Ashby v. Biglow ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ELIZABETH ASHBY, Plaintiff/Appellee,
v.
ALEXIS CARON BIGLOW, Defendant/Appellant.
No. 1 CA-CV 15-0511
FILED 1-24-2017
Appeal from the Superior Court in Maricopa County
No. CV2014-094033
The Honorable David King Udall, Judge
AFFIRMED IN PART AND DISMISSED IN PART
COUNSEL
Nathan C. Cooley PLC, Mesa
By Nathan C. Cooley
Counsel for Plaintiff/Appellee
Thomas Markson Rubin & Kelley PC, Phoenix
By Neal B. Thomas, Brian D. Rubin, Kristen A. Briney
Counsel for Defendant/Appellant
ASHBY v. BIGLOW
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.
M c M U R D I E, Judge:
¶1 Alexis Caron Biglow appeals from a judgment entered
following the automatic conversion of an arbitrator’s notice of decision to
an arbitration award and from the denial of her Motion for Relief from
Entry of Judgment. For the following reasons, we affirm in part and dismiss
in part.
FACTS AND PROCEDURAL BACKGROUND
¶2 Following a compulsory arbitration hearing on Elizabeth
Ashby’s claims against Biglow, the arbitrator filed a notice of decision in
Ashby’s favor on March 31, 2015.
¶3 Because the arbitrator failed to file an arbitration award, the
notice of decision automatically converted to an appealable arbitration
award on May 21, 2015. Ariz. R. Civ. P. 76(b) (providing for the automatic
conversion of the notice of decision to an arbitration award when the
arbitrator fails to file an arbitration award within 50 days of the filing of the
notice of decision).1
¶4 Biglow had until June 10, 2015 to appeal the arbitration award
to the superior court. Ariz. R. Civ. P. 77(a) (permitting a party to appeal to
the superior court within 20 days after automatic conversion). Biglow did
not timely appeal.
¶5 Ashby moved for entry of judgment on June 14, 2015. Biglow
appealed the arbitration award to the superior court on June 15, 2015. On
June 17, 2015, Biglow opposed entry of judgment and moved to enlarge the
time to appeal from the arbitration award. The superior court denied
1 We cite to the former applicable rules. Effective January 1, 2017,
some of the rules have substantively changed and appear in different
locations.
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Biglow’s appeal as untimely, denied time-extending relief, and entered
final judgment.
¶6 After appealing to this court, Biglow moved to set aside the
judgment pursuant to Arizona Rule of Civil Procedure 60(c), which the
superior court denied. Biglow filed a subsequent notice of appeal from that
denial.
DISCUSSION
A. Denial of Request for Time-Extending Relief.
¶7 Biglow argues the superior court erred in denying her request
to extend the time to appeal the arbitration award.2 We have jurisdiction
over Biglow’s timely appeal from the judgment pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(1). We review for abuse of
discretion the court’s denial of time-extending relief. Haroutunian v.
Valueoptions, Inc., 218 Ariz. 541, 549, ¶ 22 (App. 2008). We review de novo
the application or interpretation of court rules. Id.
1. The Superior Court Did Not Err in Denying Time-
Extending Relief Following the Automatic Conversion of
the Notice of Decision to an Arbitration Award Pursuant to
Rule 76(b).
¶8 Relying on Decola v. Freyer, 198 Ariz. 28, 33–34, ¶¶ 22, 24 (App.
2000), Biglow argues the superior court erred by denying her motion for
time-extending relief because the arbitrator failed to file the arbitration
award. In Decola, this court concluded that the superior court had the
discretion to grant an extension of time to appeal an arbitration award when
the parties did not receive notice of the filing of the award because the
arbitrator failed to mail copies to all parties as required by the Uniform
Rules of Procedure for Arbitration then in effect. Decola, 198 Ariz. at 34, ¶
24.
2 We do not address Biglow’s argument that Rule 76(b) is
unconstitutional as a violation of due process or jury trial rights. Because
Biglow failed to raise this argument before the superior court, she waives it
on appeal. Romero v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 7 (App. 2005)
(noting the failure to raise issue in superior court waives the issue on
appeal).
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ASHBY v. BIGLOW
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¶9 Biglow notes that the arbitrator stated she would file an
arbitration award, and Biglow was waiting for that filing before appealing.
Biglow contends she was unaware that the notice of decision had
automatically converted to an arbitration award and claims the clerk had a
duty to inform the parties about the automatic conversion.3 Relying on
Decola, Biglow thus argues she lacked notice of the arbitration award.
¶10 We find Biglow’s argument unavailing. Decola addressed the
superior court’s discretion to grant an extension of time to appeal from an
arbitration award before the integration of the Uniform Rules of Procedure
for Arbitration into the Arizona Rules of Civil Procedure (“Rules”) in 2000
and before the 2007 amendments to the Rules. See Sw. Barricades, L.L.C. v.
Traffic Mgmt., INC., 240 Ariz. 139, 142, ¶ 16 (App. 2016). In contrast to the
Uniform Rules of Procedure for Arbitration in effect at the time this court
decided Decola, the Rules now mandate the automatic conversion of the
notice of decision to an arbitration award if the arbitrator fails to file the
award within 50 days from the date of filing the notice of decision. Ariz. R.
Civ. P. 76(b) (effective Jan. 1, 2008). The very failure of the arbitrator to file
the award within 50 days from the date of filing the notice of decision,
which Biglow does not deny receiving, constituted notice that, on the 51st
day thereafter, the notice of decision would automatically be converted to
an arbitration award. Ariz. R. Civ. P. 76(b). The Rules do not require the
clerk to notify the parties of the automatic conversion. See id.¶11 Biglow maintains that the superior court’s ruling contravened
the policy of the Rules to maximize the likelihood of a decision on the merits
and instead erroneously encourages “litigants to lie in wait for their
opponents to miss a deadline.” Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 287
(1995). But the policy behind the Rules governing mandatory arbitration—
and indeed every civil action—is to “secure the just, speedy, and
inexpensive determination of every action.” Ariz. R. Civ. P. 1; Goldsberry v.
Hohn, 120 Ariz. 40, 44 (App. 1978) (“the object of arbitration is to finally
dispose of differences between parties in a speedier and less expensive
manner than normal court proceedings”). Even though the Rules require
the arbitrator to file an arbitration award after passing on any objections to
3 In its ruling granting Ashby’s application for entry of judgment and
denying Biglow’s motion to extend the time to appeal, the superior court
advised the parties that the Civil Court Administration Arbitration Desk
designated the notice of decision as the Arbitration Award on May 21, 2015.
The docket does not reflect this designation.
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proposed forms of award submitted by the parties, Ariz. R. Civ. P. 76(a),
the automatic conversion of the notice of decision to an arbitration furthers
the policy of securing the speedy determination of mandatory arbitration
actions.4 Thus, the court did not abuse its discretion in denying time-
extending relief following the automatic conversion of the notice of decision
to an arbitration award.
2. The Superior Court Did Not Err by Denying Time-
Extending Relief Pursuant to Rule 6(b) in the Absence of
Excusable Neglect.
¶12 Next, Biglow claims the superior court abused its discretion
by denying her Motion to Enlarge the Time to Appeal pursuant to Rule 6(b).
¶13 Rule 6(b) provides:
When by these rules or by a notice given
thereunder or by order of court an act is
required or allowed to be done at or within a
specified time, the court for cause shown may at
any time in its discretion (1) with or without
motion or notice order the period enlarged if
request therefor is made before the expiration of
the period originally prescribed or as extended
by a previous order or (2) upon motion made
after the expiration of the specified period
permit the act to be done where the failure to act
was the result of excusable neglect; but it may
not extend the time for taking any action under
Rules 50(b), 52(b), 59(d), (g) and (l), and 60(c),
except to the extent and under the conditions
stated in them, unless the court finds (a) that a
4 The Rules permit parties to submit proposed forms of award to the
arbitrator following a notice of decision, but it is not required. Ariz. R. Civ.
P. 76(a). The Rules are silent as to the arbitrator’s duty if no party submits
a proposed form of award. If the parties do file a proposed form of award,
the Rules require the arbitrator to pass on objections to proposed forms of
awards and then file an arbitration award and deliver copies to the parties.
Id. The arbitrator’s failure to pass on objections or to file the award does not
leave the parties in limbo, however, because the notice of decision
automatically converts to an arbitration award on the 51st day. Ariz. R. Civ.
P. 76(b).
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ASHBY v. BIGLOW
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party entitled to notice of the entry of judgment
or order did not receive such notice from the
clerk or any party within 21 days of its entry,
and (b) that no party would be prejudiced, in
which case the court may, upon motion filed
within thirty days after the expiration of the
period originally prescribed or within 7 days of
receipt of such notice, whichever is earlier,
extend the time for taking such action for a
period of 10 days from the date of entry of the
order extending the time for taking such action.
¶14 Following the automatic conversion of the notice of decision
to an arbitration award on May 21, 2015, Biglow had 20 days to appeal
pursuant to Rule 77(a). Biglow waited to request time-extending relief until
after the 20-day time limit set forth in Rule 77(a) expired. Although the plain
language of Rule 6(b) expressly conditions a time extension on a finding of
excusable neglect in cases when, as here, the expiration of the time to act
has expired, Biglow argues she did not need to show her failure to timely
appeal was the result of excusable neglect, relying on Haroutunian, 218 Ariz.
at 544-45, ¶ 7.
¶15 Haroutunian analyzed a Rule 6(b) request for time-extending
relief to file post-trial motions after the court clerk failed to provide notice
of entry of judgment to the parties. 218 Ariz. at 544, 551, ¶¶ 4, 27.
Haroutunian concluded that Rule 6(b) does not require a showing of
excusable neglect for failing to take action when a party satisfies the two
express notice and prejudice requirements listed in the latter part of Rule
6(b). Id. at 551, ¶ 28.
¶16 We decline to interpret Haroutunian as eliminating the
excusable neglect requirement for failing to timely act in cases other than
filing post-trial motions. Haroutunian’s holding is limited to cases where a
party fails to take action timely under Rules 50(b), 52(b), 59(d), (g) and (l),
and 60(c). See 218 Ariz. at 551, ¶ 28. Because Biglow sought to extend the
time to appeal set forth in Rule 77(a), a rule not within the scope of
Haroutunian’s holding, we hold the superior court could only grant time-
extending relief on a showing of excusable neglect.
¶17 To the extent Biglow argues she met the excusable neglect
standard warranting an extension of time pursuant to Rule 6(b), we reject
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her argument.5 Neglect is excusable when “the neglect or inadvertence is
such as might be the act of a reasonably prudent person under the same
circumstances.” Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 120 (1957)
(citation omitted). This test has been applied on a case-by-case basis in cases
of clerical and secretarial error, and legal error where the state of the law is
“muddled or confused.” Ellman Land Corp. v. Maricopa County, 180 Ariz. 331,
339–40 (App. 1994) (noting case-by-case application and that neglect may
be excusable if due to legal error in certain cases); City of Phoenix v. Geyler,
144 Ariz. 323, 332 (1985) (declaring a lawyer’s misreading of date on minute
entry was a type of clerical error constituting excusable neglect); Coconino,
83 Ariz. at 121 (a secretary’s failure to distribute calendar sheet containing
reminder of answer deadline was excusable neglect).
¶18 In the absence of muddled or confusing law, however, legal
error or ignorance of the law is not excusable neglect. Ellman, 180 Ariz. at
340; Daou v. Harris, 139 Ariz. 353, 359–60 (1984) (legal error in believing an
answer is not required when an action is filed in a county other than county
of residence is not excusable neglect); Maher v. Urman, 211 Ariz. 543, 550–
51, ¶¶ 22–23 (App. 2005) (a failure to serve based on ignorance of Rule 4(i)
is not excusable neglect); Jarostchuk v. Aricol Comm’s, Inc., 189 Ariz. 346, 349
(App. 1997) (a secretary’s failure to understand timing rule is not excusable
neglect, but legal error).
¶19 Biglow argues her neglect was excusable because the
arbitrator stated she would file an arbitration award and Biglow’s attorney
was waiting to file the appeal until the arbitrator did so. Biglow relies on
Addison v. Cienega, Ltd. in support of her argument that the conduct was
excusable. 146 Ariz. 322 (App. 1985). In Addison, while checking to see if the
answer fee had already been paid, the defense attorney became distracted
and failed to answer, resulting in a default judgment. Id. at 323. The
superior court granted the defendant’s motion to set aside the default. Id.We upheld the trial court’s finding of excusable neglect based on the
attorney’s distraction, noting that the plaintiff’s attorney made no effort to
reach defense counsel before seeking default. Id. at 324.
5 Although not stated in its ruling, we infer from the court’s denial of
the motion to extend time that it found no excusable neglect. Wippman v.
Rowe, 24 Ariz. App. 522, 525 (1975) (stating an appellate court may “infer
from any judgment the findings necessary to sustain it if such additional
findings do not conflict with express findings and are reasonably supported
by the evidence.”) (citation omitted).
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ASHBY v. BIGLOW
Decision of the Court
¶20 Addison does not support Biglow’s argument because she
does not argue distraction. Instead, Biglow characterizes her reliance on the
arbitrator’s statement that she would file an arbitration award and
subsequent decision to wait to appeal until the arbitrator did so as
“misconstru[ing] the deadline to appeal.” Rule 76(b) clearly mandates the
automatic conversion of the notice of decision to an arbitration award in 50
days if the arbitrator fails to file the award. Given the automatic conversion,
the arbitrator did not need to file an arbitration award, and the arbitrator’s
apparent failure to file the award, even if she stated she would file one, can
still be interpreted as fitting within the ambit of the language of the rule.
While Ashby’s attorney could have brought the automatic conversion and
impending appeal deadline to Biglow’s attention, Biglow bore the burden
of appealing from the arbitration award. See Suppeland v. Nilz, 128 Ariz. 43,
45 (App. 1980). Parties involved in arbitration proceedings may “waive[]
their right to jury trials through their disregard for court procedure.” See
Graf v. Whitaker, 192 Ariz. 403, 407, ¶¶ 15–16 (App. 1998) (construing the
former arbitration rules). Ultimately, Biglow did not timely appeal the
arbitration award. In the absence of a finding of excusable neglect, the
superior court did not abuse its discretion in denying Biglow’s motion to
extend the time to appeal.
B. Denial of Rule 60 Motion.
¶21 Biglow also appeals the denial of her Rule 60 motion.
However, the superior court’s denial is void because Biglow’s notice of
appeal from the judgment divested the superior court of jurisdiction to rule
on the subsequently filed motion. In re Marriage of Johnson v. Gravino, 231
Ariz. 228, 230, ¶ 6 (App. 2012). Because the filing of the appeal divested the
superior court of jurisdiction to issue its denial, the denial was a nullity and
we dismiss that portion of Biglow’s appeal. McHazlett v. Otis Eng’g Corp.,
133 Ariz. 530, 531 (1982).
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Decision of the Court
CONCLUSION
¶22 For the foregoing reasons, we affirm the judgment and
dismiss Biglow’s appeal from the denial of her Rule 60 motion. In our
discretion, we deny Ashby’s request for attorney’s fees but award her costs
upon compliance with Arizona Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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