Arizona Court of Appeals Division Two Holds that Notice of Appeal Is Premature and Invalid When Filed After the Entry of a Signed Minute Entry Order Dismissing Complaint But Before Court Enters Final Judgment Following a Rule 68(g) Motion.

Plaintiff filed suit alleging that cargo handlers had damaged a specialized wheelchair while unloading it from an airplane.  After several years of pretrial litigation, the superior court granted a motion to dismiss the complaint pursuant to Rule 12(b)(6) and (c), Ariz. R. Civ. P. 

Defendant filed a motion for a sanctions award under Rule 68(g), Ariz. R. Civ. P.  Before the court had ruled on the pending motion, Plaintiff filed a notice of appeal from the court’s signed minute entry order granting the motion to dismiss.  The trial court then granted the Defendant’s Rule 68 motion, awarding expert fees and double costs, and entered a final judgment.  Plaintiff did not file a new or amended notice of appeal.

The Court of Appeals, concluding that a notice of appeal had not been timely filed, dismissed the appeal for lack of jurisdiction.   

The timely filing of a valid notice of appeal is a prerequisite to the exercise of appellate jurisdiction.  Rule 9(a), Ariz. R. Civ. App. P., provides that a notice of appeal must be filed “not later than 30 days after the entry of the judgment from which the appeal is taken.”  The “entry of judgment” occurs when a signed, written judgment is filed by the clerk in accordance with Rule 58(a). 

A limited exception to the final judgment rule applies when 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.  Barassi v. Matison, 130 Ariz. 418, 636 P.2d 1200 (1981).  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 a nullity. 

Although the Rule 68(g) motion did not extend the time for filing a notice of appeal, that fact was not dispositive.  The court rejected, for lack of authority, Plaintiff’s argument that the signed minute entry order was an appealable order and that the Rule 68(g) motion should not have rendered an otherwise appealable order non-appealable.

The Rule 68(g) motion was not a merely “ministerial” motion because it required the superior court to determine whether the judgment obtained was less favorable than an offer of judgment previously made, and to determine the reasonableness of expert witness fees.   Because the circumstances did not fit within the limited Barassi exception to the final judgment rule, the premature notice of appeal was ineffective and the court of appeals lacked jurisdiction.

Presiding Judge Eckerstrom authored the opinion; Judges Howard and Brammer concurred