Baker v. Bradley

296 P.3d 1011, 231 Ariz. 475, 655 Ariz. Adv. Rep. 10, 2013 WL 812400, 2013 Ariz. App. LEXIS 37
CourtCourt of Appeals of Arizona
DecidedMarch 5, 2013
DocketNo. 1 CA-CV 11-0389
StatusPublished
Cited by31 cases

This text of 296 P.3d 1011 (Baker v. Bradley) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Bradley, 296 P.3d 1011, 231 Ariz. 475, 655 Ariz. Adv. Rep. 10, 2013 WL 812400, 2013 Ariz. App. LEXIS 37 (Ark. Ct. App. 2013).

Opinions

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 [478]*478notice 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, [479]*479286 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.

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Cite This Page — Counsel Stack

Bluebook (online)
296 P.3d 1011, 231 Ariz. 475, 655 Ariz. Adv. Rep. 10, 2013 WL 812400, 2013 Ariz. App. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-bradley-arizctapp-2013.