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No Right to Appeal Denial of Motion for New Trial Based Upon Granting of Partial Summary Judgment

Civil Procedure—Denial of Motion for New Trial Based on Granting Partial Summary Judgment Not Appealable

Maria v. Najera, 214 Ariz. 306, 214 P.3d 394 (App. Div. I, July 21, 2009)(J. Johnsen)
APPELLATE COURT HAS NO JURISIDICTION TO HEAR APPEAL FROM DENIAL OF MOTION FOR NEW TRIAL BASED UPON GRANTING OF PARTIAL SUMMARY JUDGMENT
Plaintiff filed a five count complaint. Defendant answered and counterclaimed. Defendant then obtained partial summary judgment on three of the counts. Plaintiff filed a motion for new trial which was denied and then a motion for reconsideration which was granted but the motion for new trial was again denied.
Plaintiff appealed the denial of the motion for new trial. The court of appeals held it had no jurisdiction.
Jurisdiction of appeals is limited to final judgments which dispose of all claims and all parties or partial judgments only where the trial court finds pursuant to rule 54(b) of the Arizona Rules of Civil Procedure, that “there is no just reason for delay” in allowing an appeal from a partial judgment. Here there was no 54(b) language in the judgment.

The court did recognize that as a general rule the denial of a motion for new trial under Rule 59 of the Arizona Rules of Civil Procedure is appealable and a motion for new trial is the appropriate motion to file for relief from the granting of a motion for partial summary judgment. However, even with a motion for new trial the court must look to the “character” of the motion and where it is the denial of a motion for new trial following the grant of partial summary judgment which does not dispose of all claims and all parties and has no 54(b) language in the judgment, the appellate court has no jurisdiction to hear the appeal.

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