Eaton v. Unified School Dist. No. 1 of Pima County

• Decision Date: 04 January 1979
• Docket Number: No. 1,D,Nos. 1,No. 1 and W,No. 16,W,CA-CIV,16,1 and W,1,s. 1
• Citation: 595 P.2d 183,122 Ariz. 391
• Parties: Richard Leo EATON, a minor by his parents and next friends, Dale G. Eaton and Janice Eaton, Alicia Sesma, a minor by her parents and next friends, Ray Sesma and Stella Sesma, and the Arizona Association For Retarded Citizens, Inc., Individually and on behalf of all others similarly situated, Plaintiffs- Appellees, v. UNIFIED SCHOOL DISTRICT NO. 1 OF PIMA COUNTY, Arizona, Mohave Valley Elementary School Districtinslow School Districtinslow High School Districtefendants-Appellants. 4196, 1 4272.
• Court: Arizona Court of Appeals

Page 183

595 P.2d 183

122 Ariz. 391

Richard Leo EATON, a minor by his parents and next friends, Dale G. Eaton and Janice Eaton, Alicia Sesma, a minor by her parents and next friends, Ray Sesma and Stella Sesma, and the Arizona Association For Retarded Citizens, Inc., Individually and on behalf of all others similarly situated, Plaintiffs- Appellees, v. UNIFIED SCHOOL DISTRICT NO. 1 OF PIMA COUNTY, Arizona, Mohave Valley Elementary School District No. 16, Winslow School District No. 1 and Winslow High School District No. 1, Defendants-Appellants.

Nos. 1 CA-CIV 4196, 1 CA-CIV 4272.

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

Jan. 4, 1979.

Rehearing Denied Feb. 2, 1979.

Review Granted Feb. 21, 1979.

Venable, Rice, Lee & Capra by Gilbert T. Venable, Phoenix, for plaintiffs-appellees

DeConcini, McDonald, Brammar & Yetwin by Richard M. Yetwin, Tucson, for Unified School Dist. No. 1.

Bruno & Weisberg, P. C., by Sheldon H. Weisberg, Kingman, for Mohave Valley Elementary School Dist. No. 16.

Jay V. Flake, Navajo County Atty., Holbrook, by Warner G. Leppin, Deputy County Atty., Winslow, for Winslow School Dist. No. 1 and Winslow High Sch. Dist. No. 1.

OPINION

HAIRE, Presiding Judge.

The appellant/defendant school districts have appealed from an order entered by the trial court denying their motions to de-certify the defendant class previously certified by the trial court pursuant to the provisions of Rule 23, Arizona Rules of Civil Procedure. The appellees have moved to dismiss the appeals, alleging that they are from an interlocutory order that does not meet the finality requirements of A.R.S. § 12-2101, and that the interlocutory order is not otherwise made appealable under Arizona law.

In their response to the motion to dismiss, the appellants rely upon the provisions of A.R.S. § 12-2101 D, Division Two's decision in Home Federal Savings & Loan Association v. Pleasants, 23 Ariz.App. 467, 534 P.2d 275 (1975), and various federal decisions involving questions concerning the appealability of orders relating to class certification under the analogous federal rule, Rule 23, Federal Rules of Civil Procedure.

In Arizona the Court of Appeals derives its appellate jurisdiction wholly from statutory provisions. See Arizona Constitution Art. 6, § 9. Apart from certain special statutes not pertinent here, ¹ the appellate jurisdiction of the Court of Appeals and the types of judgments and orders from which appeals may be taken are set forth in A.R.S. § 12-2101. By far the largest category of appealable judgments and orders are those classified as "final judgments", made appealable pursuant to A.R.S. § 12-2101 B. In our opinion, no argument can be made that the order here involved was final in the sense in which that term is used in A.R.S. § 12-2101 B. The order did not finally dispose of the case, leaving no question open for judicial determination. See Properties Investment Enterprises, Ltd. v. Foundation for Airborne Relief, Inc., 115 Ariz. 52, 563 P.2d 307 (App.1977). In fact, it cannot even be said that the order finally disposed of the only issue with which it was concerned class certification. Rule 23(c)(1), Ariz.R.Civ.P., expressly provides that such an order "may be altered or amended before the decision on the merits." ²

In their response to the motion to dismiss, appellants state that the order is appealable pursuant to A.R.S. § 12-2101 D, which allows an appeal to be taken from "any 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." Appellants do not attempt to explain how this subsection can be applied to the order here involved. We are aware that the Arizona Supreme Court in Reader v. Magma-Superior Copper Co., 108 Ariz. 186, 494 P.2d 708 (1972), held that an order Refusing to allow the plaintiffs to maintain an action as a class action was appealable. Applying the language of A.R.S. § 12-2101 D, the court in Reader noted that the trial court's order affected "a substantial right of the appellants", and "as a practical reality (foreclosed) the appellants from pursuing their action further", thus in effect determining the action and preventing a judgment from which an appeal might be taken. Appellants do not explain how such reasoning could be applicable to an order that rather than denying class certification, allows an action to be maintained as a class action. We do not perceive any logical basis for applying A.R.S. § 12-2101 D to the kind of order now before this Court.

The appellants and the appellees have devoted considerable attention in their memoranda to federal court decisions relating to the right to appeal from class certification orders entered in the federal district courts. While the federal decisions cited by the parties can best be described as conflicting, suffice it to say that some of the cited decisions do allow appeals from orders relating to class certification under Federal Rule 23, applying a very liberal interpretation of the "final decision" language of the governing federal appeals statute, 28 U.S.C. § 1291. The doctrines developed through these decisions are usually described as the "death knell" theory, the "reverse death knell" theory or the "collateral order" doctrine. In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the United States Supreme Court considered the conflicting decisions of the federal circuit courts, and rejected the various doctrines which had been relied upon by some of the circuits so as to treat class certification orders as "final decisions", appealable of right pursuant to 28 U.S.C. § 1291. ³ While the attempted appeal in Coopers & Lybrand, Supra, involved a trial court order determining that the action could not be maintained as a class action, and thus is to that extent distinguishable from the order presented before this Court, ⁴ the reasoning of the United States Supreme Court is equally applicable to any trial court order relating to class certification pursuant to Rule 23. The fiction of "finality" previously indulged in by the various circuit courts was simply swept aside, and the United States Supreme Court indicated that any appellate review of orders relating to class certification which might be available in the future was to be sought under the discretionary procedure for interlocutory appeals provided in 28 U.S.C. § 1292(b). ⁵ We now consider appellant's reliance upon Home Federal Savings & Loan Association v. Pleasants, supra. That case involved an appeal by the defendant from a superior court order permitting maintenance of the suit as a class action. After considering and ruling on the merits of the trial court's class certification order, Division Two of this Court concluded its opinion with the following footnote:

"Appellee has posed a challenge to the appealability of the subject order which we reject. See Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir. 1973); also see United States Supreme Court decision in Eisen, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)." 23 Ariz.App. at 470, 534 P.2d at 278.

The above-quoted footnote constitutes the court's entire discussion of the timely-raised challenge to its jurisdiction. The court did not cite or discuss the provisions of any Arizona statute governing its appellate jurisdiction. Rather, reliance was placed upon the cited federal decisions, without...