NAVARRO v. KLOPP

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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 JOAQUIN OLVERA NAVARRO and JORGE NAVARRO OLVERA, ) ) ) Plaintiffs/Appellees, ) ) v. ) ) MICHAEL KLOPP and JANE DOE KLOPP, ) husband and wife, ) ) Defendants/Appellants. ) 1 CA-CV 12-0136 DIVISION ONE FILED: 1/8/2013 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court of Maricopa County Cause No. CV2006-012363 The Honorable Mark H. Brain, Judge AFFIRMED Bryan Cave LLP By Jay A. Zweig Rodney W. Ott Attorneys for Plaintiffs/Appellees Phoenix Gallagher & Kennedy, P.A. By Mark Deatherage Attorneys for Plaintiffs/Appellees Phoenix Thomas, Thomas & Markson, P.C. By Benjamin C. Thomas Neal B. Thomas Michael G. Kelley Attorneys for Defendants/Appellants Phoenix T H O M P S O N, Judge ¶1 Michael and Diana Klopp (the Klopps) appeal the superior court s denial of their motion to vacate and re-enter a judgment against them so that they may take a delayed appeal from that judgment. For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 This lawsuit involves a lengthy battle by the Navarro brothers (Navarros) to reclaim their family home from the Klopps, who were assignees of a company that allegedly ran a foreclosure rescue scam. At the end of a nine-day trial, the jury found in favor of the Navarros and against the Klopps, and the superior court awarded the Navarros title to and possession of their home, and compensatory and punitive damages and attorneys fees of over $1,000,000. ¶3 The court entered judgment in favor of the Navarros in July of 2010. The parties stipulated to extending the time for the Klopps to file a motion for new trial. superior court s order approving the In reliance on the stipulation, the Klopps filed their motion for new trial more than fifteen days after entry of the judgment. After the superior court denied the motion on the merits, the Klopps appealed. ¶4 for The Navarros successfully moved to dismiss the appeal lack of jurisdiction because the superior court had no authority to extend the time to file a motion for new trial. 2 Thus, the motion was untimely and it did not extend the time for appeal, making the notice of appeal untimely as well. See Navarro v. Klopp, 1 CA-CV 10-0798 (Ariz. App. Jan. 11, 2011) (order dismissing appeal). Klopps After petitioned the supreme for Upon dismissal by this court, the review court to denied the Arizona review, the Supreme Klopps Court. moved to vacate and re-enter the judgment in the superior court under Arizona Rule of Civil Procedure 60(c)(1) and (c)(6). ¶5 enter The superior court denied the motion to vacate and rethe judgment. The Klopps unsuccessfully moved to reconsider, then filed the instant appeal. ¶6 We have jurisdiction to review the order denying the Rule 60(c) motion to vacate pursuant to Arizona Revised Statutes (A.R.S.) § 12-2101(A)(2) as a special order made after final judgment. See M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App. 1990). DISCUSSION ¶7 The standard of review of a superior court s order granting or denying relief under Rule 60(c) is whether the court abused its discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985). Under the abuse of discretion standard this court will affirm where any reasonable view of the facts and law might support the judgment of the trial court. Id. at 330, 697 P.2d at 1080. 3 ¶8 A party seeking to vacate a judgment and have it re- entered for the purpose of taking a delayed appeal under Rule 60(c) must not only make the showing required for relief under that rule, but also must meet the more stringent standards of Rodgers v. Watt, 722 F.2d 456 (9th Cir. 1983) (en banc). Geyler at 328, 697 P.2d at 1078. ¶9 We need not reach the "more stringent standards" set forth in Geyler, however, because the superior court did not abuse its discretion in determining that relief under Rule 60(c) was not available here because the basis for the Klopps motion was legal error, not mistake or excusable neglect. ¶10 Under Rule 60(c)(1), a party may be entitled to relief when there has been "mistake, inadvertence, surprise or excusable neglect[.]" Aileen H. Char Life Interest v. Maricopa County, 208 Ariz. 286, 298-99, ¶ 40, 93 P.3d 486, 498-99 (2004). The test of excusable neglect by a lawyer is whether the neglect might befall a reasonably prudent lawyer under similar circumstances. Ellman Land Corp. v. Maricopa County, 180 Ariz. 331, 339, 884 P.2d 217, 225 (App. 1994). ¶11 The Klopps motion to vacate argued that pursuant to Rule 60(c)(1), their counsel's reliance on a stipulation of the parties and order signed by the superior court extending the deadline to file a motion for new trial more than fifteen days 4 after the entry of judgment constituted mistake, surprise and excusable neglect. ¶12 Arizona Rule of Civil Procedure 59(d) provides: A motion for new trial shall be filed not later than 15 days after entry of the judgment. (emphasis added). Rule 6(b) allows the court to enlarge the time for the parties to act; however, Rule 6(b) expressly provides: the court may not extend the time for taking any action under Rule[] . . . 59(d) . . . except under certain courts circumstances enforce appear harsh. this that are prohibition inapplicable here. even the though Arizona result may As our supreme court explained in Edwards v. Young, 107 Ariz. 283, 284-85, 486 P.2d 181, 182-83 (1971): We are convinced that where, as here, the Rules of Civil Procedure specifically recognize that the time for filing of a motion for a new trial may not be enlarged, the efficacy of the rule depends upon the willingness of the courts to enforce it. We hold that the time may not be extended by agreement of counsel nor is jurisdiction thereby conferred upon the trial court to rule upon the merits of the motion. Although this holding may create some hardship as in the instant case, the rule is clear and we take it as we find it. Id. at 285, 486 P.2d at 183; see also Lopez-Hudson v. Schneider, D.D.S., 188 Ariz. 407, 408-09, 937 P.2d 329, 330-31 (App. 1996). ¶13 In Lopez-Hudson, the court dismissed the appeal for lack of jurisdiction, holding that it is well settled that time limits for filing a motion for new trial are to be strictly 5 applied. Id. at 409, 937 P.2d at 331 (quoting Butler Products Co. Inc. v. Roush, 145 Ariz. 32, 33, 699 P.2d 906, 907 (App. 1984)). Rule 6(b) . . . provides that the time for filing the various time-extending motions cannot be enlarged. Id. See also Welch v. McClure, 123 Ariz. 161, 164, 598 P.2d 980, 983 (1979). ¶14 The Klopps failure to file their notice of appeal on time resulted from a legal error: They incorrectly assumed that the superior court had the authority to enlarge the time to file a motion for new trial. Such an error is not excusable under Rule 60(c) because ignorance of the rules of civil procedure is not the type of excuse contemplated in Rule 60(c) as grounds for vacating a judgment. 678 P.2d 934, 940 See Daou v. Harris, 139 Ariz. 353, 359, (1984) (citations omitted). See also Jarostchuk v. Aricol Communications, Inc., 189 Ariz. 346, 349, 942 P.2d 1178, 1181 (App. 1997) (holding that a secretary's failure to understand a timing rule did not amount to excusable neglect because the error was neither inadvertent nor clerical; it was intentional competence. ). action on a matter requiring some legal The Klopps attempt to lay blame on the superior court s approval of the stipulation, which the Klopps submitted to the court for entry, and on persuasive. 6 opposing counsel, is not ¶15 The available Klopps under also assert subsection 6, that any Rule other 60 relief reason is justifying relief from the operation of the judgment, based upon opposing counsel s failure to inform counsel of the untimeliness of the motion. In this regard, the Klopps insinuate that opposing counsel knew of the error and agreed to the extension to sandbag them. This established fails that for to two justify reasons. relief First, under it is subsection well 6, the reason for setting aside the judgment must not be one of the reasons set forth in the first five subsections of Rule 60(c). Webb v. Erickson, (1982)("Clause 6 exclusive"). 134 and The Ariz. the 182, first Klopps five 186, 655 clauses sandbagging P.2d are 6, 10 mutually allegation is an allegation that would fall within subsection 3, fraud, . . . misrepresentation, or other misconduct of an adverse party." Second, there is no evidence in the record that opposing counsel sandbagged the Klopps in this manner. ¶16 Because the Klopps failure to timely file their motion for new trial and a timely notice of appeal was not the result of a clerical error, but was based on their attorneys failure to comply with Rules 59 and 6(b), and applicable case law, the superior court did not abuse its discretion in denying the Klopps motion on this basis. 7 Because of our resolution of this issue, we decline to address appellees argument that the Klopps Rule 60(c) motion was untimely. CONCLUSION ¶17 We affirm the superior court's denial of the Klopps' motion to vacate and re-enter the judgment. /s/ _____________________________ JON W. THOMPSON, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ ____________________________________ DIANE M. JOHNSEN, Judge 8

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