Opinion
No. 2 CA-CV 2019-0122
02-27-2020
THOMAS HAROLD MAJOR II, Plaintiff/Appellee, v. SAMUEL JAMES COLEMAN AND SET FOR SET FITNESS LLC, Defendants/Appellants.
COUNSEL Laird Law PLLC, Tucson By Brian A. Laird Counsel for Defendants/Appellants
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NOT FOR PUBLICATION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)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Pima County
No. C20184315
The Honorable Cynthia T. Kuhn, Judge
APPEAL DISMISSED
COUNSEL
Laird Law PLLC, Tucson
By Brian A. Laird
Counsel for Defendants/Appellants
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred.
BREARCLIFFE, Judge:
¶1 Samuel James Coleman and Set for Set Fitness LLC appeal from the trial court's refusal to issue an order upon stipulation of settlement simultaneously dismissing the case with prejudice and retaining jurisdiction. For the reasons stated below, we do not have jurisdiction and thus dismiss the appeal.
¶2 Thomas Harold Major II sued Samuel James Coleman and Set for Set Fitness LLC in Pima County Superior Court. Thereafter, the parties entered into a settlement agreement and mutual release of all claims. The terms of the settlement agreement provided for Coleman and Set for Set Fitness LLC to make payments to Major over time. The agreement also provided that, in the event of a default in payment, Major was authorized to file a stipulation for entry of judgment and a form of judgment with the trial court.
¶3 Pursuant to their agreement, the parties filed a stipulation of dismissal with prejudice and an accompanying form of order. The proposed order provided that the lawsuit was to be dismissed with prejudice, except "in the event of a default in payment of the settlement amount, [Major] may file, and this Court shall have jurisdiction to immediately enter, and shall enter, the stipulated judgment held by [Major's] counsel." The trial court refused to sign the order dismissing the case under the stipulated terms, stating in an unsigned order dated April 19, 2019, that "The Court finds that the parties' requested relief is not consistent with the Rules of Civil Procedure, and accordingly, DENIES the requested entry of the Stipulation to Dismiss."
¶4 Coleman and Set for Set Fitness LLC then filed an unopposed motion to reconsider or alternatively for clarification. The trial court denied the motion in an order dated June 3, 2019—also unsigned—stating:
A case dismissed with prejudice is an adjudication on the merits and res judicata. Thus, it contemplates no further action.
The parties, however, request the Court take further action inconsistent with a dismissal.
Accordingly,
The parties' Unopposed Motion is DENIED.
(citation omitted). This appeal followed.
¶5 "[T]his court has an independent duty to determine whether it has jurisdiction over an appeal." McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4 (App. 2009). "The general rule is that an appeal lies only from a final judgment." Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304 (App. 1991); see A.R.S. § 12-2101(A)(1). Appellants assert that we have jurisdiction pursuant to A.R.S. § 12-2101(A)(3), which provides that "an appeal may be taken to the court of appeals from the superior court . . . [f]rom any order affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken." Appellants claim that the trial court's June 3 order denying the motion to reconsider its April 19 order, although not final, is such an order. It is not.
¶6 The trial court did not refuse, by either its April 19 or June 3 orders, to enter any otherwise appealable, final order of dismissal, and thus did not "prevent[] judgment from which an appeal might be taken." § 12-2101(A)(3). The court merely refused to enter an order of dismissal in which it was required to retain post-judgment jurisdiction. The parties were not barred from thereafter submitting a form of order dismissing the case without the language relating to the trial court's continuing jurisdiction. If such an order were submitted, signed and entered, the matter would then be at an end. Once at an end, any objection to the trial court's refusal to enter the originally desired form of order, properly preserved, would be subject to appeal. See Dowling v. Stapley, 221 Ariz. 251, n.12 (App. 2009) ("[A]ppeal from the final judgment would include appeals from otherwise non-appealable interlocutory orders."). Consequently, even if we were to conclude that the appealed June 3 order (or the unappealed April 19 order) affected a party's substantial right by effectively determining the action, which we do not, it does not prevent entry of a final, appealable order of dismissal and thus is not an appealable interlocutory order within the scope of A.R.S. § 12-2101(A)(3).
¶7 Moreover, even if the June 3 order were an interlocutory order otherwise within the ambit of § 12-2101, it is unsigned and therefore would not be an appealable, interlocutory order. See Klebba v. Carpenter, 213 Ariz. 91, ¶¶6-8 & n.3-4 (2006).
¶8 For the foregoing reasons, we do not have jurisdiction over this appeal and the appeal is dismissed.