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City of Tucson v. Sensibar

Court of Appeals of Arizona, Second Division

February 5, 2018

CITY OF TUCSON, Plaintiff/Appellee,
NOAH SENSIBAR, Defendant/Appellant.

         Appeal from the Superior Court in Pima County No. C20154817 The Honorable Jeffrey T. Bergin, Judge

          Michael G. Rankin, City Attorney By Alan L. Merritt, Deputy City Attorney, Jessie M. Pringle, Senior Assistant Prosecuting Attorney, and Mari L. Worman, Associate Prosecuting Attorney, Tucson Counsel for Plaintiff/Appellee

          Hecker PLLC, Tucson By T. William Pew III Counsel for Defendant/Appellant

          Judge Eppich authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred.


          EPPICH, Judge:

         ¶1 Noah Sensibar appeals from the superior court's ruling affirming the Tucson City Court's finding that he had violated the Tucson City Code (TCC). He argues that the municipal ordinance in question is facially invalid because it conflicts with a state statute shielding members or agents of a limited liability corporation from personal liability. Because his appeal is untimely, we dismiss for lack of jurisdiction.

         Factual and Procedural Background

         ¶2 In February 2015, the City of Tucson filed a complaint in city court alleging Sensibar, the managing member and statutory agent of Blue Jay Real Estate LLC, an Arizona corporation, was responsible for building code violations. In May of that year, after a hearing, the city court found Sensibar responsible and he timely appealed that decision to the superior court. On January 4, 2016, the superior court affirmed the city court's ruling and denied Sensibar's motion for rehearing on February 5, 2016.

         ¶3 Sensibar filed a notice of appeal on February 8, 2016. We determined that we lacked jurisdiction and dismissed the appeal as untimely. City of Tucson v. Sensibar, No. 2 CA-CV 2016-0051, ¶ 4 (Ariz. App. Oct. 11, 2016) (mem. decision). We also declined Sensibar's request that we exercise special-action jurisdiction. Id. ¶ 5. In October 2016, we denied Sensibar's motion for reconsideration and our mandate issued on January 17, 2017.

         ¶4 On March 23, 2017, Sensibar asked the superior court to amend its January 2016 ruling to include language pursuant to Rule 54(c), Ariz. R. Civ. P. On April 17, 2017, the superior court entered an amended order finding that "all matters asserted in this action requiring resolution before entry of final judgment were resolved by this Court according to this Court's Ruling dated January 4, 2016 . . . ." Sensibar filed a second notice of appeal on April 20, 2017.


         ¶ 5The city argues that Sensibar's instant appeal is untimely, citing our prior decision dismissing his first appeal. Sensibar counters that the superior court's original ruling was not appealable as a final order due to its lack of Rule 54 language. In effect, he contends his first notice of appeal was premature and we therefore erred in finding that it was filed after the time to appeal had expired. The city disagrees, contending Rule 54(c) language is unnecessary to render the superior court's ruling appealable.

         ¶ 6 Under the Arizona Rules of Civil Procedure, a judgment is not final unless the court expressly indicates its finality as provided in Rule 54. When appellate jurisdiction is premised upon A.R.S. § 12-2101(A)(1), a judgment must contain Rule 54(b) or (c) language in order to be appealable. Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, ¶ 1 (App. 2016). When there is an independent statutory basis for appeal, however, Rule 54 language is not always a prerequisite to the appeal of a superior court ruling. Id. ¶ 11. Whether Rule 54 language is necessary depends on whether the independent basis for appeal requires the court's ruling to comply with Rule 54. Compare id. ¶ 13 (compliance with Rule 54 required insofar as Rules of Probate Procedure incorporate Rules of Civil Procedure unless inconsistent), with id. ¶ 15 (compliance with Rule 54 would be contrary to statutory directive and is not required).

         ¶7 This court's jurisdiction to consider this matter is governed by A.R.S. § 22-375, which provides that an appeal may be taken "from a final judgment of the superior court" in an action appealed from a lower court if the action involves, inter alia, the validity of a municipal statute. Because our jurisdiction to consider Sensibar's claim is not found in § 12-2101(A)(1), Rule 54 language is not necessarily required to render the superior court's decision appealable. See Brumett,240 Ariz. 420, ΒΆ 11. However, we must ...

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