Musa v. Adrian, I-X

CourtSupreme Court of Arizona
Writing for the CourtSTRUCKMEYER
Citation130 Ariz. 311,636 P.2d 89
Decision Date06 October 1981
Docket NumberNo. 15316-PR,I-X
PartiesJohn MUSA and Virginia Musa, husband and wife, 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, Appellees.

Page 89

636 P.2d 89
130 Ariz. 311
John MUSA and Virginia Musa, husband and wife, 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 I-X; Spouses of Adrian Medical Partners I-X; Adrian Medical Partnership; Adrian Medical Corporations I-X; Scottsdale Memorial Hospital, an Arizona corporation, Appellees.
No. 15316-PR.
Supreme Court of Arizona, In Banc.
Oct. 6, 1981.
Rehearing Denied Nov. 17, 1981.

G. David Gage, Phoenix, for appellants.

Renaud, Cook & Videan by William R. Mettler, Jr., Phoenix, for appellee Scottsdale Memorial Hospital.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by M. E. Rake, Jr., P. Michael Whipple, Leslie Hall, Phoenix, for appellee C. K. Adrian, M. D.

[130 Ariz. 312]

Page 90

STRUCKMEYER, Chief Justice.

This appeal by John and Virginia Musa was dismissed in the Court of Appeals, one judge dissenting, see Musa v. Adrian, --- Ariz. ---, 636 P.2d 104 (App.1980). This Court accepted review to settle the jurisdiction question. We also conclude the appeal should be dismissed.

Appellants filed an action for damages against C. K. Adrian, M. D., his wife, his partners, and Scottsdale Memorial Hospital, which sounded essentially in medical malpractice. They alleged that on August 12, 1975, appellant John Musa was taken to the emergency room of Scottsdale Memorial Hospital suffering from acute abdominal pain, and that Dr. Adrian surgically removed a healthy gall bladder, although appellant was suffering from a ruptured appendix. Appellants complained that the conduct of Dr. Adrian constituted medical negligence, battery and breach of contract for medical treatment and that Dr. Adrian failed to secure the informed consent of the Musas to the procedure, 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. Appellants also alleged that the hospital knew or should have known of Dr. Adrian's incompetence and his substandard medical practices, and should have refused or restricted his surgical privileges or removed him from the medical staff.

The Arizona Medical Malpractice Act, A.R.S. § 12-561, et seq. (Laws of 1976, 1st S.S., Ch. 1, § 4, effective February 27, 1976), provides that the only grounds for actions of medical malpractice are negligence, misconduct, errors or omissions, breach of a written contract, and lack of express or implied consent. See § 12-561(2). The Musa cause of action accrued prior to the effective date of the Act, although the complaint was filed afterward. An issue therefore arose in the trial court as to whether the Act applied to the Musas' claim for relief. Appellants argued that the Act could not constitutionally apply, and they moved for partial summary judgment, asking the Superior Court to hold that the Act did not apply to them. Appellees filed a cross-motion for summary judgment, requesting dismissal of appellants' theories of battery, lack of informed consent and breach of oral contract.

The trial court ruled the Act applied, denied appellants' motion, and ordered a summary judgment favorable to appellees on the issues of battery, lack of informed consent and breach of oral contract. The court, pursuant to Rule 54(b), Arizona Rules of Civil Procedure, at appellants' request found no just reason for delay and ordered entry of judgment. From that judgment this appeal was taken. The Court of Appeals in a written opinion dismissed on its own motion, assigning as grounds that it lacked jurisdiction.

It must be conceded at the onset that absent a pertinent provision in the Arizona Constitution, the right of appeal exists only by statute. If there is no statute which provides that a judgment or order is appealable, the appellate courts of this state do not have jurisdiction to consider the merits of the question raised on appeal. County of Pima v. State Dept. of Revenue, Etc., 114 Ariz. 275, 277, 560 P.2d 793 (1977). Even though the parties do not raise the issue, the appellate court must determine that it has jurisdiction. Rueda v. Galvez, 94 Ariz. 131, 132, 382 P.2d 239 (1963).

In Arizona, with certain exceptions, jurisdiction of appeals is limited to final judgments which dispose of all claims and all parties. Public policy is against deciding cases piecemeal. See Moynahan v. Fritz, 90 Ariz. 144, 147, 367 P.2d 199 (1961); Ingalls v. Neidlinger, 70 Ariz. 40, 44-45, 216 P.2d 387 (1950); Beavers v. Beavers, 55 Ariz. 122, 99 P.2d 95 (1940); Marshall v. Williams, 128 Ariz. 511, 627 P.2d 242 (App.1981). The rule against piecemeal appeals recognizes that an appellant may ultimately prevail on the complete action, rendering interlocutory appellate determinations unnecessary. Moynahan v. Fritz, supra; Marshall v. Williams, supra; see 6 Moore's Federal Practice, P...

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111 practice notes
  • Grand v. Nacchio, No. 2 CA-CV 2006-0033.
    • United States
    • Court of Appeals of Arizona
    • November 24, 2006
    ...(same). ¶ 16 Section 12-2101 and its federal counterpart protect the public policy "against deciding cases piecemeal." Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981); see Barry, 168 F.3d at 13 ("[E]xercising jurisdiction here `would undermine the policies of judicial efficiency,......
  • Stafford v. Burns, No. 1 CA–CV 15–0476
    • United States
    • Court of Appeals of Arizona
    • November 29, 2016
    ...jurisdiction is generally limited to issues arising from final judgments disposing of all claims and all parties. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). A notice of appeal filed before entry of a signed final judgment or resolution of a time-extending motion is a nullit......
  • James v. State, No. 2 CA-CV 2006-0124.
    • United States
    • Court of Appeals of Arizona
    • May 31, 2007
    ...and appealable if, in fact, it is premature because it does not dispose of one or more claims in their entirety. See Musa v. Adrian, 130 Ariz. 311, 313, 636 P.2d 89, 91 (1981) ("Rule 54(b) language does not make the judgment final and appealable" when judgment disposed of some but not all o......
  • Stant v. City of Maricopa Emp. Merit Bd., No. 2 CA–CV 2013–0089.
    • United States
    • Court of Appeals of Arizona
    • February 25, 2014
    ...If no statute provides such a right, an appellate court lacks jurisdiction to consider the issues raised on appeal. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). ¶ 6 Here, as noted above, Stant challenged the decision of the board and city by seeking a writ of certiorari in th......
  • Request a trial to view additional results
111 cases
  • Grand v. Nacchio, No. 2 CA-CV 2006-0033.
    • United States
    • Court of Appeals of Arizona
    • November 24, 2006
    ...(same). ¶ 16 Section 12-2101 and its federal counterpart protect the public policy "against deciding cases piecemeal." Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981); see Barry, 168 F.3d at 13 ("[E]xercising jurisdiction here `would undermine the policies of judicial efficiency,......
  • Stafford v. Burns, No. 1 CA–CV 15–0476
    • United States
    • Court of Appeals of Arizona
    • November 29, 2016
    ...jurisdiction is generally limited to issues arising from final judgments disposing of all claims and all parties. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). A notice of appeal filed before entry of a signed final judgment or resolution of a time-extending motion is a nullit......
  • James v. State, No. 2 CA-CV 2006-0124.
    • United States
    • Court of Appeals of Arizona
    • May 31, 2007
    ...and appealable if, in fact, it is premature because it does not dispose of one or more claims in their entirety. See Musa v. Adrian, 130 Ariz. 311, 313, 636 P.2d 89, 91 (1981) ("Rule 54(b) language does not make the judgment final and appealable" when judgment disposed of some but not all o......
  • Stant v. City of Maricopa Emp. Merit Bd., No. 2 CA–CV 2013–0089.
    • United States
    • Court of Appeals of Arizona
    • February 25, 2014
    ...If no statute provides such a right, an appellate court lacks jurisdiction to consider the issues raised on appeal. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). ¶ 6 Here, as noted above, Stant challenged the decision of the board and city by seeking a writ of certiorari in th......
  • Request a trial to view additional results

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