Cook v. Cook

• Decision Date: 18 March 1976
• Docket Number: No. 1,CA-CIV,1
• Citation: 547 P.2d 15,26 Ariz.App. 163
• Parties: Raymond COOK and Maxine Cook, husband and wife, Appellants, v. William COOK, a minor, by his guardian ad litem, Richard Cook, Appellee. 2755.
• Court: Arizona Court of Appeals

Page 15

547 P.2d 15

26 Ariz.App. 163

Raymond COOK and Maxine Cook, husband and wife, Appellants, v. William COOK, a minor, by his guardian ad litem, Richard Cook, Appellee.

No. 1 CA-CIV 2755.

Court of Appeals of Arizona, Division 1, Department B.

March 18, 1976.

Rehearing Denied April 22, 1976.

Review Denied May 18, 1976.

Jennings, Strouss & Salmon by Stephen A. Myers, Gary G. Keltner, Phoenix, for appellants

Strong & Pugh by William K. Strong, Phoenix, for appellee.

OPINION

SCHROEDER, Judge.

This is an appeal from a partial summary judgment in favor of the plaintiff on the issue of liability in a negligence action. It presents a threshold question as to the appealability of such an interlocutory judgment under A.R.S. § 12--2101(G).

The case arises out of a motor vehicle accident in which the appellee, William Cook, the plaintiff below, was injured. At the time of the accident, plaintiff was a passenger in a vehicle driven by his grandfather, appellant Raymond Cook, and the accident occurred when Raymond Cook's vehicle collided in an intersection with a vehicle driven by Stan Naisbitt. Appellee William Cook sued appellants Raymond Cook, his wife, and Naisbitt for negligence.

Appellee, based upon the deposition of appellant Raymond Cook, moved for partial summary judgment against defendants Cook on liability. This motion was granted, and the trial court in a signed written 'judgment' also made express findings, pursuant to Rule 54(b) of the Arizona Rules of Civil Procedure, directing that judgment be entered and determining that there appeared no just reason for delay in entering the judgment. ¹

Appellants have appealed the granting of the partial summary judgment. Following filing of briefs on the merits on the appeal, appellee moved to dismiss the appeal for lack of jurisdiction. Appellee argues that this partial summary judgment on liability is merely an interlocutory order and is not appealable because it does not dispose of the entire claim of the plaintiff against the defendants Cook. There remains the issue of damages.

We agree with the appellee that the judgment here cannot be considered a final judgment as to the Cooks, since it settles only the question of liability and not the amount of damages. We also agree that the insertion of 54(b) determinations in an order which was otherwise substantively underappealable under our law cannot make the order appealable. The question then becomes whether, under Arizona law, a partial summary judgment in favor of a plaintiff on liability can be an appealable order.

Generally, the law in Arizona and throughout the United States favors limiting the right of appeal to review of final decisions and not of interlocutory orders. Our Arizona Supreme Court has stated the general rule that a 'judgment or decree is not final which settles the cause as to a part only of the defendants' and has stated that the purpose of partial summary judgment is to eliminate issues, but not to create delay and waste by necessitating piecemeal appeals. Ingalls v. Neidlinger, 70 Ariz. 40, 44, 216 P.2d 387, 389 (1950).

Our appeals statute, A.R.S. § 12--2101, however, has certain exceptions to that general rule. One of those exceptions is contained in A.R.S. § 12--2101(G) which provides that an appeal may be taken '(f)rom an interlocutory judgment which determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery.' (Emphasis added). The issue here is whether this partial summary judgment entered against defendants Cook is such an appealable interlocutory judgment.

A.R.S. § 12--2101(G) has not had an extensive history in the Arizona appellate courts, and we are aware of no decisions in other jurisdictions construing a similar statute. In Bolon v. Pennington, 3 Ariz.App. 433, 415 P.2d 148 (1966), Division 2 of this court held that an order setting aside a default and ordering an accounting was not appealable because it did not decide the merits of the controversy and, therefore, did not determine the 'rights of the parties.' Tucson Telco Federal Credit Union v. Bowser, 6 Ariz.App. 10, 429 P.2d 502, opn. supp., rehearing denied, 6 Ariz.App. 190, 431 P.2d 85 (1967), also decided by Division 2, involved an alleged wrongful repossession of an automobile. Partial summary judgment had been entered for the plaintiff determining that there had been a wrongful repossession. The defendant appealed before there had been any determination of damages. The Court, in its supplemental opinion, held that that partial summary judgment did not fall within A.R.S. § 12--2102(G). Its holding rested upon the fact that a claim for punitive damages was involved, and, therefore, unresolved questions remained as to the nature of the conduct of the defendant.

After Telco, Division 2 decided Cardova v. City of Tucson, 15 Ariz.App. 469, 489 P.2d 727 (1971). That was a condemnation case in which the trial court had entered a judgment that the city was entitled to take the properly, and that the only remaining issue was the amount of compensation. The Court dismissed the appeal holding that condemnation orders are not appealable, and that in condemnation cases an appeal must await final judgment. The holding in Cordova was approved by our Supreme Court in Rogers v. Salt River Project Agricultural Improvement & Power Dist., 110 Ariz. 279, 517 P.2d 1275 (1974), a case similarly holding on general condemnation law principles that a condemnation order is not appealable. ²

These Arizona cases do not deal directly with appealability under A.R.S. § 12--2101(G) after a favorable liability determination for the plaintiff in a bifurcated trial or, as here, partial summary judgment for plaintiff in a negligence action. Appellant urges that the plain language of the statute makes this signed partial summary judgment on liability appealable, since the statute provides for interlocutory appeal where there has been a judgment which 'determines the rights of the parties and directs an accounting or other proceeding to determine the amount of recovery.'

Appellee, however, in his motion to dismiss the appeal, would strictly limit the type of actions to which that language applies to those cases in which there remain only equitable proceedings to determine the amount of recovery. He argues that it should not apply where, as here, there is a remaining trial for damages. Appellee asks us to apply the Ejusdem generis rule to limit the type of proceedings in which appeals should be allowed.

We cannot accept the narrow interpretation which appellee urges. In the first place, we are unable to identify any substantial number of a traditionally equitable proceedings for determining recovery apart from an accounting. Secondly, A.R.S. § 12--2101 separately provides for interlocutory appeal in other selected types of traditionally equitable remedies. See A.R.S. § 12--2101(F)(2) (injunctions) and § 12--2101(H) (partitions). Finally, in view of the abolition of separate courts of equity and law and the abolition of distinctions between law and equity in the Rules of Civil Procedure, this statute should not be construed on the basis of historical considerations which are becoming increasingly outmoded. In Arizona, the movement to abolish artificial distinctions between law and equity has roots which antedate statehood:

'As we have no courts of equity nor of law in this territory, and as the legislature has for a long time strenuously sought to abolish the distinction in procedure between 'equity' and 'law,' the courts and the bar should dismiss from their minds the idea of 'suits in equity' or 'actions at law,' so far as they tend to preserve that distinction. Our statute denominates all proceedings in courts of justice whereby a civil remedy for a wrong is sought, except in some special proceedings, civil suits. The courts and bar have clung so tenaciously to the observance of the distinction that in many instances the plain administration of justice has been thwarted.' Rees v. Rhodes, 3 Ariz. 235, 237, 73 P. 446 (1890).

Moreover, appellate review may be highly desirable in some interlocutory liability determinations, as for example in cases where a serious question exists as to liability, and a lengthy and possibly unnecessary trial of damages might be averted by interlocutory review. We note also that Arizona, unlike the federal court system, has no statutory provision permitting the trial court to certify questions in civil cases to the appellate court for interlocutory appellate review. See 28 U.S.C. § 1292(b). ³

Nevertheless, we are unable to adopt the full force of the appellant's position here, which would be to permit an appeal from every signed order of partial summary judgment on liability. We believe that such a result would be contrary to the spirit of our court's holdings in Telco, supra, and Rogers, supra, and contrary to the general policy of avoiding piecemeal appeals as enunciated in Ingalls v. Neidlinger, supra. We doubt that an ordinary partial summary judgment on liability in and of itself, without some indication of finality on the liability issue, should be considered a judgment 'determining the rights of the parties', within the meaning of A.R.S. § 12--2101(G). This is because the court retains jurisdiction to modify any interlocutory order at any time prior to final judgment. See Coffman v. Federal Laboratories, Inc., 171 F.2d 94, 98 (3rd Cir. 1948), cert. denied 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949); Gerstle v. Gamble-Skogmo, Inc., 298 F.Supp. 66 (E.D.N.Y.1969); Wright and Miller, Federal Practice & Procedure, Civil § 2737, pp. 680--81.

In addition, we wish to avoid the possible uncertainty which might flow from such a broad holding. We should not encourage filing of premature appeals where there is a serious question as to whether there has been an interlocutory 'determination of the rights of the parties' or whether the only...