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McCleary v. Tripodi

Court of Appeals of Arizona, Second Division

August 29, 2017

Julie A. McCleary and David A. Robinson, Plaintiffs/Appellees,
v.
Josephine Tripodi, Defendant/Appellant.

         Appeal from the Superior Court in Pima County No. C20152870 The Honorable Jeffrey T. Bergin, Judge

          Gust Rosenfeld P.L.C., Phoenix By Charles W. Wirken and Gerard R. O'Meara Counsel for Plaintiffs/Appellees.

          The Eagleburger Law Firm, Phoenix By G. Gregory Eagleburger Counsel for Defendant/Appellant.

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Howard[1] concurred.

          OPINION

          ECKERSTROM, CHIEF JUDGE.

         ¶1 Josephine Tripodi appeals from the trial court's grant of summary judgment, quieting title to Lot 18 of Lazy Creek I ("the Property"), real property in Pima County, in favor of Julie McCleary and David Robinson ("the Devisees"). We affirm for the following reasons.

         Factual and Procedural Background

         ¶2 Viewing the facts in the light most favorable to the non-moving party, Ochser v. Funk, 228 Ariz. 365, ¶ 11, 266 P.3d 1061, 1065 (2011), in May 1996, Dominic Tripodi of Philadelphia, Pennsylvania, named himself trustee of the Dominic Tripodi Living Trust ("the Trust"), which he settled with $92, 000 of his own, separate assets for the purpose of acquiring and holding title to real property in Arizona. The Trust directed that upon his death, Jennifer Robinson would receive the balance of the trust estate, if she survived him. A few days later, a deed was recorded with the Pima County Recorder conveying the Property to "Dominic Tripodi, Trustee of the Dominic Tripodi Living Trust."

         ¶3 In October 1997, Dominic died, and his wife, Josephine Tripodi, became the administrator of his estate. In September 2002, Josephine, acting as the administrator, recorded a deed purporting to convey the Property from Dominic's estate to herself. In June 2005, Jennifer, as successor trustee and pursuant to the Trust, recorded a deed conveying the Property from the Trust to herself. In September and December of 2009, Josephine twice more recorded deeds purporting to convey the Property from Dominic's estate to herself.

         ¶4 In February 2015, Jennifer died. In March, the Devisees, acting as personal representatives of her estate and pursuant to her will, executed a deed of distribution conveying the Property to themselves. In April, acting through counsel and pursuant to A.R.S. § 12-1103, the Devisees sought a quitclaim deed to the Property from Josephine for consideration of five dollars.

         ¶5 In June 2015, not having obtained such deed, the Devisees commenced this action to quiet title. On June 28, 2016, the trial court issued an unsigned, under-advisement ruling granting summary judgment and quieting title to the Property in favor of the Devisees. In July, Josephine filed two motions asking the court to reconsider its June 28 order. Later that month, before the court ruled on those motions and before it entered final judgment, Josephine filed two notices of appeal. In August, the court summarily denied the motions for reconsideration.

         ¶6 In September, the Devisees filed a motion to dismiss the appeal, arguing the notices were premature because final judgment had not been entered. The same day, this court independently determined the trial court's order lacked requisite finality language, stayed the appeal, and revested jurisdiction in the trial court. On October 3, the trial court entered final judgment and, a few days later, this court revested jurisdiction in itself and denied the Devisees' motion to dismiss. We have jurisdiction for the following reasons. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1); Ariz. R. Civ. App. P. 9(c).

         Premature Notices of Appeal

         ¶7 As a court of limited jurisdiction, A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1), we have an independent duty to determine whether we have the authority to consider an appeal. Camasura v. Camasura, 238 Ariz. 179, ¶ 5, 358 P.3d 600, 602 (App. 2015). Generally, only final judgments are appealable. Id. ¶ 6. With limited exceptions not applicable here, a judgment is not final unless the court has signed it, Ariz. R. Civ. P. 58(b)(1), and it "recites that no further matters remain pending and that the judgment is entered under Rule 54(c)." Ariz. R. Civ. P. 54(c). Here, the June 28 order was not final because it was not signed and did not contain Rule 54(c) language of finality. Thus, Tripodi's notices of appeal, filed in July, were premature because they predated the final judgment, entered on October 3.

         ¶8 Ordinarily, a premature notice of appeal is a nullity. Craig v. Craig,227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011). The question before us, however, is whether an exception for certain premature appeals applies. See Ariz. R. Civ. App. P. 9(c). The Devisees suggest Rule 9(c) merely codifies the narrow, ministerial exception announced in Barassi v. Matison,130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981). Tripodi argues our supreme court, by adopting Rule 9(c) and mirroring it after Rule 4(a)(2), Fed. R. App. P., ...


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