READ v. KEYFAUVER

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ROSS READ, a married individual, ) ) Plaintiff/Appellant/ ) Cross-Appellee, ) ) v. ) ) BRITTINI ALEXA KEYFAUVER, ) ) Defendant/Appellee/ ) Cross-Appellant. ) ) __________________________________) DIVISION ONE FILED: 08/27/2013 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-CV 12-0007 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2010-050444 The Honorable Michael D. Gordon, Judge The Honorable Linda H. Miles, Judge AFFIRMED Friedl Richardson By Thomas M. Richardson and Raechel R. Barrios And Knapp & Roberts, PC By David L. Abney Co-Counsel for Plaintiff/Appellant/Cross-Appellee DeCiancio Robbins PLC By Joel DeCiancio and Christopher Robbins And Diane M. Lucas PC By Diane M. Lucas and Michael S. Ferraro Co-Counsel for Defendant/Appellee/Cross-Appellant Phoenix Scottsdale Tempe Phoenix Law Office of Elliot Glicksman, P.L.L.C. By Elliot Glicksman Attorney for Amicus Curiae Arizona Concerns Of Police Survivors, Inc. Tucson Yen Pilch & Komadina & Flemming, P.C. By Robert E. Yen Attorney for Amicus Curiae Arizona Fraternal Order Of Police Phoenix B R O W N, Judge ¶1 Ross Read, a law enforcement officer, was injured while providing assistance to Brittini Alexa Keyfauver, who was trapped in a vehicle because of a rollover accident. subsequent motion lawsuit, for summary the superior judgment, finding barred by the firefighter s rule. herewith, we address judgment ruling. which appeal. she asserts Read s court granted that Read s In a Keyfauver s claim was In a separate opinion filed appeal of the court s summary Here, we address Kefauver s cross-appeal, in we lack jurisdiction to consider Read s For the following reasons, we conclude that we have jurisdiction. BACKGROUND ¶2 The superior court granted Keyfauver s motion for summary judgment in an unsigned minute entry filed January 21, 2011. Read moved for a new trial. 1 1 At oral argument, the In the same filing, Read also requested that the minute entry granting summary judgment be vacated pursuant to Rule 2 superior court denied that motion on the record and signed a judgment (submitted by Keyfauver) on June 29, 2011 ( Judgment of Dismissal ). argument The hearing, minute filed entry on July corresponding 1, 2011, indicated that the court the reflected court had denied the motion for new trial. also to oral that the The minute entry approv[ed] and settl[ed] Defendant s Judgment of Dismissal, as modified, electronically signed by the Court June 29, 2011 and filed (entered) by the clerk June 29, 2011. 2 ¶3 In mid-July, Read and Keyfauver lodged separate notices and forms of judgment for the court s signature. The court eventually entered Read s form of judgment on October 31, 2011, which dismissed the case and denied the motion for new trial. On November 28, 2011, Read filed a notice of appeal from the October 31 judgment. ¶4 motion After Read filed his opening brief, Keyfauver filed a to dismiss Keyfauver asserted appealable order the the from appeal for Judgment of which Read lack of Dismissal was jurisdiction. was required to a final appeal. Keyfauver therefore argued our court lacked jurisdiction over 60(c). For ease of reference, we refer to the document as the motion for new trial. 2 The Judgment electronically. of Dismissal 3 was signed physically, not the appeal because Read failed to timely file his notice of appeal. ¶5 In response, Read s counsel attached affidavits alleging they never noticed the Judgment of Dismissal attached to a statement of costs filing and did not receive any notice of filing a judgment of dismissal. Counsel also asserted they never saw an electronic filing of a document titled Judgment of Dismissal. They avowed further that after inquiring into the matter with superior court personnel, counsel for Read was told that no judgment had ever been filed. This is why, according to Read s counsel, they filed a proposed form of judgment following the Judgment of Dismissal. they periodically checked Counsel for Read further asserted the docket and never noticed a judgment filed until November 2, after which they acted promptly to file a notice of appeal. Finally, counsel avowed that the first time they saw the Judgment of Dismissal was in March 2012 and that despite the CC: on the order, they never received a copy. ¶6 Addressing Keyfauver s motion to dismiss, this court s motions panel suspended the appeal and revested jurisdiction in the superior court so it could consider a motion pursuant to Rule 60(a). Read moved for relief from the Judgment of Dismissal, alleging the judgment had not been mailed to him and did not appear in the superior 4 court docket system. Read claimed there had been a series of clerical mistakes and errors arising from oversight or omission, which resulted in the ineffective transmittal and receipt of the Judgment to counsel. Keyfauver countered that Read had been informed both orally and in writing that a final, appealable Judgment of Dismissal had been signed and filed[.] She argued that a court s ability to alter or amend a judgment after entry of final judgment would be inconsistent with the policy favoring finality of judgments. Judge Gordon 3 concluded a clerical error had occurred, vacated the Judgment of Dismissal, and affirmed the October 31 judgment as the final, appealable judgment. ¶7 Keyfauver filed a motion for clarification with this court, asserting the superior court had no authority to vacate the Judgment of Dismissal under Rule 60(a), and requesting clarification about whether our court would rule on the motion to dismiss, briefing. and whether we intended to set a due date for Based on the motion, we concluded a Rule 60(c) motion would have been more appropriate and therefore we suspended the appeal and revested jurisdiction in the superior court to consider a Rule 60(c) motion for relief. 3 Judge Miles, been transferred Judge Gordon was various motions as who was originally assigned to the case, had to another division of the superior court. then assigned this case and ruled on the to whether Read could file a delayed appeal. 5 ¶8 In anticipation of Read s Rule 60(c) motion, Keyfauver filed a motion in the superior court to transfer any Rule 60(c) motion from Judge Gordon to Judge Miles, the judge who ruled on the motions for summary judgment and Read s new trial motion in the first instance. Thereafter, Read filed a motion for relief, arguing that relief was warranted under Rule 60(c)(1), (4), and (6). ¶9 Judge consideration Gordon of the denied Rule Keyfauver s 60(c) motion motion to to Judge transfer Miles and granted Read s Rule 60(c) motion, which vacated the Judgment of Dismissal. Judge Gordon concluded that under Rule 60(c)(6), extraordinary circumstances existed to warrant vacating the Judgment. He also found that vacating the judgment was not to avoid six-month the requirement set out in Rule 60(c)(3). Finally, Judge Gordon stated [w]hile the Court has considered factors that are relevant to subsection 3, it is the aggregation of those circumstances plus the latent judicial error that makes this case extraordinary. from the October 31 Our court reinstated Read s appeal judgment and denied without prejudice Keyfauver s motion to dismiss the appeal, noting that we would reconsider the motion if Keyfauver filed a timely cross-appeal, which she has done. 6 DISCUSSION ¶10 Keyfauver challenges the superior court s rulings that permitted Read to file a delayed appeal on the grounds that his counsel did not Dismissal. receive timely notice of the Judgment of She therefore urges us to dismiss the appeal for lack of jurisdiction. ¶11 Keyfauver first contends Judge Gordon abused his discretion by refusing to transfer consideration of the Rule 60(c) motion to Judge Miles. Keyfauver relies on Lemons v. Superior Court in Gila County, 141 Ariz. 502, 687 P.2d 1257 (1984), asserting that Judge Miles should have ruled on the motion because [w]hen a final judgment is involved one superior court judge has no jurisdiction to review or change the judgment of another superior court judge. 1259. We find Lemons 141 Ariz. at 504, 687 P.2d at distinguishable. In that case, our supreme court accepted special action jurisdiction to determine whether one judge had jurisdiction to decide the same motion previously court[.] decided by a different judge Id. at 504, 687 P.2d at 1259. of the superior In this case, Judge Gordon was not deciding any motion that Judge Miles had ruled on, nor did his rulings have any substantive effect on the merits of the case or the content of the Judgment of Dismissal. Judge Miles never considered or ruled on a Rule 60 motion that was directed toward vacating the Judgment of Dismissal. 7 ¶12 Keyfauver also cites Hibbs v. Calcot, Ltd., 166 Ariz. 210, 801 P.2d 445 (App. 1990), claiming that Arizona courts frown upon the practice of a second judge reviewing the rulings of a first judge who has heard the case from start to finish[.] Keyfauver s reliance on Hibbs in support of her general request for us to dismiss this appeal, however, is misplaced. this court comment[ed] permitting ruling, one the trial court with judge still disfavor to proceeded issues presented by the case. Thus, notwithstanding review its to on the another decide Although practice trial the of judge s substantive Id. at 214, 801 P.2d at 449. expression of concern about that practice, the court nonetheless determined the merits of the case. ¶13 Additionally, County Superior Court in Hibbs judges are we recognized periodically that Maricopa reassigned handle different court calendars, as was the case here. to Id. As we noted in Hibbs, post-judgment motions should be rerouted to the original judge. Id. However, we recognize that transferring a case to the original judge may not always be practical. See id. Extenuating circumstances may limit judicial resources requiring flexibility in the superior court s administrative processes, including assignment of cases. id. See Thus, we are not persuaded the supreme court or this court intended the broad interpretation 8 Keyfauver suggests. Especially in the context of Rule 60(c) motions, we defer to the superior court s administrative processes and scheduling. ¶14 Rule Keyfauver argues Judge Gordon erred in granting Read s 60(c) motion circumstances. in the absence of extraordinary We review a superior court s judgment arising from a Rule 60(c) motion for an abuse of discretion. Geyler, 144 Ariz. 323, 328, 697 P.2d City of Phoenix v. 1073, 1078 (1985). We will affirm the superior court s decision where any reasonable view of the facts and law might support the judgment of the trial court. ¶15 Id. at 330, 697 P.2d at 1080. Rule 60(c) provides that [o]n motion and upon such terms as are just the court may relieve a party . . . from a final judgment . . . for . . . any other reason justifying relief from the operation of the judgment. 60(c)(6). Ariz. R. Civ. P. A trial court can use the rule to vacate and reenter a judgment so as to allow a delayed appeal. Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, 549, ¶ 20, 189 P.3d 1114, 1122 (App. 2008). A moving party, however, has the burden to demonstrate extraordinary circumstances warranting relief from the judgment. A party must show (1) lack of notice that the judgment had been entered; (2) lack of prejudice to the nonmoving party; (3) that it promptly filed a motion after actual notice; and (4) that it exercised due diligence, or had a reason for the lack thereof, in an attempt to ascertain the date of the 9 decision. must Geyler, 144 Ariz. at 328, 697 P.2d at 1078. also show circumstances. ¶16 each of extraordinary, unique, or A party compelling Id. at 333, 697 P.2d at 1083. Although the superior court did not explicitly address these factors, the record in this case demonstrates there was no abuse of discretion when the superior court granted Read s request for Rule 60(c) relief. Read s counsel avowed they did not find out the Judgment of Dismissal had been entered until Keyfauver filed her motion to dismiss this appeal, after which Read promptly filed his motion for relief from judgment. Despite diligent efforts to check the docket, the docket did not reflect the filing of any judgment until after entry of the October judgment. And, the fact that both parties filed proposed forms of judgment following the Judgment of Dismissal undercuts any claim that Keyfauver was prejudiced by permitting Read to proceed with a delayed appeal. 10 CONCLUSION ¶17 For the foregoing reasons, we affirm the superior court s grant of Read s Rule 60(c) motion vacating the Judgment of Dismissal. _______________/s/_______________ MICHAEL J. BROWN, Judge CONCURRING: ______________/s/__________________ PATRICIA K. NORRIS, Presiding Judge _____________/s/___________________ JOHN C. GEMMILL, Judge 11

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