Opinion
2 CA-CV 2013-0042
2013-09-27
In re the Marriage of: MICHAEL BELL, Petitioner/Appellee, and PENNEY L. BELL, Respondent, and JIM SELF and LINDA SELF, husband and wife, Third-Party Respondents/Appellants.
Pahl & Associates By Danette R. Pahl Tucson Attorneys for Petitioner/Appellee Sarah Collier, L.L.C. By Sarah Collier Tucson Attorneys for Third-Party Respondents/Appellants
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication Rule 28, Rules of Civil Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. DO201000040
Honorable Ann R. Littrell, Judge
APPEAL DISMISSED
Pahl & Associates
By Danette R. Pahl
Tucson
Attorneys for Petitioner/Appellee
Sarah Collier, L.L.C.
By Sarah Collier
Tucson
Attorneys for Third-Party Respondents/Appellants
HOWARD, Chief Judge.
¶1 Appellants Jim and Linda Self ("the Selfs") appeal from the trial court's signed order in favor of appellee Michael Bell on his claim for unjust enrichment. We lack jurisdiction and therefore dismiss the appeal.
Factual and Procedural Background
¶2 The record reflects the following procedural background. Michael Bell petitioned for dissolution of his marriage with Penney Bell in January 2010. Michael later moved to join the Selfs as a third party so that he could bring claims against them, including a claim for unjust enrichment. The court granted Michael's motion, and later granted summary judgment to the Selfs on all claims except the one for unjust enrichment. Michael later filed what appears to be an amended third-party complaint against the Selfs claiming only unjust enrichment. Penney filed for bankruptcy the following year, staying all proceedings in the dissolution proceeding except the third-party claim against the Selfs for unjust enrichment. After a bench trial, the court resolved that claim in favor of Michael and awarded him $33,425.00 in a signed order. The Selfs appeal from that order.
Discussion
¶3 Both Michael and the Selfs failed to specify any jurisdictional basis for this appeal, as required under Rule 13(a)(3), Ariz. R. Civ. App. P. Nevertheless, "we have an independent duty to determine whether we have jurisdiction." In re Marriage of Kassa, 231 Ariz. 592, ¶ 3, 299 P.3d 1290, 1291 (App. 2013). We have jurisdiction only pursuant to statute and have no authority to hear an appeal over which we do not have jurisdiction. See Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App. 1995).
¶4 Pursuant to A.R.S. § 12-2101(A)(1), we have jurisdiction only over final judgments disposing of all claims and all parties. Maria v. Najera, 222 Ariz. 306, ¶ 5, 214 P.3d 394, 395 (App. 2009). The superior court, however, has discretion to designate a judgment that disposes of fewer than all claims and parties as final "upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Ariz. R. Civ. P. 54(b). But in the absence of such a determination in an action containing multiple claims for relief and multiple parties, including third-party claims, "any order or other form of decision . . . shall not terminate the action as to any of the claims or parties." Id. The same principles apply under Rule 78(B), Ariz. R. Fam. Law P. Kassa, 231 Ariz. 592, n.1, 299 P.3d at 1291 n.1.
¶5 Nothing in the record shows that the petition for dissolution of marriage has been resolved. Therefore at least one unresolved claim involving two parties, Michael and Penney, remains. Although the third-party claim was resolved on the merits, the court did not make the express determination required under Rule 78(B) to render the judgment final as to that claim. Accordingly, no final judgment exists, and we lack jurisdiction to consider the appeal.
Attorney Fees on Appeal
¶6 Michael requests an award of attorney fees and costs incurred on appeal pursuant to Rule 21, Ariz. R. Civ. App. P. and A.R.S. § 25-324. The Selfs also request an award of attorney fees and costs incurred on appeal, but fail to state the basis for their request. In the exercise of our discretion, we decline to award attorney fees to either party.
Conclusion
¶7 For the foregoing reasons, we dismiss the appeal.
_________________
JOSEPH W. HOWARD, Chief Judge
CONCURRING: _________________
GARYE L. VÁSQUEZ, Presiding Judge
_________________
MICHAEL MILLER, Judge