Filing Notice of Appeal During the Pendency of Motion for a New Trial
In Baumann v. Tuton, 180 Ariz. 370, 884 P.2d 256 (App. 1994), the plaintiff filed his notice of appeal during the pendency of his motion for a new trial after the trial court had granted summary judgment to the defendant. See 180 Ariz. at 371, 884 P.2d at 257.
After voluntarily dismissing his appeal, the plaintiff reurged his motion for a new trial, and the trial court granted it. See id.
The defendant then appealed that order, arguing that the plaintiff had withdrawn his motion for a new trial by filing a notice of appeal and that his subsequent withdrawal of the appeal ended the litigation. See id.
The Court held that, because the plaintiff's notice of appeal was filed while his motion for a new trial was still pending, "the notice of appeal was a nullity and did not constitute an abandonment of the pending motion for new trial." Id. at 373, 884 P.2d at 259.
The Court held that a notice of appeal filed during the pendency of a time-extending motion was a "nullity," the party there filed a notice of appeal while his own time-extending motion was pending. See id. at 371, 884 P.2d at 257.
Furthermore, the plaintiff in Baumann withdrew his appeal while the motion for a new trial was still pending. See id. at 371, 884 P.2d at 257.