Hanania v. City of Tucson
| Decision Date | 19 April 1979 |
| Docket Number | No. 2,CA-CIV,2 |
| Parties | Sharon HANANIA, a single woman, for herself, and on behalf of all others similarly situated, Plaintiff/Appellee, v. The CITY OF TUCSON, Arizona, a municipal corporation, the Police Department of the City of Tucson, Arizona, Dorothy O'Neill, in her capacity as Custodian of Records, Police Department of the City of Tucson, Arizona, and James Kay, Jr., in his capacity as Director of Finance for the City of Tucson, Arizona, Defendants/Appellants. 3127. |
| Court | Arizona Court of Appeals |
This is an appeal from an order of the trial court authorizing the maintenance of a class action under Rule 23, 16 A.R.C.P. The court also granted appellee's motion for summary judgment, in her individual capacity, on the issue of liability. 1
The appellee, Hanania, sued the City of Tucson claiming that a fee of $1.00 per page charged by the Tucson Police Department for accident reports was excessive and unlawful. This case has not yet been tried on its merits.
In seeking review of the trial court's order as to the class action, appellants rely on Home Federal Savings & Loan Ass'n v. Pleasants, 23 Ariz.App. 467, 534 P.2d 275 (1975) as authority for its right to appeal. Appellee has moved to dismiss this appeal, contending that neither the order granting class action status nor the order granting summary judgment is appealable. We agree with the appellee.
The right to appeal depends upon the language of the applicable statutes. The appellate court only has such jurisdiction as the legislature has given it. The inquiry therefore is not what is desirable in the way of appellate jurisdiction, but what appellate power has been granted to the court of appeals.
A.R.S. Sec. 12-2101(B) authorizes appeals from final judgments. The only other subsection of the statute that might conceivably be applicable is subsection D, which authorizes an appeal:
"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."
In Home Federal Savings & Loan Ass'n v. Pleasants, supra, we relied on Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir. 1973) and Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). This reliance was misplaced. As has been pointed out in the case of Hellerstein v. Mr. Steak, Inc., 531 F.2d 470 (10th Cir. 1976), cert. den. 429 U.S. 823, 97 S.Ct. 75, 50 L.Ed.2d 85, the order involved in the Eisen cases was more than a mere order that the case proceed as a class action. This led the court in Hellerstein to distinguish the Eisen cases and conclude that an order granting class action status is not appealable as a matter of right. The reasoning in Hellerstein is buttressed by the fact that the Second Circuit, which had decided Eisen, subsequently held in Parkinson v. April Industries, Inc., 520 F.2d 650 (2nd Cir. 1975) that an order granting class action status was not appealable as a matter of right. As far as the federal courts are concerned, the issue was put to rest by the United States Supreme Court in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), wherein it held...
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...order granting a motion to suppress the use of evidence." Because our jurisdiction is limited by statute, Hanania v. City of Tucson, 123 Ariz. 37, 38, 597 P.2d 190, 191 (App.1979), we may only consider the state's appeal if can fairly characterize Bejarano's motion to preclude the state's w......
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