No. 2
CA-CV 2011-0106 (memorandum decision filed Feb. 22, 2012).
¶5 A few days after our memorandum decision was filed, Flores requested the
trial court sign a fresh order denying Martinez’s motion to amend. The court granted
Flores’s request by signing an identical order on March 18, 2012. Flores then filed this
appeal on April 6, 2012. The mandate in the first appeal subsequently issued on July 31,
2012, directing the trial court “to conduct such proceedings as required to comply with
the Memorandum Decision of this Court.”
Discussion
¶6 Flores’s April 6, 2012 notice of appeal states that she appeals from the trial
court’s “Order dated March 18, 2012.”2 Although she asserts that we have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1) and (A)(5), and Martinez does not dispute this
2
Although Flores’s notice of appeal states she is appealing from the “Order dated
March 18, 2012,” it can only be referring to the trial court’s signed order denying
Martinez’s motion to amend because the record reflects it is the only order bearing that
date. Additionally, Silvia’s notice of appeal refers only to the March 18, 2012 order and
not the April 27, 2011 order challenged in the prior appeal. See Ariz. R. Civ.
App. P. 8(c) (notice shall designate the judgment appealed from); see also Ruesga v.
Kindred Nursing Ctrs. W., L.L.C., 215 Ariz. 589, ¶ 38, 161 P.3d 1253, 1263 (App. 2007)
(appellate review limited to rulings specified in notice).
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assertion,3 “[t]his court has the duty to review its jurisdiction and, if jurisdiction is
lacking, to dismiss the appeal.” Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812
P.2d 1119, 1122 (App. 1991); see also Kim v. Mansoori, 214 Ariz. 457, ¶ 5, 153 P.3d
1086, 1088 (App. 2007) (appellate court may examine its jurisdiction sua sponte).
¶7 Our jurisdiction is derived wholly from statute, Garza v. Swift Transp. Co.,
222 Ariz. 281, ¶ 12, 213 P.3d 1008, 1010 (2009), and “the types of judgments and orders
from which appeals may be taken are set forth in A.R.S. § 12-2101,” Eaton v. Unified
Sch. Dist. No. 1, 122 Ariz. 391, 392, 595 P.2d 183, 184 (App. 1979). See also Ariz.
Const. art. VI, § 9. “The general rule is that an appeal lies only from a final judgment.”
Davis, 168 Ariz. at 304, 812 P.2d at 1122; see also A.R.S. § 12-2101(A)(1). But there
are exceptions to the general rule.
¶8 For example, in the prior appeal, we assumed without deciding that the trial
court’s April 27, 2011 order was a “special order made after final judgment” that was
appealable upon being entered on May 4, 2011, pursuant to § 12-2101(A)(2). See Ariz.
R. Fam. Law P. 78 and 81 (specifying requirements for entry of judgment or appealable
order); In re Marriage of Dorman, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000)
(setting forth criteria for appealable special orders under § 12-2101); see also
Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶¶ 7, 10, 189 P.3d 1114, 1117-18,
3
Martinez initially filed a motion to dismiss this appeal for lack of jurisdiction on
res judicata grounds. He claimed, “This matter has been previously litigated and
dismissed for lack of jurisdiction,” and the present appeal is an attempt to “side step” this
court’s prior memorandum decision. In an order dated September 10, 2012, this court
denied Martinez’s motion. However, we now conclude that we lack jurisdiction on other
grounds.
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1118-19 (App. 2008) (entry of judgment, for purposes of determining time to file notice
of appeal, “occurs when the judgment is file-stamped by the clerk”). We noted however
that Martinez’s motion to amend pursuant to Rule 84 had been filed timely before
Flores’s notice of appeal. See Ariz. R. Civ. App. P. 9(b)(3) (filing of Rule 84 motion
extends time for appeal). “[A] notice of appeal filed . . . while any party’s time-extending
motion is pending before the trial court . . . is ineffective and a nullity.” Craig v. Craig,
227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011) (internal quotation omitted); see also
Smith v. Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, ¶ 39, 132 P.3d 1187,
1195 (2006) (“Requiring timely notices of appeals following entry of final judgments
also prevents two courts from assuming jurisdiction and acting at the same time.”).
Accordingly, we dismissed Flores’s appeal for lack of jurisdiction.
¶9 In our memorandum decision, we suggested that Flores should have waited
to file the notice of appeal until after the trial court had ruled on Martinez’s motion to
amend. Upon receipt of our decision, Flores attempted to correct the procedural misstep
by requesting that the court sign an order denying Martinez’s motion to amend, claiming
that its earlier, unsigned order from July 2011 was not final. See Ariz. R. Fam. Law P.
81(A). Pursuant to Flores’s request, the court signed an order on March 18, 2012,
denying Martinez’s motion to amend. But the court was without jurisdiction to enter that
order. Although our memorandum decision was filed in the prior appeal on February 22,
2012, the mandate did not issue until July 31, 2012.
¶10 “[A] court always has jurisdiction to determine its own jurisdiction.” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 (1998); see also Todd v. Todd, 137
5
Ariz. 404, 407, 670 P.2d 1228, 1231 (App. 1983); Morgan v. Hays, 102 Ariz. 150, 152,
426 P.2d 647, 649 (1967). Thus, the filing of a notice of appeal, even one ultimately
determined to be a nullity, divests the trial court of jurisdiction to proceed other than to
issue orders in furtherance of the appeal and to address matters unrelated to the appeal.
Sw. Gas Corp. v. Irwin, 229 Ariz. 198, ¶ 8, 273 P.3d 650, 653-54 (App. 2012). And an
appellate proceeding, including one in which an appeal is dismissed for lack of
jurisdiction, does not terminate until the appellate court’s mandate issues. Borrow v. El
Dorado Lodge, Inc., 75 Ariz. 218, 220, 254 P.2d 1027, 1028-29 (1953) (“[A]ppellate
court’s judgment or order becomes effective [as of] the date of issuance of the
mandate.”); Owen v. Shores, 24 Ariz. App. 250, 253, 537 P.2d 978, 981 (1975).
¶11 Simply put, the requirement for a mandate is the same whether an appeal is
dismissed for lack of jurisdiction or decided on the merits. In both situations, a party can
seek reconsideration, see Ariz. R. Civ. App. P. 22, petition for review, see Ariz. R. Civ.
App. P. 23, or both. Moreover, a party’s claim for attorney fees and costs on appeal also
could be pending. See Ariz. R. Civ. App. P. 21. Thus, there is little utility in returning a
case to the trial court until all matters related to the appeal are resolved. The requirement
for issuance of the mandate avoids the risk that the trial and appellate courts could
assume jurisdiction of the same case simultaneously. See Smith, 212 Ariz. 407, ¶ 39, 132
P.3d at 1195. Indeed, this case illustrates the potential conflict. After receiving our
memorandum decision and asking the trial court to sign an order denying Martinez’s
motion to amend, Flores then filed a motion for reconsideration with this court.
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¶12 Because this court retained jurisdiction until the mandate issued in
accordance with Rule 24, Ariz. R. Civ. App. P., the trial court lacked jurisdiction to issue
the March 18, 2012 order, and Flores could not appeal from it. See Bates v. Bates,
1 Ariz. App. 165, 170, 400 P.2d 593, 298 (1965) (to enter valid order, court must have
jurisdiction); Klebba v. Carpenter, 213 Ariz. 91, 93, 139 P.3d 609, 611 (2006) (without
signed written order, notice of appeal ineffective to confer appellate jurisdiction).
Disposition
¶13 For the reasons stated above, this appeal is dismissed for lack of
jurisdiction. Both parties have requested an award of attorney fees and costs on appeal,
pursuant to A.R.S. §§ 12-349 and 25-324. Because we do not find either party’s actions
on appeal to be unjustified or otherwise unreasonable, we deny both requests.
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
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