Musa v. Adrian
| Decision Date | 23 December 1980 |
| Docket Number | CA-CIV,I-X,No. 1,1 |
| Citation | 636 P.2d 104,130 Ariz. 326 |
| Parties | John MUSA and Virginia Musa, husband and wife, Plaintiffs-Appellants, v. C. K. ADRIAN, M.D., and Jane Doe Adrian, his wife, if married; Mary Doe(s) Adrian, subsequent spouse(s) of C. K. Adrian, M.D., if any; Adrian Medical Partners; Spouses of Adrian Medical Partners; Adrian Medical Partnership; Adrian Medical Corporations; Scottsdale Memorial Hospital, an Arizona Corporation, Defendants-Appellees. 4434. |
| Court | Arizona Court of Appeals |
The appellants have appealed from a "Partial Final Judgment" granted appellees on April 24, 1978, pursuant to Rules 56(c) and 56(d) 1, Rules of Civil Procedure, 16 A.R.S. The judgment includes Rule 54(b) 2 id. language that there is no just reason for delay in the entry of judgment.
The trial court made findings of fact and conclusions of law in support of the partial summary judgment as follows:
FINDINGS OF FACTS
1. The plaintiffs' (appellants) cause of action arose on August 12-16, 1975.
2. The Medical Malpractice Act, A.R.S. §§ 12-561 et seq. was effective February 26, 1976.
3. Plaintiffs filed suit on August 12, 1977.
1. The Medical Malpractice Act, A.R.S. §§ 12-561 et seq. is applicable to plaintiffs' cause of action. Specifically:
a. The action will be submitted to a Medical Liability Review Panel pursuant to A.R.S. § 12-567 and the Panel's decision is admissible and parties may comment thereon at trial (A.R.S. § 12-567(M)).
b. Evidence may be introduced at trial regarding the collateral benefits received by the plaintiffs pursuant to A.R.S. § 12-565.
c. That the appropriate standard of care, in this action, is the standard of care outlined in A.R.S. § 12-563(1).
2. That defendants (appellees) are granted summary judgment on that portion of paragraph 11 of plaintiffs' complaint which alleges claims for assault and battery, oral contract, and lack of informed consent, these claims being prohibited by A.R.S. §§ 12-562(B), 12-562(C), 12-561(2).
The facts found by the court are not disputed.
Paragraph 11 of the appellants' complaint, referred to in the Conclusions of Law, reads:
The conduct of Dr. Adrian, on behalf of himself and the other Adrian-related Defendants, constituted medical negligence, battery, breach of contract for medical treatment without such untoward complications, and created a condition through improper medical and surgical care and treatment which itself justifies a finding of negligence, through operation of the doctrine of res ipsa loquitur, and Dr. Adrian further failed to secure the informed consent of the Musas relative to the procedure in question, misrepresenting his competence and ability as a surgeon and failing to adequately warn and to disclose the risks of harm to which the Musas subjected themselves at the hands of Dr. Adrian. Appropriate exemplary damages should be assessed against all Defendants.
The trial court ordered judgment as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the plaintiffs' (appellants) motion for summary judgment is denied and that defendants (appellees), C. K. Adrian, M.D., et al., have partial final judgment against the plaintiffs to the effect that the 1976 Arizona Medical Malpractice Act is applicable to plaintiffs' action in this cause, specifically as to the provision of said Act pertaining to the Medical Review Panel, collateral sources, standard of care, assault and battery, oral contract, and lack of informed consent, all as herein provided.
The judgment was signed by the judge and filed.
Thus, from the above, it is clear that the partial "final" judgment is an interlocutory one as it did not dispose of all of appellants' claims. The question then is whether we have the necessary jurisdiction to entertain an appeal from such a judgment. None of the parties has raised this jurisdictional question; however, we have the obligation to determine our own jurisdiction in each case. Rueda v. Galvez, 94 Ariz. 131, 382 P.2d 239; Matter of Appeal In Maricopa County, Juvenile Action Nos. J-86384 and JS-2605, 122 Ariz. 238, 594 P.2d 104 (App.1979).
Our jurisdiction to hear an interlocutory partial summary judgment is governed by A.R.S. § 12-2101(G). It authorizes an appeal from an interlocutory judgment which "determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery." The partial "final" judgment sub judice does neither of these things. The judgment merely requires that appellants comply with the provisions of the Medical Malpractice Act, A.R.S. § 12-561 et seq., prior to filing their complaint. In Cook v. Cook, 26 Ariz.App. 163, 547 P.2d 15 (1976), we held that a partial summary judgment on the question of liability in favor of the plaintiff was appealable if signed by the judge, and if it contained an express Rule 54(b), footnote 2, determination. No such substantial issue determining the rights of the parties was settled by the above partial "final" judgment. See Kelman v. Bohi, 27 Ariz.App. 24, 550 P.2d 671 (1976).
In our opinion the partial "final" judgment sub judice is not an appealable final judgment within the requirements of A.R.S. § 12-2101(G). This appeal is therefore dismissed and the matter remanded to the trial court for further proceedings.
I agree that this is not an appealable final judgment and that this court lacks jurisdiction to determine the merits of the issues raised in this appeal. I base my decision upon a different approach and have therefore filed this concurring opinion:
Unless a judgment is substantively appealable as a final judgment pursuant to A.R.S. § 12-2101(B), or is made appealable pursuant to some other statute, it cannot be made appealable by the addition of rule 54(b) language. This is one of the important holdings in Cook v. Cook, 26 Ariz.App. 163, 547 P.2d 15 (1976). There, the trial court rendered a partial summary judgment in favor of the plaintiffs on the issue of liability. Rule 54(b) language was included in the summary judgment. This court noted that the partial summary judgment was not appealable as a final judgment pursuant to A.R.S. § 12-2101(B), but that the appeal could be sustained as one from an "interlocutory judgment which determines the rights of the parties and directs an accounting or other proceeding to determine the amount of recovery" pursuant to § 12-2101(G). The inclusion of 54(b) language in such a situation was viewed as a sufficient indication that the "interlocutory" judgment was the final determination of the trial court so as to make review by appeal appropriate. This court in Cook noted however that the trial court should exercise its sound discretion in rule 54(b) certifications in order to avoid hardship, delay and unnecessary appeals.
It is clear that on occasion a trial judge may abuse his discretion in using rule 54(b) language. In Pulaski v. Perkins, 127 Ariz. 216, 619 P.2d 488 (1980), this court found that the trial court abused its discretion in including rule 54(b) language in its judgment, and refused to accept jurisdiction of an appeal. This court noted: "54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel." In the present case, the trial judge abused his discretion in the use of rule 54(b). There are three requirements for the entry of a final judgment by the trial court under rule 54(b): (1) there must be more than one claim for relief or more than one party against whom relief is sought; (2) there must be an express determination in the judgment that there is no just reason for delay; and (3) there must be an express direction for the entry of the judgment. Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 365 P.2d 208 (1961). Since requirements (2) and (3) have been met in this case, we must consider requirement (1).
The line between deciding one of several claims and deciding only part of a claim is often obscure. The United States Supreme Court has stated in the context of rule 54(b) that a complaint asserting only one "legal right" is a single claim, even though it asserts multiple remedies. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). (Court held that a complaint that alleged employer's insurance benefits and maternity leave regulations discriminated against women employees and sought injunctive relief, damages, costs and attorneys' fees constituted a single claim).
The Arizona Supreme Court has stated that for purposes of rule 54(b), multiple claims exist "if the factual basis for recovery states a number of different claims that could have been separately enforced." Title Ins. Co. of Minn. v. Acumen Trading Co., 121 Ariz. 525, 591 P.2d 1302 (1979). (Award of attorney fees under statute was "inextricably" tied to granting of motion for summary judgment, thus constituting only one claim).
C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2657 (1973) attempts to provide a workable distinction between multiple claims and a single claim:
A single claimant presents multiple claims for relief ... when his possible recoveries are more than one in number and not mutually exclusive or, stated another way, when the facts give rise to more than one legal right or cause of action.... However, when a claimant presents a number of legal theories, but will be permitted to recover only on one of them, his bases for recovery are mutually exclusive, or...
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