Baker v. Bradley

• Decision Date: 05 March 2013
• Docket Number: No. 1 CA–CV 11–0389.,1 CA–CV 11–0389.
• Citation: 655 Ariz. Adv. Rep. 10,296 P.3d 1011,231 Ariz. 475
• Parties: John P. BAKER, Plaintiff/Appellant, v. Deputy Warden BRADLEY; CO IV Basurto; and Anne Reeder, Defendants/Appellees.
• Court: Arizona Court of Appeals

231 Ariz. 475

296 P.3d 1011

655 Ariz. Adv. Rep. 10

John P. BAKER, Plaintiff/Appellant,

v.Deputy Warden BRADLEY; CO IV Basurto; and Anne Reeder, Defendants/Appellees.

No. 1 CA–CV 11–0389.

Court of Appeals of Arizona, Division 1.

March 5, 2013.

John P. Baker, Buckeye, In Propria Persona.

Thomas C. Horne, Attorney General By Paul E. Carter, Assistant Attorney General, Tucson, Attorneys for Defendants/Appellees.

OPINION

GEMMILL, Judge.

¶ 1 We address in this opinion the continuing problem of whether a premature notice of appeal has triggered this court's appellate jurisdiction. Plaintiff John P. Baker, an inmate in the Arizona Department of Corrections (“ADOC”), appeals the superior court's dismissal of his complaint. Baker filed a notice of appeal prior to the superior court's entry of final judgment and did not file a new or amended notice of appeal after final judgment. In the exercise of our independent duty to examine our jurisdiction, we have had the issue of our jurisdiction under advisement.

¶ 2 For the reasons explained herein, we have determined, on a two-to-one vote, that the “Barassi exception”—created by the Arizona Supreme Court in 1981—is applicable here and this court has jurisdiction over this appeal. See Barassi v. Matison, 130 Ariz. 418, 421–22, 636 P.2d 1200, 1203–04 (1981). Our dissenting colleague concludes that we have no jurisdiction because the Barassi exception does not apply.

¶ 3 We publish this opinion because this court frequently grapples with the question of when premature notices of appeal are sufficient to vest jurisdiction in our court. We continue to dismiss a number of appeals for lack of appellate jurisdiction because of premature notices of appeal. See, e.g., Fields v. Oates, 230 Ariz. 411, 286 P.3d 160 (App.2012); Ghadimi v. Soraya, 230 Ariz. 621, 285 P.3d 969 (App.2012); Santee v. Mesa Airlines, Inc., 229 Ariz. 88, 270 P.3d 915 (App.2012). By publishing this opinion, we hope to shed some light on this subject and to invite the Arizona Supreme Court to further clarify, if necessary, when premature notices of appeal will successfully invoke appellate jurisdiction.

BACKGROUND

¶ 4 In October 2010, Baker filed his complaint in superior court alleging civil rights violations against ADOC employees, Deputy Warden Bradley and Correctional Officer Basurto, and former ADOC employee, Anne Reeder. Baker alleged violations of his constitutional rights and sought injunctive relief and damages. In January 2011, Baker requested an extension of time to serve the defendants. Shortly thereafter, Bradley and Basurto waived service of process, and the court granted Baker an extension until May 18, 2011, to serve Reeder.

¶ 5 In February 2011, Bradley and Basurto moved to dismiss Baker's complaint on multiple grounds. In the motion, defendants requested attorneys' fees and costs pursuant to 42 U.S.C. § 1988 (2006). In March 2011, Baker filed a motion for deferral of the cost of service of defendant Reeder by publication, which the court granted in an order entered March 14, 2011.

¶ 6 In an unsigned minute entry entered on April 22, 2011, the superior court granted Bradley and Basurto's motion to dismiss. Baker's notice of appeal is signed and dated as of May 12, 2011,¹ stating his intention to appeal from the dismissal granted in the April 22 minute entry.

¶ 7 Bradley and Basurto lodged a form of judgment on May 17, 2011, and did not seek an award of attorneys' fees. Baker did not file any documentation indicating he had served process on Reeder, and she did not enter an appearance. On June 10, 2011, the superior court entered a signed judgment dismissing the action with prejudice. The judgment does not mention attorneys' fees or costs. Baker did not file a new or amended notice of appeal after entry of the signed judgment.

ANALYSIS

¶ 8 This court has an independent duty to determine whether it has jurisdiction over an appeal. Fields, 230 Ariz. at 413, ¶ 7, 286 P.3d at 162;Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App.1997). Our jurisdiction is defined by statute, and we must dismiss an appeal over which we lack jurisdiction. Robinson v. Kay, 225 Ariz. 191, 192, ¶ 4, 236 P.3d 418, 419 (App.2010).

¶ 9 Generally, this court's jurisdiction is limited to appeals from final judgments which dispose of all claims and parties. Garza v. Swift Transp. Co., 222 Ariz. 281, 284, 213 P.3d 1008, 1011 (2009); A.R.S § 12–2101(A)(1) (Supp.2012). In a civil case, a notice of appeal must be filed within 30 days after entry of the judgment being appealed. ARCAP 9(a). All judgments must be in writing and signed by a judge, and entry occurs when the judgment is filed with the clerk. Ariz. R. Civ. P. (“Rule”) 58(a).

¶ 10 In Barassi, our supreme court addressed jurisdiction over premature notices of appeal. The appellants in Barassi filed a notice of appeal from an unsigned minute entry order denying their motion for new trial. 130 Ariz. at 419, 636 P.2d at 1201. Analyzing Arizona Rule of Civil Appellate Procedure 9(a) and Rule 58(a), the court held that “a premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised need not be dismissed.” Id. at 422, 636 P.2d at 1204. The court emphasized, however, that appeals will be dismissed for lack of jurisdiction when a litigant attempts to appeal when “a motion is still pending in the trial court or where there is no final judgment.” Id.

¶ 11 Subsequent cases have recognized the limited extent of the exception announced in Barassi. See, e.g., Craig v. Craig, 227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011); Smith v. Ariz. Citizens Clean Elections Comm'n, 212 Ariz. 407, 415, ¶ 37, 132 P.3d 1187, 1195 (2006); Engel v. Landman, 221 Ariz. 504, 508–09, ¶¶ 11–14, 212 P.3d 842, 846–47 (App.2009). In Craig, the parties filed a notice of appeal and notice of cross-appeal while a motion for new trial was pending. After the superior court denied the motion for new trial, the parties did not file amended or new notices of appeal or cross-appeal. Craig, 227 Ariz. at 105, ¶ 2, 253 P.3d at 624. In affirming this court's decision to dismiss the appeal for lack of jurisdiction, our supreme court explained that Barassi is limited to situations in which a notice of appeal is filed “after the trial court has made its final decision, but before it has entered a formal judgment, if no decision of the court could change and the only remaining task is merely ministerial.” Id. at 107, ¶ 13, 253 P.3d at 626 (quoting Smith, 212 Ariz. at 415, ¶ 37, 132 P.3d at 1195). “In all other cases, a notice of appeal filed in the absence of a final judgment, or while any party's time-extending motion is pending before the trial court, is ‘ineffective’ and a nullity.” Craig, 227 Ariz. at 107, ¶ 13, 253 P.3d at 626 (citing Smith, 212 Ariz. at 415, ¶ 39, 132 P.3d at 1195).

¶ 12 We note initially that Baker's May 12 notice of appeal was premature. The April 22 minute entry from which Baker appeals is not a “final judgment” because it is not signed and does not purport to enter judgment or dismiss the action. Cf. Focal Point, Inc. v. Court of Appeals, 149 Ariz. 128, 129, 717 P.2d 432, 433 (1986) (holding that a minute entry can constitute a final judgment only if it is signed by a judge and filed with the clerk); Haywood Sec., Inc. v. Ehrlich, 214 Ariz. 114, 116–17, ¶ 14, 149 P.3d 738, 740–41 (2007) (noting the importance of a judge's intent in determining whether the requirements of Rule 58(a) have been met).

¶ 13 Because Baker's notice of appeal was premature and he did not file a new or amended notice of appeal after the June 10 entry of final judgment, his appeal is untimely unless the Barassi exception applies to allow the premature notice of appeal to invoke our jurisdiction. In accordance with Craig and Smith, we must consider whether the trial court's April 22 minute entry “could change” and if “any remaining [judicial] task is merely ministerial.” Craig, 227 Ariz. at 107, ¶¶ 12–13, 253 P.3d at 626;Smith, 212 Ariz. at 415, ¶ 37, 132 P.3d at 1195. We acknowledge some difficulty applying this particular language used by our supreme court, because a minute entry by its very nature always can be amended or revokedprior to final judgment. See Reid v. Reid, 20 Ariz.App. 220, 221, 511 P.2d 664, 665 (1973) (explaining that an unsigned minute entry is not a judgment and the court can alter the rulings contained therein prior to or at time of entry of the final judgment); see also Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 45, 365 P.2d 208, 210 (1961) (confirming that even a signed judgment that does not adjudicate all claims and does not have Rule 54(b) language is subject to modification at any time before entry of the final judgment); Rule 54(b) (absent language of finality, a judgment that does not determine all claims is not final and the “decision is subject to revision at any time before entry of judgment adjudicating all the claims and the rights and liabilities of all the parties”).

¶ 14 If we were to apply the language from Craig and Smith literally—to mean that the Barassi exception applies only “if no decision of the court could change”—this would essentially eliminate the Barassi exception for notices of appeal filed prematurely after a minute entry but before final judgment, because the minute entry always “could” be changed prior to final judgment. We have considered whether the supreme court may have intended to limit the Barassi exception to the post-judgment context, because of this language from Craig and Smith (“if no decision of the court could change”) and also because many of the leading cases on the Barassi exception address post-judgment motions and notices of appeal. See, e.g., Barassi, 130 Ariz. at 419, 636 P.2d at 1201,Baumann v. Tuton, 180 Ariz. 370, 371, 884 P.2d 256, 257 (App.1994); Performance Funding, LLC v....