IN THE

SUPREME COURT OF THE STATE OF ARIZONA

BANNER UNIVERSITY MEDICAL CENTER TUCSON CAMPUS, LLC, AN 

ARIZONA CORPORATION DBA BANNER UNIVERSITY MEDICAL CENTER 

TUCSON; GEETHA GOPALAKRISHNAN, M.D.; MARIE L. OLSON, M.D.; EMILY 

NICOLE LAWSON, D.O.; DEMETRIO J. CAMARENA, M.D.; PRAKASH JOEL 

MATHEW, M.D.; SARAH MOHAMED DESOKY, M.D.; BANNER HEALTH;

BANNER UNIVERSITY MEDICAL GROUP,

Petitioners,

v.

HON. RICHARD E. GORDON, JUDGE OF THE SUPERIOR COURT

OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,

Respondent,

and

JEREMY AND KIMBERLY HARRIS,

Real Parties in Interest.

No. CV-20-0179-PR

Filed January 20, 2022

Appeal from the Superior Court in Pima County 

The Honorable Richard E. Gordon, Judge

No. C20174589

RELIEF DENIED

Opinion of the Court of Appeals, Division Two

249 Ariz. 132 (App. 2020)

VACATED

COUNSEL:

Eileen Dennis GilBride (argued), Jones, Skelton & Hochuli, P.L.C., Phoenix; 

and GinaMarie Slattery, Slattery Petersen PLLC, Tucson, Attorneys for 

Banner University Medical Center Tucson Campus LLC, Banner University 
BANNER MEDICAL V. HON. GORDON/HARRIS

Opinion of the Court 

2

Medical Center (Tucson), Geetha Gopalakrishnan, M.D., Marie L. Olson, 

M.D., Emily Nicole Lawson, D.O., Demetrio J. Camarena, M.D., Prakash 

Joel Mathew, M.D., Sarah Mohamed Desoky, M.D., Banner Health, and 

Banner University Medical Group

JoJene E. Mills (argued), Law Office of JoJene Mills, P.C., Tucson; Lawrence 

J. Rudd, M.D., J.D., Rudd Mediation, Pasadena, CA; and Arlan A. Cohen, 

M.D., J.D., Law Offices of Arlan A. Cohen, Pasadena, CA, Attorneys for 

Jeremy Harris and Kimberly Harris

David L. Abney, Ahwatukee Legal Office, P.C., Phoenix, Attorney for 

Amici Curiae Arizona Association for Justice and Arizona Trial Lawyers 

Association

Nicholas D. Acedo, Struck Love Bojanowski & Acedo, PLC, Chandler, 

Attorney for Amici Curiae Arizona Counties Insurance Pool, Arizona 

Municipal Risk Retention Pool, and Arizona School Risk Retention Trust, 

Inc.

JUSTICE MONTGOMERY authored the opinion of the Court, in which 

CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, JUSTICES 

BOLICK, LOPEZ, and BEENE, and JUDGE SAMUEL A. THUMMA joined.1

JUSTICE MONTGOMERY, opinion of the Court:

¶1 This case presents the issue of whether a vicarious liability 

claim against a hospital-employer is precluded because the trial court 

granted summary judgment dismissing medical malpractice claims against

doctor-employees with prejudice. We hold that because the order of 

1 Justice Andrew W. Gould (Ret.) participated in oral argument but retired 

before the drafting or issuance of this opinion. Justice Kathryn H. King, 

who replaced Justice Gould, subsequently recused herself from this matter. 

Pursuant to article 6, section 3 of the Arizona Constitution, Judge Samuel 

A. Thumma, Division One, Arizona Court of Appeals, was designated to sit 

in this case.
BANNER MEDICAL V. HON. GORDON/HARRIS

Opinion of the Court 

3

dismissal here was not a final judgment on the merits, it does not have 

preclusive effect.2

I.

¶2 Doctors jointly employed by the University of Arizona’s 

Medical School and Banner University Medical Center Tucson Campus, 

LLC, an Arizona Corporation DBA Banner University Medical Center 

Tucson, and other Banner entities (collectively, “Banner”) provided 

treatment to the Harrises’ fourteen-month-old son. After their son’s tragic 

death, the Harrises brought medical malpractice claims against the doctors, 

a vicarious liability claim against Banner based on the doctors’ conduct, and 

direct claims of breach of contract and fraud against Banner. Because the 

doctors were public employees, the Harrises were required to serve each of 

them with a notice of claim, which they failed to do. See A.R.S. 

§ 12-821.01(A). The doctors moved for summary judgment on the notice of 

claim issue, which the trial court granted in an unsigned minute entry

dismissing them from the suit with prejudice. The court did not enter a 

judgment with language required by Arizona Rule of Civil Procedure 54(b)

to make the ruling final and appealable.

¶3 In a subsequent motion for summary judgment, Banner 

argued that the trial court’s dismissal of the doctors “with prejudice” served 

as “an adjudication on the merits” that precluded any claim of vicarious 

liability against Banner for the doctors’ conduct. See Ariz. R. Civ. P. 41(b) 

(“Unless the dismissal order states otherwise, a dismissal under this Rule 

41(b) [‘Involuntary Dismissal; Effect’] and any dismissal not under this 

rule”—with exceptions not applicable here—“operates as an adjudication 

on the merits.”). The court denied the motion.

¶4 In doing so, the court acknowledged the “general rule” that 

“a judgment in favor of the servant relieves the master of any liability and 

that a dismissal with prejudice is the equivalent of a judgment on the 

merits” but found the general rule inapplicable to the facts and 

circumstances of this case. As part of its reasoning, the trial court 

2 Because our determination is made on a procedural and not a substantive 

basis, we do not address the underlying merits of whether a dismissal of an 

employee pursuant to A.R.S. § 12-821.01 precludes a claim of vicarious 

liability against an employer.
BANNER MEDICAL V. HON. GORDON/HARRIS

Opinion of the Court 

4

analogized a notice of claim statute to a statute of limitations and explicitly 

characterized the dismissal of the doctors as a “procedural dismissal” that

“would not normally be considered an adjudication on the merits.”

¶5 Banner sought special action relief from the trial court’s denial 

of its motion for summary judgment. The court of appeals accepted 

jurisdiction but in a divided decision denied relief, concluding that claim 

preclusion did not bar the vicarious liability claims against Banner under 

the circumstances of this case. Banner Univ. Med. Ctr. Tucson Campus, LLC 

v. Gordon, 249 Ariz. 132 (App. 2020).

¶6 We accepted review to consider the preclusive effect of the 

dismissal of claims against employees with respect to a vicarious liability 

claim against their employer, which is a recurring issue of statewide 

importance. We have jurisdiction pursuant to article 6, section 5(3) of the 

Arizona Constitution.

¶7 Following oral argument, we ordered supplemental briefing 

on two issues: 

1. Does the order involuntarily dismissing the doctors “with 

prejudice” under Rule 41(b) . . . constitute a final judgment 

under Rule 54 or is the order of dismissal subject to further 

review and/or modification by the [trial] court?

2. Whether the lack of a final judgment entered with a Rule 

54(b) determination reflecting the dismissal of the doctordefendants precludes application of issue preclusion or claim 

preclusion at this time.

II.

¶8 “Application of issue preclusion is an issue of law, which we 

review de novo.” Picaso v. Tucson Unified Sch. Dist., 217 Ariz. 178, 180 ¶ 6

(2007). We likewise review de novo the application of claim preclusion.

Lawrence T. v. Dep’t of Child Safety, 246 Ariz. 260, 262 ¶ 7 (App. 2019).

¶9 The parties acknowledge that the trial court’s order 

dismissing the Harrises’ claims against the doctors lacks the “express 

determination and recital” language, let alone anything akin to it, required 
BANNER MEDICAL V. HON. GORDON/HARRIS

Opinion of the Court 

5

by Rule 54(b) to serve as a final judgment. The Harrises argue that without 

Rule 54(b) language the order cannot be a final judgment, and neither issue 

nor claim preclusion may apply. Banner argues that, because the order was 

entered “with prejudice,” it is not necessary for the order to have Rule 54(b) 

language to be a final judgment and have preclusive effect.3

¶10 For issue or claim preclusion to apply, there must be a final 

judgment on the merits. Kopp v. Physician Grp. of Ariz., Inc., 244 Ariz. 439, 

442 ¶¶ 13, 14 (2018) (citing Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 

573 (1986), and discussing rule that for issue preclusion to apply the issue 

must be actually litigated and a final judgment entered); In re Gen. 

Adjudication of All Rts. to Use Water in Gila River Sys. & Source, 212 Ariz. 64, 

69–70 ¶ 14 (2006) (noting a final judgment on the merits is required in order 

to assert claim preclusion). 

¶11 A decision resolving “fewer than all” claims against all the 

parties in an action is a “final judgment”:

only if the court expressly determines there is no just reason 

for delay and recites that the judgment is entered under Rule 54(b). 

If there is no such express determination and recital, any 

decision, however designated, that adjudicates fewer than all 

the claims or the rights and liabilities of fewer than all the 

parties does not end the action as to any of the claims or 

parties and may be revised at any time before the entry of a 

judgment adjudicating all the claims and all the parties’ rights 

and liabilities.

Ariz. R. Civ. P. 54(b) (emphasis added). The order thus cannot be a final 

judgment absent the necessary Rule 54(b) language; nor, in the absence of 

resolving all claims as to all parties, could it be a Rule 54(c) final judgment. 

Ariz. R. Civ. P. 54(c) (“A judgment as to all claims and parties is not final 

unless the judgment recites that no further matters remain pending and that 

the judgment is entered under Rule 54(c).”). Furthermore, absent a judge’s 

3 The cases cited by Banner in support of this argument do not involve the 

finality of a dismissal order. So, it is unsurprising that, as Banner notes, 

“[n]ot one Arizona case involving a dismissal with prejudice of an agent 

has required Rule 54(b) language to preclude a vicarious claim against the 

principal.”
BANNER MEDICAL V. HON. GORDON/HARRIS

Opinion of the Court 

6

signature, the order is not a judgment, final or otherwise. See Ariz. R. Civ. 

P. 58(b)(1) (providing, with an exception not applicable here, that “all 

judgments must be in writing and signed by a judge or a court 

commissioner duly authorized to do so”). For these reasons, the order 

dismissing the doctors is not a “final judgment” that can be used to invoke 

issue or claim preclusion.

¶12 Equally problematic for the application of preclusion is the 

trial court’s statement that it did not consider the procedural dismissal of 

the claims against the doctors an adjudication on the merits. See Ariz. R. 

Civ. P. 41(b) (providing that an involuntary dismissal is an adjudication on 

the merits, with exceptions not applicable here, “[u]nless the dismissal 

order states otherwise”). Given that the trial court stated otherwise, the 

entry of summary judgment on behalf of the doctors is not an adjudication 

on the merits. For this reason, the order dismissing the doctors is not a 

judgment on the merits that can be used to invoke issue or claim preclusion.

¶13 Because there is no final judgment on the merits, the Harrises’ 

vicarious liability claim against Banner is not precluded.

III.

¶14 We vacate the opinion of the court of appeals and deny relief 

to Banner.