Dismissal of One of Two Theories in Complaint Under One Cause of Action Not Appealable

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Civil Procedure-Rule 54 (b) Language Requires Dismissal of Separate Claim

Robinson v. Kay< __ Ariz. Adv. Rptr. __ 2 CA-CV 2009-0185 (App., Div. II, July 30, 2010) (J. Vasquez)

DISMISSAL OF ONE OF TWO THEORIES SUPPORTING A SINGLE CLAIM DOES NOT SUPPORT 54 (b) LANGUAGE AND COURT OF APPEALS LACKS JURISIDICITON TO DECIDE CASE PIECEMEAL

Plaintiffs filed a suit for prescriptive or implied easement over defendant's property. Defendant received summary judgment on the implied easement theory. Plaintiff appealed with Rule 54 (b) of the Arizona Rules of Civil Procedure language, claiming the summary judgment constituted an adjudication of a separate and distinct claim and therefore subject to Arizona Court of Appeals jurisdiction.The Arizona Court of Appeals sua sponte determined that an implied easement theory and a prescriptive easement theory are nothing more than two separate theories supporting a single claim and thus Rule 54 (b) language does not make the judgment final and appealable. Appeal dismissed for lack of jurisdiction.

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