This is a memorandum but raises a notable procedural point.

In this malpractice action, trials on liability and damages were bifurcated. After the hospital lost the liability trial it filed this appeal. Beatty moved to dismiss it for lack of jurisdiction. The hospital responded that there was an “interlocutory judgment that determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery,” which is appealable under 12-2101(A)(6). The Court of Appeals denied the motion.

But in this opinion it reverses itself and dismisses for lack of jurisdiction. Though not technically covered by Rule 54b, 2101(A)(6) is a 54b-type situation: the trial court must expressly find a final determination of the rights of the parties and, in the trial court’s discretion, that it is subject to appeal. (The Arizona Supreme Court case on which this is based says that 54b language will do the job.) Here the trial court had found that “judgment remain[ed] subject to revision at any time before the entry of judgment adjudicating all of the claims and rights and liabilities of all of the parties,” and that  “This is not a final judgment except as to jury fees.” And it said nothing about appeal.

Beatty had raised the jurisdiction argument again in his brief. Technically that shouldn’t be necessary, since you can’t waive jurisdiction, but the panel might not have paid any attention to it otherwise.

The hospital argued (whether in its brief or in the motion papers isn’t clear) that if there were no jurisdiction of an appeal then the court should treat the matter as a special action. But there was no basis for doing so other than the time and expense of re-filing the appeal (either after a liability trial or after convincing the trial judge to re-word his orders). The court says that ““efficient use of resources” alone generally is insufficient to justify special action jurisdiction.”

(link to opinion)