Opinion
2 CA-CV 2022-0059
02-07-2023
Cathy Hill, Plaintiff/Appellant, v. Saddlebrooke Homeowners' Association 1, an Arizona non-profit corporation; Mark Lamb, Pinal County Sheriff Defendants/Appellees.
Cathy Hill, Tucson In Propria Persona Carpenter Hazlewood Delgado & Bolen LLP, Tempe By Carlotta L. Turman and Maria G. McKee Counsel for Defendants/Appellees Saddlebrooke Homeowners' Association 1 Struck Love Bojanowski & Acedo PLC, Chandler By Nicholas D. Acedo and Ashlee B. Hesman Counsel for Defendants/Appellees Mark Lamb
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CV202000281 The Honorable Robert Carter Olson, Judge
Cathy Hill, Tucson In Propria Persona
Carpenter Hazlewood Delgado & Bolen LLP, Tempe By Carlotta L. Turman and Maria G. McKee Counsel for Defendants/Appellees Saddlebrooke Homeowners' Association 1
Struck Love Bojanowski & Acedo PLC, Chandler By Nicholas D. Acedo and Ashlee B. Hesman Counsel for Defendants/Appellees Mark Lamb
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE
¶1 Cathy Hill appeals from the trial court's denial of her motion for delayed appeal pursuant to Rule 60(b), Ariz. R. Civ. P. We affirm.
Factual and Procedural Posture
¶2 As part of a prior appeal, Hill attempted to challenge adverse judgments that the trial court entered on October 29, 2020. Because her notice of appeal was untimely filed, however, we dismissed the appeal. Hill v. Saddlebrook HOA 1, No. 2 CA-CV 2021-0036 (Ariz. App. June 14, 2021) (order).
¶3 After we did so, but before our mandate issued, Hill filed first a petition for review with the Arizona Supreme Court on July 28, 2021, alleging that her rights under the Arizona Rules of Civil Appellate Procedure were being violated. Then a week later, she filed a "[Rule] 60 Motion to Vacate and Reenter Judgment" for a delayed appeal in the trial court. In her Rule 60 motion, Hill explained that her prior appeal was untimely because she had miscalculated the last day of her thirty-day appeal period, she relied on information from the clerk of the court that was "not accurate," and she faced obstacles related to the COVID-19 pandemic. Citing City of Phoenix v. Geyler, 144 Ariz. 323 (1985), Hill argued that she should be granted a delayed appeal because she showed "the diligence accentuated in Geyler"-" a determined effort at compliance by a reasonably prudent person in 'unique' or 'compelling' circumstances."
¶4 Defendants Mark Lamb and Saddlebrooke Homeowners' Association opposed the motion. They contended that the trial court lacked jurisdiction to consider it in light of the pending appeal, the motion was untimely, and the motion failed on its merits. The court determined that the Rule 60 motion was "moot" in light of Hill's appeal and her petition for review in the Arizona Supreme Court, and it refused to address the motion until our mandate issued.
¶5 Hill withdrew her petition for review with the Arizona Supreme Court in October 2021, and we issued our mandate on November 4, 2021. The trial court then denied Hill's Rule 60 motion. The court concluded that "the substance of [Hill's] argument" fell under Rule 60(b)(1) and that she had failed to file the motion within the six months of the entry of judgment as required by Rule 60(c)(1). The court added, even if the motion were proper under Rule 60(b)(6), Hill's motion was untimely because her actions caused "months of delay" and she failed to "act diligently and vigorously to prosecute the claim." And, even if the motion had been timely, the court determined that Hill's motion failed on its merits under Geyler.
¶6 Hill filed a motion for reconsideration, which the trial court denied. The court entered its judgment under Rule 54(c), Ariz. R. Civ. P., and Hill appealed. We have jurisdiction pursuant to A.R.S. §§ 12-2101(A)(2) and 12-120.21(A)(1).
Analysis
¶7 On appeal, Hill argues her Rule 60 motion was brought under Rule 60(b)(6), it was timely under that rule, and she meets the requirements for a delayed appeal under Geyler. She argues that the trial court abused its discretion by erroneously considering her motion untimely under Rule 60(b)(1) and misapplying the factors for granting a delayed appeal outlined in Geyler.
¶8 We review a trial court's order granting or denying relief under Rule 60(b) for an abuse of discretion. Geyler, 144 Ariz. at 328. The court's denial of relief under Rule 60(b) will be sustained unless "undisputed facts and circumstances require a contrary ruling." Id. at 330 (quoting Coconino Pulp v. Marvin, 83 Ariz. 117, 121 (1957)). "A court abuses its discretion if it commits an error of law in reaching a discretionary conclusion, it reaches a conclusion without considering the evidence, it commits some other substantial error of law, or the record fails to provide substantial evidence to support the trial court's finding." Duckstein v. Wolf, 230 Ariz. 227, ¶ 8 (App. 2012) (quoting Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, ¶ 27 (App. 2007)). "We review the interpretation of court rules de novo." Spring v. Bradford, 243 Ariz. 167, ¶ 11 (2017).
In 2016, former Rule 60(c)-which delineated grounds for relief from a judgment as well as timing requirements for bringing a motion under the rule-was reorganized as Rule 60(b) and (c) without substantive change. Gonzales v. Nguyen, 243 Ariz. 531, n.1 (2018). The grounds for relief under former Rule 60(c) are now in current Rule 60(b), while the deadlines under former Rule 60(c) are now found in current Rule 60(c). See Ariz. Sup. Ct. Order R-16-0010 (Sept. 2, 2016).
¶9 Rule 60(b) provides six grounds under which a trial court may relieve a party from a judgment. Under Rule 60(b)(1), the court may relieve a party from a judgment for "mistake, inadvertence, surprise, or excusable neglect." Generally, Rule 60(b)(2)-(5) allows relief for newly discovered evidence, for fraud, if the judgment is void, or if a judgment is satisfied, released, or discharged. Rule 60(b)(6) is a final catch-all provision for "any other reason justifying relief."
¶10 A motion under Rule 60(b)(1)-(3) must be brought within six months of a judgment. Ariz. R. Civ. P. 60(c)(1). A motion under Rule 60(b)(4)-(6) must be made within a "reasonable time" from the entry of the judgment. Ariz. R. Civ. P. 60(c)(1); Parks v. Rawson, 134 Ariz. 495, 499 (App. 1982). "The trial court has discretion to determine whether or not a delay is reasonable." Brooks v. Consol. Freightways Corp. of Del, 173 Ariz. 66, 71 (App. 1992). Pursuant to Rule 60(c)(1), these time limits "may not be extended by stipulation or court order, except as allowed by Rule 6(b)(2)."
¶11 A party cannot employ Rule 60(b)(6) if the relief requested fits within Rule 60(b)(1)-(5), nor can a party use Rule 60(b)(6) as an attempt to avoid the six-month limitation that applies to Rule 60(b)(1)-(3). Gonzales v. Nguyen, 243 Ariz. 531, ¶ 12 (2018); Webb v. Erickson, 134 Ariz. 182, 186 (1982) ("clause 6 cannot be used to avoid the six-month limitation which applies to the first three clauses," and "after six months the trial court's decision can no longer be attacked for the reasons specified in the first three clauses").
¶12 A motion under any subsection of Rule 60(b) can be used to seek the privilege of a delayed appeal, provided "additional standards for delayed appeal are applied." Geyler, 144 Ariz. at 328; see Park v. Strick, 137 Ariz. 100, 104 (1983). These additional standards include:
(1) whether the clerk distributed notice of judgment under Rule 58(c); (2) whether the respondent would be prejudiced by relief; (3) whether the moving party sought relief promptly; (4) due diligence, or reason for lack thereof, by counsel in attempting to be informed of the date of the decision; and (5) extraordinary, compelling, or unique circumstances.Chung v. Choulet, 248 Ariz. 236, ¶ 9 (App. 2020). The decision to vacate and reenter judgment for the purpose of a delayed appeal is left "to the sound discretion of the trial court" so long as it adheres to the additional factors outlined in cases such as Park and Geyler. Lennar Corp. v. Auto-Owners Ins., 214 Ariz. 255, ¶ 51 (App. 2007) (quoting J.C. Penney v. Lane, 197 Ariz. 113, ¶ 21 (App. 1999)).
Nothing in the case law outlining and interpreting the additional factors for granting a delayed appeal purports to supplant the timing requirements of bringing a motion under Rule 60. In Geyler, the court explained that a party seeking a delayed appeal must first "make the showing generally required for relief under [former] Rule 60(c)," which included at the time both the delineated grounds for relief from a judgment and the timing requirements for any motion seeking those grounds for relief. Geyler, 144 Ariz. at 328. Accordingly, a motion under current Rule 60(b), even if employed to seek a delayed appeal, must still be filed within the time period required in current Rule 60(c).
Hill's Motion was an Untimely Rule 60(b)(1) Motion
¶13 As in her motion for reconsideration below, Hill argues on appeal that she "predicated her Motion on [Rule] 60(b)(6)" and that it was erroneous for the trial court to subject her motion to Rule 60(b)(1)'s six-month limit. She admits that bringing her motion under Rule 60(b)(1) was "impossible" because the six-month limit had expired, but she blames this impossibility on Lamb, who "did not contest the notice [of appeal] until over six months had elapsed from the entry of judgment, which blocked [Rule] 60(b)(1) with its six-month window." These arguments for applying Rule 60(b)(6) as opposed to Rule 60(b)(1) are unavailing.
¶14 The trial court did not abuse its discretion when it determined that Hill's request for a delayed appeal was a Rule 60(b)(1) motion and that Hill's motion was untimely under that rule. Hill made no specific argument below, or on appeal, as to why her arguments fail to substantively fit under Rule 60(b)(1) and yet do fit under Rule 60(b)(6). In her original Rule 60(b) motion, the full extent of Hill's treatment of Rule 60(b) was her generally noting that "[t]here are enumerated grounds and the catch-all of subsection 6 for 'any other reason justifying relief.'" The standard she subsequently provided for the court to apply was whether her "behavior was that of a reasonably prudent person under the same circumstances." This is the standard a court employs when determining if a person's neglect or inadvertence is "excusable" under Rule 60(b)(1). Compare Geyler, 144 Ariz. at 331-32 ("standard for determining whether conduct is 'excusable'" under Rule 60(b)(1) "is whether the neglect or inadvertence is such as might be the act of a reasonably prudent person under the same circumstances" (emphasis added)), with Davis v. Davis, 143 Ariz. 54, 57 (1984) (for relief under Rule 60(b)(6) the movant must show "extraordinary circumstances of hardship or injustice justifying relief" and that the other five subdivisions of Rule 60(b) do not apply).
Hill notes that, under Geyler, the court "saw no difference in allowing a delayed appeal under any of the rules' subsections, where the requisite showing could be made" and that the court "saw no need to differentiate analytically among the various subsections of [Rule] 60(b)." Her analysis is only partially correct. The court in Geyler simply meant that any subsection in Rule 60(b) may be employed to seek a delayed appeal. 144 Ariz. at 328. The court did not say that the analysis and requirements for relief under each subsection are identical and interchangeable, nor did it contravene the rule that relief properly pursued under subsections (1)-(5) cannot be pursued under (6). Id.
¶15 Substantively, Hill's request for relief is based on her assertion that she mistakenly "flagged" the wrong date as the beginning of her window for appeal and was given flawed information by the clerk of the court that led to her "detrimental reliance." Such excuses fall under Rule 60(b)(1). See Geyler, 144 Ariz. at 331 (judgment was mailed, but not immediately, so counsel received it six days after entry; ineligible dates leading to erroneous calculation of window for appeal; city neglected to provide counsel proper information). Our courts similarly evaluate excuses for delay such as her COVID-19 grounds under Rule 60(b)(1) rather than Rule 60(b)(6). See BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, ¶¶ 23-24 (App. 2021) (attorney's failure to inform court of inability to meet deadline because he had to self-isolate with flu-like symptoms during COVID-19 pandemic addressed under Rule 60(b)(1)).
¶16 Because a motion for a delayed appeal based on Rule 60(b)(1) must be brought within six months of a judgment, and Hill filed her motion more than nine months later on August 4, 2021, the trial court properly dismissed Hill's motion as untimely. The court similarly did not abuse its discretion by finding that Hill's motion would have been untimely even under Rule 60(b)(6). The court explained that Hill was aware, or should have been aware, after judgment was entered that her appeal was untimely and that "her subsequent actions to prolong the untimely appeal were dilatory in their effect" and caused "months of delay" in the litigation.
Hill's Motion under Rule 60(b) Fails on its Merits
¶17 The trial court also did not abuse its discretion by determining that Hill's motion, even if timely, failed on its merits under Geyler. First, regarding notice of entry of judgment, the court properly determined from Hill's own admissions that she had "received actual notice of both judgments no later than November 7, 2020, which was 23 days before the deadline to file a notice of appeal," and that this was "ample time to comply with the simple task of filing a timely notice of appeal." See Park, 137 Ariz. at 80-81 (rejecting argument that time for appeal should begin to run from service of notice, and reiterating that "notice of the entry is not necessary to start the appeal time running").
¶18 Second, the trial court determined that "[Hill] has, at every stage of these proceedings, unreasonably delayed and prolonged this litigation, resulting in substantial prejudice to respondents, including elevated costs." We are mindful that there is a "compelling interest in the finality of judgments" that "carries greater weight" when "the party seeking relief has had his day in court since the case has already been litigated on its merits." Geyler, 144 Ariz. at 328. The court did not abuse its discretion in determining that, by allowing for a delayed appeal nearly a year after final judgments were entered on the merits, the defendants would be prejudiced by disturbing the finality of the court's dismissal.
Hill disagrees that her underlying cause of action was litigated on the merits. The trial court struck Hill's complaint for failing to meet pleading standards, gave her a chance to re-file her complaint (she failed to do so), and granted defendants' motions to dismiss under Rule 12(b)(6), Ariz. R. Civ. P., because Hill's complaint was "groundless." Dismissal under these circumstances is an "adjudication on the merits." Ariz. R. Civ. P. 41(b).
¶19 The trial court further noted that Hill could have requested an extension to file a notice of appeal, but chose not to, and could have emailed her notice of appeal at any time, but did not do so. Instead, the court observed, Hill had deliberately chosen to wait an extra day to file her notice of appeal based on her assumption about when the court would be "less congested" and her own false understanding of her window to timely file. Based on Hill's nine-month delay in filing her Rule 60 motion, the court was not incorrect in concluding that Hill's actions did not indicate prompt inquiry or due diligence, and its findings were supported by the record.
¶20 Finally, the trial court found "no showing of extraordinary, compelling, or unique circumstance[s] to excuse [Hill] from complying with the clear requirement of [Rule 8, Ariz. R. Civ. App. P.] or to warrant a delayed appeal in this case." The court determined that Hill "handled this critical deadline in the same routine fashion as she litigated this case in chief: she waited until the last moment, missed a proper deadline, and then misdirected the blame." The court, as supported by the record, did not abuse its discretion by denying Hill's request for a delayed appeal on the merits. Park, 137 Ariz. at 104 (court's power to vacate judgment "does not relieve a party from the 'free, calculated and deliberate choices' he or she has made" (quoting Roll v. Janca, 22 Ariz.App. 335, 337 (1974)).
Attorney Fees
¶21 Hill requests her costs on appeal. Saddlebrooke and Lamb request their attorney fees and costs incurred on appeal pursuant to A.R.S. §§ 12-341, 12-341.01, 12-349, and Rule 21, Ariz. R. Civ. App. P. Because Hill is not the prevailing party, she is not entitled to an award of her costs. However, as the prevailing parties, Saddlebrooke and Lamb are. Because the underlying dispute arises out of a contract, we exercise our discretion and award Saddlebrooke and Lamb their reasonable attorney fees and costs upon compliance with Rule 21. See § 12-341.01(A); see also Nolan v. Starlight Pines Homeowners Ass'n, 216 Ariz. 482, ¶ 36 (App. 2007) (upholding award of fees under § 12-341.01(A) based on contract between homeowner and association).
Disposition
¶22 Because the trial court properly denied Hill's motion as untimely under Rule 60(b)(1), or, in the alternative, Rule 60(b)(6), and otherwise properly denied relief, we affirm.