Civil Procedure: Rule 54 (b) and ARS. §12-2101 Grounds for Interlocutory Appeal

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Catalina Foothills Unified School Dist. v. La Paloma Property Owner's Ass'n, Inc., 635 Ariz. Adv. Rep. 22 (App. Div. II, May 30, 2012) (J. Espinoza)

PARTIAL JUDGMENT WITH RULE 54(b) LANGUAGE GRANTING POSSESSION IN CONDEMNATION ACTION IS NOT A FINAL APPEALABLE JUDGMENT

The School District and La Paloma each own adjoining land. The School District sued for an easement over the La Paloma land to access its land. The trial court granted the school district possession of their land while reserving judgment on the question of the easement. This and a favorable ruling excluding certain of La Paloma's expert testimony was reduced to a "Partial Judgment" with a rule 54 (b) certification that there "is no just reason for delay" in appealing that partial judgment. The Arizona Court of Appeals ruled sua sponte that it lacked jurisdiction to hear this appeal and dismissed it.

The mere fact that a trial court states in its partial judgment that the requirements of rule 54 (b) have been met does not make it so. Here the court of appeals found that there was no issue between the parties resolved in the partial judgment, no claim disposed of, and therefore no appealable issue for it to decide. Further the court found that ARS sec. 12-2101(A)(6) which allows an appeal from certain non-final judgments does not apply to an order granting immediate possession of real property.

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