Haroutunian v. Valueoptions, Inc.

CONCURRING: LAWRENCE F. SNOW,

WINTHROP and G. MURRAY Judges. P.3d 1114 HAROUTUNIAN,

Charles Plaintiff/Appellee/Cross-

Aрpellant, VALUEOPTIONS, INC., Defendant/Appellant/Cross-Appellee.

No. 2 CA-CV 2007-0090. Arizona, Appeals Court of 2, Department Division A. July 10, 2008.

pursuant Civ.App. to Rule Ariz. R. (ARCAP), enlarge and its motion to time to motions, post-judgment pursuant file made Ariz. R. P.1 It also asserts Civ. admitting expert that the court erred in tes- timony support and that the evidence did not jury appellee/cross- verdict favor appellant Charles Haroutunian. his cross-appeal, challenges the tri- Haroutunian request al court’s denial of his for fees and costs. For the reasons stated be- low, we reverse the court’s denial of Va- lueOptions’ motions under ARCAP remand case for further proceedings.

Background pertinent 2 The facts to our resolution of undisputed.

this are After Haroutu- attempted nian family suicide in his successfully petitioned for court-ordered mental health treatment for him. against Haroutunian filed this action Va- lueOptions, asserting that it had been “un- provide der Court order to for mental [his] supervision” negli- health care and and had gently failed to do so to his detriment. alleged Haroutunian also conduct was “elder abuse 46-455(B), § Arizona State See A.R.S. law.” (Q). four-day jury After a trial in Novem- Fein, Flynn Associates, & by P.C. James jury ber found Haroutunian’s A. Joey Flynn, Tucson, Fein and A. and Law $365,000 damages. favor and him awarded Boehm, P.C., Office of Scott E. by Scott E. jury eighty- found bore Boehm, Phoenix, Attorneys for Plaintiff/Ap- percent five of the fault and аllocated the re- pellee/Cross-Appellant. designated nonparty mainder to a at fault. Kolsrud, Norling, Davis, Sifferman & ¶ Following jury favor, verdict in P.L.C., his by Kolsrud, Russell A. Mark S. Sif- requesting Haroutunian filed a motion ferman, attor- Mills, and Lisa Attorneys Scottsdale ney hearing argument, fees and costs. After for Defendant/Appellant/Cross-Appellee. the trial court denied the motion in a minute February dated and filed OPINION February entry, 22. In that minute PELANDER, Judge. Chief comí; “sign judg- stated the form of ¶ Appellant/eross-appellee ValueOptions, ment submitted after delet- [Haroutunian] Inc., appeals from the trial attorney’s court’s denial of the costs and fees” contained its motion to extend appeal, proposed the time to made judgment.2 The court dissent, opinion 1. In this the Arizona Rules 2. At the close of trial on November pre- Appellate trial court ordered pare of Civil Procedure are Haroutunian's counsel to referred to as "ARCAP,” judgment. Although a form of the record any and otherwise reference to lodging does not include or service "Rule” will mean the Arizona Rules of Civil proposed of a form of see Ariz. R. Civ. Procedure. 58(a), (d), suggests itself February 20, signed the and the Discussion following day. record shows it was filed the to extend Denial of motion February legal On assistant to Va- attorney called lueOptions’ the Clerk argues ValueOptions first County Superior Court Pima told by denying pur its сourt erred motion someone in that office suant to to extend the deadline been entered and that there had been “no We review denial of activity” February in the case since 14. On such motion for an abuse discretion. See Haroutunian moved for recon- Materials, v. Pena United Metro Inc. Blanca sideration of court’s denial his L.L.C., Props., attorney fees motion for and costs. After (App.2000). But we review response, ultimately ordering a de- questions involving interpreta de novo the May the motion on 3. nied procedural tion of and court rules “evaluate statutory principles using rules of construc ¶4 Although signed judgment was Fell, 427, ¶¶ 7, tion.” Ariz. Fragoso v. 210 February filed on court clerk failed to 1027, 1030, (App.2005); 111 1032 P.3d see comply obligation immediately her with to 287, ¶ Hansen, also State v. 160 entry judgment notice of the distribute of (principles statutory P.3d of 168 58(e). required That parties, Rule rules). interpret court construction used to notice, appar- dated March and filed addition, interpret court rules “in ac we parties ently finally mailed to the on March drafters, cordance the intent of the and with past fifteen-day both the deadline for well language look of the plain we to the ... rule judgment motions for filing post-trial as a Frago as the of that intent.” best indicator trial, matter of or for a new see Ariz. R. law ¶ so, 210 111 P.3d at If Ariz. 50(b), 59(d), thirty-day P. and the limit Civ. ambiguous, the language of a rule is howev filing for a nоtice of See ARCAP er, elements, variety of we consider “a April having eventually after On received context, including language rule’s entry notice the clerk’s belated of used, matter, subject the historical back ValueOptions timely judgment, filed its mo- ground, consequences, and its the effects and 9(a), expand seeking tion under ARCAP spirit purpose,” to determine the fram appeal.3 That includ- the time to motion also Romley v. Superior ers’ intent. State ex rel. pursuant request, ed a Rule to en- Court, P.2d Ariz. 812 987 168 filing post-trial for motions. large the time Sullivan, (1991); Vega Ariz. see also 199 May both on requests The trial court denied ¶ 504, 8, 19 (App.2001). 648 day the same it also denied Haroutunian’s 58(a), filing 7 Rule “[t]he Under of prior for reconsideration its denial motion judgment the clerk of the constitutes request for costs. of his fees and entry of judgment such May 5 On filed its no- [generally] before en is not effective such February appeal from the trial court’s tice of try.” Therefore, the trial court’s May judgment denying and its order entry, minute the court in which stated requests ValueOptions’ enlargement for of “sign judgment of the form submitted 6(b). ARCAP Har- time under deleting the after costs and [Haroutunian] cross-appeal attorney’s fees,” outunian filed his constituted formal neither jurisdiction ValueOptions’ have of entry judgment specified June 8. We of nor when the or, May judgment signed impor order more appeal 12-2101(C). tantly, filing, pursuant entry, § The date of or of to A.R.S. filed. days might pro- expiration appeal, time for after counsel have sent the Haroutunian’s ValueOptions' posed counsel days receipt form of [the clerk’s] or within of of notice in December 2006. entry sometime judgment], is It [of whichever earlier.” of undisputed ValueOptions filed its motion 9(a), motion ARCAP must file a 3. Under within the allowed. time the time for "not later than 30 to extend (“Courts however, 113, 20, P.3d at 1037 have critically important, be Ariz. running typically given to extend the cause it commences been discretion now motions, filing post-trial of the bare appeal upon party’s the time for see 50(b), 59(d), 59(l), prosecuting R. the clerk’s notice without Civ. failure to receive 9(a). Thus, appeal, additionally compelling the date a having an see its show judgment actually is entered determine any will other circumstances circumstances or 60(c), P.,] a notice of or motions for but provided in Rule R. Civ. [Ariz. timely. DNB post-judgment relief are See very limited time constraints under the Constr., Court, Superior Inc. v. provided in amended other circumstances (1980); City Tucson 9(a).”). [ARCAP] Wondergem, Ariz.App. undisputed 9 The trial court found as (1966). 552, 553 ValueOptions “did not receive notice fact that ¶8 P., 58(e), requires Ariz. R. Civ. entry from the clerk or par- the trial court clerk to distribute to all twenty-one entry.” party within ties, “[immediately upon judg- of a The court also found that Haroutunian had ment,” “a notice of the prejudice. It nonetheless denied not shown stating entry.” to AR- the date of Pursuant to extend the time for motion appeal, “for the same reason [it] If court finds that [a trial] filing post-trial refused to extend the time for entry judgment notice of entitled to did turn, refusal, That in based motions.” was not such notice from the clerk or receive on failure to show “excusable any party days entry 21 within of its 6(b); neglect” the court conclud- prejudiced, the court would have ed reasonable “[a] may upon ... motion extend the time for judge’s placed chamber's or anoth- called the appeal period for a not to exceed 14 appropri- er call to the clerk or taken other granting from the date of the order steps expired ate before the time limits motion. judgment had not been make sure that a supreme provision Our court added that in denying any of the entered.” extension 9(a) 1994 when amended ARCAP and oth appeal time to under ARCAP the court rules, procedural including er also stated that “has not shown “ problem ‘to experienced by order address good cause.” practitioners, whereby they not were receiv ¶ preliminarily 10 We address entry notice of in some cases reject arguments alternative Haroutunian’s rights appeal jeop and their clients’ were ruling Lane, seeking uphold the trial court’s on Penney ardized.’” J.C. v. 197 Ariz. ¶ 18, 1033, grounds. different He contends the court’s 113, (App.1999), quot 3 P.3d 1037 February entry qualified amend., 20 minute as a “no ing ARCAP court cmt. to 1994 (1994). entry judgment” by tice of “a minute 178 Ariz. LX Based on its comment amendment, ‍‌‌‌‌​​​‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌​​​​‍entry,” a form of notice authorized to the 1994 court 58(e). clearly February entry 20 minute grant intended to trial courts in But the merely sign flexibility creased in this area relax the indicated the trial court would entry extending party’s judgment; standards for time to it did not reflect judgment, the conditions forth in AR- occurs when the when set which Penney, file-stamped by Valley the clerk. See CAP are met. See J.C. 197 is 58(e) ”[a]ny party obtaining permits ... of time within which to [to] 4. Rule also extension entry period during judgment] serve a notice of such “or minimize the [of provided sought can be and secured.” Daniel J. the manner Rule 5 for the service one McAuliffe, papers.” Empire Handbook at 682 See State v. Am. Bail Civil Rules Atizona Bonds, Inc., 1271, (2008). op- Ariz. P.2d Haroutunian did not exercise that 191 n. 953 he, here, (clerk’s presumably ValueOp- (App.1998) duty because like n. 1 to distribute tion tions, 1273 "mandatory," any judgment entry unaware that had been was party's ability filed until sometime in late March when whereas to serve such notice is finally parties "permissive”). Any party may permis- use that the clerk notified the option prevent sive to either another from 119, 123 Meneghin, appeal. Penney, Nat’l Bank v. 130Ariz. n. sion of tíme to See J.C. (“the ¶ 113, 20, 634 P.2d 574 n. 3 court By requiring Ariz. 3 P.3d at 1037. ... renders and the clerk of the showing, essentially imposed such a the сourt judgment”); court enters the see also Scho an additional element for relief that the lan- Bank, 601, 604, Ariz. Ariz. guage of the rule does not and its enfelder (App.1989), part P.2d vacated in on drafters not intend. did grounds, other 165 Ariz. 796 P.2d 881 13 Because the trial court’s (1990); see also R. Civ. standard, legal based on an incorrect here was entered denying court abused its discretion in Va- but the clerk did not mail notice of that lueOptions’ ap- motion to extend its time to until March 27. peal ground on the stat- ¶ 11 We also find meritless Haroutunian’s Block, Inc., ed. See Webb Omni “clearly contention that he been have (“An (App.2007) prejudiced if trial court had allowed un abuse of discretion exists when the court timely post-trial appeal.” and an motions reaching an error of commits law discre- challenge Haroutunian does not conclusion.”); tionary Chap- see also State v. finding that he had failed to show pie, 135 Ariz. 297 n. prejudice, nor does he cite the record to (1983) (appellate 1224 n. court bound support his contention on See AR- discretionary rulings trial court’s (b). 13(a)(6), short, Haroutunian has are not in “the facts or inferences them argued neither nor established that the trial dispute and there are or no con- where few clearly finding erred he would not be flicting procedural, equitable factual or con- “prejudiced by appeal being delayed siderations”); C, Marco C. v. Seаn timely.” Corp. rather than Lennar v. Auto- (“To (App.2008) Co., 255, 55, 151 Owners Ins. discretion, soundly exercise its the court (App.2007); see Pioneer Federoff v. law.”). correctly apply must also Co., Title & Trust (appellate court will ¶ support trial findings sustain court’s factual unless correctly ruling, points out that Haroutunian “clearly unsupported by any erroneous or 9(a) discretionary, under ARCAP “is evidence”); Davis, credible Davis v. Likewise, mandatory.” not the dissent em (find phasizes the broad discretion a trial court prejudice appellee absence of in when ruling requests has in on for extensions promptly appellant’s formed after trial of however, view, In our time under that rule.5 appeal). intent to permit discretion does not a trial court that ¶ 12 turn to ValueOptions’ We now standard, legal incorporate an incorrect arguments. It first contends the trial court express language of the rule’s contravention by improperly requiring abused discretion purpose, determining and when “good it to show cause” and “excusable ne ap authorizes an extension of time to rule 9(a). glect” to obtain relief under ARCAP peal. agree. ValueOptions correctly judgments filing post-trial to the both motions and a notice of favor of the other defen- dants”) added). (emphasis And, appeal, ValueOp- is inconsistent as aptly observes, tions notwithstanding stringent the with the less forth in standards set entry, 9(a).7 20 minute parties both support “be- ARCAP We find for our con- 43, Contrary 6. delayed to the dissent’s though assertion in in- warrant even "counsel fra, suggest attempt we do not entry trial court had did not to learn the date of of duty judgment” such to do so. But the uncorrected state- and “the reason for his failure to do Haroutunian, minimum, arguably interpretation ments at a so was the erroneous of [trial resulting reasonably comput- misled court’s] believe no order and mistake in Constr., time”); Court, ing judgment Superior DNB been entered and contributed Inc. v. 61, 63, 380, (1980) ("A warranting 125 Ariz. P.2d the circumstances 607 382 relief under AR- rely upon should be able to the mail for required notice and should not be to contact the addition, diligence even if due or excusable every day [court] to ascertain if has neglect inquiries were relevant under ARCAP entered.”). been That the trial court concluded 9(a), ValueOptions arguably facts, made such a show- undisputed otherwise based on rather than Co., ing. Corp. See v. Lennar Auto-Owners Ins. weighing any conflicting on a and resolution of 255, 53-54, 538, ¶¶ 214 2007); (App. evidence, 151 P.3d 552 preclude appellate does not court ques- Lane, 113, 2-8, Penney J.C. v. 197 Ariz. reaching a different conclusion on 1033, 1034-35, See, (App.1999); 3 diligence P.3d 1037 neglect. tions of due or excusable cf. 323, 332, City Geyler, Davis, Phoenix v. 144 Ariz. e.g., 697 Davis v. 143 Ariz. P.2d 691 of (finding "quite unique P.2d 1082 (reversing 1087 trial court’s order compelling” probably refusing and permit appeal circumstances tо vacate Nunley court also reasoned that Nunley City Angeles, 52 19 The elusion in Los of negate Cir.1995). hold the addi (9th There, otherwise would “[t]o the Ninth F.3d 792 4(a)(6), provides an avenue tion of Rule which Appeals interpreted Court of Rule Circuit separate apart from Rule of relief 4(a)(6), P., R.App. is similar to Fed. which 4(a)(5).” 52 F.3d at 798. Federal Rule 9(a).8 4(a)(6) provides that a ARCAP 4(a)(5) court, upon a motion a district allows may reopen the time to file an “district court days than after the time made “no later only moving if court finds the appeal” prescribed by expires,” to “ex this twenty-one days party did not receive within appeal” upon of tend the time to file notice pursu- notice the had been entered showing neglect of “excusable 77(d), Fed.R.Civ.P., par- and “no ant to Rule Thus, although the Ninth Circuit cause.” vacating ty prejudiced.”9 In would be acknowledged had discre the district court relief under Rule district court’s denial of 4(a)(6), that “the tion under Rule stated 4(a)(6), concept of the Ninth Circuit held “the party’s fail of relief cannot rest on a denial applica- place in the excusable has entry of independently of the ure to learn 4(a)(6).” 52 F.3d at 798. The tion of Rule thirty-day period for judgment during the applying excusable ne- court reasoned Nunley, at appeal.” notices of 52 F.3d “ 4(a)(6) glect principles to Rule would ‘sub- declined, however, to “reach 798. The court ” rule, purpоse’ central vert the scope the exact of district court discretion” “ permit ‘to district courts ease strict 4(a)(6). Id. Other courts under Rule imposed appellants whose sanctions now of a district court’s exercise have addressed of of are filed late because notices 4(a)(6) con also have discretion under entry of a their failure receive cluded that the court cannot consider ” Id., County judgment.’ quoting Avolio v. see, e.g., appeal, Arai v. possible merits of an Cir.1994) (2d (inter- Suffolk, 29 F.3d Ranches, Inc., F.3d Bryce of Am. omitted). light quotations of our su- nal (9th Cir.2003), may deny but 1070-71 accompanying the preme court’s comment moving party has contributed to its when to ARCAP that same 1994 amendment notice, failure to receive such own reasoning apply equally here observation mailing inform changing its address without See, support our conclusion that relief under e.g., Benavides v. Bureau the court. (D.C.Cir. hinge Prisons, on a ARCAP should 79 F.3d 1996).10 neglect. of excusable Inc., press, noting "[k]nowledge pendency judg (1961); Nygaard, n. ... Green v. and notice of cannot ment Paper (App.2006). Pulp n. 3 equated”); & Co. v. Coconino Marvin, only meaningful (overturning difference between refusal to set 9. The trial court’s judgment, supreme and the federal court noted relief available default aside the motion must be "undisputed rule is the time within which and circumstances as facts require with- contrary ruling a motion be filed as а filed. Both rules in this case shown reverse”); receiving in seven notice will Ulibarri matter of law this court 9(a); R.App. Fed. Gerstenberger, final 4(a)(6)(B). Regardless is re- (concluding of whether notice (App.1993) trial court ceived, however, motion finding under Arizona’s rule the excusable ne in not abused discretion thirty days expira- after the untimely response filed within glect party’s to motion for must be for 9(a). appeal. determining time for summary judgment; that tion of the instead provides 180-day a window "after federal rule party's ... not seem unreasonable "conduct does R.App. facts”). Fed. or order is entered.” the these earlier, 4(a)(6)(B). is no dis- As noted there pute ValueOptions’ for extension of that motion appropriate federal courts’ inter 8. It is to look to timely filed under ARCAP the time was pretations that mirror Arizona of federal rules 328, Geyler, 144 Ariz. at 697 P.2d at rules. See by (adopting Ninth Cir criteria established appellate recognize other federal evaluating delayed We to allow a for “whether cuit requested upheld have the denial of noting become courts appeal” courts have and "other 4(a)(6) moving proce when the under Federal Rule applying strict letter of devoted to the less See, e.g., party Kuhn v. equitable to act. failed Sulzer more concerned with dural law and 365, (6th Inc., merits”); Cir. Orthopedics, 370-71 Jenney 498 F.3d Ex disposition the Ariz. 6(b) Rule motion no identical 2. Denial of 20 Arizona’s rules have 4(a)(5). But, counterpart to Federal Rule ¶22 argues also P., 60(e), Ariz. a pursuant to Rule R. Civ. denying request pur by its trial court erred may judg trial court vacate and reenter a P., enlarge to Rule Ariz. R. suant Civ. ap effectively extend the time for ment to post-judgment motions. As it the time to file ¶¶ 1, Penney, peal. See J.C. argued in relation to ARCAP Va also 1034, 1037; 3 P.3d at see also Lennar by the court erred lueOptions contends 18, 151 at Corp., 214 Ariz. 51 & n. P.3d 6(b) “read[ing] Rule “an ‘excusable ne into” To obtain relief under 552 n. 18. such glect’ review a trial court’s standard.” We 60(e), satisfying in addition to the other 6(b) for an abuse denial of relief under requirement party of rule that the show Hargrove, Brant v. of discretion. See compelling favoring relief circumstances (App.1981). party from the must demon But, any again, questions de we review novo (1) timely that it notice strate did not receive interpretation application of involving (2) entered; been Fragoso, 210 Ariz. court rules. See actually promptly filed a motion after re P.3d at 1030. notice; ceiving such that it exercised due diligence, or had a reason for the lack there ¶23 argument Analysis of, attempting in to learn the date of the 6(b) relating complicated some- to Rule decision; party and that no be length and of that rale. by the structure what prejudiced. Penney, See J.C. entirety, provides: In its 1037; City 3 P.3d at see also Geyler, Phoenix v. given by these rales or a notice When (1985). 1073, 1078 of court an act is thereunder or order required to be done at or or allowed within ¶21 short, procedure In avail time, specified court for cause shown 60(c) able Arizona under Rule for effec any at its discretion with tively extending appeal, the time to albeit peri- motion or notice order the or without stringent under more standards than those enlarged request if made od therefor is 9(a), closely parallels ‍‌‌‌‌​​​‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌​​​​‍set forth in ARCAP origi- expiration period before the provided mechanism for relief un alternative by previ- nally prescribed or as extended 4(a)(5). Accordingly, der Federal Rule Nun (2) upon ous order or motion made after that, ley strongly supports our view when per- expiration specified period comply obligation clerk failed to its un the failure to mit the act to be done where 58(e) parties both are der Rule neglect; act the result of excusable reasonably operating under the mistaken be taking may not extend the time for but it entered, lief that no has been 59(d), 50(b), 52(b), Rules action under party’s alleged diligence lack of in ascertain ffi, 60(c), (g) except to the extent judgment actually whether a has been them, the conditions stated in and under entered does not warrant denial of relief (a) unless the court that a 9(a).11 under ARCAP For all of these rea finds to notice entitled sons, conclude the trial court abused its we notice or order did not receive such denying ValueOptions’ discretion motion any party clerk or within extending the time (b) entry, that no to file its within which docket); 2007) (App.2000), suggested (party that relief under AR- failed to monitor electronic re Jones, (5th Cir.1992) (party appellant appropriate 970 F.2d would be if "act- notify change But, and mis failed to court address diligently.” noting pertinent find- ed however, sheet). view, read docket our those ings superior already had made and overly applied an harsh standard for relief courts court, remanding 24- to that id. the case wording incompatible with the and intent require any show- the court in Decola did not 9(a). of ARCAP neglect, good ing diligence, excusable or of due delayed appeal. cause for a out, ¶47, infra, points 11. As dissent dicta ¶28, 19, Freyer, Decola v. 198 Ariz. 550 substance,

prejudiced, may, timing, accompany in which case the court identical comments, upon thirty days motion within ing the 1994 amendments to Rule filed after 6(b) expiration period originally pre- clearly and ARCAP share a com of days receipt Therefore, scribed or within 7 such purpose. possi mon to the extent of of notice, earlier, whichever is ble, extend the to harmonize those we endeavor taking period time such action by interpreting amended rules them consis far for of days the date the order tently еach other in order to fulfill our with of of extending taking the time such action. supreme Dep’t court’s intent. See Ariz. for of Inc., Coop., Revenue v. Trico Elec. 151 Ariz. 6(b) added). (emphasis Ariz. R. Civ. P. (simulta 544, 548, ¶24 6(b) language in The italicized amendment of related statutes neous two above was added our legislative “indicates intent to harmonize” amended the rule in 1994. See Order them); Bldg. see also States v. Am. United Amending Rule Rules of Civil Proce Indus., 422 U.S. 95 S.Ct. Maint. dure, (1994). Ariz. XLI That amend (prior 45 L.Ed.2d 177 construc ment coincided the 1994 with amendment to “particularly tion of one statute deemed rele 9(a); ARCAP the amendments took effect other, proper interpretation vant” to of relat simultaneously. See id. & Order Amend statute, ed “since both sections were enacted Appellate of Pro Rules Civil Congress, and both were de [same] (1994). cedure, 178 Ariz. LIX The contem signed closely aspects of to deal with related poraneous amendments to both rules were problem”); States v. Mar the same United two, substantively prescribing but identical — (W.D.Mo.1991) zullo, F.Supp. two, only enlarging for conditions (“Certainly, it reasonable to conclude that post-judgment certain motions un Congress, choosing to use the same lan 6(b) der extending or for the time for guage enacting related [two statutes] 9(a). addition, choosing part to enact them as of the same previously supra, we noted in our su ¶8, day, that both bill on same intended preme аccompanying court’s comments thing.”). sections would mean the same identical, amendments to both rules were stating designed ¶26 amendments “were earlier, As noted ARCAP does experienced by problem practi address a require any showing good cause or appeal rights tioners” whose clients’ were neglect excusable to obtain extension jeopardized sometimes failure counsel’s Rather, only express appeal. time for notice of the receive prerequisites for relief under the rule are XLII, LX; See 178 Ariz. at see also State v. “(1) party entry of entitled to notice of Bonds, Inc., Empire Am. Bail 191 Ariz. judgment did not receive such notice from (App.1998) n. n. 1 P.2d any party the clerk or within (1994 rules, including amendments to AR- prejudiced” be entry and 6(b), “complement and Rule each by extending time for ARCAP together preserv other and are directed at 6(b) pre- The 1994 amendment to Rule ing parties’ rights”). enlarging criteria for scribed those same two motions, post-judgment the time to file with- ¶25 statutes, As with court rales conditioning on a out such relief possible “‘should harmonized wherever Indeed, neglect. good cause or excusable conjunction and read in each other.’” portion acknowledges that Haroutunian Hansen, 160 P.3d at 6(b) ValueOptions’ mo- pertinent of Rule quoting Hartford, Inc. v. Harmo Phoenix no excusable cause tion has Rests., Inc., ny elements. (App.1977); see also Robson Ranch ¶27 9(a), however, Mountains, County, L.L.C. v. Pinal Unlike (courts required pre-1994 of Rule show- (App.2002) version neglect” for consistency ings of “cause” and “excusable seek to harmonize and attain related, among statutory provisions obtaining enlargements in context of time under seheme). And, confusingly, that lan- statutory of their rule. somewhat of overall view 6(b) retained, ValueOptions had es- guage unchanged, expressly in Rule court found ¶23, prerequisites even after the 1994 amendment. See for relief un- tablished the two then, whether, supra. question, 6(b) The based applied then an incorrect der Rule but 6(b)(2), wording on the of Rule still re- legal by imposing standard additional neglect excusable order ob- show the court abused its discretion quirements, enlargement tain an of time under enlarge- motion for denying rule, amended version even when 6(b). ment of time under Rule prerequisites two set forth the 1994 denying amendment have been met. Va- Disposition 6(b), lueOptions’ motion under Rule 29 We reverse the trial court’s denial “requires court determined the rule a show- ValueOptions’ motion to extend the time to of excusable when the motion is enlarge filing post- the time for appeal and to expiration specified made after the remanded judgment motions. The case is period.” Although plausible that is one read- post-judg proceedings for further on those ing of Rule after its even 1994 amend- disposition, of that ment motions. view ment, interpret differently. we the rule do not address the other issues raised we ¶28 statutory language “When ValueOptions’ appeal or Haroutunian’s cross- gives differing interpretations, rise to ‘wewill Frey, appeal. See Cohen v. adopt interpretation that is most harmo ¶¶ 16, 482, 487, (App.2007); 157 P.3d statutory legisla nious with the scheme and Liners, Ryley, Ap Envtl. Inc. v. Carlock & purpose.’” Corp. tive Sw. Gas v. Indus. plewhite, Ariz. 384 n. Comm’n, Finally, 4 (App.1996). 461 n. Haroutuni Pinto, (App.2001), quoting State v. request an’s fees and costs (App. denied, cross-appeal without 1994). Similarly, language when the of a prejudice seeking to his such awards on re reasonably susceptible court rule is to differ subsequent proceedings, any. or in if mand ing interpretations, language as the of Rule 6(b) is, we will seek to it harmonize with HOWARD, CONCURRING: JOSEPH W. interpret related rules and it in a manner Presiding Judge. that is consistent with the intent of the draft supreme ers —our court. Vega, See BRAMMER, Judge, dissenting. Again, 19 P.3d at 648. the identical ¶30 contemporaneous respectfully my 1994 amendments to I col- dissent from 6(b) designed ARCAP and Rule leagues’ opinion. By concluding “were well-crafted address problem” parties’ [the applied wrong legal same] unwit the trial court stan- — tingly losing rights post-judg their to file denying ValueOptions relief dard appeals timely ment motions and for lack of 9(a), they appear misinterpret the ARCAP mandatory notice to counsel of the ruling. Thе also court’s has 6(b) ARCAP effectively eliminated a trial court’s discre- amends., XLII, cmts. to 1994 at and, deny tion to that rule relief under Having supreme LX. concluded that our determining it no deference to the trial owes court did not intend to condition relief under here, discretionary court’s decision has sub- ARCAP on a of either for the trial court’s. stituted neglect, cause or excusable con we likewise Further, disagree majority’s I inter- clude amendments to Rule 6(b). pretation of Rule when, here, showings such express prerequisites for under the two Motion Denial of rule are established. To hold otherwise I31 first address the trial court’s deci- disharmony inconsistency create deny sion to relief under ARCAP rules, contrary ap between two to their rule states: parent purpose and to our (a) Time; Representatives; objective Personal changed stated both rules Cross-Appeal. simultaneously A in 1994. Because the trial re- by expired sure that a quired Rule 8 shall be filed with the time limits to make judgment superior clerk of the court not later than had not been entered. There- fore, days entry judgment after the taken, appeal is unless a from which IT ORDERED defendant’s motion IS by provided time If the different is law. enlargement for of time to file motions for (1) party entitled to court finds that judgment as a matter law and [of] renewed entry of did not receive for new is DENIED. any party or such notice from the clerk (2) entry party Appeal days of its and no Time within Motion to Extend to may prejudiced, upon be the court enlarge- for an Defendant has moved days motion filed not later than 30 after appeal pursuant to Rule ment of time to expiration appeal, for of the time or Appellate Arizona Rules of Civil Pro- notice, days receipt of of such within gives The Rule the trial court cedure. earlier, extend the time for whichever appeal to the time for discretion extend appeal period days not to exceed 14 for a Met- under certain circumstances. United granting from the date of the order Materials, Proper- ro Inc. v. Pena Blanca party during If the time motion. dies he ties, L.L.C., appeal, appeal is entitled to take an may (App.2000). The court extend personal representa- taken be his appeal the time to if it finds “that days after the death of the tive within judg- entitled to notice cross-appeal may party. A notice of notice from the ment did not receive such opposing party days filed within 20 twenty-one any parties clerk or within appeal from the date the notice of is filed. entry, days of its would be prejudiced____” undisputed Id. It is ruling denying 32 The trial Va- defendant did not receive notice lueOptions’ motions stated: any party from the clerk or twenty-one days entry. As Enlargement within Time File Motion for to prejudice, [plain- the issue is “whether Judgment Motions for Renewed as a being prejudiced by tiff] [is] of Law for New Trial Matter delayed timely.” than Lennar rather Defendant relies on Rule Rules of Co., Corp. v. Auto-Owners Ins. Procedure, request Civil an extension of (App.2007). Plain- post-trial pursuant to file motions time However, prejudice. tiff has not for shown 59(d). 6(b) re- Rule[s] to ex- the same reason the court refused quires a of excusable motions, filing post-trial tend the time for expira- the motion is made after the court, discretion, in its declines ex- specified period. Defendant’s tion of the appeal. Defendant has tend the time for attorney rul- received an under advisement Therefore, good not cause. shown stating, ing dated “the IT motion to IS ORDERED defendant’s sign the form of sub- court will DENIED. extend deleting by plaintiff after the costs mitted majority attorney’s Defendant’s attor- 33 The has concluded fees.” wrong that the trial court used the ney secretary had her call the Pima Coun- and 13 denying AR- legal standard in relief under ty Clerk of Court after date two ValueOptions had because it stated of the under advisement to deter- and, therefore, in the if had been entered. The “not cause” mine shown estimation, “essentially imposed person majority’s secretary by an was told unknown for relief that the lan- that it had not been an additional element in the clerk’s office fact, guage nоt and its judgment had been of the rule does entered. agree I cannot day A reasonable at- drafters did intend.” entered the before. ruling. of the court’s judge’s cham- this characterization torney called would have 9(a) are the clerk or if the elements of ARCAP placed another call to Even two bers met, here, they it remains within steps were appropriate taken other before grant trial court’s discretion then in 15 that 36 The decides “particular particular in a it owes no deference” to the trial case. See Metro Ma- United terials, that a L.L.C., court’s conclusion reasonable Props., Inc. v. Pena Blanca something would have done more than Va 479, 18, (App. 197 Ariz. 4 P.3d 1025 lueOptions here. It notes the trial 2000). did in Inherent that discretion is that the any court’s decision not based on “was evi may expect party seeking court relief to presented any weighing dence below or provide beyond some the rule’s ex- reason — conflicting facts.” I fail to understand what plicit warranting sought. the relief elements — trial additional evidence the court should Otherwise, the tidal court’s discretion is com- in assessing have considered whether Va pletely illusory. lueOptions reasonably. Nothing had acted ¶ Here, plain 34 it is the trial court con contradicts the trial court’s state record ValueOptions’ cluded failure to show some ValueOptions ment that inquire failed to diligence attempting to learn if a final judg further into the status of the justified indeed had been entered appeal expired. ment before its time to The discretionary deny its be, decision to relief. The judge, any judge should was ValueOptions permitted, required, court’s statement that had not indeed on draw his “good knowledge experience nothing determining shown cause” more when was than ValueOptions’ conduct had been rea expression the court’s of its determination sonable under the circumstances. See Walk provided had not a reason 510, 513, Kendig, er v. P.2d the court considered sufficient to warrant (1971) (when making discretionary deter relief, legal not a reference to a standard the “ mination, may rely ‘personal trial court plainly rule does not contain. See Maher v. experience’”), quoting wisdom and In re Urman, 543, 13, 124 211 Ariz. P.3d Welisch, 517, 521, 163 18 Ariz. 265-66 (“‘[T]he (App.2005) presumed trial court is (1917); Baum, ‍‌‌‌‌​​​‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌​​​​‍Baum v. 120 Ariz. cf. ”), to know and quoting follow law.’ State (in (App.1978) determining Ramirez, fees, attorney judge reasonable “trial can (1994). upon knowledge his draw of the case and ¶ 35 authority The trial court cited no de- upon experience”). his own fining “good contexts, cause” in related nor ¶ Nor can I fathom the discretion how explain, did it as it did for excusable 9(a) gives a trial court is eliminated 6(b), in its discussion of “good what merely underlying because the are facts un cause” meant in Nothing this context. in the disputed. Our court stated State ruling suggests it it believed could Chapple, 297 n. only grant upon 1208, 1224 (1983), 18n. that a decision ceases cause. The court instead stated it had de- discretionary to be be decided as a nied the motion “in its discretion.” It re- “question ... logic” “the law ferred to the “same reason refused to [it] facts or inferences from them are not extend filing post-trial the time for motions” dispute and there are where few or no con only and the reason ruling, contained in the flicting procedural, equitable factual or con specifically: “A reasonable Although siderations.” the facts here are judge’s placed have called the chambers or undisputed, clearly competing pro there are ap- another call to the clerk or taken other cedural, equitable, practical consider propriate steps expired before the time limits accompanying ations them. The trial court to make sure had not been had to balance Haroutunian’s interest in the Thus, entered.” the court finality referred to the preference factual basis for its jurisprudence under Rule resolving our cases on Harris, legal applied not to the it standard there.12 their merits. See Daou v. most, might

12. At one conclude it is unclear remand the case for the trial court to reconsider further, legal aрplied ruling. goes whether the trial court the correct here much event, proper remedy concluding standard. the trial court’s decision is incorrect clarify proper legal any legal would be to standard and standard. (1984) (trial by plaintiff after delet- submitted This, interests). attorney’s fees.” weigh competing And the costs and these course, did do. exactly what the court it had determine whether awaiting suggestion it unique There that was reasonable under the conduct was motions from the information or facts and circumstances of the case. additional signing the delay it parties or that precisely the kind of assess This ment a trial court that demands review (“trial argument, ValueOptions as- judges 40 At oral ing court’s deference. See id. single phone made its call to position appellate in a than serted are much better court to check the status of judges” party’s neglect clerk of the determine whether receiving notice of the equitable principles);judgment before excusable and to balance 18, February entry. Counsel 20 minute pple, 135 Ariz. at 297 n. 660 court’s Cha P.2d employee in clerk’s of- (“conflicting reported that an the procedural, at 1224 n. 18 activity ... factual, “no equitable fice had said there had been considerations” are “bet 14, February 20 by 2007.” The ter determined or since resolved however, [court], entry, clearly stated the grasp hаs a more immediate minute wh[ich] again ease, sign the and opportunity an court of all the facts of the suggested the witnesses, nothing minute lawyers and and that parties, see the Upon receiving delay doing so. impact ... the court would can better assess what [it]”); entry, court conclud- minute as the trial Goglia before see also v. Bod the occurs nar, ed, diligent party have reasonably P.2d 929 a 749 Daou). if investigate further some action to (App.1987) (citing Because the taken fact, had, signed judgment been ValueOptions’ con the court’s determination that apparently made ValueOptions the circum entered. Yet duct not reasonable under entry. defer, receiving the minute inquiry after stances is a decision to we must which only undisputed disturb it when we ¶ Although recognize party a should 41 I justify factors cannot facts and other every required to contact the [court] not “be compel court’s decision and instead a differ been en- day judgment if has to ascertain ent result.13 Court, Constr., tered,” Superior DNB Inc. v. (1980), ¶39 P.2d 382 majority suggests To the extent the diligent monitoring party still be only proper to be conclusion drawn case, particularly it has ValueOptions of its when undisputed facts is that status these message from the trial court a clear reasonably, acted I believe it overstates the received sign intended to entry in that the court In the same minute case. parties further interaction with request for attor- court denied Haroutunian’s without delay.14 Additional- fees, apparently without ney “sign the form of it stated would approaching it was majority gency before] deadline [of 7 do The cases cited in note late”). suggest They emphasize instead too otherwise. we should not disturb a trial court's discre that ValueOptions and the 14. To the undisputed extent tionary ruling unless "the facts rely supreme court’s statement contrary ruling on our as a in note 7 circumstances ... party should be Pulp Paper "[a] in DNB Construction of law.” Coconino & Co. matter notice,” Marvin, rely upon the mail for able to Ariz. Davis, distinguish- (1957); P.2d at that case Ariz. 57- at see also Davis v. There, untimely (1984) (observing an the court addressed able. P.2d 1085-87 order, justice court from a proper only "exercised when discretion reversal superior court within principles” to be filed in the which had [relevant] in clear violation of the Although days. it denied relief diligent party only See id. finding party ten when had visited twice, filing appeal, the court party the late inquiring to the twice with court clerk and court might delayed expressed "mail judge’s concern that “at the court administrator and once chambers,” case); judg- receive notice of does not had so that and court clerk misfiled Here, course, days.” Id. within 10 Gerstenberger, ment Ulibarri thirty days, AR- see (reversing an (App.1993) time for denial P., delayed mail 60(c), making concerns about R. relief under Rule Civ. pronounced. And the delivery significantly less to indicate that [was] "there little in the record that, if “notice of even recognized court stated attorney] the emer- should have [the ly, pointed however, Nothing suggests, as Haroutunian out in his re- in the record 9(a) motion, sponse ValueOptions’ attempted that Haroutunian had to ascer- could have the Pima tain if reviewed had been entered or County Superior any specific Court’s electronic docket. that he had reason to do so. Indeed, Indeed, arguable documents Haroutunian attached to lack Haroutunian’s of dili- response gence respect way show that the final in no this excuses Va- appeared Further, on the docket lueOptions’ investigate. at least Feb- failure to ruary any hardly one part week after the trial court’s inaction Haroutunian’s entry. minute Orthope- compels See Kuhn v. Sulzer inference dics, Inc., (6th Cir.2007) parties may F.3d 370-71 conduct was reasonable. 4(a)(6) (denying relief under disparate Federal Rule have had interests the date because failed to monitor electronic was entered. docket).15 The existence of the court’s elec- so, although doing 43 In it disclaims docket, parties, tronic accessible to the viti- majority imposes duty on the trial ates party may unduly concern that a parties to advise of mistakes in the judge’s burden the trial court clerk or staff papers they file. cannot be the This law. by making repeated inquiries in an effort to judges responsibility Arizona’s trial have no diligently monitor the status of its case. proofread papers parties to the file with majority 42 The makes much in obligation them. I find here no on the and 18 of the fact party that neither part parties’ knew court’s to correct the apparently judgment the date the had been misperception judgment entered.16 shared that no had judgment 331, date, was received stamped so late as to make 697 P.2d at 1081. The how- statutory ever, impossible,” within the time limit the was not the date the order had been filed superior appealing 330, party court "could relieve the but the date it had been mailed. Id. at application day Thus, from strict of the 10 rule.” DNB supreme P.2d at 1080. the court noted Constr., Inc., 125 Ariz. at 607 P.2d at 382 secretary that "defense counsel and [had] his added). Thus, (emphasis even under DNB Con- [typed] overlooked the date line ... or misunder- struction, a court is vested with discretion to stood the form.” Id. at 697 P.2d at 1077. grant deny taking ap- additional time for an The court stated defense "had counsel no doubt Moreover, peal. that case was decided before judgment the as to date on which the was en- development City the of the rule described in that, suggested tered” and doubts, had counsel had such Geyler, Phoenix v. 144 Ariz. 697 P.2d failure his to seek clarification of the date (1985), explicitly requires would have been inexcusable. Id. at demonstrate, alia, party diligence inter due in Thus, although supreme P.2d at 1081. court attempting judgment to learn when has been “strongly suggested]” stated the facts of the case entered. warranted, at id. 697 P.2d at ValueOptions, party Geyler unlike in Additionally, majority suggests several had not failed to act in the face of information ValueOptions argu- cases demonstrate that has reasonably compel that would some action. ably diligence. shown sufficient These cases are distinguishable. Corp. also In Lennar v. Auto- court, argument ValueOp- 15. At oral before this Co., Owners Ins. 214 Ariz. 151 P.3d distinguishable tions asserted Kuhn is from this (App.2007), party counsel for the had jurisdic- case because the local court rules in that judgment employee received notice of the but an required parties register tion with the elec- procedure” of the law firm "failed to follow the docketing system tronic in order to receive no- judgments. Nothing used to track in the record by tices electronic mail. The Sixth Circuit in suggests ValueOptions routinely monitored the Kuhn, however, ques- stated that the local rule in docket of its cases but failed to do so here be- compel moving party] regis- [the tion "did not procedure cause internal had not been fol- docketing] sys- [elеctronic ter with the court’s Lane, 113, 5,¶ Penney lowed. In J.C. 197 Ariz. tem.” 498 F.3d at 370. (App.1999), party 3 P.3d had sign judgment ruling asked the court to after majority's on its motion for reconsideration. The trial 16. The distinction between the trial signed judgment signing entry court instead two-and-a-half and the court clerk’s correct, judgment months before on the motion for of course reconsid- but it is irrelevant here, ¶ Plainly, Nothing suggests party eration. Id. 6. unlike here. in the record there is Penney typically delay signing J.C. had no reason to believe the trial between the sign Geyler, any delay reasonably court was about to nor that could Indeed, moving party anticipated delay— received the final order here. but there was no partially illegible stamp judgment day relied on the date instead was entered the after the trial typed signed of on the date on the order. 144 Ariz. at court it. ¶46 party’s diligence protecting A its entered. To do so would assume the

been perception, appellate rights long of such a has been deemed rele court was aware assump- nothing supports permitted in the record that it vant to whether should be addi tion. That the court did ‍‌‌‌‌​​​‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌​​​​‍not issue a correc- tional time to file its Vital v. advisory way ValueOptions Johnson, tive excuses fulfilling responsibility to remain (App.1980), One of this court deter Division support 60(c), P.,

abreast of its These facts lawsuit.17 Ariz. R. did mined that Rule Civ. ValueOptions that the trial court’s conсlusion permit a trial court “to vacate and reen diligence receiving failed to exercise after begin in order to ter the same sign that it notice from the court again the time for a notice of I a different judgment. Even were to reach no notice of had when conclusion, may as I well have done here party been sent to the the clerk.” J.C. instance, discretionary a trial court’s the first at 1035. Penney, decision, supported the uncontro- where court, however, rejected that Our record, is entitled to deference on verted Strick, interpretation in Park v. review.18 (1983), holding that grant a trial court relief under Rule posits in note 44 The then 60(c) by vacating reentering that, if the tidal court was correct that even aggrieved party lack of “an establishes when unreasonably, had acted entered, knowledge has been consideration is irrelevant to whether could asserts additional reasons that are so Again, I grant relief under ARCAP justify extraordinary as to relief.” The that, exercising disagree. I conclude that, complaint only also stated “where deciding grant its discretion get the formal that the did not have or relief under ARCAP ..., party to which a is entitled notice signed clear notice a 60(c) is not available.” ] relief [under delay, a trial court consider without Geyler, 144 Ariz. City In Phoenix v. Id. party took or failed to take actions the what 1073, 1078(1985), 697 P.2d judgment hаd attempting in to learn whether requirements then added to the it had de against it. been entered Park, that, holding Geyler in be scribed in ¶ 9(a) clearly does not 45 ARCAP compelling required sides circumstances party good specifically that a demonstrate 60(c), by party a also demonstrate: to determine cause to excuse its failure (2) judgment; proper lack of notice of the in a final order had been filed its whether respondent; prejudice lack of to the Lane, Ariz. Penney v. case. See J.C. filing actual notice prompt of a motion after ¶ (App.1999). It received; a diligence, is and due or reason follow, however, necessarily that a does not thereof, attempting to for lack in determine may not trial court consider whether the date of the decision. diligence degree exercised some ¶ 8, majority notes in attempting judg- if a final as to determine 9(a) And, ARCAP and our court modified ment indeed had been entered. “ concede, prob- procedural a to ‘address a ValueOptions and the other rules whereby experienced by practitioners, grant relief under lem trial court’s decision to 9(a) entry of discretionary. they receiving notice of See were ARCAP United Materials, eases and their clients’ some Metro ” rights appeal jeopardized.’ to J.C. were at 1025. court, beginning That suggest to review of them. befоre 17. The record does not perfunctorily unavailing apparently ordered a brief- when it made no correction here is the court motion, ing had reviewed Har- schedule on ValueOptions. to reconsideration to note outunian’s motion for operating belief a that he was on the erroneous affirm, to, I defer a trial 18. would also Indeed, yet my judgment had not been entered. grant facts to court's decision under identical suggests practice perception common it is 9(a) ARCAP relief. busy likely court would wait that a more filed papers a have been until all the on motion 4(a)(6), ing under Rule Fed. R. Civ. Penney, 3 P.3d at relief P., App. equivalent the federal of ARCAP quoting ARCAP court emt. to 1994 9(a). Nunley apply- court reasoned that The Nothing in the to AR- amend. amendments principles to Rule ing neglect excusable rules, however, or other eliminates “ 4(a)(6) pur- central ‘subvert [its] Geyler’s requirement, or that dictated ” “ pose,’ ‘permit to district courts which was sense, common that a must exercise imposed ap- to ease strict sanctions now diligence attempting some to ascertain are filed late pellants notices whose a final has been entered. to notice of because of their failure receive Instead, gives trial court the a ” judgment.’ quot- at of a 52 F.3d relief, grant I discretion whether see County Suffolk, 29 F.3d Avolio principled prevеnt no reason to a court from (2d Cir.1994) (internal omitted). quotations considering party’s diligence a when exercis- Nunley “[t]o court also reasoned that Indeed, ing that discretion. One of Division negate the hold otherwise would addition party’s suggested assessing this court has 4(a)(6), provides an avenue of diligence proper considering a re- 4(a)(5).” separate apart from Rule quest for relief under ARCAP Deco- 4(a)(5) a district Id. Federal Rule allows ¶28, 24, Freyer, la v. court, upon a motion “no later than 30 made (App.2000), Division One determined a prescribed after the time this Rule superior court had discretion to extend 4(a) expires,” to “extend the time to file party’s time to from an arbitration upon appeal” of “excusa- “under award rationale of [ARCAP] I, however, cause.” find ble 9(a).” party might The court that a stated distinguishable. the federal rules be entitled to relief such circumstances if ¶ Although equiv Arizona has no direct “failed to notice of the receive 4(a)(5), P., recog R.App. alent to Rule Fed. I award, ... diligently, arbitration acted nize that Division One of this court held in prejudice plaintiff was shown.” Id. 113, ¶ 20, Penney, J.C. 3 P.3d at may, pursuant that a trial court to Rule ¶ Moreover, requirement par that a 60(c), P., Ariz. R. and reenter a Civ. vacate ty steps protect right appeal by take effectively extend the time for determining the status of its case is reflected notwithstаnding language appeal, in for 5.1(b), elsewhere our rules. Rule Ariz. R. P., 77(g), Ariz. R. Rule mer Rule Civ. now P., counsel, describing Civ. the duties of re 58(e), P., provides Ariz. R. a trial Civ. which quires attorneys “keep[] to of the advised party a to court cannot “relieve for failure [they ap status of cases in which have] allowed, except the time within peared.” City See also Panzino v. Phoe of 9(a).” provided in Division One’s [ARCAP] nix, 442, ¶ 7, interpretation equivalent not create an does (2000) (“ charged client is ‘[T]he with the 4(a)(5), P., R.App. to Rule Fed. which re attorney.’ ”), actions and omissions of its quires moving party only to demonstrate Cash, quoting Mission Ins. Co. v. Stullivan & “excusable cause.” con Cross, (1991). 60(c) rule, requires trast to the federal 58(e), P., The mandate in Rule Ariz. R. Civ. party a in such circumstances to demon immediately that the court clerk distribute (1) timely strate: that it did not receive entry parties notice of the of to the entered; judgment had been notice the parties does not mean the are of all absolved diligence, or a that it exercised due responsibility to monitor their case when thereof, attempting lack to reason for the they clearly entry signing are that aware decision; leam the date of the that are imminent. party prejudiced to would be addition —in ¶ 60(c) agree majority’s 49 Nor do I with requirement the other of Rule that a Nunley City Angeles, reliance on v. Los 52 party compelling circumstancеs favor show of (9th Cir.1995), F.3d 792 the Ninth Pen relief from the See J.C. by Circuit held that a trial court erred con- ney, 3 P.3d at 1037; sidering neglect principles deny- Geyler, excusable see also 144 Ariz. at Thus, 60(c), denying ValueOptions relief P.2d at under Rule unlike to its decision 4(a)(5), party required Federal a is to diligence

demonstrate in addition to the oth- 6(b) Denial Rule Motion requirements Consequently, er of the rule. of utilizing good there is no concern that cause ¶ 53 I turn to the trial court’s denial of now principles party a as whether —such 6(b). entirety The relief under of reasonably diligent discretionary deter- —in set forth in 23 The rule has been above. minations under ARCAP either 6(b) ambigu- concludes that Rule is undercut or conflict another rule that with ous, requiring attempt to harmonize the untimely appeal. afford relief from an majority’s AR- interpretation rule of 6(b) Moreover, 9(a). Although agree unpersuaded by I am I that Rule worded, Nunley may inartfully Ninth I cannot conclude Circuit’s blanket statement be 4(a)(6) Instead, only ambiguous. it reason- denial of relief under Rule “can- is party’s interpretation language of the rule’s is indepen- not rest on a failure to learn able that, circumstances, dently entry party judgment.” of at in these 52 F.3d rule, neglect, irrespective excusable prevailing 798. Under the federal show timely party encouraged notify party is received notice other “ ‘in judgment.19 order to lessen judge accept the сhance that a a claim of will sentence, single separat- 54 Rule is non-receipt in the face of that no- evidence A ed a semicolon. semicolon is used tices were sent both the clerk and the separate independent clauses that are two ” winning party.’ County Avolio of Suf- Lloyd’s nonetheless related. See Saxon (2d Cir.1994), folk, quoting 29 F.3d (Ala.1994); London, 646 So.2d Web- 4(a)(6) RApp. advisory Fed. committee Dictionary ster’s Third New International policy note. I cannot condone an unwise (a separate semicolon “used permits losing party passively to remain compound sen- independent clauses of a uniformed of the status of its case and fail to tence”). presence But the of a semicolon steps protect rights, take reasonable separating the clauses does not mean we including right I note that wholly independent. read them as should appellate upheld other federal courts have plainly The text of the rule states otherwise. requested the denial of relief under Rule portion following the semicolon 4(a)(6) moving party to act. failed negative stating the court phrased in the — See, Kuhn, e.g., (party 498 F.3d at 370-71 taking any “may not the time for extend docket); failed to monitor electronic In re action” the enumerated rules unless it Jones, (5th Cir.1992) (party 970 F.2d timely notice finds the did not receive notify change failed to court of address that no from the clerk and sheet). misread docket prejudiced if time extended. The trial were power to time is defined in the Although explic- does not extend 6(b) itly require part of party’s a trial court to consider a first of Rule —section party diligence determining requires in a final to demonstrate excusable whether 6(b) entered, Rule is made after certainly neglect has been it most if the motion original expired. has preclude doing does not the court from so. the time for the motion And, not supports phrase following I the semicolon does explained, as have record separate power to ex- give the trial conclusion here that the trial court court’s Va- motions, insufficiently diligent the time for those but instead lueOptions in these tend was Thus, power conferred I the court further limits the circumstances. conclude of the portion did not abuse its defer first rule.20 discretion course, no excusable party motion has 19. Of whether a received notice is nent untimely filing party’s Merely neglect relevant to whether be- or cause elements.” excusable. way was party misinterpreted in a rule cause a has however, position, does that does not favor its ¶ majority in 26 that 20. The states "Haroutunian 6(b) acknowledges portion perti- of Rule that the ¶ Thus, 6(b). requirements the rule’s that a ARCAP It is reasonable to con- may trial court supreme not “extend the time for clude our court intended to estab- taking any 50(b), 52(b), extending action under Rules lish different criteria for the time (l), 59(d), 60(e),” (g), to file in A finding these different circumstances. without party party timely timely did not that fails to file a motion enu- receive notice of 6(b) merated in Rule still has an party and that no available would be remedy by prejudiced, appeal in for most errors made dur- are addition to—not instead contrast, party trial. if a to file finding of—a fails neglect of excusable under Rule 6(b)(2). timely appeal, its notice of the failure is Because the language of the rule is jurisdictional, ap- and we must dismiss the unambiguous, attempt there is no need to ¶ State, 6(b) peal. See v. 9(a).21 James “harmonize” Rule with ARCAP (App.2007). ¶ It is not sur- Fragoso See Fell then, prising, that our (2005) (“We interpret stat- give flexibility a trial deciding court more in utes and rules in accordance the intent 9(a) grant whether relief under ARCAP drafters, plain we look to the 6(b); consequences than under Rule language of the or statute rule as the best failing timely appeal usually to file a are indicator of that intent. If language more serious. unambiguous, clear and give we effect to that

language employ and do not other methods discussed, I already 57 As have the trial construction.”) (citation omitted). statutory finding court did not its in abuse discretion ValueOptions insufficiently diligent in at- 6(b) 56 Even ambiguous, were we tempting judg- to determine a final whether not party need conclude a must make the ment had been entered in its case. For the showing same and Rule reasons, 6(b) same it did not abuse its discretion 6(b) granted order to be relief. Rule finding ValueOptions had not shown excus- governs extensions of time for motions made denying able and in therefore its before the same court that issued the 6(b) motion. the motion challenge. seeks to A trial court’s decision grant relief under Appellate Jurisdiction those discretionary, motions is party and a typically must file its only motion within 58 That the trial court did abuse its fifteen judgment.22 In con- denying ValueOptions’ discretion in motion to trast, a appeal step the first taking extend its deadline for appeal an rais- seeking wholly new question review the trial es ValueOp- of the timeliness of rulings, and a must file appeal tions’ thirty days notice within per- filed its notice of more —twice mitted for the motions enumerated in ninety days than after the responsibility not mean we abdicate our language son for confusion. The was retained apply properly plain language. now, the rule's just because a amendment, as before the make that to obtain relief I note the imprecise is somewhat under the rule. when it states V24 that the amendments to two, “prescrib[e] ARCAP and Rule but Phoenix, City 22. See Hutcherson two, only enlarging conditions for the time” to (1998) ("We rеview post-judgment file either an or certain judge’s deny post-trial decision to mo- Again, grant motions. whether to relief under discretion, recognizing tions for abuse of and, is within the court's discretion deciding he had substantial latitude in view, my permits that discretion a trial court Urman, verdict.”); upset to v. 211 Maher moving party provide to to some 770, ¶ (App.2005) Ariz. 124 P.3d 777 grant sought. reason for the court to the relief ("We Furthermore, review a trial 6(b) court's on a motion for plain language. 60(c) relief from requires for an moving party a to demonstrate excusa- discretion.”); ¶27, neglect. Additionally, abuse of 50(b), 52(b), 59(d), see also ‍‌‌‌‌​​​‌‌​‌‌‌​​​‌‌​​‌​​‌​​‌‌​​​​‌‌‌‌‌‌‌‌​​​‌​​​​‍Ariz. R. Civ. P. ble (l) (motions (g), suggests confusing!]” filed it is "somewhat that the language requiring judgment); within fifteen but see of excusable ne- "retained, 6(b) 60(c) (motion glect unchanged, was Ariz. R. Civ. must be filed "with- time”). even after the 1994 I amendment.” see no rea- in a reasonable 560 by Vag- requirements meet the described February, past thirty-day not

entered well nozzi, 9(a). may not treat as therefore “‘It is settled we See ARCAP limit. appeal. See extending the time for appeal motion perfecting of an Arizona that James, 182, 7, 18, 158 P.3d at jurisdictional; prescribed within “Objection 907, (declining treat hence, timely 909-10 and, appeal not where Judgment” motion to Final filed, acquires jurisdic- no Defendant’s appellate court Accordingly, ValueOp- judgment). attempted amend tion other than to dismiss ” ¶ February 21 James, appeal from the tions’ notice of Ariz. 158 appeal.’ 215 untimely, do not have and we 908, Young, 107 quoting Edwards v. P.3d at (1971). 284, 181, jurisdiction to consider its 283, Va- 486 P.2d 182 however, should argues, that we lueOptions ¶ jurisdiction to consid have 61 Nor do we to reconsider the Haroutunian’s motion treat sought cross-appeal, Haroutunian’s er attorney costs fees and trial court’s denial refusal to award contest the trial court’s extending the time as a motion 21 February in the fees 9(b). pursuant to ARCAP untimely notice cross-appeal after an A filed is, untimely and necessarily, also for reconsideration is 59 A motion Phillips Co. dismissed. See Constr. in ARCAP must be among four motions listed (1) 792, Cook, Ark.App. 808 794 appeal: v. 34 S.W.2d time for that extend the Rhine, (1991); Cal.App.3d 117 notwithstanding the Rolen motion for (1981); 50(b); Cal.Rptr. Peltz v. Dist. a motion pursuant to Rule verdict Dist., 865, 866 Appeal, 3d 605 So.2d findings Court make factual to amend or additional (Fla.1992); Ga.App. Copeland, 52(b); Jarrard a motion to alter pursuant to Rule Walton, (1992); Inc. v. 421 S.E.2d judgment pursuant to Rule or amend the Jensen, 132 Idaho 59(Z); pursu- a motion for new timely styled (Ct.App.1999). Because there was A motion as some- ant to Rule there appeal of the motions thing than one of those four other judg timely cross-appeal from however, appeal if can be no may, toll the time for an 59 as ment. “‘both refer[s] [R]ule the motion authority describe[s] for the motion ” James, 215 in that rule.’

grounds set forth Conclusion quoting P.3d at above, I For all the reasons stated Vagnozzi, 132 Ariz. Ins. Co. v. Farmers I affirm respectfully dissent. would (1982). The su- ValueOptions’ motions to denial of that, Vagnozzi also stated preme court enlarge the appeal and to the time to extend record its court states on the a trial Fur- filing post-judgment motions. time for treat motion as a Rule intention to ther, ValueOptions’ appeal of I dismiss treated motion, motion also be “the will February 21 the final entered [R]ule 59[ ].” courts as one under appellate cross-appeal. Haroutunian’s at 1308. Ariz. at Vagnozzi, 132 cited motion neither Haroutunian’s grounds any of the nor referred to Rule 59 did the the rule enumerates. Nor

for relief one made the motion as trial court treat 59, referring to it instead as to Rule pursuant Thus, it does reconsideration. a motion for We As notes 9(a) 15 Haroutunian and the dissent acknowledges, Haroutunian and emphasize good also the trial court’s determination does not to demonstrate that, presented obtaining cause as a condition for an exten- circumstances notes, ¶¶ any alleged prejudice appellee. correctly to the Id. 5. As the dissent see lack of infra, ¶¶ recognized suggest any Division One of this court has 21-22. The court did not that trial court’s discretion under both ARCAP factors such as cause or excusable other and Rule Ariz. R. Civ. P. See United Metro any permissible neglect played relevant role in or Materials, L.L.C., Props., Inc. v. Pena Blanca AR- discretion under a trial court’s exercise of 18-19, (App. Ariz. 2000). Rather, 6(b). the court noted or Rule case, however, In that same the court merely that those rules "concern themselves time-extending found sufficient for relief under 'received,' judgment is whether the notice of the did those rules "counsel’s avowal that he not ¶ 22. not with whether it was sent." Id. entry judgment” receive notice of the here, attorney Judgment reasonable that no been “[a] would have lieved entered judge’s placed called the chambers or anoth- conveyed this belief to the Court without er call appropri- to the clerk or taken other correction.” steps expired ate before the time limits example, 17 For Haroutunian when judgment make sure that a had not been February moved on 26 for reconsideration of determination, however, entered.” That request the court’s denial of his not presented based on evidence below fees, yet he stated the trial court “has not any weighing or conflicting There- facts. signed judgment and the case has not fore, the trial court’s simply statement was Similarly, been Haroutunian stat- resolved.” conclusion, finding. And, not a factual be- ed that motion that time for the “[t]he cause that conclusion was not “based on an appeal begun has not even conflicting procedural, assessment of factual toll.” The trial court’s of March equitable or vary considerations which 2007, ordering ValueOptions to file a re- case to case and which can be better deter- sponse to Haroutunian’s motion for reconsid- mined resolved the trial judge,” we do eration did not address or correct those any particular not it owe Chap- deference. interim, pie, 135 Ariz. at n. statements.6 the clerk’s of- 660 P.2d at 1224 n. provided misleading fice inaccurate or infor- ValueOptions mation it informed addition, In16 the trial court’s conclusion February judgment 22 that no had been significant overlooks several undisputed undisputed entered. And that the clerk noted, facts. As the correctly court both timely parties failed to distribute no- parties received its min- judgment, required by tice of the entry, ute in which the court stated it would 58(e); ValueOptions timely moved “sign revise and form of sub- finally for relief under ARCAP after it But, mitted again, that [Haroutunian].” notice; received minute did not state that the court had timely appealed from the trial court’s order signed nor did it indicate when denying its motion to extend the signed or entered. Corp., Lennar Cf. (upholding P.3d at 552 reentering judg- order ¶ 18 pre Under the circumstances ment timely so could and not- here, parties sented alia, which both un ing, were inter that trial previously “did that a aware had been entered issue a minute order that the signed expiration until after had been as it well of the time for respect had done with

Case Details

Case Name: Haroutunian v. Valueoptions, Inc.

Court Name: Court of Appeals of Arizona

Date Published: Jul 10, 2008

Citation: 189 P.3d 1114

Docket Number: 2 CA-CV 2007-0090

Court Abbreviation: Ariz. Ct. App.