                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                  CHERYL JACKSON, Plaintiff/Appellant,

                                        v.

        CLARA HARRIS, Personal Representative of the Estate of
                Mark D. Harris, Defendant/Appellee.

                             No. 1 CA-CV 17-0402
                              FILED 5-31-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV2016-054510
               The Honorable Aimee L. Anderson, Judge

                            APPEAL DISMISSED


                                   COUNSEL

Macqueen & Gottlieb PLC, Phoenix
By Patrick R. MacQueen, Benjamin L. Gottlieb
Counsel for Plaintiff/Appellant

Berk Law Group PC, Scottsdale
By Daphne J. Reaume, Kent S. Berk
Counsel for Defendant/Appellee
                        JACKSON v. HARRIS, et al.
                           Decision of the Court

                      MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Paul J. McMurdie joined.


W E I N Z W E I G, Judge:

¶1           Cheryl Jackson appeals the superior court’s entry of final
judgment under Rule 54(b), Ariz. R. Civ. P., and the adverse award of costs
and attorney’s fees. We lack jurisdiction and thus dismiss the appeal.

             FACTS AND PROCEDURAL BACKGROUND

¶2            This case concerns the sale of real property. Clara Harris was
the personal representative of her son’s estate, the Estate of Mark D. Harris.
She sold his residence to Joshua Sanders in that capacity.

¶3            Sanders sued various defendants involved in the transaction,
including Ms. Harris in her individual capacity and as personal
representative. He claimed that Harris knowingly failed to disclose several
defects in the residence, including roof defects, water damage, mold,
foundation cracks and soil expansion. He asserted four claims against
Harris as personal representative of the estate, including breach of contract,
breach of the covenant of good faith and fair dealing, negligent
misrepresentation/non-disclosure and consumer fraud; and two claims
against     Harris     as    an      individual,      including     negligent
misrepresentation/non-disclosure and consumer fraud.

¶4            Sanders later filed an amended complaint that named his
wife, Cheryl Jackson, as a second plaintiff and added a common law fraud
claim against Harris as personal representative. Jackson and Sanders
asserted the same contract and tort claims, premised on identical facts and
law.

¶5            Harris moved to dismiss several claims against her as
personal representative, including (1) all of Jackson’s claims because
Jackson was not a party to the real estate contract and related transactions
and (2) Jackson and Sanders’ breach of contract and covenant of good faith
and fair dealing claims as time barred under A.R.S. §§ 14-3803, -3804.
Harris also moved, in her individual capacity, to join the personal
representative’s motion to dismiss Jackson’s claims for negligent
misrepresentation/non-disclosure and consumer fraud.


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                        JACKSON v. HARRIS, et al.
                           Decision of the Court
¶6            The superior court granted both motions to dismiss in favor
of Harris as personal representative, but never reached or granted her
request to join the motions in her individual capacity. Accordingly, the
court dismissed Jackson’s claims against Harris as personal representative, but
did not dismiss Jackson’s claims against Harris as an individual. The court
further granted Harris’ request for “attorneys’ fees incurred [by Harris as
personal representative] in responding to Plaintiff Cheryl Jackson’s
Amended Complaint,” and ordered Harris to submit a proposed form of
judgment. 1

¶7            The court signed Harris’ proposed judgment without
modification, over Jackson’s objection. The court entered judgment against
Jackson and in favor of Harris, but only as personal representative;
awarded Harris $15,386.77 in attorney’s fees and $1,233.10 in costs, the full
amount requested; and included Rule 54(b) language to certify “there is no
just reason for delay in the entry of this Judgment as a final judgment, and
the Court expressly directs that this Judgment be entered at this time as a
final judgment against Plaintiff Cheryl Jackson.” Jackson timely appealed.

                               DISCUSSION

¶8              Jackson does not contest the merits of the judgment, but
instead challenges the award of attorney’s fees and Rule 54(b) certification.
We first consider the certification issue because we lack jurisdiction when a
Rule 54(b) certification is not “substantively warranted.” Sw. Gas Corp. v.
Irwin ex rel. County of Cochise, 229 Ariz. 198, 202, ¶ 12 (App. 2012). We
review the propriety of Rule 54(b) certification for an abuse of discretion.
Id. at 201, ¶ 7.

¶9            Our jurisdiction is generally limited to final judgments that
dispose of all claims and all parties, leaving no questions open for judicial
determination and clearly fixing the parties’ rights and liabilities. Musa v.
Adrian, 130 Ariz. 311, 312 (1981); Decker v. City of Tucson, 4 Ariz. App. 270,
272 (1966).

¶10           At issue here is an exception to the general rule, found in Rule
54(b), Ariz. R. Civ. P., which authorizes the superior court to certify a final
judgment disposing of fewer than all claims or parties “only if the court
expressly determines there is no just reason for delay.” To find no just
reason for delay, the court must find “some hardship or injustice would

1      The court also dismissed Sanders’ breach of contract and breach of
the covenant of good faith and fair dealing claims against Harris as personal
representative.


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                        JACKSON v. HARRIS, et al.
                           Decision of the Court
result from a delay in entering a final judgment.” S. Cal. Edison Co. v.
Peabody W. Coal Co., 194 Ariz. 47, 53, ¶ 19 (1999); see Pulaski v. Perkins, 127
Ariz. 216, 218 (App. 1980) (“The phrase ‘no just reason for delay’ in Rule
54(b) means that there must be some danger of hardship or injustice
through delay which would be alleviated by immediate appeal.”) (quoting
Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 942 (2d Cir. 1968)).

¶11           Rule 54(b) judgments “should not be entered routinely,” but
instead limited to “the infrequent harsh case as an instrument for the
improved administration of justice.” S. Cal. Edison Co., 194 Ariz. at 53, ¶ 19
(quotation omitted) (Rule 54(b) represents “a compromise between the
policy against interlocutory appeals and the desirability, in a few cases, of
an immediate appeal to prevent an injustice.”). In addition, the superior
court should not certify a partial judgment under Rule 54(b) if the surviving
litigation might result in successive appeals that require the appellate
courts to relearn the same facts. See Sw. Gas Corp., 229 Ariz. at 202, ¶ 12.

¶12           Rule 54(b) certification was not proper here. First, Harris
suffers no greater hardship or injustice if required to await litigation’s end
to press or defend any issues on appeal. She is presently defending herself
in the superior court proceedings, both as personal representative and
individually. An express pass to appeal (and presumably enforce) the
court’s partial judgment under Rule 54(b) does not change that.

¶13            Second, Arizona courts have long disfavored piecemeal
appeals because they tend to undermine judicial efficiency. Musa, 130 Ariz.
at 312. If we accept this first appeal, we should expect a second appeal once
Jackson’s remaining claims against Harris are resolved, and more appeals
from there, including a final appeal at the end of the litigation in the
superior court. At each successive appeal, we would need to reacquaint
ourselves with the same facts and issues. Indeed, a second appeal of
Jackson’s remaining claims would presumably require us to again examine
the fees incurred by Harris “in responding to Plaintiff Cheryl Jackson’s
Amended Complaint,” but only the fees incurred in her individual
capacity. 2


2       We do not decide whether Rule 54(b) certification would be proper
if the court resolves all pending claims between Harris and Jackson, leaving
only the claims between Harris and Sanders. As a practical matter,
however, we note that Jackson and Sanders are married and Sanders has
conveyed Jackson a community property interest in the house. Given that
backdrop, Harris’ fee award against Jackson might ultimately be reduced
by offsets if Sanders prevails on the surviving claims.


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                        JACKSON v. HARRIS, et al.
                           Decision of the Court
¶14            Appellee offers Continental Casualty v. Superior Court, 130
Ariz. 189 (1981), to support Rule 54(b) certification. We are not persuaded.
There, unlike here, the parties stipulated to entry of a Rule 54(b) judgment,
yet the superior court refused to enter one. The Court emphasized the
stipulation in concluding the superior court abused its discretion. Id. at 192.

                               CONCLUSION

¶15           For these reasons, the superior court erroneously certified its
partial dismissal of Jackson’s claims as a final judgment under Rule 54(b).
We lack jurisdiction and dismiss the appeal. In our discretion, we deny
both parties’ requests for attorney’s fees and costs on appeal.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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