dissenting.
¶ 29 I respectfully dissent. I find that Baker’s premature notice of appeal was ineffective and a nullity under Craig and Smith because there were unresolved issues at the time Baker filed his notice of appeal.
¶ 30 The Barassi exception, as it has been applied and interpreted in subsequent supreme court eases, does not apply to Baker’s notice of appeal. See Craig, 227 Ariz. at 107, ¶ 13, 253 P.3d at 626; Smith, 212 Ariz. at 415, ¶ 37, 132 P.3d at 1195. In Craig, our supreme coui’t explained that the Barassi exception 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; see also Black’s Law Dictionary *4831095 (7th ed. 1999) (defining “nullity” as “[s]omething that is legally void”).
¶ 31 In accordance with Craig and Smith, the pertinent question here is whether the superior court, in its April 22, 2011 minute entry, had issued a “final decision” such that “no decision of the court could change.” 227 Ariz. at 107, ¶ 13, 253 P.3d at 626. A straightforward reading of Craig prohibits the application of the Barassi exception if there are unresolved issues that could change the court’s decision expressed in the minute entry. Craig requires this determination to be made at the time of the minute entry.
¶ 32 The decision set forth in the unsigned minute entry was not final and could have changed. When the court issued its minute entry on April 22, Baker still had until May 18 to serve the additional defendant, Reeder. Although Reeder was apparently never served, the fact that she could have been served after April 22 necessarily means that the decision expressed in the April 22 minute entry could have changed. The majority relies in part on the fact that Baker missed the May 18 deadline to serve Reeder. This is irrelevant, because at the time Baker filed his notice of appeal on May 12, he could have served Reeder. This possibility means the final decision could change and Baker’s notice of appeal made in the absence of a final judgment is a nullity under Craig.
¶ 33 Regarding the unserved defendant, I also disagree with the majority that our supreme court’s analysis in McHazlett supports the finding that the April 22 minute entry was a final decision that could not change. The facts and applicable legal principles in McHazlett are distinguishable from the present ease. In McHazlett, after three years of litigation, the superior court entered an order — evidently signed — dismissing the case. 133 Ariz. at 532, 652 P.2d at 1379. The court reasoned that it was clear during the long three year litigation that plaintiff made no attempt to serve the other defendants, five of which were fictitious defendants. Id. Conversely, in this case, the superior court entered an unsigned minute entry dismissing two of the three parties. In Baker’s complaint, he made specific claims against each party, who are all real individuals. The court’s minute entry was issued six months, not three years, after Baker filed his complaint.
¶ 34 More importantly, the record reveals Baker intended to proceed with his claims against Reeder. Baker obtained an extension of time until May 18 to accomplish service of process, and in March 2011 he sought and obtained permission to serve Reeder by publication. Baker could have served Reed-er after the April 22 minute entry and even after filing his notice of appeal. Moreover, in his response to the motion to dismiss, Baker addressed his claims against Reeder. In their reply in support of their motion to dismiss, Bradley and Basurto noted they were not addressing Baker’s claims against Reeder because they had no authority to represent Reeder’s interest in the action. I conclude on this record that the reasoning in McHazlett — that those unserved named defendants were not parties for purposes of Rule 54(b) — does not apply in the present case. Here, there was a possibility of piecemeal appeals if Reeder had been served. Furthermore, the precise question here is not simply whether Reeder should be considered a party but, rather, whether the substantive ruling of the superior court in its April 22 unsigned minute entry could change before entry of a final judgment.
¶ 35 Because the April 22 minute entry was unsigned and could have been changed or supplemented, it was not final by the time Baker’s notice of appeal was filed. When Baker filed his notice of appeal on May 12, 2011, a final judgment had not been entered and there was still time to serve process on Reeder. Accordingly, the Barassi exception does not apply and Baker’s premature notice of appeal is ineffective and a nullity under Craig and Smith. To invoke our appellate jurisdiction, Baker needed to file a new or amended notice of appeal after the June 10 entry of the judgment. He did not do so.
¶ 36 Because I believe we should dismiss this appeal for lack of jurisdiction, I respectfully dissent.