Once in awhile we have suspected an appellate court of taking a questionable appeal mostly because the parties called an order a “judgment.” But it doesn’t always work.

The school district sued to condemn a roadway, for access to a new school, from the homeowners’ association that owned it. After dismissing the Complaint without prejudice and allowing the district to re-file on a slightly different theory, the trial court granted immediate possession. The homeowners filed a special action (such orders are not appealable) but the Court of Appeals declined to hear it. Later, the trial court granted the district’s motion in limine to exclude one of the homeowners’ damage witnesses, making some findings and conclusions in the process (the opinion calls them all findings, an issue we’ve alluded to before). The homeowners then submitted a “proposed partial judgment,” with 54(b) language, which incorporated by reference findings/conclusions made in connection with the earlier rulings but didn’t actually grant relief or purport to conclude a claim. The trial court signed it, though, and the homeowners appealed.

So how does the Court of Appeals have jurisdiction over a non-appealable order lashed to other non-appealable orders? It asked the same question and called for supplemental briefs. Both parties wanted the court to hear the case (although a footnote suggests that one of the likely reasons for that – the dismissal of the original Complaint – wasn’t included in the appeal).

They first argued that the “judgment” was appealable because of the Rule 54(b) language – in other words, its appealable because the trial court said it is. The Court of Appeals says that no, it isn’t, that it reviews 54(b) certification de novo, and that this certification was wrong.  The opinion doesn’t admit this but because trial judges nowadays sign anything with 54(b) language unless one of the parties objects to it, the appellate courts have a limited amount of respect for it. 

The parties then argued that this situation is covered by §12-2101(A)(6) (judgment determining the rights of the parties and calling for further proceedings to determine amount of recovery) and Bilke (2003; the statute means that a final liability decision can be appealable). The district argued that Bilke overruled Court of Appeals decisions holding that orders of immediate possession aren’t appealable. But the Supreme Court had also, in Rogers (1974), held orders of immediate possession unappealable and Bilke wasn’t a condemnation case and didn’t purport to change that law.

The court then declines to hear the matter as a special action. It does so remarkably politely, given that it had turned these people down once already and they responded by trying a dodgy “appeal.”

(link to opinion)