Cml-Az v. Orosel ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CML-AZ CORNERSTONE, L.L.C., a Florida limited liability company,
Plaintiff/Appellee,
v.
RICHARD J. OROSEL and JOANN OROSEL, Defendants/Appellants.
No. 1 CA-CV 13-0152
FILED 03/18/2014
Appeal from the Superior Court in Maricopa County
No. CV2011-009614
The Honorable J. Richard Gama, Judge
APPEAL DISMISSED
COUNSEL
Sherman & Howard L.L.C., Phoenix
By Thomas C. Axelsen, Gabriel A. Peraza
Counsel for Plaintiff/Appellee
Davis Limited, Scottsdale
By Greg R. Davis
Counsel for Defendants/Appellants
CML-AZ v. OROSEL
Decision of the Court
DECISION ORDER
Judge Michael J. Brown delivered the decision of the Court, in which
Acting Presiding Judge Margaret H. Downie and Chief Judge Diane M.
Johnsen joined.
B R O W N, Judge:
¶1 Richard and Joann Orosel (the Orosels) appeal from the
superior court’s grant of summary judgment in favor of CML-AZ
Cornerstone (CML) on its claim of breach of guaranty. The Orosels also
appeal the superior court’s denial of their post-judgment “Motion for
Reconsideration/Clarification or, in the Alternative, Motion for New
Trial” (Post-Judgment Motion). CML argues that we lack jurisdiction to
consider the Orosels’ appeal. Even if CML had not raised this issue,
however, we have an independent duty to review the record and
determine whether appellate jurisdiction exists. See Sorensen v. Farmers
Ins. Co., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997).
¶2 “In civil cases, a timely filing of a notice of appeal is a
jurisdictional prerequisite for review in this court.” Korens v. Ariz. Dep’t of
Econ. Sec., 129 Ariz. 426, 427, 631 P.2d 581, 582 (App. 1981) (citation
omitted). A notice of appeal must be filed “not later than 30 days after the
entry of judgment from which the appeal is taken[.]” Arizona Rule of Civil
Appellate Procedure (ARCAP) 9(a). In this case, the superior court
entered a signed judgment on December 7, 2012. Appellants filed a notice
of appeal on January 30, 2013. Thus, the notice of appeal was untimely
under ARCAP 9(a) unless a time-extending motion tolled the 30-day
deadline. See ARCAP 9(b).
¶3 On December 19, 2012, the Orosels filed their Post-Judgment
Motion. A timely motion for new trial filed pursuant to Arizona Rule of
Civil Procedure 59(a) extends the time to file a notice of appeal. ARCAP
9(b). A motion for reconsideration does not extend the time to file a notice
of appeal. See Ariz. R. Civ. P. Rule 7.1(e). Regardless of its title, if a
motion for reconsideration both refers to Rule 59 and describes one of the
grounds set forth in Rule 59(a), it may be treated as a motion for new trial
and extend the time to file a notice of appeal. See Farmers Ins. Co. of Ariz. v.
Vagnozzi, 132 Ariz. 219, 221-22, 644 P.2d 1305, 1307-08 (1982); see also James
v. State, 215 Ariz. 182, 185-86, ¶¶ 13-16, 158 P.3d 905, 908-09 (App. 2007)
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CML-AZ v. OROSEL
Decision of the Court
(applying Vagnozzi and concluding appellant’s motion, which neither
cited Rule 59(a) nor any of its substantive grounds for relief, did not
qualify as a time-extending motion); Rawlings v. Apodaca, 151 Ariz. 180,
183, 726 P.2d 596, 599 (App. 1985), vacated in part on other grounds, Rawlings
v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986) (citing Vagnozzi and
explaining “our supreme court held that a motion for a new trial must
meet two requirements. It must refer to Rule 59, ARCP, as authority, and
it must describe the grounds set forth under that rule as the basis for the
motion.”); 1 Arizona Appellate Handbook § 3.4.1.2.2, at 3-45 (Philip Hall
& Pamela Peterson eds., 5th ed. 2010) (explaining that a motion must refer
to the correct rule to extend the time for appeal). Moreover, if the motion
fails to refer to Rule 59 or to describe a ground in Rule 59(a), this court will
nonetheless consider it time-extending if the superior court treated the
motion as one arising under Rule 59 and stated in the record its intention
to do so. Vagnozzi, 132 Ariz. at 221-22, 644 P.2d at 1307-08.
¶4 Here, the Post-Judgment Motion does not cite or otherwise
refer to Rule 59; it refers only to Rule 60(c)(6). See Ariz. R. Civ. P. 60(c)(6)
(“On motion and upon such terms as are just the court may relieve a
party . . . from a final judgment, order or proceeding for the following
reasons: . . . (6) any other reason justifying relief from the operation of the
judgment.”). Because the Post-Judgment Motion did not refer to Rule 59,
it could toll the 30-day deadline in ARCAP 9(a) only if the record indicates
the superior court treated the motion as one made under Rule 59(a). See
id. Nothing in the record indicates the court did so. Thus, under Vagnozzi,
the motion’s failure to cite Rule 59, coupled with the superior court’s
failure to treat the motion as one under Rule 59, compels the conclusion
that the notice of appeal was untimely. We therefore lack jurisdiction over
this appeal.
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CML-AZ v. OROSEL
Decision of the Court
¶5 We do not address the superior court’s ruling denying the
Post-Judgment Motion, other than to note that the ruling is unsigned. As
such, it is not currently appealable as a special order after final judgment
under Ariz. Rev. Stat. § 12-2101(A)(2). See Ariz. R. Civ. P. 58(a); Davis v.
Davis, 230 Ariz. 333, 335 n.2, ¶ 12, 284 P.3d 23, 25 n.2 (App. 2012)
(explaining an unsigned ruling is not a final appealable order).
¶6 IT IS THEREFORE ORDERED dismissing this appeal for
lack of jurisdiction.
:gsh
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