Civil Procedure—Timing of Filing Notice of Appeal When Rule 68 Motion is Filed in Trial Court

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Santee v. Mesa Airlines, __Ariz. Adv. Rep. __ 2CA-CV 2011-0012 (App. Div. II, February 28, 2012) (J. Ekerstrom)


Plaintiff sued for damage to his wheelchair allegedly caused when he was exiting defendant's airplane. Defendant moved to dismiss under rule 12(b)(6) of the Arizona Rules of Civil Procedure. The trial court granted the motion and issued a minute entry to that effect. The defendant then filed a rule 68(g) motion for sanctions claiming plaintiff had not timely accepted its offer of judgment so it was entitled to expert witness fees and double its taxable costs. Before the court could rule on this motion the plaintiff filed a notice of appeal from the minute entry. Thereafter the court granted the rule 68(g) motion and entered a final judgment. The plaintiff did not renew its notice of appeal after the filing of the final judgment. The Arizona Court of Appeals dismissed the appeal on the basis it was filed premature and the court had no jurisdiction.

The court noted that Rule 9(a) of the Arizona Rules of Appellate Procedure provides that a notice of appeal “must be filed no later than 30 days after the entry of judgment from which the appeal is taken” and the entry of judgment occurs when a signed, written judgment is filed by the clerk in accordance with rule 58(a) of the rules of civil procedure. The only exception to the requirement that the notice of appeal be filed after the entry of a signed written judgment by the clerk is when 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.” The rationale for the rule is to prevent “disruption of the trial process which might leave the trial court uncertain if it has jurisdiction to decide pending motions and to avoid piecemeal appeals.

Finally, deciding a rule 68(g) motion is not ministerial as the court must determine if the judgment to be entered is more favorable than the offer and if so the reasonableness of the expert witness fees. Since the plaintiff did not file a notice of appeal after the formal written judgment was filed, the appeal is dismissed due to lack of jurisdiction.

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