Julie A. McCleary and David A. Robinson, Plaintiffs/Appellees,
Josephine Tripodi, Defendant/Appellant.
from the Superior Court in Pima County No. C20152870 The
Honorable Jeffrey T. Bergin, Judge
Rosenfeld P.L.C., Phoenix By Charles W. Wirken and Gerard R.
O'Meara Counsel for Plaintiffs/Appellees.
Eagleburger Law Firm, Phoenix By G. Gregory Eagleburger
Counsel for Defendant/Appellant.
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Howard concurred.
ECKERSTROM, CHIEF JUDGE.
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.
and Procedural Background
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
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.
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.
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
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).
Notices of Appeal
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.
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., ...