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Appellate Jurisdiction--Premature Notice of Appeal Can Create Jurisdiction

Law Updates-Appellate Jurisdiction: Premature Notice of Appeal Baker v. Bradley, 655 Ariz. Adv. Rep. 10 (App. Div. I, March 5, 2013) (J. Gemmill) PREMATURE NOTICE OF APPEAL CREATES JURISDICTION WHEN ONLY ACTS LEFT FOR TRIAL COURT ARE MINISTERIAL AND NO SUBSTANTIVE MOTIONS ARE PENDING

Plaintiff, an inmate in the Arizona Department of Corrections [ADOC], sued ADOC and its employees for civil rights violations. Defendants filed a motion to dismiss which was granted by the trial court. Plaintiff filed a notice of appeal after receiving the minute entry granting the motion but before final formal judgment was entered. He did not file a notice of appeal thereafter

In analyzing whether the court could accept jurisdiction based upon this premature notice, the Arizona Court of Appeals looked to Barassi v. Matison,130 Ariz. 418, 421-22, 636 P.2d 1200, 1203-04

(1981) where the Arizona Supreme Court held: "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." Following Barassi, came Craig v. Craig, 227 Ariz. 105, 107, 253 P.3d 624, 626 (2011)which held: "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."

Here the minute entry was not a final order or judgment because it was not signed by the trial judge. The notice was clearly premature; Only the Barassi exception can save it. The question thus becomes was the only remaining task for the trial judge "ministerial." The court notes this is not an easy question to answer since until a final judgment is signed the trial judge can always change her mind and issue other orders. Here the court of appeals carefully analyzes all the cases on record concerning this issue and concludes that in every case where Barassi was found by our supreme court not to apply, there was a substantive motion still pending before the trial court when the premature notice was filed. Because this was not so in the case at bar and because the final formal judgment that was ultimately signed was consistent with the minute entry the court on a two to one vote found the Barassi exception to apply.

Importantly, the court of appeals notes that trying to apply Barassi has been quite troublesome to the lower courts and invited clarification from the Supreme Court.

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