State v. Zarco ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
BILLY BRUMETT, et al., Plaintiffs/Appellees,
v.
MGA HOME HEALTHCARE, L.L.C., et al., Defendants/Appellants.
No. 1 CA-CV 15-0047 (Consolidated)
FILED 7-28-16
Appeal from the Superior Court in Maricopa County
No. CV2010-092697
The Honorable David M. Talamante, Judge
STAY TERMINATED / APPEAL REINSTATED
COUNSEL
Johnson & Gregory PLLC, Mesa
By W. Raymond Johnson, III, Robert M. Gregory, Tyler M. Sorensen
Counsel for Plaintiffs/Appellees
Broening Oberg Woods & Wilson PC, Phoenix
By James R. Broening, T. Scott King, Michelle L. Donovan, Kevin R. Myer
Counsel for Defendants/Appellants
RACHEL A. TURLEY, et al., Plaintiffs/Appellees,
v.
LEO R. BEUS, et al., Defendants/Appellants.
No. 1 CA-CV 15-0107 (Consolidated)
Appeal from the Superior Court in Maricopa County
No. CV2014-009811
The Honorable Katherine M. Cooper, Judge
STAY TERMINATED / APPEAL REINSTATED
COUNSEL
Bryan Cave LLP, Phoenix
By J. Alex Grimsley, Robert J. Miller, Sean K. McElenney
Counsel for Plaintiffs/Appellees
Osborn Maledon P.A., Phoenix
By David B. Rosenbaum, Nathan T. Arrowsmith
Co-Counsel for Defendants/Appellants
Moyes Sellers and Hendricks, LTD., Phoenix
By Keith L. Hendricks, Joshua T. Greer
Co-Counsel for Defendants/Appellants
PERRY BOSER, individually and on behalf of THERESA DANNIELLE
BOSER, deceased, and on behalf of all statutory beneficiaries,
Plaintiff/Appellee,
v.
JASON LEE WARE, Defendant/Appellant.
No. 1 CA-CV 15-0127 (Consolidated)
Appeal from the Superior Court in Maricopa County
No. CV2011-007329
The Honorable Randall H. Warner, Judge
STAY TERMINATED / APPEAL REINSTATED
2
COUNSEL
Goldberg & Osborne, Phoenix
By Allen D. Bucknell
Counsel for Plaintiff/Appellee
Jason Lee Ware, Tucson
Defendant/Appellant
VANCE S. TAYLOR; CANDY R. OVERLEY, Plaintiffs/Appellants,
v.
BUCKS FINANCIAL, LLC, Defendant/Appellee.
No. 1 CA-CV 15-0249 (Consolidated)
Appeal from the Superior Court in Maricopa County
No. CV2015-051253
The Honorable Thomas L. LeClaire, Judge (Retired)
STAY TERMINATED / APPEAL REINSTATED
COUNSEL
Vance Taylor and Candy Overley, Glendale, AZ
Plaintiffs/Appellants
Law Offices of Michelle Ghidotti, Anaheim Hills, CA
By Michelle R. Ghidotti Gonsalves
Counsel for Defendant/Appellee
DOUBLE AA BUILDERS, LTD., an Arizona corporation,
Plaintiff/Appellee,
v.
PREFERRED CONTRACTORS INSURANCE COMPANY, LLC, a
Montana company, Defendant/Appellant.
3
No. 1 CA-CV 15-0375 (Consolidated)
Appeal from the Superior Court in Maricopa County
No. CV2013-001403
The Honorable Lori Horn Bustamante, Judge
STAY TERMINATED / APPEAL REINSTATED
COUNSEL
Holden Willits PLC, Phoenix
By Michael J. Holden, Barry A. Willits, R. Stewart Halstead, Nelson A. F.
Mixon
Counsel for Plaintiff/Appellee
Broening Oberg Woods & Wilson, PC, Phoenix
By Robert T. Sullivan, Alicyn M. Freeman, Kevin R. Myer
Counsel for Defendant/Appellant
DAVID ROMERO, Plaintiff/Appellant,
v.
KHALID S. HASAN, et al., Defendants/Appellees.
No. 1 CA-CV 15-0508 (Consolidated)
Appeal from the Superior Court in Maricopa County
No. CV2014-095832
The Honorable Mark F. Aceto, Judge (Retired)
STAY TERMINATED / APPEAL REINSTATED
COUNSEL
David Romero, Queen Creek
Plaintiff/Appellant
4
Holden & Armer P.C., Phoenix
By Scott A. Holden, Carolyn (DeeDee) Armer Holden
Counsel for Defendants/Appellees
RIVERBEND HOMEOWNERS ASSOCIATION, an Arizona non-profit
corporation, Plaintiff/Appellant,
v.
FELICIA EDWARDS, Defendant/Appellee.
_________________________________
BANNER HEALTH SYSTEMS, Garnishee/Appellee.
No. 1 CA-CV 15-0513 (Consolidated)
Appeal from the Superior Court in Maricopa County
No. TJ2012-002192
The Honorable Michael L. Barth, Judge Pro Tempore
STAY TERMINATED / APPEAL REINSTATED
COUNSEL
Vial Fotheringham, LLP, Tempe
By Quinten T. Cupps
Counsel for Plaintiff/Appellant
ISAAC BONELLI, Plaintiff/Appellant,
v.
CAROL OLSON, Defendant/Appellee.
No. 1 CA-CV 15-0624 (Consolidated)
5
Appeal from the Superior Court in Maricopa County
No. CV2014-005909
The Honorable Patricia Starr, Judge
STAY TERMINATED / APPEAL DISMISSED
COUNSEL
Isaac Bonelli, Phoenix
Plaintiff/Appellant
ROBERT ANGELO, et al., Plaintiffs/Appellants,
v.
STEWART TITLE & TRUST OF PHOENIX, INC., Defendant/Appellee.
No. 1 CA-CV 15-0689 (Consolidated)
Appeal from the Superior Court in Yavapai County
No. V1300CV201380021
The Honorable David L. Mackey, Judge
STAY TERMINATED / APPEAL REINSTATED
COUNSEL
Carpenter Hazlewood Delgado & Bolen PLC, Tempe
By Mark A. Holmgren, Armistead W. Gilliam
Counsel for Plaintiffs/Appellants
6
Burch & Cracchiolo PA, Phoenix
By Jake D. Curtis, Edwin D. Fleming
Co-Counsel for Defendant/Appellee
Sidley Austin LLP, Chicago, IL
By Gerard D. Kelly, Kevin M. Fee, Daniel C. Craig
Co-Counsel for Defendant/Appellee
In the Matter of the Estate of:
MICHELE E. DAVIS, Deceased.
_________________________________
STEVE ERLICK, as Personal Representative of the ESTATE OF MICHELE
E. DAVIS, Petitioner/Appellee,
v.
JOHN DAVIS, Respondent/Appellant.
No. 1 CA-CV 15-0728 (Consolidated)
Appeal from the Superior Court in Maricopa County
No. PB2015-001198
The Honorable Kerstin G. LeMaire, Judge
STAY CONTINUED / JURISDICTION REVESTED
COUNSEL
Kile & Kupiszewski Law Firm LLC, Scottsdale
By Stephen J.P. Kupiszewski, Christina M. Stoneking, Jennifer L. Kupiszewski
Emily B. Kile
Counsel for Petitioner/Appellee
John Davis, Phoenix
Respondent/Appellant
7
AEA FEDERAL CREDIT UNION, Plaintiff/Appellee,
v.
YUMA FUNDING, INC., an Arizona corporation, Defendant/Appellant.
No. 1 CA-CV 15-0753 (Consolidated)
Appeal from the Superior Court in Yuma County
No. S1400CV201000062
The Honorable John P. Plante, Judge
STAY TERMINATED / APPEAL REINSTATED
COUNSEL
Law Office of Larry W. Suciu, Yuma
By Barry L. Olsen
Counsel for Plaintiff/Appellee
Schneider & Onofry PC, Yuma
By Jason M. Kelly
Counsel for Defendant/Appellant
ABC SAND AND ROCK COMPANY, INC., Plaintiff/Appellant,
v.
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY,
Defendant/Appellee.
No. 1 CA-CV 16-0294 (Consolidated)
Appeal from the Superior Court in Maricopa County
No. LC2015-000096-001
The Honorable Crane McClennen, Judge
8
BRUMETT v. MGA HOME
Opinion of the Court
STAY CONTINUED / JURISDICTION REVESTED
COUNSEL
Osborn Maledon PA, Phoenix
By Colin F. Campbell, Meghan Grabel, Jana Lynn Sutton
Counsel for Plaintiff/Appellant
Hinshaw & Culbertson LLP, Phoenix
By Stephen W. Tully, Bradley L. Dunn
Counsel for Defendant/Appellee
OPINION
Vice Chief Judge Samuel A. Thumma delivered the opinion of the Court, in
which Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.
T H U M M A, Judge:
¶1 By statute, an appeal may be taken from “a final judgment
entered in an action.” A.R.S. § 12-2101(A)(1) (2016).1 Consistent with this
directive, the Arizona Rules of Civil Procedure describe two types of “final
judgments:” (1) a “final judgment as to one or more but fewer than all of
the claims or parties,” Ariz. R. Civ. P. 54(b), and (2) a final judgment on “all
claims and parties,” Ariz. R. Civ. P. 54(c). The former is appealable “only
upon an express determination that there is no just reason for delay and
upon an express direction for the entry of judgment.” Ariz. R. Civ. P. 54(b).
The latter is appealable when “the court states that no further matters
remain pending and that the judgment is entered pursuant to Rule 54(c).”
Ariz. R. Civ. P. 54(c); see also Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236
Ariz. 221, 223-24 ¶ 5 (App. 2014) (requiring Ariz. R. Civ. P. 54(c) statement
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated. Although the
subsections of A.R.S. § 12-2101 were renumbered effective July 20, 2011,
2011 Ariz. Sess. Laws ch. 304 § 1, as applicable here, the changes were not
substantive and this opinion references the current version of the statute
unless otherwise noted.
9
BRUMETT v. MGA HOME
Opinion of the Court
as a jurisdictional prerequisite for an appeal from a final judgment taken
under A.R.S. § 12-2101(A)(1)).2
¶2 Other statutes, however, authorize appeals of various rulings
that are not “final judgments” under A.R.S. § 12-2101(A)(1). The appeals
consolidated here involve claims of appellate jurisdiction other than A.R.S.
§ 12-2101(A)(1), either under a different subsection of A.R.S. § 12-2101(A)
or a different statute. See, e.g., A.R.S. § 12-913 (addressing appellate
jurisdiction over “[t]he final decision, order, judgment or decree of the
superior court entered in an action to review a decision of an administrative
agency”); A.R.S. § 12-1873(A) (addressing appellate jurisdiction over
“certification or refusal to certify a class action”); A.R.S. § 12-2101.01
(addressing appellate jurisdiction over orders, judgments and decrees
regarding arbitration). The issue is whether such rulings may be appealed
to this court even though they are not “final judgments” and are not entered
under Rule 54(b) or 54(c).
¶3 Although Rule 54(b) has been in place for decades, Rule 54(c)
was added effective January 1, 2014. Because no opinion discusses whether
a Rule 54(c) declaration is necessary when a statute other than A.R.S. § 12-
2101(A)(1) provides the basis for appellate jurisdiction, these appeals have
been consolidated sua sponte for the limited purpose of addressing
whether this court has appellate jurisdiction in these appeals. See Sorensen
v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465 (App. 1997) (noting appellate
court has an independent duty to examine whether it has appellate
jurisdiction over putative appeals).3
2 Although not the subject of this opinion, whether a ruling is a final
judgment is significant apart from appellate jurisdiction, including for
enforcement and preclusion purposes. See, e.g., Dressler v. Morrison, 212
Ariz. 279, 282 ¶ 15 (2006); Ariz. R. Civ. P. 69.
3 This opinion does not address special action jurisdiction, which is
independent of appellate jurisdiction. See A.R.S. 12-120.21(A)(4) (granting
this court “[j]urisdiction to hear and determine petitions for special actions
brought pursuant to the rules of procedure for special actions, without
regard to its appellate jurisdiction”); Ariz. R.P. Spec. Act. 1(a) (“Except as
authorized by statute, the special action shall not be available where there
is an equally plain, speedy, and adequate remedy by appeal . . . .”).
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BRUMETT v. MGA HOME
Opinion of the Court
DISCUSSION
I. Appellate Jurisdiction And Ariz. R. Civ. P. 54(b) And 54(c).
¶4 This court’s appellate jurisdiction is defined, and limited, by
the Legislature. See, e.g., Ariz. Const. art. 6 § 9 (“The jurisdiction, powers,
duties and composition of any intermediate appellate court shall be as
provided by law.”); Garza v. Swift Transp. Co., Inc., 222 Ariz. 281, 283 ¶ 12
(2009) (stating this court “derives . . . appellate jurisdiction wholly from
statutory provisions”) (citation omitted). Under A.R.S. § 12-2101(A)(1), the
Legislature has directed that a “final judgment” is appealable. Given this
directive, Arizona courts repeatedly have found that a judgment must be
final before it can be appealed pursuant to A.R.S. § 12-2101(A)(1). See, e.g.,
Bollermann v. Nowlis, 234 Ariz. 340, 341 ¶ 6 (2014); Musa v. Adrian, 130 Ariz.
311, 312 (1981); In re Marriage of Johnson & Gravino, 231 Ariz. 228, 230 ¶ 5
(App. 2012). The Arizona Supreme Court has promulgated two procedural
rules to define what constitutes an appealable “final judgment.”
¶5 Rule 54(b) provides that a superior court may “direct the
entry of final judgment as to one or more but fewer than all of the claims or
parties” in a case “upon an express determination that there is no just
reason for delay and upon an express direction for the entry of [a final]
judgment.” Promulgated in 1961, Rule 54(b) affords a superior court
discretion to determine whether a ruling that resolves less than all claims
as to all parties should be deemed a “final judgment,” and therefore
appealable. S. California Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, 53 ¶
19 (1999); Ariz. R. Civ. P. 54(b) State Bar Committee Notes 1961
Amendment.
¶6 Rule 54(c) provides that “[a] judgment shall not be final unless
the court states that no further matters remain pending and that the
judgment is entered pursuant to Rule 54(c).” Promulgated effective January
1, 2014, Rule 54(c) is designed to make clear “whether an order of a Superior
Court is, or is intended to be, a final, appealable ‘judgment’” and to facilitate
“determining the extent to which a putative judgment resolves a case as to
all claims and all parties.” Madrid, 236 Ariz. at 223 ¶ 4. The inclusion of Rule
54(c) language does not render an otherwise non-appealable order or
judgment appealable as a final judgment. See id. at 224 ¶ 6 (“A statement
that a judgment is final pursuant to Rule 54(c) when, in fact, claims remain
pending does not make a judgment final and appealable.”). However, Rule
54(c) language is required when a judgment resolves all claims against all
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BRUMETT v. MGA HOME
Opinion of the Court
parties and appellate jurisdiction is premised on A.R.S. § 12-2101(A)(1). See
id. at 223 n.3 ¶¶ 3, 5.4
¶7 The question presented in these appeals is whether language
contemplated by Rules 54(b) or 54(c) is required for a ruling to be
appealable other than as a “final judgment” under A.R.S. § 12-2101(A)(1).
¶8 The Arizona Rules of Civil Procedure define “judgment”
broadly to include “an order from which an appeal lies.” Ariz. R. Civ. P.
54(a); accord Ariz. R. Civ. App. P. (ARCAP) 2 (“’Judgment’ is an appealable
order. A judgment may be identified as a ‘judgment,’ or it may be identified
as an ‘order,’ a ‘decree,’ or by another term.”). Accordingly, the finality
requirement of Rules 54(b) and 54(c) could be read to apply broadly to all
appealable orders. However, subsections of A.R.S. § 12-2101 other than
(A)(1) contain express exceptions to the principle that a judgment must be
final for appellate jurisdiction to exist. See Bilke v. State, 206 Ariz. 462, 466 ¶
18 (2003) (noting statutory predecessor to A.R.S. § 12-2101(A)(6) provides
for appellate jurisdiction over non-final judgment); Pulaski v. Perkins, 127
Ariz. 216, 218 n.3 (App. 1980) (“Certain kinds of decisions of the superior
court are appealable without a 54(b) determination even though they are
not final judgments . . . . These are specific types of decisions listed in
subsections of A.R.S. § 12-2101 and elsewhere authorizing the appeal of a
particular kind of decision.”); Bulova Watch Co. v. Super City Dep’t Stores, 4
Ariz. App. 553, 555 (1967) (construing statutory predecessor to A.R.S. § 12-
2101(A)(5)(b), stating “[a]n appeal may be taken from an order granting or
refusing to grant an injunction at any stage of the case in which application
for the injunction is made. We, therefore, reject the defendants’ claim that
this order is nonappealable.”) (citing cases). Moreover, nothing in the text
or history of Rule 54(b) or 54(c) suggests that either rule was designed to
4 Although their primary focus is civil cases, Rules 54(b) and 54(c) are
applicable in other types of cases as well. Arizona Probate and Tax Court
rules incorporate the Arizona Rules of Civil Procedure, meaning Rules
54(b) and 54(c) apply in those proceedings. See Ariz. R. Probate P. 3(A);
Ariz. Tax Ct. R.P. 2. Because the Arizona Rules of Family Law Procedure
do not fully incorporate the Arizona Rules of Civil Procedure, see Ariz. R.
Fam. Law P. 2(A), Rule 54(c) does not apply in family court proceedings or
order of protection proceedings related to family court proceedings, see
Ariz. R. Protect. Ord. P. 2. The Arizona Rules of Family Law Procedure do,
however, have an analogue to Rule 54(b). See Ariz. R. Fam. Law P. 78(B).
12
BRUMETT v. MGA HOME
Opinion of the Court
apply to all appealable rulings. See also Seisinger v. Siebel, 220 Ariz. 85, 92 ¶
26 (2009) (noting court-promulgated rule cannot limit a substantive statute).
¶9 The Legislature “has made it clear that most interlocutory
orders . . . are not appealable.” 1A ARIZONA APPELLATE HANDBOOK § 3.3.1.1.
at 3-7 (6th ed. 2015). By statute, however, the Legislature has authorized
appeals from various types of rulings that fall short of being a “final
judgment.” See, e.g., A.R.S. §§ 12-1873(A); 12-2101(A)(2), (3)-(8), (10), (11);
A.R.S. § 12-2101.01(A). Nothing suggests the Legislature contemplated
having these appeal rights subject to a certification under Rule 54(b) or
54(c). This is particularly true given that the statutory predecessor to A.R.S.
§ 12-2101, which authorized appeals from many of these same types of
orders and interlocutory judgments, was enacted in 1913, more than 50
years before the Arizona Rules of Civil Procedure became effective. See 1913
Ariz. Civ. Code § 1227; Ariz. R. Civ. P. 86 (noting Arizona Rules of Civil
Procedure became effective January 1, 1956).
¶10 These statutes do not suggest that the ability to appeal from
these various orders and interlocutory judgments should turn on whether
a superior court, in its discretion, made such rulings appealable under Rule
54(b). See S. California Edison Co., 194 Ariz. at 53 ¶ 19 (noting “a trial judge
has discretion to decide whether an order or judgment should be accorded
finality” under Rule 54(b)). And applying Rule 54(c) to such orders and
interlocutory judgments would, contrary to the statutory language,
preclude the ability to appeal many such rulings because it would be
impossible for a superior court to state that no further matters remain
pending. For example, an order granting or denying a preliminary
injunction will rarely (if ever) resolve all claims against all parties, but is
nevertheless appealable by statute. See A.R.S. § 12-2101(A)(5)(b)(“An
appeal may be taken to the court of appeals from the superior court . . .
[f]rom an order . . . [g]ranting or dissolving an injunction, or refusing to
grant or dissolve an injunction”). Similarly, an order denying a motion to
compel arbitration, or granting a motion to stay arbitration, does not resolve
all claims against all parties, but is nevertheless appealable by statute. See
A.R.S. §§ 12-2101.01(A)(1), (2).
¶11 For these reasons, although applicable to rulings appealed as
“final judgments” under A.R.S. § 12-2101(A)(1), neither Rule 54(b) nor Rule
54(c) apply to rulings that are not “final judgments” but are independently
appealable by statute. This opinion addresses which of the various types of
13
BRUMETT v. MGA HOME
Opinion of the Court
orders challenged in these consolidated appeals are appealable absent
compliance with Rule 54(b) or 54(c).5
II. Appellate Jurisdiction Under A.R.S. § 12-2101(A).
A. Appeal From A Final Judgment Under A.R.S. § 12-
2101(A)(1).
¶12 As discussed above, “[a]n appeal may be taken to the court of
appeals from the superior court . . . [f]rom a final judgment entered in an
action or special proceeding commenced in a superior court, or brought into
a superior court from any other court,” except for a forcible entry and
detainer action in which the annual rent is less than $300. A.R.S. § 12-
2101(A)(1). This is the classic situation where, to be appealable as a “final
judgment,” all claims as to all parties must be resolved and the court must
include the Rule 54(c) statement. See Ariz. R. Civ. P. 54(c); Madrid, 236 Ariz.
at 223 n.3 ¶¶ 3, 5; Davis, 168 Ariz. at 304. Alternatively, if the ruling resolves
fewer than all claims as to all parties, it may be appealed as a “final
judgment” if the superior court exercises its discretion and certifies,
pursuant to Rule 54(b), that there is no just reason for delay. Ariz. R. Civ. P.
54(b); Madrid, 236 Ariz. at 224 ¶ 8. Absent compliance with Rule 54(b) or
54(c), however, a superior court’s ruling is not appealable as a “final
judgment” under A.R.S. § 12-2101(A)(1).
B. Appeal From A Probate Judgment, Decree Or Order Entered
In Formal Title 14 Proceedings Under A.R.S. § 12-2101(A)(9).
¶13 An appeal may be taken to this court “[f]rom a judgment,
decree or order entered [by the superior court] in any formal proceedings
under title 14,” Arizona’s Probate Code. A.R.S. § 12-2101(A)(9). Rulings in
such Title 14 matters are only appealable when they are in the form of a
final judgment or decree or, for an unsupervised administration, an order
terminating a formal proceeding. See In re Estate of McGathy, 226 Ariz. 277,
279-80 ¶¶ 14-15 (2010); Ivancovich v. Meier, 122 Ariz. 346, 353 (1979).
5 Although addressing the rulings implicated in this consolidated appeal,
this opinion should not be read to suggest that these are the only types of
rulings that are appealable to this court absent compliance with Rule 54(b)
or 54(c). See 1A ARIZONA APPELLATE HANDBOOK § 3.3.1.12.1 at 3-25 to -28
(6th ed. 2015) (discussing other miscellaneous appealable orders). Similarly,
although a particular ruling may be appealable based on more than one
statutory basis, only one statutory basis is required for appellate
jurisdiction to exist.
14
BRUMETT v. MGA HOME
Opinion of the Court
Moreover, the Arizona Rules of Probate Procedure state that, “[u]nless
otherwise provided in these rules or inconsistent with these rules, the
Arizona Rules of Civil Procedure apply to probate proceedings.” Ariz. R.
Probate P. 3(A); see also id. cmt. (“[T]he Arizona Rules of Civil Procedure
apply to probate proceedings unless they are inconsistent with the Arizona
Rules of Probate Procedure.”); accord A.R.S. § 14-1304 (“Unless specifically
provided to the contrary in this title or unless inconsistent with its
provisions, the rules of civil procedure including the rules concerning
vacation of orders and appellate review govern formal proceedings under
this title.”). Accordingly, absent compliance with Rule 54(b) or 54(c), a
judgment, decree or order entered in a formal Title 14 proceeding is not
appealable under A.R.S. § 12-2101(A)(9).
C. Appeal From A Special Order Made After Final Judgment
Under A.R.S. § 12-2101(A)(2).
¶14 An appeal may be taken to this court “[f]rom any special
order made after final judgment.” A.R.S. § 12-2101(A)(2). Such post-
judgment special orders may include a ruling on a motion to set aside a
final judgment pursuant to Ariz. R. Civ. P. 60(c), see M & M Auto Storage
Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141 (App. 1990), a ruling
on a motion to set aside a final default judgment, see Bateman v. McDonald,
94 Ariz. 327, 329 (1963), and other post-judgment rulings relating to a final
judgment, see Arvizu v. Fernandez, 183 Ariz. 224, 226-27 (App. 1995) (“To be
appealable, a post-judgment order must fulfill two requirements. First, the
issues raised by the appeal from the order must be different from those that
would arise from an appeal from the underlying judgment. . . . [Second,]
the order must either affect the judgment or relate to it by enforcing it or
staying its execution.”) (citations and quotations omitted).
¶15 By statute, the right of appeal is limited to a special order
made “after final judgment.” A.R.S. § 12-2101(A)(2); see also Ruesga v.
Kindred Nursing Centers, L.L.C., 215 Ariz. 589, 593 ¶ 11 (App. 2007) (noting
that if the Legislature had intended the statute to apply to “‘special orders’
made after any and all ‘judgments,’ it presumably would have had no
reason to instead use the phrase ‘final judgment’”) (citations omitted). Thus,
for an order to be appealable as a “special order made after final judgment”
under A.R.S. § 12-2101(A)(2), the court must have previously entered a
“final judgment” pursuant to Rule 54(b) or 54(c). See Ruesga, 215 Ariz. at
593-94 ¶¶ 8-16 (ruling that because the superior court had not entered an
order that disposed of any claim on the merits, it had not entered a final
judgment and an order granting relief from the non-final judgment could
not be considered a special order made after final judgment for purposes of
15
BRUMETT v. MGA HOME
Opinion of the Court
appellate jurisdiction). Although the “special order” must have been made
after entry of a “final judgment,” the statute does not require that the
“special order” being appealed from must itself be a “final judgment.”6
Accordingly, it would be contrary to the statutory directive to require that,
to be appealable under A.R.S. § 12-2101(A)(2), a “special order made after
final judgment” comply with Rule 54(b) or 54(c). Thus, compliance with
Rule 54(b) or 54(c) is not required for “any special order made after final
judgment” to be appealable under A.R.S. § 12-2101(A)(2).7
6 In fact, if the “special order” had to be a “final judgment” to be appealable,
A.R.S. § 12-2101(A)(2) would be unnecessary, because the “special order”
that is a “final judgment” would be appealable under A.R.S. § 12-
2101(A)(1). Construing A.R.S. § 12-2101(A)(2) in such a manner would run
counter to statutory construction principles. See Sharpe v. Ariz. Health Care
Cost Containment Sys., 220 Ariz. 488, 497 ¶ 30 (App. 2009) (“One of the
primary principles of statutory interpretation is not to construe statutes to
give an absurd result”); Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214
Ariz. 293, 296 (2007) (“Each word, phrase, clause and sentence [of a statute]
must be given meaning so that no part will be void, inert, redundant, or
trivial.”) (citation omitted).
7 Case law reflects certain restrictions on the ability to appeal from a default
judgment entered pursuant to Ariz. R. Civ. P. 55(b). See Hirsch v. Nat’l Van
Lines, Inc., 136 Ariz. 304, 311 (1983) (“Where a default judgment has been
entered, the defaulting party’s primary remedy is a motion for relief from
the judgment pursuant to Ariz. R. Civ. P. 60. The general rule is that there
is no appeal from a default judgment, although exceptions are recognized
where the default was not authorized by Ariz. R. Civ. P. 55 or if there is a
question regarding either personal or subject matter jurisdiction.”)
(citations omitted); see also 1A ARIZONA APPELLATE HANDBOOK § 3.3.1.8 at
3-21 to -22 (6th ed. 2015) (discussing appeals relating to defaults and default
judgments). However, because a default judgment may be appealable
under certain circumstances, see, e.g., Sears Roebuck & Co. v. Walker, 127 Ariz.
432, 435-36 (App. 1980) (exercising appellate jurisdiction for appeal from
default judgment entered as a sanction even though no motion to set aside
had been filed), and a motion to set aside a judgment is not proper unless it
seeks to set aside a final judgment, Ruesga, 215 Ariz. at 593-94 ¶¶ 8-16, the
better practice would appear to be to include Rule 54(b) or 54(c) language,
as applicable, in default judgments.
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BRUMETT v. MGA HOME
Opinion of the Court
D. Appeal From An Interlocutory Judgment Under A.R.S. § 12-
2101(A)(6), (7) And (8).
¶16 Several subsections of § 12-2101(A) permit an appeal to this
court from “interlocutory judgments” or other specified rulings that resolve
some aspect of a claim:
“[A]n interlocutory judgment that determines
the rights of the parties and directs an
accounting or other proceeding to determine
the amount of the recovery.” A.R.S. § 12-
2101(A)(6).8
“[A]n interlocutory judgment in any action for
partition that determines the rights and
interests of the respective parties, and directs
partition to be made.” A.R.S. § 12-2101(A)(7).
“[A]ny interlocutory judgment, decree or order
made or entered in actions to redeem real or
personal property from a mortgage thereof or
lien thereon, determining such right to redeem
and directing an accounting.” A.R.S. § 12-
2101(A)(8).
¶17 This express statutory language provides that the specified
interlocutory judgments and rulings may be appealed, notwithstanding
their interlocutory status. Bilke, 206 Ariz. at 466 ¶ 18. Moreover, given their
character, the superior court could not properly state that such
interlocutory judgments and rulings were “final judgments” under Rule
54(b) or 54(c). Thus, compliance with Rule 54(b) or 54(c) is not required for
the interlocutory judgments and specified rulings listed in A.R.S. § 12-
2101(A)(6)-(8) to be appealable.
8 For an interlocutory judgment to be appealable under A.R.S. § 12-
2101(A)(6), “the superior court must expressly direct that the only issue
remaining is the amount of recovery.” 1A ARIZONA APPELLATE HANDBOOK
§ 3.3.1.1 at 3-7 (6th ed. 2015) (citing Fields v. Oates, 230 Ariz. 411, 415 ¶ 15
(App. 2012)).
17
BRUMETT v. MGA HOME
Opinion of the Court
E. Appeal From Specified Orders Under A.R.S. § 12-2101
(A)(3), (4), (5)(a)-(d), (10) And (11).
¶18 The remaining subsections of A.R.S. § 12-2101(A) authorize
appeals from orders on specified pre- or post-judgment requests for relief:
“[A]ny order affecting a substantial right made
in any action when the order in effect
determines the action and prevents judgment
from which an appeal might be taken.” A.R.S. §
12-2101(A)(3).
“[A] final order affecting a substantial right
made in a special proceeding or on a summary
application in an action after judgment.” A.R.S.
§ 12-2101(A)(4).9
“[A]n order . . . [g]ranting or refusing a new
trial.” A.R.S. § 12-2101(A)(5)(a).10
9 See also MCA Fin. Group v. Enter. Bank & Trust, 236 Ariz. 490, 495 ¶ 11 (App.
2014) (stating A.R.S. § 12-2101(A)(4) “pertains to two separate types of final
orders: (1) one ‘affecting a substantial right made in a special proceeding;’
and (2) a final order made ‘on a summary application in an action after
judgment’”).
10 Not every ruling on a motion for new trial, however, is appealable.
“Although a denial of a motion for new trial generally is appealable
pursuant to [A.R.S. § 12-2101(A)(5)(a)], we must look to the ‘character of the
proceedings which resulted in the order appealed from’ to ascertain
[appellate] jurisdiction in any particular case.” Maria v. Najera, 222 Ariz. 306,
308 ¶ 9 (App. 2009) (citation omitted); see also id. at 308 ¶ 10 (noting A.R.S.
§ 12-2101(A)(5)(a) “does not grant appellate jurisdiction over the denial of
a motion for new trial directed at a non-final partial summary judgment”).
Apart from new trial rulings, although A.R.S. § 12-2101(A)(5)(a) also states
an order “granting a motion in arrest of judgment” is appealable, such
motions were abolished in 1973 with the adoption of the Arizona Rules of
Criminal Procedure in deference to a motion to vacate judgment. See State
v. Hickle, 129 Ariz. 330, 332 (1982); Ariz. R. Crim. P. 24.2(a) cmt. (“The
motion in arrest of judgment is abolished in these rules as a separate
procedural device.”).
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BRUMETT v. MGA HOME
Opinion of the Court
“[A]n order . . . [g]ranting or dissolving an
injunction, or refusing to grant or dissolve an
injunction or appointing a receiver.” A.R.S. § 12-
2101(A)(5)(b).
“[A]n order . . . [d]issolving or refusing to
dissolve an attachment or garnishment.” A.R.S.
§ 12-2101(A)(5)(c).
“[A]n order . . . [g]ranting or denying a petition
to restore a person’s right to possess a firearm
pursuant to [A.R.S. §] 13-925.” A.R.S. § 12-
2101(A)(5)(d).
“[A]n order or judgment: (a) Adjudging a
person insane or incompetent, or committing a
person to the state hospital[; or] (b) Revoking or
refusing to revoke an order or judgment
adjudging a person insane or incompetent, or
restoring or refusing to restore to competency
any person who has been declared insane or
incompetent.” A.R.S. § 12-2101(A)(10).
“[A]n order or judgment made and entered on
habeas corpus proceedings.” A.R.S. § 12-
2101(A)(11).11
¶19 The express statutory language provides that the specified
orders and non-final judgments may be appealed, notwithstanding their
interlocutory nature. Moreover, given their character, the superior court
could not properly state that such orders and non-final judgments were
“final judgments” under Rule 54(b) or 54(c). Thus, compliance with Rule
54(b) or 54(c) is not required for the rulings specified in A.R.S. § 12-
2101(A)(3), (4), (5)(a)-(d), (10) and (11) to be appealable.
11The statute also specifies who can take the appeal in habeas corpus
proceedings, see A.R.S. § 12-2101(A)(11)(a) and (b), an issue not relevant
here.
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BRUMETT v. MGA HOME
Opinion of the Court
F. Appeal From Rulings Regarding Arbitration Proceedings
Under A.R.S. § 12-2101.01.
¶20 Separate and apart from the provisions of A.R.S. § 12-2101,
A.R.S. § 12-2101.01(A) states that “[a]n appeal may be taken from any of the
following:”
1. An order denying an application to
compel arbitration made under [A.R.S. §§] 12-
1502 or 12-3007.
2. An order granting an application to stay
arbitration made under [A.R.S. §§] 12-1502 or
12-3007.
3. An order denying confirmation of an
[arbitration] award.
4. An order modifying or correcting an
[arbitration] award.
5. An order vacating an [arbitration] award
without directing a rehearing.
6. A judgment or decree entered pursuant
to chapter 9 [Special Actions and Proceedings to
Enforce Claims or Judgments, A.R.S. §§ 12-1501
to -1708] or 21 [Revised Uniform Arbitration
Act, A.R.S. §§ 12-3001 to -3029] of this title.
¶21 This express statutory language provides that the specified
orders and non-final judgments may be appealed, notwithstanding their
interlocutory status, similar to the specially appealable orders and non-final
judgments listed in A.R.S. § 12-2101(A)(2)-(8) and (10)-(11). Accord Bilke, 206
Ariz. at 466 ¶ 18. Moreover, given their character, the superior court could
not properly state that such orders and non-final judgments were “final
judgments” under Rule 54(b) or 54(c). Thus, compliance with Rule 54(b) or
54(c) is not required for the rulings specified in A.R.S. § 12-2101.01(A) to be
appealable.
20
BRUMETT v. MGA HOME
Opinion of the Court
G. Appeal From The Certification Or Refusal To Certify A
Class Action Under A.R.S. § 12-1873(A).
¶22 “The court’s certification or refusal to certify a class action is
appealable in the same manner as a final order or judgment.” A.R.S. § 12-
1873(A); accord Ariz. R. Civ. P. 23(f). Enacted in 2013, this statute effectively
overruled that portion of Garza v. Swift Transportation Co., Inc., holding that
an order denying a motion for class certification could not be appealed
under A.R.S. § 12-2101(A)(3). 222 Ariz. 281, 285-86 ¶¶ 22-26 (2009). With
A.R.S. § 12-1873(A), as with several of the subsections of A.R.S. § 12-2101(A)
discussed above, the Legislature directs that a specific type of interlocutory
ruling is appealable even though it may not fully resolve any claim. See
Bilke, 206 Ariz. at 466 ¶ 18. Moreover, given their character, the superior
court could not properly state that such rulings were “final judgments”
under Rule 54(b) or 54(c). Thus, compliance with Rule 54(b) or 54(c) is not
required for the rulings specified in A.R.S. § 12-1873(A) to be appealable.
H. Appeal From The Resolution Of An Action To Review An
Administrative Decision Under A.R.S. § 12-913.
¶23 “The final decision, order, judgment or decree of the superior
court entered in an action to review a decision of an administrative agency
may be appealed to the supreme court.” A.R.S. § 12-913. “Despite this
allowance of an appeal to the ‘supreme court,’ the statute has been
construed as also allowing an appeal to the court of appeals, which was
created after § 12-913 was enacted.” Svendsen v. Ariz. Dep’t of Transp., 234
Ariz. 528, 533 ¶ 13 (App. 2014). This statute authorizes appellate jurisdiction
for “final” decisions, orders, judgments or decrees issued by the superior
court for judicial review of administrative decisions under Arizona’s
Administrative Review Act. A.R.S. §§ 12-901 to -914. Absent compliance
with Rule 54(b) or 54(c), such rulings are not final. Accordingly, absent
compliance with Rule 54(b) or 54(c), a final decision, order, judgment or
decree entered by a superior court in an action to review an administrative
agency’s decision is not appealable under A.R.S. § 12-913.
III. Application To These Consolidated Appeals.
¶24 These consolidated appeals concern various assertions of
appellate jurisdiction under a subsection of A.R.S. § 12-2101(A) other than
(A)(1), or under another statute. None of the orders being appealed in these
cases was entered pursuant to Rule 54(b) or Rule 54(c). Accordingly,
application of the principles discussed above determines whether this court
has appellate jurisdiction in each appeal. See Maria v. Najera, 222 Ariz. 306,
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BRUMETT v. MGA HOME
Opinion of the Court
308 ¶ 9 (App. 2009) (“[W]e must look to the character of the proceedings
which resulted in the order appealed from to ascertain jurisdiction in any
particular case.”) (citation omitted).
¶25 In Brumett v. MGA Home Healthcare, L.L.C., 1 CA-CV 15-0047,
appellants appeal an order granting a motion for new trial, entered after
jury verdict, claiming appellate jurisdiction under A.R.S. § 12-2101(A)(5)(a).
See Carter v. Pain Ctr. of Ariz., P.C., 1 CA-CV 14-0672, WL 2647711, at *2 ¶ 5
(Ariz. App. May 10, 2016) (exercising jurisdiction under A.R.S. § 12-
2101(A)(5)(a) for denial of motion for new trial after jury verdict).
Accordingly, compliance with Rule 54(b) or 54(c) was not required and this
court has appellate jurisdiction.
¶26 In Turley v. Beus, 1 CA-CV 15-0107, appellants appeal an order
denying a motion to compel arbitration, claiming appellate jurisdiction
under A.R.S. § 12-2101.01(A)(1). Accordingly, compliance with Rule 54(b)
or 54(c) was not required and this court has appellate jurisdiction.
¶27 In Boser v. Ware, 1 CA-CV 15-0127, appellant appeals an order
exonerating a bond following entry of a final judgment, claiming appellate
jurisdiction under A.R.S. § 12-2101(A)(2). Accordingly, compliance with
Rule 54(b) or 54(c) was not required and this court has appellate
jurisdiction.
¶28 In Taylor v. Bucks Financial, L.L.C., 1 CA-CV 15-0249,
appellants appeal an order denying their request for a preliminary
injunction, claiming appellate jurisdiction under A.R.S. § 12-2101(A)(5)(b).
Accordingly, compliance with Rule 54(b) or 54(c) was not required and this
court has appellate jurisdiction.
¶29 In Double AA Builders, Ltd. v. Preferred Contractors Insurance
Co., L.L.C., 1 CA-CV 15-0375, appellant appeals an order directing an
accounting, claiming appellate jurisdiction under A.R.S. § 12-2101(A)(6).
Accordingly, compliance with Rule 54(b) or 54(c) was not required and this
court has appellate jurisdiction.
¶30 In Romero v. Hasan, 1 CA-CV 15-0508, appellant appeals an
order dismissing his complaint without prejudice for failure to comply with
A.R.S. § 12-2603, requiring a “preliminary expert opinion affidavit” in a
medical malpractice case, where appellate jurisdiction may exist under
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BRUMETT v. MGA HOME
Opinion of the Court
A.R.S. § 12-2101(A)(3). Accordingly, compliance with Rule 54(b) or 54(c)
was not required and this court has appellate jurisdiction.12
¶31 In Riverbend Homeowners Ass’n v. Edwards, 1 CA-CV 15-0513,
appellant appeals an order for a continuing lien and denial of its request for
attorneys’ fees after entry of a final judgment, where appellate jurisdiction
may exist under A.R.S. § 12-2101(A)(2). Accordingly, compliance with Rule
54(b) or 54(c) was not required and this court has appellate jurisdiction.
¶32 In Bonelli v. Olson, 1 CA-CV 15-0624, appellant appeals an
order denying his Rule 60(c) motion to set aside judgment, claiming
appellate jurisdiction under A.R.S. § 12-2101(A)(2). Because the underlying
judgment, a dismissal without prejudice for failure to timely serve the
defendant, was not a final judgment and did not contain Rule 54(b) or 54(c)
language, the order denying the Rule 60(c) motion is not a special order
made after final judgment, meaning this court lacks appellate jurisdiction
under A.R.S. § 12-2101(A)(2). Ruesga, 215 Ariz. at 593-94 ¶¶ 8-16 (ruling that
because the superior court had not entered a final judgment, its subsequent
order granting relief from judgment could not be considered a special order
made after final judgment for purposes of appellate jurisdiction). Moreover,
the superior court expressly stated that appellant failed to show that his
claims would be barred by the statute of limitations if dismissed without
prejudice for failure to timely serve defendant. Therefore, the underlying
dismissal without prejudice could not be a final judgment. See, e.g., Kool
Radiators, Inc. v. Evans, 229 Ariz. 532, 534 ¶ 8 (App. 2012) (noting dismissal
12 Cf. Gorney v. Meaney, 214 Ariz. 226 (App. 2007) (exercising appellate
jurisdiction over summary judgment ruling dismissing medical malpractice
claim for failing to comply with A.R.S. § 12-2603). Moreover, although
noting A.R.S. § 12-2603(F) mandates dismissal without prejudice, the
superior court stated “[i]t appears that the statute of limitations may have
run. By dismissing this case ‘without prejudice’, the court in no way intends
to suggest that the statute of limitations will not bar plaintiff from
successfully refiling his claim.” Although a dismissal without prejudice is
not appealable when it “is not a final determination of the controversy on
its merits, and is no bar to the prosecution of another suit timely
commenced, founded upon the same cause of action,” State ex rel. Hess v.
Boehringer, 16 Ariz. 48, 51 (1914), where it appears the statute of limitations
for the cause of action has expired, a dismissal without prejudice may be
appealable pursuant to A.R.S. § 12-2101(A)(3), see Garza, 222 Ariz. at 284 ¶
15 (“The classic example of an order falling under § 12–2101[(A)(3)] is a
dismissal without prejudice entered after the statute of limitations has
run.”).
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BRUMETT v. MGA HOME
Opinion of the Court
without prejudice that does not preclude further litigation “is not a final,
appealable order”) (citing cases); McMurray v. Dream Catcher USA, Inc., 220
Ariz. 71, 74 ¶4 (App.2009) (noting dismissal without prejudice, where no
claim was made that “the statute of limitations barred the refiling of any of
the claims,” is “not a final judgment”) (citing cases); see also supra n.12.
Accordingly, this court lacks appellate jurisdiction, continuing the stay and
revesting jurisdiction with the superior court could not result in this court
having appellate jurisdiction and, therefore, the appeal is dismissed.
¶33 In Angelo v. Stewart Title & Trust of Phoenix, Inc., 1 CA-CV 15-
0689, appellants appeal an order denying class certification, claiming
appellate jurisdiction under A.R.S. § 12-2101(A)(1) and A.R.S. § 12-1873(A).
Because the class certification order is independently appealable pursuant
to § 12-1873(A), compliance with Rule 54(b) or 54(c) was not required and
this court has appellate jurisdiction.
¶34 In Erlick v. Davis, 1 CA-CV 15-0728, appellant appeals an order
resolving a probate court petition, where appellate jurisdiction may exist
under A.R.S. § 12-2101(A)(9). Because compliance with Rule 54(b) or 54(c)
was required, but the order does not comply with either procedural rule,
this court lacks appellate jurisdiction. See Madrid, 236 Ariz. at 224 ¶ 11.
Accordingly, the stay in this case is continued and jurisdiction is re-vested
in the superior court to allow it to consider appellant’s application that the
superior court enter an order resolving the petition that complies with Rule
54(c). See ARCAP 3(b).13
¶35 In AEA Federal Credit Union v. Yuma Funding, Inc., 1 CA-CV
15-0753, appellant appeals an order quashing an injunction, claiming
appellate jurisdiction under A.R.S. § 12-2101(A)(5)(b). Accordingly,
compliance with Rule 54(b) or 54(c) was not required and this court has
appellate jurisdiction.
¶36 In ABC Sand and Rock Company, Inc. v. Flood Control District of
Maricopa County, 1 CA-CV 16-0294, appellant appeals the superior court’s
order affirming as modified an administrative agency decision, where
13Although the superior court may have the discretion to certify the order
as a final judgment under Rule 54(b), this court lacks jurisdiction to stay
and remand for consideration of certification under Rule 54(b). See Madrid,
236 Ariz. at 224 ¶ 10 (“[W]here an appeal is taken from a putative Rule 54(b)
judgment and there is a Rule 54(b) deficiency, this court lacks jurisdiction
to suspend the appeal to allow the superior court to consider entering a
Rule 54(b) judgment.”) (citing Pulaski, 127 Ariz. at 218-19).
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BRUMETT v. MGA HOME
Opinion of the Court
appellate jurisdiction may exist under A.R.S. § 12-913. Because compliance
with Rule 54(b) or 54(c) was required, but the order does not comply with
either procedural rule, this court lacks appellate jurisdiction. Madrid, 236
Ariz. at 224 ¶ 11. Accordingly, the stay in this case is continued and
jurisdiction is re-vested in the superior court to allow it to consider
appellant’s application that the superior court enter an order resolving the
petition that complies with Rule 54(c). See ARCAP 3(b).
CONCLUSION
¶37 In accordance with these rulings, by separate orders, the
consolidation of these appeals is now vacated and each separate appeal will
be either reinstated, dismissed or jurisdiction is re-vested in the superior
court.
:jt
25