Southwest Gas v. Irwin (CA2 2/29/12)

What we wonder is why a trial court judge with years of experience on the bench didn’t know what to do in this situation.

Grubb’s husband was killed by the explosion of a gas heater. She sued Southwest Gas and those in the chain of distribution, including the wholesaler, DIB. DIB won summary judgment, which included Rule 54(b) language. When Grubb appealed the DIB judgment the trial judge worried about his jurisdiction over the rest of the case. Southwest argued that he still had it, Grubb that he didn’t and that if he did he should stay proceedings until after the DIB appeal. The trial court stayed its proceedings; when the defendants moved to lift it, the court announced that it had no jurisdiction.

So Southwest filed a special action. In response, Grubb argued mostly that the court shouldn’t take it. But the trial court’s order was not appealable, Southwest had no other relief available since the trial court had stayed everything, the question is purely one of law, and it will be moot once DIB’s appeal is over.

The court accepts jurisdiction and grants relief. Rule 54(b) expressly allows the court to enter judgment as to less than all parties or claims. “It is logical, if not axiomatic, that the rule thereby permits the portion of the case that is not part of the appeal to proceed in the trial court while the appeal moves forward.” Egan-Ryan (1990) held that the trial court retains jurisdiction over other claims after granting judgment as to one.

The court softly suggests that the way to handle these things is to be careful about Rule 54(b) language. Having granted it, though, and the propriety of that grant not being at issue here, the trial court has jurisdiction to proceed with the rest of the case.

The court remands for further proceedings, which presumably means an argument about a discretionary stay.


(link to opinion)