Opinion
2 CA-CV 2023-0081
12-12-2023
Thomas Bradford Schaults, Plaintiff/Appellant, v. Loan Depot; Quality Loan Service Corp., subcontractor of Loan Depot; FNMA; Ginnie Mae, Defendants/Appellees.
Thomas Bradford Schaults, Casa Grande In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CV202300225 The Honorable Jason Holmberg, Judge
Thomas Bradford Schaults, Casa Grande
In Propria Persona
Judge Gard authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vasquez concurred.
MEMORANDUM DECISION
GARD, Judge:
¶1 Thomas Bradford Schaults appeals the superior court's order denying his emergency motion for a temporary restraining order and preliminary injunction and dismissing the case because no underlying complaint had been filed. For the following reasons, we dismiss this appeal for lack of jurisdiction.
Jurisdiction
¶2 We have an independent obligation to determine whether we have jurisdiction to consider an appeal. Camasura v. Camasura, 238 Ariz. 179, ¶ 5 (App. 2015); see A.R.S. §§ 12-120.21(A), 12-2101(A). Under Rule 9(a), Ariz. R. Civ. App. P., an appellant must file a notice of appeal "no later than 30 days after entry of the judgment from which the appeal is taken." "It is settled in Arizona that the perfecting of an appeal within the time prescribed is jurisdictional; and, hence, where the appeal is not timely filed, the appellate court acquires no jurisdiction other than to dismiss the attempted appeal." Edwards v. Young, 107 Ariz. 283, 284 (1971).
¶3 Schaults filed an emergency motion for a temporary restraining order and preliminary injunction on February 6, 2023. About an hour later, the superior court filed a written and signed judgment pursuant to Rule 54(c), Ariz. R. Civ. P., denying Schaults's motion and dismissing the case after finding that no underlying complaint had been filed. The ruling noted that a copy had been hand-delivered to Schaults the same day. But Schaults did not file a notice of appeal until March 13, thirty-five days after entry of judgment. Although Schaults represents himself, "[w]e hold unrepresented litigants in Arizona to the same standards as attorneys," Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017), and therefore deem his notice of appeal untimely.
Our review of the record indicates that Schaults attempted to file a timely notice of appeal, but the clerk's office returned it on February 15 because it lacked a signature. See Ariz. R. Civ. App. P. 8(c)(5) (a notice of appeal must "[b]e signed by . . . the party if the party has no attorney"). While "[a] defective notice of appeal does not necessarily deprive the court of appeals of jurisdiction," Boydston v. Strole Dev. Co., 193 Ariz. 47, 50 (1998), an untimely notice of appeal does, see Ariz. R. Civ. App. P. 8(d) (appellate court's jurisdiction not affected by appellant's failure to perform an act other than timely filing a notice of appeal); Edwards, 107 Ariz. at 284. This is not a circumstance in which a party timely filed a notice of appeal with a technical defect-the superior court rejected Schaults's attempted timely notice and it was never accepted for filing. And although Schaults eventually filed a signed notice of appeal, thus correcting the defect the court had identified, he did not do so until five days after the time limit had expired. See Ariz. R. Civ. App. P. 9(a).
¶4 Accordingly, we lack jurisdiction to consider the merits and therefore, dismiss this appeal.