*1
CITY OF сorporation, Plaintiff-Appellee, GEYLER, Richard E. widower of deceased, Geyler, Bernice H. Defendant-Appellant.
No. 17615-PR. Supreme Arizona, Court of
En Banc. March *2 issues are follows: upon What are standards
to determine whether relief a civil granted in judgment should be order litigant privilege taking accord appeal? delayed *3 determining 2. What is the test for court has whether abused its dis- granting or denying cretion discretion- ary relief where that court has failed indicate the for its decision and patent where none is in the record? What for are the standards determin- ing neglect whether mistake is “excusa- ble”?
Deeming questions these of be law to important require issues furthеr clarification, granted peti- defendants’ 23(c)(4),supra. tion for review. Rule
FACTS August 8, 1979,
On City of Phoenix complaint filed a seeking condemnation property. defendants’ The matter was tried a jury, which returned a verdict for defendants in $1,295,507.00. the amount of parties stipulated had that the rate of interest as well as the date of its accrual Baumert, City Atty. Phoenix Andrew were to be decided the court after the Reinhold, Phoenix, plaintiff-ap- T. for Kent verdict. On hearing October a pellee. regarding was held accrual, date of & Associates Robert Robert C. Stubbs only issue on which parties had been Stubbs, Schubart, Trudy Lawrence C. G. agreement. unable to reach an On October Tucson, defendant-ap- Kapley, Nelson 21, defense counsel mailed alternate forms pellant. to the trial judge. On October trial judge signed and filed a form judgment awarding interest from the OPINION judgment, date deciding thus the accrual FELDMAN, Justice. contrary issue to defendants’ contention Defendants, Geyler, Richard and Bernice that interest should accrue from the date petitioned us to review decision of summons. Because more than two (City Geyler, of Phoenix years elapsed between issuance of the 1984). May filed No. 1 CA-CIV judgment, summons and the date decision the tri- The memorandum affirmed (at stipulated difference interest rate denying al order defendants’ motion court’s 12.75%) $350,000.00. was over As re- brought pursuant for relief quired by 77(g), Ariz.R.Civ.P., 60(c), Ariz.R.Civ.P., 16 A.R.S. We to Rule A.R.S.,1 notice of of judgment was Const, pursuant Ariz. jurisdiction have mailed counsel. notice consisted § 5, Ariz.R.Civ.App.P., and Rule order, art. in the form minute follow- ing: 17A A.R.S. na of Civil Procedure.
1. Unless otherwise indicated all further refer-
Rules
to "rule"
the "rules”
to the Arizo-
ences
refer
*4
the words
dates
Immediately
those
(October
above
The
the minute
date of
stamped,
Center” were
1981)
space near
Distributiоn
“DATE”
“Mail
shown
the
completely
were
words
top
page.
the
Near the bottom
first
two
the
might be
which
page
only
the
two other dates:
The
word
illegible.
The
“Center.”
was the word
out
24
made
“Received Oct
1981
the dates
three-word,
phrase and
stamped
26
Processed Oct
1981”
accompanying
actually
appeal.
it
file a
identified
re-
notice of
On November
spective
however,
dates on
the order had been
he did file a motion for relief
received and mailed to
the cen-
60(c).
from
The trial
mail
tral
distribution
the Marico-
center of
judge denied defendants’ motion. Subsе-
pa County Superior Court.
quently,
correctly
a different
denied
52(b)
the Rule
motion
that it
Thus,
stamped
dates of October
had not been
filed.
Edwards
and October 26 had no
with the
connection
Young, supra.
However,
filing
judgment.
date of
secretary
both defense counsel and his
appeals rejected
court
showing
overlooked the date line
October Geylers’ argument
that relief should be
22 or
took the
misunderstood the form and
granted because the trial
had violated
judg-
October 24
to be the date
date
58(d)
by signing
proposed
form of
filed,
15-day
ment
and calculated
waiting,
required by
without
52(b) mоtion to
time limit for
a Rule
rule,
days
for five
after
form was
alter
amend
Oc-
lodged by
(Slip op.
defense counsel.
produced
erroneous
tober
date. This
an
citing
Gutierrez,
Ariz.App.
Gutierrez
assumption
day
filing the
that the last
(1973)).
agree
P.2d 677
Monday,
motion was
November
Geylers
the court
that the
were
papers
Defense counsel filed the
on that
prejudiced by
the trial court’s violation
day.
counsel,
day
Unknown to
last
58(d).
Geylers
argue
of Rule
also
Friday,
actually
file
motion
had been
failing
grant
court erred in
day
November
the fifteenth
by amending
judgment,
relief
pro
nunc
*5
judgment
of
on October 22.
tunс,
to reflect
on
24. We
October
timely
While a
motion under Rule
agree.
do not
Both the
and the
52 extends the time for
a notice of
appeals
of
holding
court
were
in
correct
appeal
(Rule 9(b),
judgment
after
Ariz.R.
authority
that there is no
to enter a nunc
A.R.S.),
Civ.App.P.,
untimely
17A
the
mo
in
pro tunc order
a
where
situation
the
filed in the case
did
tion
at bench
record
what
reflected
the court had actual
accomplish an extension. Edwards v.
ly done.
Surety
See American
Co. v.
(1971).
Young, 107 Ariz.
486 P.2d
Mosher,
(1936).
48 Ariz.
Then it is our final to de- ber policy termine law and and it becomes duty our to IT deny- “look over the shoulder” of IS THEREFORE ORDERED and, appropriate, the trial if ing substi- Defendant’s motion. review, judges generally required appellate may prevent
3. While trial unnecessary are not and give discretionary rulings, support to reasons for some reversal where facts are close and for a brief, explanation, greatly ruling patent however assists in is not from the record. 330 recognize obligation the facts of which stand The uncontroverted. appellate to courts affirm where rea affidavit indicates that counsel received a might sonable view of the and law facts 28; copy on of the October 22 order October support judgment the the trial court. stamp indicating that noted “Re- he the This if rule is followed even the trial court 1981; ceived: Oct Processed: Oct right wrong has reached the result for the 1981”; interpreted that he this the date as Gary Advertising reason.4 v. Outdoor Co. on the court received which clerk of had 240, 242, 650 P.2d Lodge,
Sun
Ariz.
filing;
he
signed
the
for
and that
(1982). Thus,
appeal
on
secretary
instructed his
to mark the office
60(c) relief,
denial of Rule
the trial court
“15 days
calendar for
from October
“undisputed
will be sustained
facts
unless
1981 so that affiant could file a
require
contrary
and circumstances
rul
52(b).”
post-trial
to
pursuant
motion
Rule
ing,”
event
court can and will
which
The
that
coun-
affidavit states
defendants’
rul
discretionary
overturn the trial court’s
Marvin,
ing.
Pulp
secretary’s computation
83 Ariz. at
sel
the
Coconino
v.
reviewed
121,
First, determining The standard for erroneously the order signed by was whether conduct is “excusable” is whether five-day period before the expired lodging. neglect It or inadvertence is such was not mailed by might the courtroom by reasonably prudent clerk but rather be the act of a mail Mailing distribution center. was person under the samе circumstances. Co- Superior Maricopa County Thursday, evidently 6. The Court of is the filed on October re- only superior Saturday, court to use a central mail distri- ceived the mail center on October counties, system. including Monday, bution In all other and mailed on October 26. We do County, Geylers’ requirement Pima where the offices of the not believe this fulfills the of im- located, attorneys mediacy. fairly minute orders are The rules set short deadlines typed by judge making judgment the court clerk of the for action counsel after has been judge’s Important rights litigants may and are order mailed stаff. entered. be County Maricopa prepared by appropriate post-judgment proceedings the orders are lost if judge’s Except by trip staff and sent to the mail distribution commenced. are not mailing. provides center for No local rule the courthouse to look for book, 77(g) system. provides inspect stamp that the "clerk the date the docket coun- determining copies shall mail of all minute entries sel has no method of the date on [of court] parties.” signed employees We to all assume that the which a was and entered. Therefore, deputy 77(g) requires mail in the distribution center are clerks. that notice be requires given "immediately.” urge superior The rule also notice of “immediately upon entry" greater be sent clerks use caution to observe this judgment. question The order in rule. *9 332 Marvin, Pulp de-
conino
v.
grant
permit
83 Ariz. at
mine
to
relief to
whether
Many
P.2d at
cases
layed
factor,
317
have been
of
appeal. The first
absence
Pulp,
Coconino
decided since
and we do
notice,
by the
case.
is satisfied
facts in this
recently
intend to
all.
review them
We
Strick,
v.
inAs
Park
here there was more
indicated that
and secretarial errors
clerical
than a
failure to
notice
mere
receive the
procedures
in office
are “unavoidable and
required
77(g).
by Rule
In
there was
Harris,
Daou
v.
...
excusable.”
[often]
notice,
in
a lack
while
at bench
of
the case
(1984).
139 Ariz.
678 P.2d
941
confusing
there
late and
result-
notice
again
We noted
that
the “test of what is
ing in
calendaring
error in
the time for
an
neglect
is
excusable
whether the
or inad-
filing.
result
is
The
the same —counsel
type
might
is
vertence”
of the
be “the was
of the date on
unaware
which
Id.
prudent person.”
reasonably
act of a
judgment was entered. The second factor
359, 678
940. If there
a trend
at
P.2d at
is
question
prejudice
is the
of
to
consider
60(c)(1)
in the Rule
cases and
decided
those
party. Here,
opposing
the motion to
rule,
under the identical federal
it is that
working
alter
was late by
or amend
one
diligence is the final arbiter of whether
day.
City’s
If it were not for the
failure to
Rodgers
neglect
mistake or
is excusable.
give prompt
filing
notice of
in
untimeliness
Watt,
459-60;
generally
v.
see
722
F.2d at
motion,
pre-
of appeal
the notice
would
Harris, supra;
Daou v.
Smith v. Jackson
par-
sumably have been
filed. The
Die,
(5th Cir.1970);
Tool
a Ninth panel Circuit in Rodgers v. (1982), (Callaghan) Fed.R.Serv.2d 683 HOLOHAN, Justice, dissenting. Chief applying a delayed ap strict standard for by The decision in the court this case is peal and requiring showing First, somewhat unusual for two reasons. rarely “should (quoting be found.” Id. judge the trial making is reversed for Hensley Chesapeake Railway, Northern ruling correct on the motion which counsel (4th Cir.1981)). 651 F.2d One of filed; second, begins practice this court the few Rodgers situations which the making advisory rulings. panel granted indicated that relief would be The by motion filed counsel asked the was where the failure to file the notice of 60(c), pursuant triаl court to Rule Rules of upon resulted from reliance affirma Procedure, A.R.S., clarify Civil representations tive findings or 22, 1981, minute dated October opposing court or parties. panel’s This de pro to rule nunc judg- tunc that the final (after cision was withdrawn for amendment ment was filed October 1981. appeals) decision of our court of replaced by was the en banc decision which judge The trial ruled that he no throughout we have cited opinion. this jurisdiction pro to enter a nunc tunc order While we believe that the circumstances indicating signed the order was warranting delayed appeal should be “ex 24th signed when fact the was traordinary,” “unique,” “compelling,” or the 22nd. majority agrees The Park v. supra, we do not believe Appeals and the Court of were rigid standards should be as as indi holding correct in authority that there is no original cated in the Rodgers decision. pro to enter a nunc tunc order in a situa- correctly tion where the record reflects comments made connection what actually Slip the court had done. with our recitation of the facts indicate our opinion, p. majority agreed Once regard conclusions with to counsеl’s con correct, ruling that the trial court’s I fact, If duct. we were the finders of we thought would have that the matter was excusable, would find the mistake counsel resolved, proceeds but the court write diligent, Rodgers and Park standards new motion for counsel and decide the case satisfied, However, appropriate. and relief on the new motion. may opinions the trial court have about determining has credibility now turned on or other matters which we do share, judge correctly whether the trial give but to which ruled deference. this court’s We remand to the trial court motion. to dеtermine whether circumstances were so “extra Taking the motion as construed ordinary,” “unique,” “compelling” as to court, agree Appeals, I with Court of 60(c)(1) (6) justify relief under Rule implicit and what in the trial court’s purpose allowing the sole defendants ruling, ambigu- that the minute is not delayed appeal. take a This decision ous, confusion suffered according should be made to the standards could have been remedied a minimum of set out ante at 1077. We assume that the phone effort such as a call to the clerk’s findings trial court will indicate its on these office. order, by apprоpriate issues however brief. Departing previous practice from our The order of the denying making advisory rulings, majority trial court relief and the memorandum decision of the court offers their view that “the record shows business, diligent attention
counsel’s consistent, attempt comply careful man- prompt in a and efficient rules *11 If Slip opinion, p. 17. ner.” counsel indicates, majority diligent as the that it never in the situation would be is. nobly parting majority
As a note defers to whatever decision the remand, would majority makes on excusable, find dili- “the mistake gent, sat- Rodgers standards
isfied, Slip opin- relief appropriate.”
ion, p. 18. majori-
I dissent the decision of the ty, attempt negli- especially to turn
gence poor diligence practice into
efficiency.
State Jr., SCANLAN, Respondent. No. SB-303. Arizona, Supreme Court En Banc. March
Fish, Duffield, Miller, Young, Adamson Duffield, Alfred, Tuc- & P.C. Richard son, respondent.