                                                                      FILED BY CLERK
                              IN THE COURT OF APPEALS
                                  STATE OF ARIZONA                       MAY 30 2012
                                    DIVISION TWO
                                                                           COURT OF APPEALS
                                                                             DIVISION TWO


CATALINA FOOTHILLS UNIFIED                    )
SCHOOL DISTRICT NO. 16, a                     )     2 CA-CV 2011-0166
political subdivision of the State of         )     DEPARTMENT B
Arizona,                                      )
                                              )     OPINION
                        Plaintiff/Appellee,   )
                                              )
                   v.                         )
                                              )
LA PALOMA PROPERTY OWNERS                     )
ASSOCIATION, INC., an Arizona non-            )
profit corporation,                           )
                                              )
                  Defendant/Appellant.        )
                                              )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. C20075114

                            Honorable Michael O. Miller, Judge
                               Honorable Scott Rash, Judge

                                        DISMISSED


Law Offices of Diane M. Miller, PLLC
 By Diane M. Miller                                                              Phoenix

and

DeConcini McDonald Yetwin & Lacy, P.C.
 By Lisa Anne Smith                                                               Tucson
                                                         Attorneys for Plaintiff/Appellee
Stubbs & Schubart, P.C.
 By G. Lawrence Schubart                                                        Tucson
                                                      Attorneys for Defendant/Appellant


E S P I N O S A, Judge.

¶1           In this eminent-domain/condemnation action, defendant/appellant La

Paloma Property Owners Association, Inc. (LPPOA) appeals from the trial court’s signed

“Partial Judgment” dated August 29, 2011. Because we lack jurisdiction, we dismiss the

appeal.

                    Factual Background and Procedural History

¶2           Plaintiff/appellee Catalina Foothills Unified School District No. 16 owns

property, known as Block 24, which neighbors La Paloma, a subdivision in the Tucson

area. Block 24 is bounded on its southeast side by Campo Abierto, a private drive owned

by LPPOA that provides access to La Paloma. In 2007, the district filed a complaint

seeking to condemn an easement over a portion of Campo Abierto in order to provide

access to an early childhood learning center that was at that time being constructed on

Block 24. The trial court dismissed the complaint, however, finding that the district did

not have authority to condemn an easement “for a private roadway over private land,” but

also granting the district leave to amend its complaint to condemn the property in fee

simple. The district amended its complaint to seek condemnation in fee, “subject to a

perpetual easement in favor of Defendant La Paloma POA and any other property owners

with rights under the plat or other recorded documents for ingress, egress, utilities and

such other purposes for which the Disputed Property is currently used.” In March 2008,
                                          2
the trial court granted the district immediate possession of the subject property but did not

foreclose continued use of the property for accessing La Paloma.

¶3            LPPOA subsequently petitioned this court for special-action relief, but we

declined to exercise jurisdiction. Litigation continued in the trial court, and in May 2011

the district moved in limine to preclude testimony by LPPOA’s expert witness about

severance damages that LPPOA would suffer as a result of the district’s proposed taking.

The trial court heard argument on the motion, made certain legal findings, and took the

motion under advisement.

¶4            In August 2011, the trial court granted the district’s motion in limine,

reasoning, “Because [the expert] was told to assume [the district] lacked authority to give

[LPPOA] an easement and just compensation cannot be reduced by a non-monetary asset

such as a conveyance of a deed of easement, he did not rely on the proposed form of

easement in reaching his opinion of value.”        The court concluded that “[a]n expert

opinion based on incorrect legal assumptions will not assist the trier of fact to understand

the evidence or determine a fact at issue as required by Ariz. R. Evid. 702,” and

consequently excluded the expert’s testimony.

¶5            LPPOA then lodged a proposed partial judgment, which the trial court

signed. The partial judgment contained 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).” It purported to “resolve[] claims that involve issues of constitutional and

statutory construction that are properly determined prior to further proceedings or a trial,”

                                             3
but it did not identify those claims or the court’s resolution of them. Instead, the partial

judgment incorporated by reference legal and factual determinations from the court’s

2008 order of immediate possession, its 2011 minute entry from the hearing on the

motion in limine, and its under-advisement ruling on the same motion. LPPOA filed a

timely notice of appeal.1

                                  Appellate Jurisdiction

¶6            Although neither party initially addressed the issue, we have an

independent duty to determine whether we have jurisdiction over an appeal. Sorensen v.

Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). After

finding a possible jurisdictional defect, we ordered the parties to submit additional

briefing on the issue.      In its supplemental memorandum, LPPOA argues we have

jurisdiction pursuant to A.R.S. § 12-2101(A)(1) and Rule 54(b), or, in the alternative,

pursuant to A.R.S. § 12-2101(A)(6) and Bilke v. State, 206 Ariz. 462, 80 P.3d 269 (2003).

We examine these potential bases of jurisdiction in turn.

A.R.S. § 12-2101(A)(1) and Rule 54(b)

¶7            Subject to limited exceptions not relevant here, this court has jurisdiction to

consider an appeal “[f]rom a final judgment entered in an action or special proceeding

commenced in a superior court.” § 12-2101(A)(1). “The general rule is that an appeal

lies only from a final judgment,” Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812

       1
        The partial judgment also incorporated the court’s October 2007 order dismissing
the original complaint; however, that order was not included in the notice of appeal and
consequently is not at issue here.
                                             4
P.2d 1119, 1122 (App. 1991), that “‘dispose[s] of all claims and all parties,’” Santa

Maria v. Najera, 222 Ariz. 306, ¶ 5, 214 P.3d 394, 395 (App. 2009), quoting Musa v.

Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). The requirement that a judgment be

final before an appeal may lie arises from a public policy preference that cases not be

decided “in a piecemeal fashion.” Davis, 168 Ariz. at 304, 812 P.2d at 1122; Robinson v.

Kay, 225 Ariz. 191, ¶ 4, 236 P.3d 418, 419 (App. 2010).

¶8            By virtue of Rule 54(b), however, a party may appeal from a ruling that

disposes of fewer than all parties or claims “upon an express determination [by the trial

court] that there is no just reason for delay and upon an express direction for the entry of

judgment.” But in order for the court to direct entry of a final judgment under Rule

54(b), its ruling must actually dispose of “one or more, but not all, of the multiple

claims.” Davis, 168 Ariz. at 304, 812 P.2d at 1122. In other words, the court’s order

must result in “‘an ultimate disposition of an individual claim.’” Id., quoting Sears,

Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956).2

¶9            We review a trial court’s Rule 54(b) determination de novo. Davis, 168

Ariz. at 304, 812 P.2d at 1122.        “Rule 54(b) certification does not give this court

jurisdiction to decide an appeal if the judgment in fact is not final, i.e., did not dispose of

at least one separate claim of a multi-claim action.” Id.; see Sisemore v. Farmers Ins. Co.

of Ariz., 161 Ariz. 564, 565, 779 P.2d 1303, 1304 (App. 1989) (“The insertion of Rule


       2
         This appeal does not implicate the provisions of Rule 54(b) relating to multiple-
party litigation.
                                              5
54(b) language only acts to make an order or judgment final and immediately appealable

if the judgment completely disposes of an entire claim.”). Accordingly, although the

order appealed from is styled as a “Partial Judgment” and contains a Rule 54(b)

certification, we must still examine it in detail to determine whether it actually disposes

of any claim.

¶10             The language of the partial judgment itself does not purport to dispose of

any claim; that is, it does not itself grant relief to either party in any form. Instead, it

incorporates by reference three of the court’s prior orders or minute entries relevant to

this appeal, and provides,

                IT IS, THEREFORE, ORDERED, ADJUDGED AND
                DECREED as follows:
                ....
                       The legal and factual determinations made . . . in
                numbered Paragraphs 1 through 7 and Paragraphs 9 through
                12 of the Minute Entry dated March 19, 2007, [sic] are
                incorporated in this Judgment, constitute the law of the case,
                and are binding on the parties as a matter of law.
                       The legal and factual determinations of this Court set
                forth in the Minute Entry Orders of July 19, 2011, and
                August 17, 2011, are binding on the parties as a matter of law.

We therefore look to these prior orders to determine if any of them is independently final

and appealable.

¶11             The March 19, 2008, minute entry grants the district’s request for an order

of immediate possession of the disputed property. Both this court and our supreme court

have held that an order of immediate possession is not directly appealable because it is

                                              6
not a final judgment. Rogers v. Salt River Project Agric. Improvement & Power Dist.,

110 Ariz. 279, 517 P.2d 1275 (1974); Cordova v. City of Tucson, 15 Ariz. App. 469, 470-

71, 489 P.2d 727, 728-29 (1971); see also Bailey v. Myers, 206 Ariz. 224, ¶ 8, 76 P.3d

898, 900 (App. 2003) (special action provides only relief from order of immediate

possession). This rule is further supported by A.R.S. § 12-1116(O), which anticipates

that additional proceedings will be held after entry of an order of immediate possession

and before entry of a final judgment.3 The order of immediate possession therefore is not

a final judgment. And, because “[a] trial court’s Rule 54(b) certification does not give

this court jurisdiction to decide an appeal if the judgment in fact is not final,” we lack

jurisdiction to review the order of immediate possession or the findings it contains,

notwithstanding the trial court’s inclusion of Rule 54(b) language in the partial judgment.

Davis, 168 Ariz. at 304-05 & 305, 812 P.2d at 1122-23 & 1123; see also Musa, 130 Ariz.

at 313, 636 P.2d at 91 (summary judgment ruling disposing of legal theories but no

claims not final and appealable, notwithstanding trial court’s Rule 54(b) certification).

¶12           In its July 2011 minute entry, the trial court took the district’s motion in

limine under advisement but made two findings that LPPOA challenges in this appeal.

First, the court concluded that the district “could acquire the property at issue in fee

simple and then grant an easement to [LPPOA], and that such a transaction is not a


       3
        Section 12-1116 outlines the procedures for obtaining an order of immediate
possession. Subsection (O) provides: “Any stipulation that is made or any evidence that
is introduced pursuant to this section shall not be introduced in evidence or used to the
prejudice of any party in interest on the trial of the action.”
                                             7
substitution for the monetary compensation required by Article 2 § 17 of the Arizona

Constitution, but rather is a cost to cure the severance damages caused by the taking.”

The court additionally found that “the transfer of an easement from the [district] to

[LPPOA] for purposes of ingress and egress by the homeowners does not violate A.R.S.

[§] 15-342[(10)].”4 These findings do not dispose of any claim. See Musa, 130 Ariz. at

313, 636 P.2d at 91. Indeed, the July 2011 minute entry does not even reflect a ruling on

any pending motion. Consequently, the minute entry is not a final judgment from which

an appeal may lie.

¶13           Finally, the August 2011 under-advisement ruling granted the district’s

motion in limine, which sought to preclude LPPOA’s expert witness from testifying

about severance damages because his opinion was “based entirely on the assumption that

the District may not convey to LPPOA an easement to continue to use the property to be

condemned.” The court reaffirmed its preliminary findings from the July 2011 minute

entry and determined,

              Because [the expert] was told to assume [the district] lacked
              authority to give [LPPOA] an easement and just
              compensation cannot be reduced by a non-monetary asset
              such as a conveyance of a deed of easement, he did not rely
              on the proposed form of easement in reaching his opinion of
              value nor did he prepare an alternative analysis should the
              legal assumptions prove incorrect.



       4
         Section 15-342(10) limits a school district’s power to “sell school sites or enter
into leases or lease-purchase agreements for school buildings and grounds” by requiring
that certain transfers be approved by the district’s electors.
                                            8
The court concluded, “An expert opinion based on incorrect legal assumptions will not

assist the trier of fact to understand the evidence or determine a fact at issue as required

by Ariz. R. Evid. 702,” and consequently precluded the expert’s testimony. The court,

however, granted LPPOA leave to obtain a revised valuation in light of its ruling. Thus,

although the court’s ruling on the district’s motion limited the evidence LPPOA would be

able to present at trial, that ruling did not dispose of any claim and thus cannot be

considered a final judgment. See Englert v. Carondelet Health Network, 199 Ariz. 21,

¶ 24, 13 P.3d 763, 771 (App. 2000) (characterizing motion in limine ruling as pretrial,

interlocutory order).

¶14           Neither the judgment nor any of the incorporated orders constitutes a final

judgment in the case. Accordingly, Rule 54(b) certification was unwarranted, and we

lack jurisdiction to consider this appeal pursuant to § 12-2101(A)(1).

A.R.S. § 12-2101(A)(6) and Bilke v. State

¶15           Both parties argue, in the alternative, that we have jurisdiction pursuant to

§ 12-2101(A)(6), which allows appeals from certain non-final judgments: “An appeal

may be taken to the court of appeals from the superior court . . . [f]rom an interlocutory

judgment that determines the rights of the parties and directs an accounting or other

proceeding to determine the amount of the recovery.” Relying on Bilke, 206 Ariz. 462,

80 P.3d 269, LPPOA claims we have jurisdiction because the partial judgment entered in

this case “effectively resolves all issues except the amount of damages.”



                                             9
¶16           In Bilke, our supreme court considered the previous version of this

provision, then found at § 12-2101(G), see 1973 Ariz. Sess. Laws ch. 75, § 10, and held

that “interlocutory judgments can be appealed under § 12-2101(G) when the trial judge

has signed an order that contains language indicating that the judgment is a final

determination of the rights of the parties and the only remaining issue is the amount of

recovery.”5 206 Ariz. 462, ¶ 1, 80 P.3d at 270. The court explained that “appealability

under § 12-2101(G) turns not on the finality of the judgment, but on the finality of the

liability decision and the trial court’s discretionary finding that an appeal should lie in the

particular case” and suggested that “Rule 54(b) certification, while not necessary, would

satisfy the finality requirement.” Id. ¶ 23.

¶17           The district agrees that § 12-2101(A)(6) confers jurisdiction and argues that

Bilke has implicitly abrogated this court’s decision in Cordova, 15 Ariz. App. 469, 489

P.2d 727 (1971), which held that orders of immediate possession are not appealable

under former § 12-2101(G). But neither party cites or acknowledges Rogers v. Salt River

Project Agricultural Improvement & Power District, in which our supreme court

followed Cordova and held that an order of immediate possession is not appealable




       5
        Section 12-2101(G) has been renumbered § 12-2101(A)(6). See 2011 Ariz. Sess.
Laws ch. 304, § 1. Apart from a minor grammatical difference, the two provisions are
identical. Id.
                                               10
because appellate courts lack “legislative authorization for allowing such an appeal prior

to the final judgment.” 110 Ariz. at 280, 517 P.2d at 1276.6

¶18           Although Bilke is the more recent case, we conclude that Rogers controls.

The Bilke court presumably was aware of its holding in Rogers and could have overruled

it, but it did not do so. See City of Phoenix v. Leroy’s Liquors, Inc., 177 Ariz. 375, 378,

868 P.2d 958, 961 (App. 1993) (“Whether prior decisions of the Arizona Supreme Court

are to be disaffirmed is a question for that court.”). And Rogers, which specifically holds

that orders of immediate possession are not appealable under the predecessor to

§ 12-2101(A)(6), is squarely on point with the present case, whereas Bilke involved an

appeal from a summary judgment ruling, did not involve an order of immediate

possession, and articulated a more general rule. Compare Rogers, 110 Ariz. at 280, 517

P.2d at 1276, with Bilke, 206 Ariz. 462, ¶¶ 1, 4, 80 P.3d at 270; cf. Clouse ex rel. Clouse

v. State, 199 Ariz. 196, ¶ 11, 16 P.3d 757, 760 (2001) (established axiom that where both

general and specific constitutional provisions relate to same subject, specific provision

controls). Thus, although Bilke may have application beyond its specific facts, we find

controlling the express holding in Rogers that an order of immediate possession “‘does

not qualify as an appealable interlocutory judgment’” under § 12-2101(A)(6). Rogers,

110 Ariz. at 280, 517 P.2d at 1276, quoting Cordova, 15 Ariz. App. at 471, 489 P.2d at

729 (internal quotations omitted). Nor do we have jurisdiction over the July and August

       6
       We observe that this has long been the rule in Arizona. See De Hansen v. Dist.
Court, 11 Ariz. 379, 383, 94 P. 1125, 1126 (Terr. 1908) (order of immediate possession
“unquestionably not directly appealable” under Ariz. Civ. Code, § 1214 (1901)).
                                            11
2011 orders under § 12-2101(A)(6) because neither is a final determination of the rights

of the parties that leaves only the issue of recovery to be determined. See Bilke, 206 Ariz.

462, ¶ 1, 80 P.3d at 270. Accordingly, we conclude that we also lack jurisdiction over

the partial judgment as an interlocutory judgment pursuant to § 12-2101(A)(6).

¶19           LPPOA requests that in the event we find we lack jurisdiction, we remand

this matter to the trial court “for the limited purpose of supplementing the record or the

Trial Court’s findings to correct any technical deficiency.” However, for the reasons

discussed above, we conclude the deficiency in the judgment is more than merely

technical and the jurisdictional defect cannot be cured by the limited remand LPPOA

proposes.

                               Special-Action Jurisdiction

¶20           In certain cases where we lack appellate jurisdiction, we have nevertheless

elected to assume special-action jurisdiction over a matter brought as a direct appeal.

See, e.g., Grand v. Nacchio, 214 Ariz. 9, ¶ 25, 147 P.3d 763, 772 (App. 2006); Danielson

v. Evans, 201 Ariz. 401, ¶ 35, 36 P.3d 749, 759 (App. 2001); Lloyd v. State Farm Mut.

Auto. Ins. Co., 189 Ariz. 369, 374-75, 943 P.2d 729, 734-35 (App. 1996). In special

actions, we decide whether to exercise jurisdiction after considering various well-

established factors, including whether there exists an “equally plain, speedy, and

adequate remedy by appeal,” see W. Pinal Family Health Ctr., Inc. v. McBryde, 162 Ariz.

546, 547, 785 P.2d 66, 67 (App. 1989), and whether the case “presents a purely legal

question on an issue of statewide importance,” Ariz. Dep’t of Econ. Sec. v. Superior

                                            12
Court, 186 Ariz. 405, 407, 923 P.2d 871, 873 (App. 1996). Both parties request that we

accept special-action jurisdiction in the event we find we lack appellate jurisdiction, but

neither party explains how this case satisfies the criteria described above apart from a

generalized argument by the district that special-action review would promote judicial

economy.    See Ariz. R. P. Spec. Actions 7(e) (special-action petition shall include

jurisdictional statement). And our own review does not demonstrate that this case merits

the exercise of our extraordinary jurisdiction. See Nataros v. Superior Court, 113 Ariz.

498, 499, 557 P.2d 1055, 1056 (1976) (“A special action requests extraordinary relief

which is usually granted only where justice cannot be satisfactorily obtained by other

means.”).

¶21           First, we have already declined to exercise jurisdiction over a previous

petition for special action, filed in 2008, from the same order of immediate possession at

issue here, which petition raised many of the same issues as are now presented.7 Even

assuming, without deciding, that a subsequent petition for special action challenging the

same ruling as a previous petition would not be categorically barred, the amount of time

that has passed since the order was entered—four years in this case—weighs heavily

against our exercising extraordinary jurisdiction to review it now. See Anserv Ins. Servs.,

Inc. v. Albrecht, 192 Ariz. 48, ¶¶ 10-11, 960 P.2d 1159, 1161 (1998) (finding petition


      7
        Although the record in this case does not contain the special-action petition, we
take judicial notice of the petition, which is contained in this court’s records for case
number 2 CA-SA 2008-0028. See In re Sabino R., 198 Ariz. 424, ¶ 4, 10 P.3d 1211,
1212 (App. 2000) (court may properly take judicial notice of its own records).
                                            13
meritorious but denying relief because of petitioner’s extensive delay in filing special

action); State ex rel. Neely v. Rodriguez, 165 Ariz. 74, 77, 796 P.2d 876, 879 (1990)

(“One of the equitable considerations involved in accepting special action jurisdiction is a

petitioner’s showing of a need for speedy relief . . . .”).

¶22            And, although we occasionally accept special-action jurisdiction to review

rulings on motions in limine, see, e.g., Ariz. Dep’t of Econ. Sec., 186 Ariz. 405, 923 P.2d

871, we decline to exercise such jurisdiction here because review of the ruling on the

motion in limine will be available, and we believe more appropriately conducted, on

appeal from an eventual final judgment. See A.R.S. § 12-2102(A); see also Yauch v. S.

Pac. Transp. Co., 198 Ariz. 394, ¶ 10, 10 P.3d 1181, 1186 (App. 2000) (reviewing trial

court’s motion in limine ruling on appeal); Larsen v. Decker, 196 Ariz. 239, ¶¶ 6-8, 995

P.2d 281, 283 (App. 2000) (reviewing trial court’s evidentiary rulings on appeal); Stapert

v. Ariz. Bd. of Psychologist Exam’rs, 210 Ariz. 177, ¶ 21, 108 P.3d 956, 961 (App. 2005)

(special-action jurisdiction reserved for “extraordinary circumstances” and “not available

‘where there is an equally plain, speedy, and adequate remedy by appeal’”), quoting State

ex rel. Romley v. Fields, 201 Ariz. 321, ¶ 4, 35 P.3d 82, 84 (App. 2001).

¶23            Finally, although the briefs raise issues of law, a consideration that supports

accepting special-action jurisdiction, neither party explains, nor do we see, how these

issues are of statewide importance. See Ariz. Dep’t of Econ. Sec., 186 Ariz. at 407, 923

P.2d at 873.     For all the foregoing reasons, we decline to exercise special-action

jurisdiction in this matter. See Robinson, 225 Ariz. 191, ¶ 7, 236 P.3d at 420.

                                               14
                                       Conclusion

¶24           Because the partial judgment appealed from is neither a final judgment, see

§ 12-2101(A)(1), nor an interlocutory order appealable under § 12-2101(A)(6), this court

lacks appellate jurisdiction. Furthermore, we decline to exercise discretionary, special-

action jurisdiction because LPPOA has failed to show that this matter satisfies the criteria

governing our acceptance of such jurisdiction. Accordingly, the appeal is dismissed and

the case is remanded to the superior court for further proceedings.


                                              /s/ Philip G. Espinosa
                                              PHILIP G. ESPINOSA, Judge

CONCURRING:


/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge




                                            15
