Golembieski v. O'Rielly R.V. Center, Inc.
| Decision Date | 11 July 1985 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 708 P.2d 1325,147 Ariz. 134 |
| Court | Arizona Court of Appeals |
| Parties | , 42 UCC Rep.Serv. 1662 Jerome B. GOLEMBIESKI & Barbara Golembieski, husband and wife, Plaintiffs/Appellants, v. O'RIELLY R.V. CENTER, INC., Defendant/Appellee. 5193. |
This is a consumer complaint involving the purchase of a motor home by appellants (Golembieski) from appellee (O'Rielly). Golembieskis named as defendants in their lawsuit O'Rielly, Cobra Industries, Inc. (Cobra) and Chevrolet Motor Division--General Motors Corporation (GMC). Golembieskis alleged that the vehicle and equipment were manufactured by GMC and Cobra and then sold to and by the dealer O'Rielly. They sought rescission of the purchase agreement and the return of all monies paid. In the alternative, they alleged breach of warranty and breach of contract and sought general and special damages. They also alleged revocation of their acceptance of the contract of sale and of the vehicle and equipment sold and tendered redelivery. In addition, they alleged willful, wanton and reckless failure of the defendants to fulfill their duty and prayed for punitive damages.
Appellants raise several issues for consideration on appeal. Before we review them, we will first address a motion included in appellee O'Rielly's answering brief to dismiss the appeal for failure to join GMC as a necessary party. The judgment appealed from was in favor of O'Rielly, Cobra, and GMC. The notice of appeal filed in superior court bore the caption "Jerome B. Golembieski, et ux., Plaintiffs, vs. O'Rielly R.V. Center, Inc. et al., Defendants." Superior Court, on May 8, 1984, advised attorneys for O'Rielly, Cobra, and GMC that the notice of appeal had been filed and that the record was due at the Court of Appeals on June 18, 1984.
In the meantime, on June 8, 1984, a stipulation and notice of dismissal with prejudice as to defendant GMC only, drawn up by its local attorney and signed by him and the Golembieskis' attorney, was filed in Superior Court. The clerk's file at the Court of Appeals indicates that Superior Court sent copies to all parties of its cover letter transmitting the record to the Court of Appeals and that the Court of Appeals requested all parties to the appeal to agree upon the proper caption for the appeal. This correspondence continued to include notice to local attorneys for Golembieskis, O'Rielly, Cobra, and GMC, even though GMC had been dismissed with prejudice and Cobra's attorney had been granted his motion to withdraw on the first day of trial. There is no record of any new representation for Cobra during or after trial or on appeal. The motion to withdraw as counsel for Cobra indicates a copy was sent to Cobra Industries in Canada prior to trial. Neither Cobra nor O'Rielly objected to the dismissal of GMC at the time of dismissal, nor does O'Rielly complain on appeal about the omission of Cobra as an appellee, notwithstanding that Cobra and GMC were both named cross-defendants by O'Rielly in the trial court. The judgment in favor of all defendants found all of O'Rielly's cross-claims moot.
Appellee O'Rielly asks us to dismiss the appeal for lack of jurisdiction, arguing that an appeal which fails to include a necessary party must be dismissed. In re Gilbert's Estate, 50 Ariz. 1, 68 P.2d 673 (1937); Burrows v. Taylor, 129 Ariz. 212, 630 P.2d 35 (App.1981). A necessary party is a party to the record below directly affected by a ruling on the merits of the appeal and should be made a party to the appeal to prevent piecemeal litigation. 4 Am.Jur.2d Appeal & Error § 391 (1957). The modern trend is to de-emphasize technical procedural aspects of appeals and to reach a decision on the merits where possible. State Personnel Commission v. Howard, 420 A.2d 135 (Del.1980). We believe Arizona has endorsed this approach, cf. Hanen v. Willis, 102 Ariz. 6, 423 P.2d 95 (1967), and Rule 8(a), Rules of Civil Appellate Procedure, 17A A.R.S. which provides: "Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is a ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal."
In keeping with the policy favoring disposition of appeals on the merits, we approve of the guidelines followed in State Personnel Commission v. Howard, supra. (1) Appeals will not be dismissed unless the omission substantially prejudices a party in interest, and (2) the burden is appellant's to establish the absence of substantial prejudice.
Accordingly, the focus is directed to determining whether all parties to the litigation who would be directly affected by an appellate determination have had an adequate opportunity to come in and protect their interests in the appellate court. State Personnel Commission v. Howard, supra. This consideration boils down, of course, to a matter of notice. Were all parties given adequate notice of the appeal so that they could join in the appeal if they were not already included? The test is met in the instant case. GMC's local attorney submitted on his own stationery the stipulation and notice of dismissal, to which he was a signatory, for filing in Superior Court. GMC not only had notice of non-inclusion, it chose non-inclusion.
The emphasis of case law dealing with necessary parties on appeal is upon the omitted party and his interests. Dunn v. Law Offices of Ramon R. Alvarez, 119 Ariz. 437, 581 P.2d 282 (App.1978). Procedural game-playing must take a back seat to substance and to the goal of deciding appeals on their merits when the parties in interest have been afforded fundamental fairness. Any party aggrieved by the judgment can appeal. Rule 1, Rules of...
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...v. NLRB, 414 U.S. 168, 94 S. Ct. 414, 38 L. Ed. 2d 388 (1973)............................ 1-75 Golembieski v. O’Rielly R.V. Ctr., Inc., 147 Ariz. 134, 708 P.2d 1325 (Ct. App. 1985).................................. 6-31 Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L.......
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...in interest. The burden is on the appellant to establish absence of substantial prejudice. See Golembieski v. O’Rielly R.V. Ctr., Inc., 147 Ariz. 134, 136, 708 P.2d 1325, 1327 (App. 1985). Persons who complain to a board of adjustment or otherwise participate in its hearings are not necessa......
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§ 3.3.3.3 Necessary Parties.
...in interest. The burden is on the appellant to establish absence of substantial prejudice. See Golembieski v. O’Rielly R.V. Ctr., Inc., 147 Ariz. 134, 136, 708 P.2d 1325, 1327 (App. 1985). Persons who complain to a board of adjustment or otherwise participate in its hearings are not necessa......
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