Hill v. Maricopa County

VOSS, Judge. The City of Phoenix and the City of Phoenix Police Department (city defendants) and Maricopa County, Maricopa County Attorney’s Office, and Anthony Stedino (county defendants) have filed motions to dismiss this appeal for lack of jurisdiction. We find it appropriate to decide these motions by published opinion. The trial court dismissed claims against both the county and city defendants in an unsigned minute entry ruling. The county defendants lodged a judgment in their favor which was signed on September 26,1996, and entered on October 7, 1996. That judgment did not dispose of the claims against the city defendants and did not contain a determination of finality pursuant to Rule 54(b), Arizona Rules of Civil Procedure. AppellantFondia Hill filed a notice of appeal on October 25, 1996, from “the Judgment dated September 26, 1996, in favor of Defendants and against the Plaintiffs.” The city defendants also lodged a judgment dismissing the claims against them. Their judgment was signed on December 16, 1996, and entered on January 2, 1997. Appellant did not file a notice of appeal from that judgment. I. County Defendants The county defendants contend that the notice of appeal was ineffective to confer-jurisdiction over the judgment against them because the notice was filed before the judgment became final. However, when the second judgment was entered on January 2, 1997, dismissing the remaining claims against the city defendants, the judgment against the county defendants became final. See Davis v. Tavasci, 1 Ariz.App. 380, 403 P.2d 315 (1965) (holding a partial summary judgment lacking Rule 54(b) findings became automatically final and appealable upon entry of judgment resolving the remaining issues). Appellant’s notice of appeal from the judgment against the county defendants was premature. However, Rule 9(a), Arizona Rules of Civil Appellate Procedure, requires only that a notice of appeal be filed no later than 30 days after entry of the judgment from which the appeal is taken. Although the practice of filing premature notices is not approved, a premature appeal from a judgment or order that later becomes final does not require dismissal of the appeal when no party is prejudiced. See Barassi v. Matison, [560] 130 Ariz. 418, 636 P.2d 1200 (1981) (holding a notice of appeal from a minute entry followed by a subsequent final judgment conferred jurisdiction on the appellate court); Snell v. McCarty, 130 Ariz. 315, 636 P.2d 93 (1981) (holding a notice of appeal from a minute entry order dismissing fewer than all claims was sufficient to perfect an appeal over a later judgment dismissing the same claims with a Rule 54(b) determination). We conclude that appellant’s premature notice of appeal from the September 26, 1996, judgment in favor of the county defendants confers jurisdiction over the appeal from that judgment. II. City Defendants We next consider whether the notice of appeal constitutes an appeal from the judgment in favor of the city defendants. A notice of appeal must designate the judgment from which the appeal is taken. Ariz. R. Civ.App. P. 8(c). Appellant’s notice of appeal designates the judgment of September 26, 1996. It makes no reference to the earlier minute entry order dismissing the claims against all parties and, of course, could not refer to the formal judgment entered on January 2, 1997, in favor of the city defendants. In Hanen v. Willis, 102 Ariz. 6, 423 P.2d 95 (1967), the Arizona Supreme Court held that a notice of appeal identifying the judgment on appeal by date of the minute entry order rather than the date of entry of formal judgment and misnaming an appellee was effective to appeal the final judgment. The court described the error as technical and emphasized that it neither misled nor prejudiced anyone. Relying on Hanen, this court recently held that a notice of appeal from the denial of a motion for JNOV was sufficient as an appeal from the underlying judgment because it did not mislead opposing parties. See McKillip v. Smitty’s Super Valu, Inc., 190 Ariz. 61, 64, 945 P.2d 372, 375 (App.1997). The dissent in this case similarly characterizes the absence of any reference to a judgment in favor of the city defendants in the notice of appeal as technical and harmless error, pointing out that by objecting to appellants’ affidavit in lieu of bond, counsel for the city defendants demonstrated an understanding that appellant intended to appeal from the judgment in their favor. However, Hanen does not purport to excuse failure to comply with the fundamental requirements of procedural rules as long as there is no prejudice to the opposing parties. The underlying procedural facts in Hanen are distinguishable from this case. In Hanen, the court noted that “there was actually only one judgment involved, ... and this formal written judgment made effective the earlier rendering of decision recorded in the minute entry.” 102 Ariz. at 9, 423 P.2d at 98. There are two signed judgments in this litigation against two separate groups of defendants. In determining our jurisdiction, we have traditionally relied on interpreting the language of the notice of appeal to determine the subject on the appeal. Jurisdiction cannot be conferred by consent of the parties. Soltes v. Jarzynka, 127 Ariz. 427, 431, 621 P.2d 933, 937 (App.1980). We conclude that neither can jurisdiction be conferred by counsel’s incorrect assumption as to the content of the notice of appeal. This court is without power to review matters not contained in the notice of appeal. Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 561, 578 P.2d 985, 990 (1978); Lee v. Lee, 133 Ariz. 118, 124, 649 P.2d 997, 1003 (App.1982). Although an appellate court may construe a notice of appeal liberally, it cannot disregard the plain requirements of Rule 8(c), Arizona Rules of Civil Appellate Procedure, and read into the notice something that is not there. Baker v. Emmerson, 153 Ariz. 4, 8, 734 P.2d 101, 105 (App.1986) (holding that the original notice of appeal from a vacated judgment that failed to dispose of claim against a party was not sufficient as an appeal from an amended judgment which added the party). The dissent points out that Rule 8(a), Arizona Rules of Civil Appellate Procedure, provides that failure to take any step other than the timely filing of the notice of appeal does not affect the validity of the appeal. Howev [561] er, Rule 8(a) does not attempt to nullify the provisions of Rule 8(c) setting forth the requisite contents of the notice of appeal including a designation of the judgment being appealed. As discussed in the comments to Rule 8(a), the rule changed prior case law holding that the timely filing of a cost bond was also a jurisdictional requirement. We conclude that the notice of appeal from a judgment in favor of the county defendants is insufficient notice that an appeal is being taken from a separate judgment in favor of different defendants. Appellant’s counsel does not dispute that he was served with separate judgments filed by the county and city defendants. He states that he regarded the second judgment as a “clarification” of the earlier judgment and accordingly determined that a second notice of appeal was not necessary. He contends that this belief was confirmed by the later participation of counsel for both groups of defendants in post-trial matters. If appellant believes that grounds exist for relief from the judgment to permit a late filing of a notice of appeal, that relief can be sought in the trial court. See Park v. Strick, 137 Ariz. 100, 669 P.2d 78 (1983) (holding that “extraordinary,” “unique,” or “compelling” circumstances may justify vacating judgment and re-entry to permit delayed filing of notice of appeal). CONCLUSION For the foregoing reasons, the county defendants’ motion to dismiss is denied; the city defendants’ motion to dismiss is granted. GRANT, J., concurs.