                                                                 FILED BY CLERK
                             IN THE COURT OF APPEALS                FEB 29 2012
                                 STATE OF ARIZONA
                                                                    COURT OF APPEALS
                                   DIVISION TWO
                                                                        DIVISION TWO




SOUTHWEST GAS CORPORATION, a                    )
California corporation; and BRET TAYLOR, )          2 CA-SA 2011-0107
                                                )   DEPARTMENT B
                                   Petitioners, )
                                                )   OPINION
               v.                               )
                                                )
HON. CHARLES A. IRWIN, Judge                    )
of the Superior Court of the State of Arizona, )
in and for the County of Cochise,               )
                                                )
                                 Respondent, )
                                                )
               and                              )
                                                )
BRIZA GRUBB, individually and as surviving )
spouse of MICHAEL GRUBB; BRIZA                  )
GRUBB, for and on behalf of her minor           )
children, ALEXANDRO GRUBB and                   )
EMILY GRUBB; BRIZA GRUBB as                     )
Personal Representative of the ESTATE OF )
MICHAEL GRUBB,                                  )
                                                )
                      Real Parties in Interest. )
                                                )


                          SPECIAL ACTION PROCEEDING

                        Cochise County Cause No. CV200800099

                  JURISDICTION ACCEPTED; RELIEF GRANTED


Jennings, Strouss & Salmon, P.L.C.
 By Michael J. O‟Connor and John J. Egbert                                  Phoenix
                                                                  Attorneys for Petitioners

Penilla Metzger, PLLC
 By Nathan T. Metzger and Perry E. Casazza                                         Phoenix
                                                                             Attorneys for
                                                                    Real Parties in Interest


E S P I N O S A, Judge.


¶1            Southwest Gas Corp. and its employee Bret Taylor (referred to jointly as

Southwest Gas), are two of multiple defendants in the underlying wrongful death action

filed by real party in interest Briza Grubb (Grubb). In this special action, Southwest Gas

challenges the respondent judge‟s orders in which he concluded that, because Grubb had

appealed the judgment entered in favor of another defendant, he lacked jurisdiction to

conduct further proceedings involving defendants who are not parties to that judgment

and was required to stay all further proceedings. We accept jurisdiction and grant relief

for the reasons stated below.

                     Factual Background and Procedural History

¶2            The relevant facts and procedural history of this special action are as

follows. Grubb‟s late husband Michael Grubb was severely injured when a DESA Glo-

Warm gas space heater he had purchased at B & D Lumber in Douglas, Arizona exploded

as he attempted to ignite the pilot light. Michael died about three months later as a result

of his injuries. On behalf of herself individually as Michael‟s surviving spouse and their

two children, and as personal representative of Michael‟s estate, Grubb filed a complaint

against numerous defendants, including Southwest Gas; D.D.E.K. Corp. d/b/a B & D


                                             2
Lumber & Hardware; Do It Best Corporation (DIB), a wholesaler of the heater; DESA,

the manufacturer of the heater; and various other defendants. The respondent judge

granted DIB‟s motion for summary judgment and signed and filed a judgment on July 18,

2011. Pursuant to Rule 54(b), Ariz. R. Civ. P., the judgment stated there was “no just

reason for delay,” directed “entry of judgment in favor of” DIB and against Grubb, and

dismissed with prejudice all of Grubb‟s claims against DIB. Grubb filed a notice of

appeal from that judgment on August 17; that appeal is now pending before this court.

See No. 2 CA-CV 2011-0140.

¶3            In mid-September 2011, the respondent judge directed the parties to

address his concern that he had “lost jurisdiction to hear the Summary [J]udgment

Motions [before him] due to the pending Appeal.” In Grubb‟s responsive memorandum,

she stated, “[T]he filing of the Notice of Appeal divested the Superior Court of

jurisdiction over all claims pending the Court of Appeals‟ anticipated ruling on Plaintiffs‟

appeal of the judgment entered in favor of Defendant Do It Best Corporation,” and that

the respondent should stay all further proceedings in the trial court. Southwest Gas

disagreed, stating in its memorandum that the certification of the judgment in favor of

DIB as final pursuant to Rule 54(b) had been proper, the judgment was final and

appealable, and the action against different defendants could proceed. Grubb filed a

subsequent memorandum restating her request that the respondent stay the proceedings

and suggesting the respondent should issue the stay in the exercise of his discretion for

reasons of efficiency. She argued that claims such as strict liability based on products-

liability law applied to all defendants and it would be more efficient for the respondent to

                                             3
stay further proceedings against the remaining defendants pending this court‟s

determination of that issue on appeal in order to avoid this court having to decide the

same issue more than once.

¶4            The respondent judge issued an order staying all further proceedings.

Southwest Gas and other defendants then filed a Joint Motion to Lift Stay.               The

respondent denied the motion, stating that the appeal had “divested [him] of jurisdiction.”

For that reason, he “decline[d]” to rule on the motion to lift the stay, stating he had “no

authority to make such ruling and the appropriate forum to make such request is the

Court of Appeals.” This special action followed.

                               Special Action Jurisdiction

¶5            In her response to Southwest Gas‟s petition, Grubb focuses primarily on

why we should not accept jurisdiction. But we find there are a number of significant

reasons justifying our discretionary acceptance of special action jurisdiction here. See

Potter v. Vanderpool, 225 Ariz. 495, ¶ 6, 240 P.3d 1257, 1260 (App. 2010) (“Whether to

accept special action jurisdiction is for this court to decide in the exercise of our

discretion.”). First, Southwest Gas cannot challenge the respondent judge‟s orders by

direct appeal because they are interlocutory orders. See id. ¶ 7 (acceptance of special

action jurisdiction appropriate when challenged ruling is interlocutory); see also Ariz. R.

P. Spec. Actions 1(a) (special action available to litigant without equally plain, speedy, or

adequate remedy by appeal).

¶6            Second, we are inclined to accept special action jurisdiction when a party

cannot obtain justice by other means.     See State ex rel. Romley v. Hutt, 195 Ariz. 256,

                                             4
¶ 5, 987 P.2d 218, 221 (App. 1999). Southwest Gas asserts it has no avenue for obtaining

relief from the ongoing harm other than by special action because the respondent judge

has issued a stay pending “the conclusion of the . . . appeal” and has “thereby

prejudic[ed] all the remaining parties and thwart[ed] the efficient administration of

justice.” It adds that once the appeal is resolved, the issue raised here will be moot,

another factor that is relevant to our decision whether to accept jurisdiction. See Costa v.

Mackey, 227 Ariz. 565, ¶ 6, 261 P.3d 449, 453 (App. 2011).

¶7            Additionally, when, as here, the special action presents a pure question of

law, it is particularly appropriate for us to accept jurisdiction.   State ex rel. Thomas v.

Gordon, 213 Ariz. 499, ¶ 8 & n.2, 144 P.3d 513, 515 & n.2 (App. 2006). The question

whether the respondent judge was divested of jurisdiction to proceed with the litigation

against other defendants once Grubb filed a notice of appeal from the DIB judgment is

solely a question of law.    See Fry v. Garcia, 213 Ariz. 70, ¶ 6, 138 P.3d 1197, 1199

(App. 2006). So, too, is the interpretation and application of a procedural rule like Rule

54(b). See King v. Titsworth, 221 Ariz. 597, ¶ 8, 212 P.3d 935, 936 (App. 2009)

(interpretation of Rule 54(g), Ariz. R. Civ. P., question of law appellate court reviews de

novo); Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, ¶ 9, 158 P.3d 225, 228 (App.

2007) (application of procedural rule is question of law reviewed de novo). Although

trial courts are vested with the discretion to decide whether a judgment should be

certified as final pursuant to Rule 54(b), a decision we will not disturb absent an abuse of

that discretion, Cont’l Cas. v. Superior Court, 130 Ariz. 189, 191-92, 635 P.2d 174, 176-

77 (1981); Kim v. Mansoori, 214 Ariz. 457, ¶ 6, 153 P.3d 1086, 1088 (App. 2007),

                                              5
“whether „the judgment in fact is‟” final is another question of law that we review de

novo, Mansoori, 214 Ariz. 457, ¶ 6, 153 P.3d at 1088, quoting Davis v. Cessna Aircraft

Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991).

                                        Discussion

¶8            Section 12-2101(A)(1), A.R.S., gives this court jurisdiction of appeals

“[f]rom a final judgment.”     See also § 12-2101(B) (order or judgment of the kind

identified in subsection (A) of statute “is appealable”); Mansoori, 214 Ariz. 457, ¶ 6, 153

P.3d at 1088 (“Generally, appellate court jurisdiction is „limited to final judgments which

dispose of all claims and all parties.‟”), quoting Musa v. Adrian, 130 Ariz. 311, 312, 636

P.2d 89, 90 (1981). When a party files a notice of appeal from a final judgment, it

“generally divests the trial court of jurisdiction to proceed except in furtherance of the

appeal.” Castillo v. Indus. Comm’n, 21 Ariz. App. 465, 467, 520 P.2d 1142, 1144

(1974). But, the court added in Castillo, “this general principle is subject to many

equally well established exceptions,” among which is that a trial court retains jurisdiction

to address matters pending before it that do not relate to an intermediate or interlocutory

order from which an appeal has been taken.       Id. at 467 & 467-68, 520 P.2d at 1144 &

1144-45.

¶9            Rule 54(b) contemplates the latter exception. It provides that in a multi-

party or multi-claim action, a trial court “may direct the entry of final judgment as to one

or more but fewer than all of the claims or parties . . . upon an express determination that

there is no just reason for delay.” “„In interpreting rules, we apply the same principles we

use in interpreting statutes.‟” Osterkamp v. Browning, 226 Ariz. 485, ¶ 14, 250 P.3d 551,

                                             6
555 (App. 2011), quoting State v. Petty, 225 Ariz. 369, ¶ 7, 238 P.3d 637, 640 (App.

2010). We therefore must determine and give effect to the intent of the supreme court in

promulgating the rule, “keeping in mind that the best reflection of that intent is the plain

language of the rule.” Id., quoting Potter, 225 Ariz. 495, ¶ 8, 240 P.3d at 1260. If a rule

is clear and unambiguous, “we will not employ other principles of construction to

determine its meaning and the supreme court‟s intent in promulgating it.” Id.

¶10           The language of Rule 54(b) is clear and unambiguous. It plainly permits

trial courts to enter judgments as to fewer than all claims or all parties in a multi-count,

multi-party proceeding. Ariz. R. Civ. P. 54(b). As our supreme court has explained, the

rule “is designed as a compromise between the policy against interlocutory appeals and

the desirability, in a few cases, of an immediate appeal to prevent an injustice.” S. Cal.

Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, ¶ 19, 977 P.2d 769, 775 (1999). By

permitting trial courts to certify a judgment as final and appealable as to one but not all

parties, the rule essentially allows that piece of the case to be severed from the rest. 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. See In re

Reymundo F., 217 Ariz. 588, ¶ 5, 177 P.3d 330, 332 (App. 2008) (common sense utilized

when interpreting and applying procedural rules).

¶11           In Egan-Ryan Mechanical Co. v. Cardon Meadows Development Corp.,

169 Ariz. 161, 166-67, 818 P.2d 146, 151-52 (App. 1990), this court addressed the

question whether the trial court retained jurisdiction when judgment had been entered on

some but not all of the claims alleged in a multi-count complaint and counterclaim.

                                              7
Relying on Castillo, the court concluded the appeal from a judgment on certain counts of

the complaint and counterclaim properly certified under Rule 54(b), did “not divest the

trial court of jurisdiction to enter judgment on the[] [remaining] counts,” adding, the

court “could do so at any time.” Id. at 166, 818 P.2d at 151.

¶12           Based on the clear language of Rule 54(b) and pertinent case law, Egan-

Ryan in particular, we conclude trial courts generally retain jurisdiction to address

matters unrelated to the appeal of a judgment properly certified as final. As noted earlier,

it is for a trial judge to decide, in the exercise of his or her discretion, whether to certify a

judgment as final. S. Cal. Edison Co., 194 Ariz. 47, ¶ 19, 977 P.2d at 775. But once the

judge “enters a Rule 54(b) judgment, it then would be a final appealable order under

A.R.S. § 12-2101(B).” Id.; see also Snell v. McCarty, 130 Ariz. 315, 317, 636 P.2d 93,

95 (1981) (appealable judgment must contain required determinations under rule). That

an order or judgment contains Rule 54(b) language, however, does not make it final and

appealable; the certification also must be substantively warranted. See Musa, 130 Ariz. at

313, 636 P.2d at 91. “A claim is separable from others remaining to be adjudicated when

the nature of the claim already determined is „such that no appellate court would have to

decide the same issues more than once even if there [a]re subsequent appeals.‟” Cont’l

Cas. v. Superior Court, 130 Ariz. at 191, 635 P.2d at 176, quoting Curtiss-Wright Corp.

v. Gen. Elec. Co., 446 U.S. 1, 8 (1980).

¶13           For purposes of this special action, we presume the DIB judgment was

properly certified as final pursuant to Rule 54(b). The parties do not dispute the finality

of the judgment and propriety of Rule 54(b) certification and nowhere in her response to

                                               8
the special action petition does Grubb claim otherwise. Although she opposed the

certification of the judgment in the trial court by objecting to the lodged judgment, she

treated it as final once entered and regarded the appeal as properly before this court. She

filed a notice of appeal and has prosecuted the appeal actively, filing her opening and

reply briefs.

¶14             Additionally, in her response to the special action petition Grubb implicitly

concedes the DIB judgment was properly certified as final by arguing that Southwest Gas

either has waived the right to challenge the judgment because it did not object in the trial

court when the judgment was lodged, or lacks standing to challenge the judgment in this

special action because it is not a party to that judgment. Southwest Gas questioned the

propriety of the DIB judgment in this special action, but only as part of its alternative

argument that if Rule 54(b) certification had been improper, the appeal from that

judgment must be dismissed, “which in turn will allow the trial court to proceed with the

litigation of the remaining claims.” Grubb urges us to not consider and give “absolutely

no weight whatsoever” to Southwest Gas‟s argument, essentially conceding the judgment

properly contained Rule 54(b) language and was a final, appealable judgment. Grubb

thereby has effectively defended the propriety of the respondent judge‟s inclusion of Rule

54(b) language in the judgment. Moreover, nothing in the record provided establishes the

respondent erred as a matter of law by certifying the DIB judgment as final pursuant to

Rule 54(b).1


       1
       But even if the respondent judge erred by certifying the DIB judgment as final
and appealable pursuant to Rule 54(b), the filing of the notice of appeal would have been
                                              9
¶15           We summarily reject Grubb‟s surprising, if not disingenuous, argument that

we should decline jurisdiction of this special action because, even if the respondent judge

erred in concluding he was divested of jurisdiction when Grubb filed her appeal, the

respondent had the inherent discretion to stay all further proceedings before him pending

the outcome of the appeal. She asserts our review of this discretionary decision would be

for an abuse of discretion, and argues there is no evidence the respondent‟s decision to

stay proceedings was “arbitrary and capricious.” Based on the record before us, however,

the respondent clearly did not issue the stay as an exercise of his general discretion over

his calendar and docket, as Grubb suggests. Rather, he expressly determined he lacked

jurisdiction to proceed because Grubb had appealed the DIB judgment.

                                       Disposition

¶16           We conclude the respondent judge abused his discretion, having erred as a

matter of law by ruling that the filing of a notice of appeal from the DIB judgment

divested him of jurisdiction to conduct further proceedings involving remaining

defendants. Southwest Gas therefore is entitled to relief. See Ariz. R. P. Spec. Actions

3(c) (abuse of discretion among bases for granting special action relief); see also Potter,

225 Ariz. 495, ¶ 14, 240 P.3d at 1262 (court abuses discretion by committing legal error).




a nullity and would not have divested the respondent of jurisdiction to proceed. See
Craig v. Craig, 227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011) (“a notice of appeal filed
in the absence of a final judgment . . . is „ineffective‟ and a nullity”), quoting Smith v.
Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, ¶ 39, 132 P.3d 1187, 1195 (2006).
Our decision in this special action, however, is based on the assumption that the DIB
judgment properly contained Rule 54(b) language and was a final, appealable judgment,
which is consistent with the positions maintained by the parties and the respondent.
                                            10
Accordingly, we vacate the stay order and direct the respondent to conduct further

proceedings consistent with this decision.




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

CONCURRING:




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




/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge




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