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Baker v. Bradley et al. - 3/5/2013

Arizona Court of Appeals Division One Holds that it may Exercise Jurisdiction over a Premature Appeal unless Substantive Motions or Issues Await Determination.


Baker, a prisoner, filed a pro se complaint against a Deputy Warden, a Corrections Officer, and a former Corrections Officer in October of 2010. The current Department of Corrections employees waived service, but the former officer did not.  The trial court dismissed the action by unsigned minute entry on April 22, 2011, and Baker filed a notice of appeal on May 12, 2011.  The trial court issued a signed judgment dismissing the action with prejudice on June 10, 2011.

Division One used the case as an opportunity to discuss the long-standing issue of when it may exercise jurisdiction over a prematurely-filed notice of appeal. In Arizona, a notice of appeal filed after a judge announces a decision but before the entry of judgment is void, and the Court of Appeals has no jurisdiction except under a narrow exception in which filing the order is “merely ministerial.” Craig v. Craig¸227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011).  The State Bar has filed a petition to revise the rule to model the corresponding federal rule, in which a premature petition “is treated as filed on the date of and after the entry.” FRAP 4(a)(2) See http://azdnn.dnnmax.com/AZSupremeCourtMain/AZCourtRulesMain/CourtRulesForumMain/CourtRulesForum/tabid/91/forumid/2/postid/2054/view/topic/Default.aspx.

In this case, the Court of Appeals viewed the exception expansively, holding that it can exercise jurisdiction over premature petitions unless “there were substantive motions or issues awaiting determination at the time the premature notice of appeal is filed.” Baker at 11.  It overtly sought further guidance, writing that by publishing the 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.” Baker at 2.

Judge Gemmil authored the majority opinion; Judge Hall concurred.

In dissent, Judge Orozoco noted that when Baker filed his notice of appeal, he still had nearly a week in which he could have served the third defendant. Judge Orozoco concluded that because proceedings might have continued against the third party, entering judgment was not merely ministerial and the court had no jurisdiction.

Posted by: Andrew Case

Posted On: 3/11/2013