Dean v. Powell

• Decision Date: 09 October 1974
• Docket Number: No. 11653--PR,11653--PR
• Citation: 526 P.2d 1241,111 Ariz. 219
• Parties: Jerry W. DEAN, a minor, by his mother, Leana Dean, and O. L. Dean, his father, Appellants, v. C. S. POWELL and Patricia Ann Anderson, Appellees.
• Court: Arizona Supreme Court

Page 1241

526 P.2d 1241

111 Ariz. 219

Jerry W. DEAN, a minor, by his mother, Leana Dean, and O. L. Dean, his father, Appellants, v. C. S. POWELL and Patricia Ann Anderson, Appellees.

No. 11653--PR.

Supreme Court of Arizona, In Banc.

Oct. 9, 1974.

Rehearing Denied Nov. 13, 1974.

Rees, Mercaldo & Smith, P.C. by Paul G. Rees, Jr., Tucson, for appellants.

Brandt & Engler, by Ralph F. Brandt, Yuma, for appellee Powell.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C. by Ralph E. Hunsaker, Phoenix, for appellee Anderson.

STRUCKMEYER, Justice.

This is an appeal from a judgment entered upon a directed verdict in favor of Charles S. Powell and from an order of the Superior Court dismissing Patricia Ann Anderson as a party defendant in the action. The Court of Appeals, Division One, on June 14, 1974, ordered the appeal as to Anderson dismissed. We accepted review. The order of the Court of Appeals is vacated.

The action out of which this appeal arises was filed in the Superior Court on behalf of Jerry W. Dean, a minor, by his mother and father as a suit for damages for malpractice against Dr. Charles S. Powell and Patricia Ann Anderson, wife of Dr. Walter Anderson, deceased. The Parkview Baptist Hospital, Inc. was joined as a defendant, but the action has been concluded against it without appeal.

Further facts material to this review are:

On September 4, 1970, the trial court entered the order directing that the action be dismissed as to defendant Anderson. This was followed on September 10, 1970 by formal, written, signed judgment of dismissal with prejudice. On September 21, 1973, after three days of trial to a jury and after the plaintiff rested, the court directed a verdict in favor of the defendant Powell. The formal, written judgment was signed and filed the same day. Plaintiff's motion for a new trial, which was directed solely to the Powell judgment, was denied on November 19, 1973. On December 12, 1973, plaintiff filed a notice of appeal entitled 'Jerry W. Dean, a minor, by his mother, Leana Dean, and O. L. Dean, father, plaintiffs, vs. C. S. Powell and Patricia Ann Anderson, defendants.' The appeal was from the Powell judgment entered on the 21st day of September 1973, from the order of November 19, 1973 denying plaintiff's motion for a new trial and from the September 4, 1970 order dismissing the action as to Patricia Ann Anderson.

In the Court of Appeals, Anderson filed a motion to dismiss the appeal. A majority of the judges in Division One, being of the opinion that the motion for a new trial directed to the Powell judgment did not extend the time to appeal the Anderson order, the appeal was ordered dismissed as to her. We accepted review to examine the question of the propriety of the Dean appeal as it relates to the Anderson dismissal.

By Rule 54(b), Rules of Civil Procedure, 16 A.R.S., when more than one claim for relief is presented in an action or when multiple parties are involved, as here, the court may direct the entry of final judgment as to one or more of the claims or parties only 'upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.' In the absence of such determination and direction, any order 'or other form of decision, however designated' shall not terminate the action as to a claim or a party and the order or other form of decision is subject to revision at any time before the entry of a judgment finally adjudicating all the rights and liabilities of all the parties.

Under an identical rule to Arizona's, the federal courts have held that the dismissal of an action as to a co-defendant is not a final decision so as to be appealable unless the dismissal contains a determination that there was no just reason for delay. See, e.g., Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (1970); Rinker v. Local Union #24 of Amalgamated Lithographers of America, 313 F.2d 956 (1963). The Court of Appeals has held in Edler v. Edler, 9 Ariz.App. 140, 449 P.2d 977 (1969) and Cordoba v. Wiswall, 5 Ariz.App. 265, 425 P.2d 576 (1967), that the express determination must be made before a dismissal becomes final and is appealable.

In this case, since the court did not make an express determination of no just reason for delay, the order of dismissal as to Patricia Ann Anderson as well as the subsequent...