State ex rel. Corbin v. Tolleson

732 P.2d 1114, 152 Ariz. 376, 1986 Ariz. App. LEXIS 701
CourtCourt of Appeals of Arizona
DecidedNovember 18, 1986
DocketNos. 1 CA-CIV 8999, 1 CA-CIV 9000
StatusPublished
Cited by3 cases

This text of 732 P.2d 1114 (State ex rel. Corbin v. Tolleson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Corbin v. Tolleson, 732 P.2d 1114, 152 Ariz. 376, 1986 Ariz. App. LEXIS 701 (Ark. Ct. App. 1986).

Opinion

OPINION

EUBANK, Presiding Judge.

This case addresses the question of whether a trial court has jurisdiction to hear a motion for reconsideration of a preliminary injunction once the granting of the injunction has been appealed. This matter arose when the attorney general filed an action under the Arizona Consumer Fraud Act, A.R.S. § 44-1521 et seq., and the Arizona Racketeering Act, A.R.S. § 13-2301 et seq., and A.R.S. § 13-106. As defendants, the suit named James Edwin Tolleson and three associates, all of whom were doing business as Success Education Training Company (SETCO). The complaint alleged that the defendants committed unlawful acts while marketing the “James E. Tolleson Future Millionaires Home Study Course on Empire Building” (hereinafter referred to as the “course”). The course consists of a set of audio and video tapes [378]*378with motivational messages primarily by Tolleson.

On March 14, 1986, the trial court granted a preliminary injunction prohibiting the sale of the course. Tolleson and SETCO (hereinafter collectively referred to as Tolleson) filed a motion for reconsideration of the preliminary injunction on March 31, 1986. On April 10, 1986, Tolleson filed a notice of appeal from the granting of the preliminary injunction.

On April 23, 1986, the trial court denied the motion for reconsideration. Subsequently, Tolleson filed a second notice of appeal from the minute entry that denied the motion.

Shortly after Tolleson filed the second notice of appeal, this court advised Tolleson that a preliminary review indicated that the court did not have jurisdiction over the second appeal. In response, Tolleson filed a motion supporting jurisdiction in the second appeal and requesting that it be consolidated with the first appeal.

Tolleson argues that this court has jurisdiction over the second appeal under either of two alternative theories. First, he contends that Rule 62(c), Arizona Rules of Civil Procedure, grants the trial court authority to modify an injunction even though the injunction has been appealed. Consequently, he urges, the denial of a Rule 62(c) motion for reconsideration is appealable under A.R.S. § 12-2101(F)(2). Alternatively, he contends that his motion for reconsideration should be treated as a motion made under Rule 59, Arizona Rules of Civil Procedure, which extends the time for appeal. According to Tolleson, the time for appeal from the granting of the preliminary injunction itself would then be extended, rendering the first notice of appeal premature. The second notice of appeal would then bring both the preliminary injunction and the denial of the motion for reconsideration before this court.

On September 17, 1986, we rejected both of Tolleson’s arguments and issued an order denying the motion to retain jurisdiction and to consolidate the appeals, and dismissing the appeal in 1 GA-CIV 9000. This opinion follows that order.

RULE 62(c)

Generally, an appeal divests the trial court of jurisdiction to proceed except in furtherance of the appeal. Castillo v. Industrial Commission, 21 Ariz.App. 465, 467, 520 P.2d 1142, 1144 (1974). This general principle is subject to many exceptions, however. Rule 62(c),1 Arizona Rules of Civil Procedure, is a codification of one of these exceptions. See McClatchy Newspapers v. Central Valley Typographical Union No. 46, International Typographical Union, 686 F.2d 731, 734 (9th Cir.), cert. denied 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982).

When read in isolation, Rule 62(c) appears to grant the trial court unlimited discretion to modify or dissolve an injunction being appealed. When read in context with other provisions of Rule 62, however, the scope of the rule is more limited. Rule 62(c) merely sets forth the types of orders which a trial court may enter when considering an application to stay proceedings to enforce an injunction pending appeal. Rule 62(c) was not intended to provide a conduit through which a disgruntled party could seek to directly modify the terms of the injunction being appealed. Instead, the rule allows the trial court to issue a stay that postpones the effect of the granting, dissolution, or modification of the injunction. The trial court may make the orders necessary to preserve the status quo during the appeal and to protect the unsuccessful party from any irreparable harm that would occur from enforcing the ruling on the injunction. Once the appeal of the [379]*379injunction becomes final, the trial court’s interim protection under Rule 62(c) is dissolved.

Federal interpretations of Rule 62(c), Federal Rules of Civil Procedure, support our analysis. Because the Arizona rule came from the federal rule, these interpretations are useful in determining the scope of the rule. Hedlund v. Ford Marketing Corp., 129 Ariz. 176, 178, 629 P.2d 1012, 1014 (App.1981).

Under the federal rule, a district court will modify an injunction pending appeal only as needed to preserve the status quo. See, e.g., Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir.1962); United Parcel Service, Inc. v. United States Postal Service, 475 F.Supp. 1158, 1163 (E.D. Pa.1979). Rule 62(c)

“does not restore jurisdiction to the district court to adjudicate anew the merits of the case after either party has invoked its right of appeal and jurisdiction has passed to an appellate court. Rule 62(c) codifies the ‘long established’ and narrowly limited right of a trial court ‘to make orders appropriate to preserve the status quo while the case is pending in [an] appellate court.' ”

McClatchy Newspapers, 686 F.2d at 734, (quoting United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (9th Cir.1951)).

When a party appeals a preliminary injunction, the trial court loses jurisdiction over the injunction but retains jurisdiction over the remainder of the case. As we discussed above, Rule 62(c), Arizona Rules of Civil Procedure, allows the trial court to modify an injunction pending appeal only if the modification is necessary to preserve the status quo at the time of the appeal. Tolleson’s motion to reconsider did not seek to maintain the status quo but to change the matters on appeal. Consequently, the trial court had no jurisdiction to consider Tolleson’s motion. This court, therefore, only has jurisdiction to dismiss the appeal from the order denying the motion. McHazlett v. Otis Engineering Corp., 133 Ariz.

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Cite This Page — Counsel Stack

Bluebook (online)
732 P.2d 1114, 152 Ariz. 376, 1986 Ariz. App. LEXIS 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-corbin-v-tolleson-arizctapp-1986.