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)

An interesting little case on pre-judgment interest under Rule 68.

Metzler won a jury verdict in excess of an Offer of Judgment she had made. Per Rule 68, the trial court ordered pre-judgment interest from the date of the offer to the date of the judgment. The court then, on BCI’s motion, ordered a new trial, on liability only, but this was reversed on appeal and the case remanded for the entry of judgment. On remand, the following question arose: does the pre-judgment interest run until the date of the original judgment or until the date of the judgment after remand? Until the original judgment, ruled the trial court; Metzler appealed.

The Court of Appeals reverses. The order granting a new trial vacated the original judgment. The trial court had thought it still a valid judgment because BCI had purported to appeal from it; Technically, though, the appeal from an order for new trial, the court indicates, is from that order itself, not from the judgment; that is why 12-2101 makes a new trial order appealable. The court says that this conclusion is also consistent with the Rule’s purpose of encouraging settlement.

The court vacates the judgment, remands for the entry of another new one, and points out that pre-judgment interest will run until that one is entered. This apparently means that the new interest statute will apply, so this might be a Pyrrhic victory.

(link to opinion)

This products case discusses the liability of a nominal middleman who actually had little to do with this particular transaction.

Grubb’s husband was killed by an exploding space heater. She sued everyone in the chain for products liability and negligence. The hardware store that sold the heater was a member of a cooperative, Do It Best (DIB), but had bought the heater directly from its manufacturer rather  through DIB. DIB included it in a catalog of items available to member stores and kept a small processing fee for the transaction. DIB moved for summary judgment, which the trial court granted.

The Court of Appeals affirms, based on some other drop-ship cases. DIB never possessed the heater, had title to it, or had any warranty or shipping obligations for it. DIB did not have the “participatory connection” to the sale necessary for strict liability. Including the heater in its catalog merely made it a “product distribution facilitator” under Restatement (Third) Products Liability 20, which is a type of creature not strictly liable.

As to negligence, the court assumes duty but says that Grubb did not cite anything in the record establishing a standard of care or its breach. “Accordingly, Grubb has waived these issues and we will not address the merits of her claims regarding standard of care and breach of duty.” Its hard to know whether this means that there wasn’t any such evidence in the record or there was but Grubb’s briefs were defective.

(link to opinion)