Bilke v. State

SUPREME COURT OF ARIZONA
En Banc

MITCHELL PAUL BILKE; CHARLES ) Arizona Supreme Court
ROBERT; KENNETH ASHELMAN; FELTON ) No. CV-03-0034-PR
HALE; RICHARD S. BERRY; MERVIN )
L. DAVIS and DAMON D. FISHER, ) Court of Appeals
individually and as members of a ) Division One
class, ) No. 1 CA-CV 01-0601
)
Plaintiffs-Appellees, ) Maricopa County Superior
) Court
v. ) No. CV 88-026272
)
STATE OF ARIZONA; ARCOR )
ENTERPRISES, a subdivision of ) O P I N I O N
the State; ARIZONA CORRECTIONAL )
INDUSTRIES, a subdivision of the )
State, )
)
Defendants-Appellants. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
No. CV 88-026272
The Honorable Edward O. Burke, Judge

REVERSED

Court of Appeals, Division 1
No. 1 CA-CV 01-0601 (Oct. 15, 2002) (mem. decision)

APPROVED IN PART

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Daniel P. Schaack, Assistant Attorney General
Attorneys for Defendants-Appellants

Michael E. St. George
Attorney for Plaintiffs-Appellees Tempe
R Y A N, Justice

¶1 In Arizona, “an interlocutory judgment which

determines the rights of the parties and directs an accounting

or other proceeding to determine the amount of the recovery” may

be appealed. Ariz. Rev. Stat. (“A.R.S.”) § 12-2101(G) (2003).

We granted review to resolve a conflict between two decisions of

the court of appeals as to the proper interpretation of the

phrase “accounting or other proceeding to determine the amount

of the recovery.” We hold 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. We also hold that

appeals under § 12-2101(G) are not limited to cases in which an

accounting or similar equitable proceeding has been ordered to

determine the amount of recovery. We have jurisdiction under

Article 6, Section 5(3), of the Arizona Constitution, A.R.S. §

12-120.24 (2003), and Rule 23 of the Arizona Rules of Civil

Appellate Procedure.

I.

¶2 Plaintiffs filed the original complaint in this case

in 1988, challenging the wages they were paid while

incarcerated. Plaintiffs were employed either by Arizona

Correctional Enterprises, Inmate Operated Business Enterprises,

2
or by privately owned companies. See Bilke v. State, 189 Ariz.

133, 134-35, 938 P.2d 1134, 1135-36 (App. 1997). The trial

court ruled that any plaintiff who worked for a private company

was entitled to receive the minimum wage. Id. at 135, 938 P.2d

at 1136. The State did not challenge this ruling. Id. at 136,

938 P.2d at 1137.

¶3 In 2000, the superior court granted plaintiffs

permission to file a second amended complaint to add inmates who

worked at a coupon-processing plant in Winslow. The complaint

also sought class certification, which the trial court granted.

¶4 Both sides then filed motions for summary judgment.

Citing the first trial court’s ruling that inmates who worked

under a contract with a private entity on prison grounds were

entitled to receive the minimum wage, see id., plaintiffs sought

summary judgment solely on liability. Because the Winslow plant

had closed in 1998, the State argued that the one-year statute

of limitations had run on the claim. See A.R.S. § 12-821 (2003)

(“All actions against any public entity or public employee shall

be brought within one year after the cause of action accrues and

not afterward.”). Plaintiffs countered that their claim related

back to the filing of the original complaint under Rule 15(c) of

the Arizona Rules of Civil Procedure.1 The trial court agreed

1
Rule 15(c) provides: “Whenever the claim or defense
asserted in the amended pleading arose out of the conduct,

3
with plaintiffs, finding that the claims related back to the

original complaint. The court then granted partial summary

judgment on liability.

¶5 The State subsequently requested that the court enter

a judgment “with finality language, so that it could immediately

appeal.” The court granted the request on the condition that

the form of judgment contain language stating:

[T]he judgment resolves the parties’ rights
as to liability and [] the State is liable
for the minimum wage if the Statute of
Limitations has not been violated. The only
unresolved question is the amount of
recovery.

The court eventually signed a judgment that incorporated the

above language.

¶6 The State appealed, citing A.R.S. § 12-2101(G) and

Cook v. Cook, 26 Ariz. App. 163, 547 P.2d 15 (1976), as the

basis for jurisdiction. Cook held that a summary judgment

solely on the issue of liability could be appealed under § 12-

2101(G) when the only question remaining was the amount of

damages, and the trial court, in the exercise of its discretion,

entered an interlocutory judgment with express language

determining that an appeal should lie under § 12-2101(G). Id.

at 168, 547 P.2d at 20.

transaction, or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back to
the date of the original pleading.” Ariz. R. Civ. P. 15(c).

4
¶7 The court of appeals reversed, holding that under the

facts, Rule 15(c) did not permit plaintiffs’ second amended

complaint to relate back to the original complaint. Bilke v.

State, 1 CA-CV 01-0601, ¶ 16 (Ariz. App. Oct. 15, 2002) (mem.

decision). The court remanded the matter to the trial court

with directions for it “to grant the State’s motion for summary

judgment on the statute of limitations issue.” Id.

¶8 Plaintiffs petitioned this court for review. While

the petition was pending, another panel of the court of appeals

concluded that Cook was wrongly decided and that A.R.S. § 12-

2101(G) permits interlocutory review only of those rare cases in

which the superior court, after determining liability, orders

an accounting or similar equitable proceeding, such as “a

tracing to enforce a constructive trust.” Mezey v. Fioramonti,

204 Ariz. 599, 602-04, ¶¶ 4, 7-15, 65 P.3d 980, 983-85 (App.

2003).2

¶9 The State alerted this court and plaintiffs’ counsel

to the Mezey decision. Plaintiffs then filed a supplemental

petition for review, urging that the court of appeals decision

be vacated because it lacked jurisdiction to hear the appeal.

We granted review to resolve the conflict between Cook and Mezey

as to when A.R.S. § 12-2101(G) permits an interlocutory appeal.

2
Neither party in Mezey petitioned this court for review.

5
 II.

¶10 “[A]bsent a pertinent provision in the Arizona

Constitution, the right of appeal exists only by statute.” Musa

v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). Although

“[p]ublic policy is . . . against piecemeal appeals,” id.,

A.R.S. § 12-2101(G) permits an appeal of an interlocutory

judgment when the only issue left to be determined is the amount

of recovery, whether through “an accounting or other

proceeding.” Cook did not limit the phrase “other proceeding” to

equitable proceedings. 26 Ariz. App. at 167, 547 P.2d at 19.

Mezey, on the other hand, concluded that the term “other

proceeding” must be strictly limited to equitable proceedings

because if it were not so limited, the “general rule of

finality” would be swallowed and “the routine civil case in

which liability alone has been determined” would be immediately

appealable. 204 Ariz. at 605, ¶ 20, 65 P.3d at 986. We review

this question of statutory interpretation de novo. Canon Sch.

Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d

500, 503 (1994).

A.

¶11 Principles of statutory interpretation guide our

analysis. The court’s chief goal in interpreting a statute is

“to fulfill the intent of the legislature that wrote it.” State

v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). In

6
determining the legislature’s intent, we initially look to the

language of the statute itself. Zamora v. Reinstein, 185 Ariz.

272, 275, 915 P.2d 1227, 1230 (1996). If the language is clear,

the court must “apply it without resorting to other methods of

statutory interpretation,” Hayes v. Cont’l Ins. Co., 178 Ariz.

264, 268, 872 P.2d 668, 672 (1994), unless application of the

plain meaning would lead to impossible or absurd results.

Marquez v. Rapid Harvest Co., 89 Ariz. 62, 64, 358 P.2d 168, 170

(1960). The court must give effect to each word of the statute.

Guzman v. Guzman, 175 Ariz. 183, 187, 854 P.2d 1169, 1173 (App.

1993) (“A statute is to be given such an effect that no clause,

sentence or word is rendered superfluous, void, contradictory or

insignificant.”). In giving effect to every word or phrase, the

court must assign to the language its “usual and commonly

understood meaning unless the legislature clearly intended a

different meaning.” State v. Korzep, 165 Ariz. 490, 493, 799

P.2d 831, 834 (1990).

B.

¶12 We conclude that the plain language of A.R.S. § 12-

2101(G) does not limit appeals of interlocutory judgments to

equitable proceedings. Nothing in § 12-2101(G) indicates that

the “other proceeding” must be similar to an accounting or,

alternatively, another equitable proceeding. The statute

contemplates only that the proceeding that remains determines

7
the amount of recovery. Thus, a plain reading of § 12-2101(G)

does not support the conclusion that it includes only equitable

proceedings.

¶13 Moreover, we agree with Cook’s rejection of the

ejusdem generis rule, which if applied would limit “the type of

proceedings in which appeals [under § 12-2101(G)] should be

allowed.” 26 Ariz. App. at 167, 547 P.2d at 19. The ejusdem

generis rule applies “where general words follow the enumeration

of particular classes of things.” Black’s Law Dictionary 517

(6th ed. 1990) (emphasis added). Generally, we have applied

this rule to aid in interpretation of statutes that include a

list or series of specific, but similar, persons or things.

See, e.g., In re Julio L., 197 Ariz. 1, 4, ¶ 11, 3 P.3d 383, 386

(2000) (finding that the term “seriously disruptive” should be

interpreted in light of the preceding specific categories of

“fighting” and “violent” behavior); Wilderness World, Inc. v.

Dep’t of Revenue, 182 Ariz. 196, 198-99, 895 P.2d 108, 110-11

(1995) (finding that guided river trips are not taxable under a

general clause in the statute that taxes “any business charging

admission fees for exhibition, amusement or instruction” because

a river trip is not of the same kind or nature as the activities

specifically listed in the statute — “theaters, movies, operas,

shows, exhibitions, concerts, carnivals, circuses, amusement

parks, menageries, fairs, races, contests, games, pool parlors,

8
bowling alleys, dances, and boxing and wrestling matches”). The

legislature did not create in A.R.S. § 12-2101(G) a list of

specific or similar things from which this court can infer an

intention to narrow the subsequent general class of “other

proceedings.” Thus, the ejusdem generis rule does not apply.

¶14 In addition, as the Cook court indicated, several

factors lead to the conclusion that the phrase “other

proceeding” is not limited to equitable proceedings. First,

like the court of appeals in Cook, we are “unable to identify

any substantial number of traditionally equitable proceedings

for determining recovery apart from an accounting.” 26 Ariz.

App. at 167, 547 P.2d at 19. Indeed, Mezey identified only one

proceeding other than an accounting that would qualify as a

“proceeding to determine the amount of recovery” under § 12-

2101(G) — a tracing to enforce a constructive trust. 204 Ariz.

at 604, ¶ 15, 65 P.3d at 985. Second, Cook also observed that

“A.R.S. § 12-2101 separately provides for interlocutory appeal

in other selected types of traditionally equitable remedies.”

26 Ariz. App. at 167, 547 P.2d at 19 (citing A.R.S. § 12-

2101(F)(2) (injunctions) and § 12-2101(H) (partitions)). Third,

because of the vanishing distinctions between law and equity, §

12-2101(G) “should not be construed on the basis of historical

considerations which are becoming increasingly outmoded. In

Arizona, the movement to abolish artificial distinctions between

9
law and equity has roots which antedate statehood.” Id. (citing

Rees v. Rhodes, 3 Ariz. 235, 237, 73 P. 446, 446 (1890)).

¶15 Had the legislature intended § 12-2101(G) to preserve

the distinction between law and equity, it could have simply

added “similar” or “equitable” to limit the phrase “other

proceeding.”3 Instead, the legislature used broad language. The

common understanding of the term “proceeding” encompasses all

types of actions, whether in equity or law. “The word may be

used synonymously with ‘action’ or ‘suit’ to describe the entire

course of an action at law or suit in equity.” Black’s Law

Dictionary 1204 (emphasis added). Specifically, the term means

“any application to a court of justice, however made, for aid in

the enforcement of rights, for relief, for redress of injuries,

for damages, or for any remedial object.” Id. (emphasis added).

¶16 Accordingly, the legislature’s use of the term

“proceeding,” without limitation, supports Cook’s conclusion

that an appeal brought under A.R.S. § 12-2101(G) is not limited

3
See, e.g., A.R.S. § 6-395.05(B) (1999) (granting receiver
title to assets of a bank in receivership “upon which a creditor
of the bank could have obtained a lien by legal or equitable
proceedings”) (emphasis added); A.R.S. § 47-9334(E)(3) (Supp.
2003) (granting priority to a perfected security interest in
fixtures over a conflicting security interest of an owner of the
real property if “[t]he conflicting interest is a lien on the
real property obtained by legal or equitable proceedings after
the security interest was perfected”) (emphasis added); A.R.S. §
44-1001(6) (2003) (defining lien to include “a judicial lien
obtained by legal or equitable process or proceedings”)
(emphasis added).

10
to proceedings sounding in equity to determine the amount of

recovery. Rather, the legislature intended § 12-2101(G) to apply

generally to proceedings to determine the amount of damages.

III.

¶17 Despite the plain language of A.R.S. § 12-2101(G),

Mezey articulated several policy reasons for limiting § 12-

2101(G) to equitable proceedings. First, the court believed

that Cook’s holding “would undercut the basic finality

requirement of [§] 12-2101(B).”4 Mezey, 204 Ariz. at 604, ¶ 18,

65 P.3d at 985. Second, it reasoned that “Cook’s expansive view

of jurisdiction is . . . very unfavorable . . . to successful

plaintiffs.” Id. at 605, ¶ 21, 65 P.3d at 986. Third, it

believed that Cook “misconceive[d] the role of [Arizona Rule of

Civil Procedure] 54(b) certification,” id. at ¶ 22, which

requires that all claims or an entire claim against a party be

decided before an appeal can be brought. We address each of

these reasons in turn.

A.

¶18 We agree with Mezey that finality of judgments is

important before instituting appellate review in most cases.

But A.R.S. § 12-2101(G) is an express exception to this

principle. Thus, Mezey’s criticism that Cook’s interpretation

4
A.R.S. § 12-2101(B) states, in part, that “a final judgment
entered in an action or special proceeding commenced in a
superior court” may be appealed.

11
of § 12-2101(G) undercuts § 12-2101(B) misses the point of § 12-

2101(G). The legislature clearly intended for § 12-2101(G) to

permit an appeal of an interlocutory judgment that determined

the rights of the parties, with only the amount of recovery left

to be decided. Nevertheless, as Cook discussed, there must be

some additional express language of finality in the judge’s

order for the court of appeals to have jurisdiction under § 12-

2101(G). 26 Ariz. App. at 168, 547 P.2d at 20. Such a

requirement ensures that appeals can be taken only from

interlocutory judgments that finally resolve the “rights of the

parties,” and in which the court has directed “an accounting or

other proceeding to determine the amount of recovery.”

¶19 Admittedly, Mezey’s apprehension that our appellate

courts will be overloaded by interlocutory appeals as a result

of a broad interpretation of § 12-2101(G) has some theoretical

basis. But since Cook, we have found only five reported cases,

other than Mezey, that cited § 12-2101(G).5 Moreover, only one

case, Salerno v. Atlantic Mutual Insurance Co., 198 Ariz. 54, 6

P.3d 758 (App. 2000), relied on § 12-2101(G) as the basis for

jurisdiction. Thus, Mezey’s fear that Cook’s “approach makes a

5
See Musa, 130 Ariz. at 311, 636 P.2d at 89; Salerno v. Atl.
Mut. Ins. Co., 198 Ariz. 54, 6 P.3d 758 (App. 2000); Musa v.
Adrian, 130 Ariz. 326, 636 P.2d 104 (App. 1980); Pepsi-Cola
Metro. Bottling Co. v. Romley, 118 Ariz. 565, 578 P.2d 994 (App.
1978); Empress Beauty Supply, Inc. v. Price, 116 Ariz. 34, 567
P.2d 350 (App. 1977).

12
narrow exception swallow the general rule of finality,” and

“allows immediate appeal in the routine civil case in which

liability alone has been determined,” Mezey, 204 Ariz. at 605, ¶

20, 65 P.3d at 986, has simply not occurred because liability

and damages are rarely bifurcated.

B.

¶20 Likewise, for several reasons, Mezey overstates the

concern that Cook’s interpretation of A.R.S. § 12-2101(G) is

unfair to plaintiffs because it allows defendants to avoid

paying plaintiffs damages and avoid posting supersedeas bonds.

Id. at ¶ 21. First, as discussed above, there simply has not

been a flood of cases that have relied on § 12-2101(G) as the

basis for appellate jurisdiction. Thus, Cook’s interpretation

of § 12-2101(G) has not worked to the disadvantage of

plaintiffs. Second, plaintiffs’ rights must be balanced with

defendants’ rights. To be sure, plaintiffs may experience delay

if liability determinations are eventually affirmed in § 12-

2101(G) appeals. But, on the other hand, defendants experience

unnecessary expense when judgments are reversed in § 12-2101(B)

appeals. As Cook points out, “appellate review may be highly

desirable in some interlocutory liability determinations, as for

example in cases where a serious question exists as to

liability, and a lengthy and possibly unnecessary trial of

damages might be averted by interlocutory review.” 26 Ariz.

13
App. at 167, 547 P.2d at 19. Consequently, Cook’s

interpretation of § 12-2101(G) strikes a balance between

plaintiffs and defendants, whereas Mezey tips the balance almost

entirely in favor of plaintiffs.

¶21 Third, trial courts have the discretion to decide

whether to certify a judgment as appealable under § 12-2101(G).

Id. at 168, 547 P.2d at 20 (“The trial court should . . .

exercise its sound discretion in such certifications in order to

avoid hardship, delay and unnecessary appeals.”). Accordingly,

a trial court can weigh the competing interests in deciding

whether an appeal of an interlocutory judgment may cause undue

hardship to a plaintiff.

C.

¶22 Mezey also believed the Cook court “misconceive[d] the

role of Rule 54(b) certification” when it held that the trial

court’s Rule 54(b) certification turned an interlocutory

judgment under A.R.S. § 12-2101(G) into a final one. 204 Ariz.

at 605, ¶ 22, 65 P.3d at 986. But Cook did not hold that Rule

54(b) certification made an interlocutory judgment final.

Instead, the court stated:

We agree with the appellee that the judgment
here cannot be considered a final judgment as
to the Cooks, since it settles only the
question of liability and not the amount of
damages. We also agree that the insertion of
54(b) determinations in an order which was
otherwise substantively unappealable under

14
 our law cannot make the order appealable.

Cook, 26 Ariz. App. at 165, 547 P.2d at 17. Cook distinguished

between Rule 54(b) certification, which makes a judgment final,

and a trial court’s determination that an appeal of an

interlocutory judgment may be brought under § 12-2101(G). Like

Mezey, Cook was concerned about the consequences of permitting

defendants to appeal every interlocutory liability judgment. In

that respect, the court said the following:

We should not encourage filing of premature
appeals where there is a serious question as
to whether there has been an interlocutory
“determination of the rights of the parties”
or whether the only remaining issue is in
fact the “amount of recovery.” We are also
troubled by possible disputes over whether a
defendant who fails to take an interlocutory
appeal thereafter loses his right to
question the liability determination.

Id. at 168, 547 P.2d at 20 (footnote omitted).

¶23 Accordingly, Cook held that for a judgment to be

appealable under § 12-2101(G), a trial judge must use express

language that the judgment has finally determined the rights of

the parties and is subject to an interlocutory appeal. Id. A

Rule 54(b) certification, while not necessary, would satisfy the

finality requirement, as would other express language in the

order indicating finality on the question of the rights of the

parties. Id. Thus, appealability under § 12-2101(G) turns not

on the finality of the judgment, but on the finality of the

15
liability decision and the trial court’s discretionary finding

that an appeal should lie in the particular case.

D.

¶24 Finally, Mezey relied on Liberty Mutual Insurance Co.

v. Wetzel, 424 U.S. 737 (1976), to support its conclusion that

no appeal was permissible in “this very situation.” 204 Ariz.

at 605, ¶ 20, 65 P.3d at 986. In Liberty Mutual, the Court held

that a judgment is not necessarily appealable simply because it

includes the language from Rule 54(b) of the Federal Rules of

Civil Procedure certifying that the judgment is final. 424 U.S.

at 742. The district court in Liberty had granted a partial

summary judgment on liability and certified that the judgment

was final under Rule 54(b). Id. at 741-42. The Court disagreed

with the proposition that a partial summary judgment on the

issue of liability could be made appealable by the inclusion of

Rule 54(b) certification, because the case involved only a

single claim, not multiple claims or parties, as Rule 54(b)

requires. Id. at 742-43.

¶25 Mezey’s reliance on Liberty Mutual is misplaced. No

appeal could be brought in Liberty Mutual because the judgment

was not final, and no federal statute permitted an appeal of

such an interlocutory judgment.6 The only possible basis for

6
Interlocutory appeals are permitted under federal law when
the judgment concerns an injunction, 28 U.S.C. § 1292(a)(1), or

16
jurisdiction was 28 U.S.C. § 1292(b), which permits an

interlocutory appeal if both the district court and the circuit

court consent. Id. at 745. Because the appellant had not

applied to the circuit court for permission to appeal, even

though the district court had certified the matter under Rule

54(b), the circuit court had no jurisdiction over the “appeal.”

Id. As such, Liberty Mutual has no application in the present

case.

IV.

¶26 Since the earliest days of statehood, Arizona has had

a provision permitting an appeal from an interlocutory judgment

that “determines the rights of the parties,” leaving only an

accounting “or other proceeding to determine the amount of the

recovery.” See Civ. Code 1913 § 1227(2). Section 12-2101(G) is

the current version of this longstanding authority for appellate

jurisdiction. And since 1976, Cook’s interpretation of § 12-

2101(G) has been applied in determining whether such

interlocutory judgments could be appealed. Cf. Musa, 130 Ariz.

at 314, 636 P.2d at 92 (citing Cook and noting that § 12-2101(G)

“has not been limited to judgments in equitable proceedings, but

has been extended to interlocutory decisions on the merits where

all issues have been determined except the amount of recovery”).

when there is a “substantial ground for difference of opinion”
over a controlling question of law. 28 U.S.C. § 1292(b).
Neither statute is the equivalent of A.R.S. § 12-2101(G).

17
¶27 Despite Mezey’s misgivings about Cook’s interpretation

of § 12-2101(G), we have found no evidence that any of the

concerns discussed by the Mezey court have seriously undermined

the principle of discouraging piecemeal appeals. In fact, this

case is a clear example of the efficacy of Cook’s interpretation

of § 12-2101(G). If the State had been unable to obtain

appellate review of the trial court’s ruling rejecting its

statute of limitations defense, it would have gone through a

lengthy and unnecessary trial to determine the amount of damages

for an unknown number of inmates who had worked at the coupon-

processing facility at the prison in Winslow.

¶28 Accordingly, we hold that under A.R.S. § 12-2101(G),

“an interlocutory judgment which determines the rights of the

parties and directs . . . [a] proceeding to determine the amount

of the recovery” can be appealed if the trial court, in the

exercise of its sound discretion, expressly directs that the

only issue remaining is the amount of recovery. We further hold

that an appeal can be taken from such a judgment even if the

proceeding to determine the amount of recovery is not an

equitable proceeding. Consequently, we disapprove of Mezey’s

limitation on the type of appeals that can be brought under §

12-2101(G).

18
 V.

¶29 For the above reasons, we approve that portion of the

court of appeals’ decision which concluded that it had

jurisdiction over the appeal under A.R.S. § 12-2101(G).7

______________________________________
Michael D. Ryan, Justice

CONCURRING:

______________________________________
Charles E. Jones, Chief Justice

______________________________________
Ruth V. McGregor, Vice Chief Justice

_
Rebecca White Berch, Justice

______________________________________
Andrew D. Hurwitz, Justice

7
Although plaintiffs originally petitioned for review on
several non-jurisdictional grounds, we granted review only on
the supplemental petition, which raised the question of whether
the court of appeals had jurisdiction to decide the appeal. We
held in abeyance our decision as to whether to grant review on
the original petition pending our decision here. Because the
original petition for review does not meet the criteria of Rule
23 of the Arizona Rules of Civil Appellate Procedure, we deny
review of that petition.

19