Lead Opinion
OPINION
¶ 1 In this wrongful death action, the trial court granted defendant/appellee State of Arizona’s motion to dismiss or for partial summary judgment on plaintiff/appellant Joseph Burkhamer’s claim on the ground he had failed to properly file a notice of claim against the state, as A.R.S. § 12-821.01 requires. Burkhamer appeals from the ensuing judgment, entered pursuant to Rule 54(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, and from the trial court’s subsequent order denying Burkhamer’s objection to the judgment and his motion to amend the pleadings.
¶ 2 The substantive issue Burkhamer raises is whether providing a notice of claim via facsimile delivered to, and received by, the Arizona attorney general’s office constitutes proper filing of the notice against the state under § 12-821.01. The preliminary procedural issue we find dispositive, however, is whether Burkhamer’s notice of appeal from the trial court’s judgment was untimely filed, thereby depriving this court of subject matter jurisdiction. We conclude it was and, therefore, must dismiss the appeal.
Background
¶ 3 The following facts are undisputed. On August 17, 2003, Corey and Michelle James, husband and wife, were killed in an automobile accident while traveling on a state highway in Pinal County. In 2004, John and Donna James, Corey’s parents, and Marjorie Surine and Joseph Burkhamer, Michelle’s parents, filed this wrongful death action, alleging the state had negligently designed and maintained the road and caused their children’s deaths. Before filing the action, Burkhamer sent a notice of claim via facsimile on February 13,2004, to the Amona attorney general’s office. Several months later, Burkhamer and the other three plaintiffs filed this case.
¶ 4 The state moved to dismiss Burkhamer’s claim in this action under Rule 12(b)(6), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, or, in the alternative, for partial summary judgment on that claim under Rule 56(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2. The state argued Burkhamer’s claim was barred under § 12-821.01(A) because he had “failed to file and serve” a notice of claim on the state within 180 days after the cause of action accrued.
¶5 In response, Burkhamer asserted his delivery of his notice of claim via facsimile to the attorney general’s office within the required time satisfied the statutory require
Timeliness of Appeal
¶ 6 As a threshold issue, we first must determine whether Burkhamer timely filed his appeal, an issue the state raised in its answering brief.
¶ 7 The procedural history of this case following the entry of that judgment is somewhat muddied. On January 30, without citing any civil procedural rule, Burkhamer filed an “Objection to Defendant’s Final Judgment and Order Dismissing Claim.” In that document, Burkhamer objected to the judgment on the ground its language “dismissing all [his] claims” was “overbroad” because the trial court supposedly had agreed at the hearing on the state’s motion to dismiss that, even though it was dismissing his claim, he could still file a motion to amend the pleadings “to assert a claim as a beneficiary of the claim of Plaintiff Marjorie Surine in her status as the statutory plaintiff for the wrongful death claim.” About a week later, Burkhamer also filed a motion to amend the pleadings, seeking permission “to continue his involvement in this case” as a nonparty, statutory beneficiary under Surine’s claim and asking for “his damages [to] be considered in any award ultimately determined in this matter.”
¶ 8 The state did not respond to Burkhamer’s objection to the judgment but opposed his motion to amend the pleadings, arguing he should not be permitted “to present and assert [his] barred and dismissed claim ‘through the back door.’” The trial court then set oral argument on Burkhamer’s motion to amend. After the March 20 hearing on that motion,
¶ 9 The state argues Burkhamer’s appeal is untimely because it was filed more than thirty days after the trial court’s entry of judgment. See Ariz. R. CivApp. P. (AR-CAP) 9(a), 17B A.R.S. (requiring notice of appeal to be filed within thirty days after entry of judgment being appealed). In his reply brief, Burkhamer advances multiple, alternative arguments that his appeal was timely.
¶ 10 Citing ARCAP 9(a), the state argues Burkhamer’s notice of appeal “did not come until nearly five months after” the trial court’s January 26 judgment, and consequently, “this court lacks jurisdiction to hear
When any of the following motions are timely filed by any party, the time for appeal for all parties is extended, and the times set forth in Rule 9(a) shall be computed from the entry of any of the following orders:
(1) Granting or denying a motion for judgment notwithstanding the verdict pursuant to Ariz. Rules Civ. Proc. 50(b);
(2) Granting or denying a motion to amend or make additional findings of fact pursuant to Ariz. Rules Civ. Proc. 52(b), ... whether or not granting the motion would alter the judgment;
(3) Granting or denying a motion to alter or amend the judgment pursuant to Ariz. Rules Civ. Proc. 59(0 •..;
(4) Denying a motion for new trial pursuant to Ariz. Rules Civ. Proc. 59(a)____
¶ 11 “It is settled in Arizona that the perfecting of an appeal within the time prescribed is jurisdictional; and, hence, where the appeal is not timely filed, the appellate court acquires no jurisdiction other than to dismiss the attempted appeal.” Edwards v. Young,
¶ 12 A series of Arizona Supreme Court cases, which the parties do not address,
[Former] Rule 73(b) ... enumerates the motions which extend the time in which the notice of appeal may be filed beyond sixty days from the entry of judgment. A “motion to vacate judgment” is not one of the motions enumerated, hence the filing of such motion does not extend the time.6
Burkhamer’s January 30 objection to the trial court’s judgment entered four days earlier clearly “is not one of the motions enumerated” in ARCAP 9(b).
¶ 13 In several subsequent cases, however, our supreme court has refined Slonsky’s rather strict rule by essentially creating several exceptions to it. In Hegel v. O’Malley Insurance Co.,
irrespective of the title of a motion, if its substance shows clearly that it seeks relief under Rule 59(a) on the grounds set forth in that rule with appropriate reference to the rule as authority for the motion, the motion must be treated as a motion for new trial under Rule 59(a),
thereby “toll[ing] the running of the appeal time.”
¶ 14 Next, in Desmond v. J.W. Hancock Enterprises, Inc.,
¶ 15 Finally, in Farmers Insurance Co. v. Vagnozzi
Hegel and Desmond apply to situations in which the trial court has made a ruling on the questioned motion without indication by the trial court of what rule is involved. In such instances the motion, to be considered as one for a new trial, must both refer to rule 59 as authority for the motion and set forth as grounds for the motion those grounds found in rule 59____ [T]he trial court may treat a so-called “motion for rehearing” as one under rule 59, and, when the trial court has stated in the record its intention to do so, the motion will also be treated by the appellate courts as one under rule 59(a).
¶ 16 Neither of the two alternative requirements our supreme court has established was met here. First, Burkhamer’s objection neither cited nor otherwise referred to Rule 59, or any of its grounds, or any other civil procedure rule. Therefore, unlike the situation in Desmond, we cannot say Burkhamer’s objection “substantially satisfies the requirements enunciated in Hegel.” Desmond,
¶ 17 Without addressing the foregoing cases, Burkhamer argues, inter aha, his objection to the judgment should “be treated as a Rule 59(£) motion, which extends the time for an appeal until the court rules on the requested amendment.”
¶ 18 First, as noted above, Burkhamer’s objection to the judgment did not cite Rule 59(0 or any other rule. Second, although Burkhamer complained in his objection that the trial court’s judgment was “overbroad,” he did not expressly ask the court to “alter or amend” it. Third, before alternatively
¶ 19 In addition, Burkhamer’s reliance on Sanders is misplaced because that case is readily distinguishable. There, after obtaining a jury verdict in his favor, Sanders filed an application for attorney fees with the trial court.
¶20 Sanders contended the notice of appeal was untimely because it was filed more than thirty days after entry of the original judgment, which did not include a fee award. Id. The Foleys contended their appeal was timely “because the trial court could have treated either Sanders’ application for attorneys’ fees or his letter ... as a motion to alter or amend the judgment pursuant to Rule 59(1),” which would extend the time allowed for filing the appeal until thirty days after entry of the amended judgment that included the attorney fee award.
¶ 21 Here, in contrast, the trial court neither vacated nor amended its judgment. Rather, the court’s judgment was unchanged and intact when Burkhamer attempted to appeal from it some five months later, without having filed any motion pursuant to Rule 59 or otherwise that would have extended the time for appeal under ARCAP 9(b). Although Sanders arguably supports the proposition that a trial court may treat an undes-ignated filing “as a motion to alter or amend the judgment pursuant to Rule 59(1),”
¶22 Our dissenting colleague maintains that Hegel and its progeny should not control because those cases involved motions for new trial pursuant to Rule 59(a), whereas Burk-hamer never sought that relief. In addition, the dissent correctly points out that a Rule 59(a) motion seeks different, and arguably more extreme, recourse than a Rule 59(Z) motion to alter or amend a judgment. And, although a motion for new trial “shall specify generally the grounds upon which the motion is based,” Rule 59(c)(1), Rule 59(i) prescribes no such requirement for a motion to alter or amend a judgment.
¶23 These distinctions, however, do not provide a principled basis for limiting Hegel, Desmond, and Vagnozzi to their facts or refusing to apply their broader principles in this context. Although those cases only ad
¶ 24 Although a finding of no jurisdiction here might be considered a harsh outcome, absent a legitimate basis for distinguishing or circumventing Hegel and its progeny, we are constrained to reach this result.
¶ 25 We find no merit in Burkhamer’s remaining jurisdictional arguments. He alternatively contends his notice of appeal was timely even as to the January 26 judgment because it was filed within thirty days of the trial court’s May 22 order, “which is the earliest time at which an entire claim could be said to have been finally adjudicated.” Burkhamer posits two separate theories of recovery in this ease — first, as a named plaintiff who allegedly had timely and properly filed a notice of claim against the state pursuant to A.R.S. § 12-821.01, and second, “as a statutory beneficiary in the wrongful death action being pursued by [his former wife,] plaintiff Surine.” According to Burkhamer, the trial court’s January 26 judgment disposed of only the first claim, not the second. Consequently, Burkhamer argues, the trial court’s inclusion of Rule 54(b) language in the judgment was premature and ineffective to render that judgment final and appealable, inasmuch as his “entire claim ha[d] not yet been finally adjudicated.” Rather, Burkhamer contends, his alternative “theories of liability” were not fully adjudicated until the trial court “finally rejected the second of his theories” in its May 22 order,
¶ 27 Seeking to avoid this conclusion, Burkhamer points to the Arizona statutes that create and define a wrongful death action and Arizona case law describing such actions. Under A.R.S. § 12-612(B), “[ejither parent may maintain the action for the death of a child.” And, as Division One of this court recently explained:
Arizona Revised Statutes § 12-612 (2008) provides that “[a]n action for wrongful death” shall be brought by a statutory plaintiff “for and on behalf of the surviving husband or wife, children or parents.” (Emphasis added.) Our courts have consistently construed this to mean that there is “one action for damages with one plaintiff and one judgment.” Begay v. City of Tucson,148 Ariz. 505 , 508,715 P.2d 758 , 761 (1986); see also Wilmot v. Wil-mot,203 Ariz. 565 , 569, ¶ 11,58 P.3d 507 , 511 (2002) (same); Nunez v. Nunez,25 Ariz.App. 558 , 562,545 P.2d 69 , 73 (1976) (stating “there is ‘one action’ for damages occasioned by a wrongful death,” and there is “but one plaintiff, one of the persons designated by statute”). Because of this, “[following a successful action, there is ‘one judgment, the proceeds of which are held by the statutory plaintiff as trustee for the persons on whose behalf the suit was brought.’” Wilmot,203 Ariz. at 569, ¶ 12 ,58 P.3d at 511 (citation omitted).
Voider Law Offices v. Keenan Law Firm,
¶28 Thus, as Burkhamer correctly observes, and as the state acknowledges, “in Arizona, there is one wrongful death plaintiff, one wrongful death action, and one judgment on behalf of all [statutory] beneficiaries.” Relying on those well-established principles and on his former wife’s timely filing of a notice of claim against the state under § 12-821.01 and her continuing status as a statutory, named plaintiff in this case, Burkhamer argues:
Given that there is but one action for wrongful death, and given that such action for the death of [his daughter] Michelle James has not yet been resolved in its entirety, this court could rule that an entire separate action has not yet been finally adjudicated. Consequently, the court could decide that this appeal is premature, despite the Rule 54(b) certification.
We are not persuaded.
¶ 29 Neither Arizona’s wrongful death statutes nor case law suggests that a statutory beneficiary such as Burkhamer does not have a separate, cognizable claim, albeit in a single, unified wrongful death action. See Wilmot,
¶ 30 In addition, none of the authorities on which Burkhamer relies precludes a trial court in a wrongful death case from disposing of all claims made by a person, whether as a statutory plaintiff or as a nonplaintiff, statutory beneficiary, via a separate, but final, appealable judgment that applies only to that particular claimant. As noted earlier, the trial court’s final judgment not only included the requisite finality language of Rule 54(b) but also expressly “dismiss[ed] all claims asserted by Joseph Burkhamer against the State of Arizona in this matter.” That judgment, as the state correctly notes, did not leave open the possibility of Burk-hamer’s “backdoor[ing] his dismissed claim with that of [his former wife] Marjorie Su-rine,” even though he later sought unsuccessfully to do so. Although Burkhamer might have had a cognizable claim as a statutory beneficiary in this action, the trial court’s broad judgment encompassed that claim. In short, that judgment was neither premature nor ineffective in dismissing all of Burkhamer’s claims in their entirety.
¶ 31 For these same reasons, we find misplaced Burkhamer’s reliance on several cases for the proposition that a trial court’s determination pursuant to Rule 54(b) does not make a judgment final and appealable if, in fact, it is premature because it does not dispose of one or more claims in their entirety. See Musa v. Adrian,
¶ 32 Unlike those cases, however, the trial court’s Rule 54(b) judgment here did not merely dispose of one of multiple liability theories (as in Davis) or one aspect of the plaintiffs damage claims (as in McAlister and Sisemore). Rather, the trial court’s judgment broadly eliminated any and all claims Burkhamer might have had in this case and, therefore, was “‘final’ in that it [was] the ultimate disposition of [his] individual claim.” McAlister,
¶ 33 Burkhamer also argues the trial court’s January 26 judgment “could not be deemed final and appealable until the court ruled on [his] timely-filed Rule 58(d) objection.” Because he timely lodged an objection to the proposed judgment pursuant to Rule 58(d), Burkhamer argues, the judgment “could not be signed or finalized until the objection was ruled upon.”
¶ 34 According to Burkhamer, “[a]n order signed before disposition of a timely-filed Rule 58(d) objection cannot be final for appellate purposes when the objection relates to whether the party has additional theories that would permit continued participation in the action.” Therefore, Burkhamer further argues, “the earliest date the time for appeal could have been triggered” was when the trial court denied his objection to the judgment on May 22. We first note that Rule 58(d)(1) does not apply to a judgment “that all relief be denied,” such as the judgment entered against Burkhamer here. But, even assuming any violations or irregularities relating to Rule 58(d) occurred below, the time and place for Burkhamer to seek any recourse on those were in the trial court. Moreover, Burkhamer did not raise as an issue in his opening brief the trial court’s alleged noneompliance with Rule 58(d) and thereby waived the issue. See Van Loan v. Van Loan,
¶35 Finally, although Burkhamer timely filed his notice of appeal within thirty days after the trial court’s May 22 order denying his objection to the judgment and his motion to amend the pleadings, that order is not appealable. See A.R.S. § 12-2101; Dollar A Day Rent A Car Sys., Inc. v. Superior Court,
Notes
. Section 12 — 821.01(A), A.R.S., provides:
Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues____Any claim which is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.
. The other plaintiffs, including Marjorie Surine (Burkhamer's former wife), moved to intervene in the appeal, which we granted, and to dismiss the appeal on the ground it was not timely filed. Because the intervenors’ arguments are essentially the same as the state's, we refer only to the state and its arguments.
. Although a court reporter attended that hearing, the record contains no reporter’s transcript of it.
. Burkhamer’s opening brief does not address this court’s jurisdiction at all, therefore failing to comply with the requirement that an appellant briefly state "the basis of the appellate court’s jurisdiction.” Ariz. R. Civ.App. P. 13(a)(3), 17B A.R.S.
. Even had the state and the intervening plaintiffs not challenged this court's jurisdiction, we must independently examine our jurisdiction, including any pertinent authorities relating to that issue. See Musa v. Adrian,
. Former Rule 73(b) essentially mirrored the provisions relating to time-extending motions now found in ARCAP 9. See 116 Ariz. XXXII-XXXIII, XLIII-XLIV (1978).
. Adopting that argument, the dissent would find subject matter jurisdiction exists because Burk-hamer's objection to the judgment "could be construed as a Rule 59(1) motion” or "could have been treated” as such a motion. Although we do not disagree with those general propositions, unless and until our supreme court says otherwise, the Vagnozzi requirements apply, and neither Burkhamer’s objection nor the trial court’s ruling on it fulfills those prerequisites.
. At oral argument in this court, without citing any authority, Burkhamer contended this court should liberally examine the scope of its jurisdiction and, whenever possible, explore any “reasonable” or "rational” way to find appellate jurisdiction. But we are not faced here with a timely filed or premature notice of appeal that is allegedly deficient or defective, in which case, "fairness demands that ‘no mere technical error should prevent the appellate court from reaching the merits of the appeal.’ ” Hill v. City of Phoenix,
. We note that the only "theories of liability” alleged in Burkhamer’s complaint were "negligence, gross negligence and recklessness.” In addition, the trial court was well aware of Burk-hamer’s alternative "statutory beneficiary” theory of recovery when it entered its January 26 judgment, inasmuch as Burkhamer had extensively argued that theory in responding to the state’s motion to dismiss several weeks before.
. Rule 58(d)(1), Ariz. R. Civ. P„ 16 A.R.S., Pt. 2, provides in part that "a judgment other than ...
Dissenting Opinion
dissenting.
¶36 I agree with the majority regarding Burkhamer’s other jurisdictional arguments, but unlike my colleagues, I believe the trial court could have properly construed Burk-hamer’s “Objection to Defendant’s Final Judgment and Order Dismissing Claim” as a motion to alter or amend the judgment pursuant to Rule 59(£), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, thereby extending the time for him to file his notice of appeal.
¶ 37 I, of course, agree that this court is bound by applicable decisions of our supreme court and lacks authority to disregard them. However, I disagree with the majority’s view that Farmers Insurance Co. v. Vagnozzi,
¶ 38 First, I believe Slonsky’s holding was essentially gutted and not merely “refined”
¶ 39 Second, Hegel, Desmond, and Vagnoz-zi are factually and procedurally distinguishable from this case and do not compel the result reached by the majority. All three of these cases specifically addressed the issue of whether a party’s motion should have been treated as a motion for new trial under Rule 59(a), Ariz. R. Civ. P. They do not address the issue presented here, which is whether a party’s filing could have been treated as a Rule 59(Z) motion to alter or amend the judgment. Unlike the majority, I believe that distinction alone provides sufficient basis for limiting Hegel, Desmond, and Vagnozzi to their facts and declining to apply them in this case.
¶ 40 And I do not believe that a Rule 59(Z) motion must comply with the same specificity requirements as a Rule 59(a) motion, even though they are both subparts of the same rule, because the scope of the remedies associated with new trial motions and motions to alter or amend the judgment is so different. The rule itself supplies the necessary distinction. Rule 59(a) provides: “A verdict, decision or judgment may be vacated and a new trial granted on motion of the aggrieved party for any of the following causes,” such as newly discovered evidence, accident or surprise, and misconduct of the jury or prevailing party. The granting of a Rule 59(a) motion for new trial results in a new trial after the entire judgment has been vacated. Rule 59(¿), in contrast, provides only for altering or amending a judgment, clearly a less extreme remedy than vacating a judgment and granting a new trial. See also Maganas v. Northroup,
¶41 The majority acknowledges that Sanders v. Foley,
¶ 43 Thus, I would conclude that, because Burkhamer had filed what could be construed as a Rule 59(1) motion, his appeal filed less than thirty days after the court’s denial of that motion was timely. See Ariz. R. Civ.App. P. 9(b)(3), 17B A.R.S. (providing that time for appeal is computed from date of entry of order disposing of Rule 59(1) motion); Performance Funding, LLC v. Barcon Corp.,
. Rule 59(c), Ariz. R. Civ. P„ 16 A.R.S., Pt. 2, provides:
1. The motion for new trial shall be in writing, shall specify generally the grounds upon which the motion is based, and may be amended at any time before it is ruled upon by the court.
2. Upon the general ground that the court erred in admitting or rejecting evidence, the court shall review all rulings during the trial upon objections to evidence.
3. Upon the general ground that the court erred in charging the jury and in refusing instructions requested, the court shall review the charge and the rulings refusing an instruction requested.
4. Upon the general ground that the verdict, decision, findings of fact, or judgment is not justified by the evidence, the court shall review the sufficiency of the evidence.
. Unlike the special requirements imposed by Rule 59(c) and case law for Rule 59(a) new trial motions, the supreme court has promulgated no such requirements of specificity for the other two time-extending motions: Rule 50(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, motions for judgments notwithstanding the verdict or Rule 52(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, motions to amend or make additional findings of fact.