The Catalina Foothills Unified School District No. 16 owns property that is bordered in part by a private drive owned by La Paloma Property Owners Association, Inc. In 2007, the school district brought a complaint seeking to condemn a portion of the private drive. The trial court dismissed the complaint, and the school district successfully amended its complaint to condemn the property in fee simple. In 2008, the trial court granted the school district immediate possession of the subject property. La Paloma then sought special action relief from the immediate possession order, but the appellate court declined jurisdiction. Litigation continued, and in 2011 the district court successfully moved in limine to preclude testimony by La Paloma’s expert witness about La Paloma’s severance damages from the proposed taking. La Paloma lodged a proposed partial judgment, which the trial court signed. The partial judgment purported to resolve issues of constitutional and statutory construction, but did not specify what those issues were. Instead, the partial judgment incorporated by reference the 2008 order of immediate possession and the 2011 evidentiary ruling on La Paloma’s expert witness. The partial judgment included a certification that “there is no just reason for delay and the entry of this Judgment is hereby expressly directed pursuant to Ariz. R. Civ. P. 54(b).” La Paloma appealed from that partial judgment.
Although neither party raised the issue, the appellate court exercised its independent duty to determine whether it had jurisdiction over the appeal. First, the appellate court noted that generally only final judgments are appealable, according to A.R.S. § 12-2101(A)(1), and it held that the partial judgment was not appealable as a final judgment under Ariz. R. Civ. P. 54(b). The fact that a judgment includes Rule 54(b) certification is not dispositive; the court must still review the judgment to determine whether it actually disposes of a claim. In this case, the appellate court held that the partial judgment did not dispose of any claim. Specifically, under a long line of Arizona case law, an order of immediate possession is not a final judgment and thus not directly appealable. The appellate court also held that the partial judgment was not appealable as an interlocutory judgment under § 12-2101(A)(6). In so holding, it stated that Bilke v. State, 206 Ariz. 462, 80 P.3d 269 (2003) was not dispositive of the issue; Bilke pronounced the general rule that an interlocutory judgment is appealable if the trial judge indicates its finality and the only remaining issue is damages. Instead, the appellate court followed Rogers v. Salt River Project Agricultural Improvement & Power District, 110 Ariz. 279, 280, 517 P.2d 1275, 1276 (1974), which expressly held that orders of immediate possession are not appealable as interlocutory judgments. The appellate court presumed that if the Bilke had intended to overrule Rogers it could have, and because it did not, the express holding in Rogers controlled. Finally, the appellate court declined to exercise special action jurisdiction over the appeal because it had already declined such jurisdiction over the same issues in 2008 and because the appeal did not raise issues of statewide importance. Accordingly, the appellate court dismissed the appeal and remanded to the superior court for further proceedings.
Philip Espinosa authored the opinion, Presiding Judge Vasquez and Judge Eckerstrom concurred.
Posted by: Chelsea Durkin