Opinion
No. 2 CA-CV 2014-0028
08-15-2014
ALBERT A. TURKOVICH, Plaintiff/Appellant, v. SHERRI L. RODRIGUEZ, Defendant/Appellee.
COUNSEL Jared O. Smith, Safford Counsel for Plaintiff/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Greenlee County
No. CV201200049
The Honorable Monica L. Stauffer, Judge
APPEAL DISMISSED
COUNSEL Jared O. Smith, Safford
Counsel for Plaintiff/Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Albert Turkovich appeals from the judgment entered after a bench trial in favor of Sherry Rodriguez in Turkovich's breach-of-contract action against Rodriguez. Turkovich argues the trial court erred by denying his second motion for a new trial, and by making several other erroneous rulings. Because we lack jurisdiction, we dismiss the appeal.
Factual and Procedural Background
¶2 Sometime in 2011, Turkovich and Rodriguez entered into an agreement by which Turkovich would sell Rodriguez two parcels of real property and two mobile homes located in Duncan, Arizona. On November 16, 2011, Turkovich transferred the title to the mobile homes to Rodriguez. On November 29, 2011, Turkovich signed a warranty deed conveying the two lots to her. Thereafter, operating under the notion that Rodriguez "did not make payments as agreed," he re-titled the mobile homes in his name. Turkovich eventually sued Rodriguez, alleging she breached their contract by failing to pay for the lots and mobile homes.
¶3 At the bench trial, Rodriguez testified the purchase price for the two lots and mobile homes was $10,000, and she paid Turkovich in full by giving him $8,000 in cash and making payments for the remaining $2,000. Turkovich testified the purchase price was $28,000, and Rodriguez paid only $200. The parties each submitted an affidavit of value, reflecting different sale prices for the lots and mobile homes. The affidavit of value submitted by Rodriguez had been filed with the Greenlee County Recorder. The affidavit submitted by Turkovich contained details that did not appear in the affidavit filed with the county recorder. The court questioned Turkovich about the discrepancies between the affidavits of value. He stated he did not know how the affidavit he submitted "got changed."
¶4 The trial court concluded Turkovich had altered the documents he submitted and found in favor of Rodriguez, concluding she had "fulfilled the contractual agreement for the purchase of the land and two mobile homes." The court also ordered Turkovich to re-title the two mobile homes in Rodriguez's name.
¶5 Turkovich then submitted a letter requesting a new trial on the ground he "had no previous knowledge that [Rodriguez] would testify that she paid [him] $8,000.00." The trial court construed the letter as a motion for new trial and opened the judgment for the limited purpose of taking additional testimony about the $8,000 payment, essentially granting the motion. After Turkovich presented evidence that he had not been paid by Rodriguez, the court issued a second under-advisement ruling, ordering that the original verdict, order, and judgment remained the final decision of the court.
¶6 In Turkovich's second motion for a new trial, he asserted there had been "[i]rregularity in the proceedings" that "deprived [him] of a fair trial," misconduct by Rodriguez, and "[t]he decision [was] not justified by the evidence and [was] contrary to law." The trial court denied the motion.
Discussion
¶7 Turkovich filed a notice of appeal on December 24, 2013, stating he appeals from the order and judgment entered on May 7, 2013. Although he asserts we have jurisdiction "because a notice of appeal was timely filed on December 24, 2013," we have an independent duty to determine whether we have jurisdiction over an appeal. Baker v. Bradley, 231 Ariz. 475, ¶ 8, 296 P.3d 1011, 1014-15 (App. 2013). "Because appellate jurisdiction is derivative, when jurisdiction is lacking in the trial court, it is lacking on appeal." Webb v. Charles, 125 Ariz. 558, 560, 611 P.2d 562, 565 (App. 1980).
In his opening brief, Turkovich argues the trial court erred by denying his second motion for a new trial. Rule 8(c), Ariz. R. Civ. App. P., provides that a notice of appeal "shall designate the judgment or part thereof appealed from." Turkovich's notice of appeal did not designate the denial of his second motion for a new trial. For this additional reason, we do not have jurisdiction to review it. See Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 561, 578 P.2d 985, 990 (1978).
¶8 The first motion for a new trial was untimely. Rule 59(d), Ariz. R. Civ. P., provides that a motion for a new trial must be filed within fifteen days after entry of the judgment. The trial court signed the under advisement ruling on May 7, and it was filed on or before May 9. Turkovich submitted his letter on May 28, 2013. Because the first motion for a new trial was untimely, the court did not have jurisdiction to grant it. See Mark Lighting Fixture Co. v. Gen. Elec. Supply Co., 155 Ariz. 27, 31-32, 745 P.2d 85, 89-90 (1987) (time limit for filing motion for new trial is jurisdictional). Therefore, the court's ruling on the first motion for a new trial was void. See Martin v. Martin, 182 Ariz. 11, 15, 893 P.2d 11, 15 (App. 1994) (judgment or order is void if court entering it lacked jurisdiction). Turkovich's second motion for a new trial also was untimely because it necessarily followed his first untimely motion. Thus, the court's ruling on the second motion also was void because it lacked jurisdiction.
Turkovich's letter was dated May 28 and apparently was filed by May 30. Although the record is unclear as to the filing dates of the under advisement ruling and letter, Turkovich's letter was untimely even if we apply the latest filing date for the ruling and the earliest date for the letter.
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¶9 Because the trial court's rulings on both of Turkovich's motions for new trial were void, the time for filing a notice of appeal began to run the day after the court issued its under-advisement ruling. See In re Marriage of Dougall, 234 Ariz. 2, ¶ 7, 316 P.3d 591, 594 (App. 2013) (where motion for new trial is not timely filed, trial court does not have jurisdiction to address it, and it does not extend time for appeal). Rule 9(a), Ariz. R. Civ. App. P., provides that a notice of appeal must be filed not later than thirty days after the entry of the judgment from which the appeal is taken. Turkovich did not file his notice of appeal until December 24, 2013. We therefore lack jurisdiction to consider Turkovich's appeal from the court's judgment. See In re Marriage of Gray, 144 Ariz. 89, 90, 695 P.2d 1127, 1128 (1995) ("[T]he timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review.").
Disposition
¶10 For the foregoing reasons, we dismiss Turkovich's appeal for lack of jurisdiction.