Johnson v. Arizona Registrar of Contractors , 242 Ariz. 409 ( 2017 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
PAMELA A. JOHNSON, Plaintiff/Appellant,
v.
ARIZONA REGISTRAR OF CONTRACTORS, Defendant/Appellee.
No. 1 CA-CV 16-0266
FILED 5-25-2017
Appeal from the Superior Court in Maricopa County
No. LC2015-000452-001
The Honorable Crane McClennen, Retired Judge
AFFIRMED
COUNSEL
Porter Law Firm, Phoenix
By Robert S. Porter, Ryan P. Dyches
Counsel for Plaintiff/Appellant
Arizona Attorney General’s Office, Phoenix
By John R. Tellier, Thomas C. Raine
Counsel for Defendant/Appellee
JOHNSON v. AZROC
Opinion of the Court
OPINION
Judge Patricia K. Norris delivered the opinion of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.
N O R R I S, Judge:
¶1 Pamela A. Johnson, Plaintiff/Appellant, appeals the superior
court’s order dismissing her “appeal” from a final administrative decision
of the Arizona Registrar of Contractors, Defendant/Appellee. Johnson
argues that because Arizona Revised Statutes (“A.R.S.”) section 12-904(A)
(2016) does not state where an appealing party must file a notice of appeal
from a final administrative decision, she was entitled to file her notice of
appeal with the Registrar, instead of with the superior court. We reject this
argument and affirm the superior court’s order dismissing her appeal as
untimely.
BACKGROUND AND PROCEDURAL HISTORY
¶2 In 2010, homeowners hired Forsythe and Sons Construction,
Inc. (“Forsythe”) to complete roofing work on their house. In 2012, the
homeowners sold the house to Johnson. After Johnson obtained possession
of the house, she discovered that the roof leaked. Subsequently, she filed a
complaint against Forsythe with the Registrar. An investigator for the
Registrar investigated her complaint and issued a “Corrective Work Order”
giving Forsythe 15 days to correct the deficient work. Forsythe failed to
correct the work and ultimately the Registrar issued a finite suspension of
Forsythe’s license.
¶3 On October 7, 2014, Johnson filed a recovery fund claim with
the Registrar.1 The Registrar denied her claim and Johnson requested a
hearing before an administrative law judge (“ALJ”) of the Office of
Administrative Hearings (“OAH”) to challenge the Registrar’s denial. After
conducting a hearing, the ALJ ruled the Registrar had appropriately denied
Johnson’s claim. Pursuant to A.R.S. § 41-1092.08(B) (2013) (director may
1The Residential Contractors’ Recovery Fund is a fund that
allows the Registrar to award “any person injured by an act, representation,
transaction or conduct of a residential contractor” an award not to exceed
$30,000 “for damages sustained by the act, representation, transaction or
conduct.” A.R.S. § 32-1132(A) (2016).
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JOHNSON v. AZROC
Opinion of the Court
accept, reject, or modify ALJ’s decision), the Registrar accepted the ALJ’s
decision and the Registrar’s decision became the final administrative
decision in the case on September 15, 2015 (“September 15 Registrar
Decision”).
¶4 On October 14, 2015, Johnson attempted to appeal the
September 15 Registrar Decision by filing a document entitled
“Complainant’s Notice of Appeal” with the Registrar (the “Registrar
NOA”). That document listed Forsythe, but not the Registrar, as the
“Respondent.” Johnson did not file the Registrar NOA in the superior court.
On October 21, 2015, Johnson delivered to the Registrar and the OAH a
document entitled “Complainant’s A.R.S. § 12-904B Notice.” Johnson did
not file that document in the superior court either. Finally, on October 27,
2015, Johnson filed a document entitled “Notice of Appeal from and
Request for Review of Final Administrative Decision” in the superior court,
listing Maricopa County as “Appellee” (the “Superior Court NOA”). That
document did not list the Registrar as a party, however.
¶5 The Registrar moved to dismiss, arguing Johnson’s Superior
Court NOA was untimely under A.R.S. § 12-904(A), a statute that sets forth
the procedure and deadlines for filing an action to review a final
administrative decision. While that motion was pending, Johnson moved
to amend the caption to substitute the Registrar and Forsythe as appellees.
Although the superior court granted that motion, the superior court
nevertheless granted the Registrar’s motion to dismiss, finding Johnson’s
Superior Court NOA untimely under A.R.S. § 12-904(A).
DISCUSSION
¶6 On appeal, Johnson does not dispute that she did not file her
Superior Court NOA within the deadline established by A.R.S. § 12-904(A).2
Instead, Johnson argues A.R.S. § 12-904(A) fails to state where an appealing
2Subject to certain exceptions not relevant here, service under
A.R.S. § 12-904(A) is complete when the decision is personally delivered to
the “party affected” or five days after the date the decision is mailed to the
party’s last known address. A.R.S. § 12-904(A). Here, the Registrar mailed
the September 15 Registrar Decision to Johnson on September 15, 2015.
Service was complete five days later on September 20, 2015. Because the
35th day fell on a Sunday, Johnson was required to file a notice of appeal
from the September 15 Registrar Decision on or before October 26, 2015.
Although Johnson filed the Registrar NOA with the Registrar on October
15, 2015, she did not file the Superior Court NOA in the superior court until
October 27, 2015, one day after the appeal deadline.
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JOHNSON v. AZROC
Opinion of the Court
party must file a notice of appeal from a final administrative decision and,
therefore, the superior court should not have dismissed her appeal because
she filed the Registrar NOA with the Registrar before the statutory appeal
deadline expired. Exercising de novo review on this issue, we disagree. See
Doty-Perez v. Doty-Perez, 241 Ariz. 372, 375, ¶ 17, 388 P.3d 9, 12 (App. 2016)
(appellate court interprets statutes de novo) (citation omitted); M-11 Ltd.
P’ship v. Gommard, 235 Ariz. 166, 168, ¶ 6, 330 P.3d 356, 358 (App. 2014)
(appellate court reviews motion to dismiss for lack of subject matter
jurisdiction de novo).
¶7 The process for judicial review of final administrative
decisions is set out in title 12, chapter 7, article 6, A.R.S. §§ 12-901 to -914
(2016). Under A.R.S. § 12-904(A), “[a]n action to review a final
administrative decision shall be commenced by filing a notice of appeal
within thirty-five days from the date when a copy of the decision sought to
be reviewed is served upon the party affected.” The deadline for filing an
administrative appeal is jurisdictional. Smith v. Ariz. Citizens Clean Elections
Comm’n, 212 Ariz. 407, 413, ¶ 25, 132 P.3d 1187, 1193 (2006) (citation
omitted). An untimely filing deprives the court of subject matter
jurisdiction, and the appealing party forfeits the right to seek judicial
review. M-11 Ltd. P’ship, 235 Ariz. at 168, ¶ 2, 330 P.3d at 358; see also A.R.S.
§ 12-902(B) (“Unless review is sought of an administrative decision within
the time and in the manner provided in this article, the parties to the
proceeding before the administrative agency shall be barred from obtaining
judicial review of the decision.”).
¶8 Although Johnson argues A.R.S. § 12-904(A) is silent on
where an appealing party must file a notice of appeal, it is not, in fact, silent.
To obtain judicial review of a final administrative decision, A.R.S. § 12-
904(A) directs the appealing party to “commence” an “action” by filing a
notice of appeal. By statute, an “action” is “any matter or proceeding in a
court, civil or criminal.” A.R.S. § 1-215(1) (Supp. 2016); Semple v. Tri-City
Drywall, Inc., 172 Ariz. 608, 611, 838 P.2d 1369, 1372 (App. 1992) (proceeding
before the Registrar of Contractors was not an “action” for purposes of
A.R.S. § 12-341.01 because it was not “a proceeding before a court of law”);
Action, Black’s Law Dictionary (10th ed. 2014) (action is “[a] civil or criminal
judicial proceeding”); see also Mona Baskin and Mary DeLaat Williams,
Registrar of Contractors, 3 Arizona Appellate Handbook § 34.3.6.2.1 (4th ed.
2014) (“An action for judicial review of a registrar’s decision must be
commenced by the filing of a Notice of Appeal for Judicial Review of an
Administrative Decision in [the] superior court.”). Therefore, A.R.S. § 12-
904(A) directs an appealing party to file his or her notice of appeal with the
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Opinion of the Court
superior court, which commences the action to review a final
administrative decision.
¶9 The Arizona Rules of Procedure for Judicial Review of
Administrative Decisions (“JRAD”), which apply to actions under title 12,
chapter 7, article 6, underscore A.R.S. § 12-904(A)’s directive. JRAD 1(b)
incorporates the Arizona Rules of Civil Procedure. Arizona Rule of Civil
Procedure 3, in turn, states, “[a] civil action is commenced by filing a
complaint with the court.” (Emphasis added.)
¶10 Even if A.R.S. § 12-904(A) was silent on where an appealing
party is to file a notice of appeal, the statutory scheme for judicial review of
administrative decisions makes clear Johnson was required to file her notice
of appeal with the superior court, not with the Registrar. “We construe
statutes to give effect to an entire statutory scheme.” Backus v. State, 220
Ariz. 101, 104, ¶ 10, 203 P.3d 499, 502 (2009) (citation omitted). For example,
A.R.S. § 12-905(B) provides “an action to review a final administrative
decision may be commenced in the superior court of any county” that meets
certain specified conditions. A.R.S. § 12-905(B) (emphasis added). Further,
other provisions of title 12, chapter 7, article 6 require the appealing party
to file certain documents with the agency, and these provisions would be
meaningless if an appealing party could file his or her notice of appeal with
the agency. See Patches v. Indus. Comm’n, 220 Ariz. 179, 182, ¶ 10, 204 P.3d
437, 440 (App. 2009) (“[C]ourts must, where possible, avoid construing
statutes in such a manner as to produce absurd or unconstitutional
results.”).
¶11 For example, A.R.S. § 12-904(B) requires an appealing party
to file a “notice of the action” with the OAH or the agency that conducted
the hearing within ten days after filing a notice of appeal. If the appealing
party could commence the action by filing the notice of appeal with the
agency, no purpose would be served by filing the “notice of the action” with
the agency as it already would have had notice of the action. Similarly,
A.R.S. § 12-906 requires the appealing party to serve the notice of appeal on
the administrative agency. This requirement would be superfluous if an
appealing party could initiate an appeal by filing the notice of appeal with
the agency itself. Finally, A.R.S. § 12-907 requires the agency responding to
an appeal to file a notice of appearance in response to the notice of appeal.
If A.R.S. § 12-904(A) permitted an appealing party to file a notice of appeal
with the agency, there would be no need for the agency to then file a notice
of appearance with itself.
¶12 Outside the context of title 12, chapter 7, article 6, A.R.S. § 12-
284(A) (2016), which governs fees for civil proceedings, requires an
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JOHNSON v. AZROC
Opinion of the Court
appealing party to pay the clerk of the superior court for filing of a notice
of appeal under A.R.S. § 12-904. It would make little sense for an appealing
party to pay fees to the superior court if that party could initiate an appeal
with the agency directly.
¶13 Despite the foregoing, Johnson argues that because other
appeal rights require the appealing party to initiate the appeal in the court
from which the appeal is taken, we should construe the statutory scheme
as allowing a party to file a notice of appeal from a final administrative
decision with the agency rather than the superior court. Johnson points out
that judgments rendered in a justice court are appealed to the superior court
by filing a notice of appeal in the justice court, Ariz. R. Super. Ct. App. P.
Civ. 3(a), and judgments rendered in the superior court are appealed to the
court of appeals by filing a notice of appeal with the clerk of the superior
court, Arizona Rule of Civil Appellate Procedure (“ARCAP”) 8(a). Johnson
also points out a party may obtain a hearing on an “appealable agency
action or contested case” by filing a notice of appeal or request for a hearing
with the agency. A.R.S. § 41-1092.03(B) (2013).
¶14 Johnson’s argument, however, ignores these appeal rights are
grounded on statutes or rules expressly requiring the appealing party to
initiate the appeal by filing a notice of appeal with the entity that rendered
the decision. No such statute or rule supports Johnson’s argument that
filing a notice of appeal with the Registrar is timely for purposes of A.R.S.
§ 12-904(A). “Courts will not read into a statute something that is not within
the manifest intent of the legislature as indicated by the statute itself . . . .”
Cicoria v. Cole, 222 Ariz. 428, 431, ¶ 15, 215 P.3d 402, 405 (App. 2009) (citation
omitted). And, Johnson’s argument ignores that the Arizona Rules of Civil
Procedure, which require an appealing party to file a complaint in the
superior court, are incorporated into JRAD. See supra ¶ 9.
¶15 The Legislature’s 2012 amendment of A.R.S. § 12-904(A) does
not, as Johnson also argues, evidence the Legislature’s intent to allow an
appealing party to initiate an appeal by filing the notice of appeal with the
agency itself. Before 2012, A.R.S. § 12-904(A) required an appealing party
to commence an appeal by filing a “complaint,” tracking the language of
Arizona Rule of Civil Procedure 3. In contrast, the current version requires
an appealing party to file a “notice of appeal.” A.R.S. § 12-904(A). The
amendment, among other things, changed certain terminology, such as
changing plaintiff and defendant to appellant and appellee, and removed
the requirement that an appellee file an answer. The amendment did not,
however, change where an appealing party is required to file the notice of
appeal. The legislative history of the 2012 amendment, H.R. Bill Summary
(April 23, 2012), S.B. 1193, 50th Leg., 2d Reg. Sess. (Ariz. 2012), does not
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Opinion of the Court
state or suggest that an appealing party may file the notice of appeal with
the agency.
¶16 Finally, Johnson argues that even if she misfiled her notice of
appeal in the “wrong forum,” it was nevertheless timely filed in a forum
and should be considered timely. We disagree.
¶17 In making this argument, Johnson relies on Wilkinson v. Fabry,
177 Ariz. 506, 869 P.2d 182 (App. 1992), and Martinez v. Indus. Comm’n, 213
Ariz. 531, 144 P.3d 1260 (App. 2006), both of which relied on the then in
effect version of ARCAP 4(a). In Wilkinson, the appealing party filed his
notice of appeal with the clerk of the court of appeals instead of the clerk of
the superior court. Wilkinson, 177 Ariz. at 506, 869 P.2d at 182. Pursuant to
ARCAP 4(a), we held the appealing party’s notice of appeal was timely. Id.
ARCAP 4(a) then provided:
No papers received by the clerk within the time
fixed for filing which if untimely filed would
render the case, appeal or petition subject to
dismissal by the appellate court for
jurisdictional reasons, shall be refused by the
clerk solely for the reason that they were not
tendered for filing in the proper court or
division. Rather, such papers shall be
transmitted to the proper court or division and
shall be deemed timely filed.
Id. at 507, 869 P.2d at 183 (quoting ARCAP 4(a)). Because the rule required
the clerk of the court to transmit the notice of appeal to the proper court,
the appealing party’s notice of appeal filed with the clerk of the court of
appeals was timely, even though it should have been filed in the superior
court. Id.
¶18 Here, as discussed, see supra ¶ 9, the Arizona Rules of Civil
Procedure, not ARCAP, apply to Johnson’s claims. As discussed above,
Arizona Rule of Civil Procedure 3 states, “A civil action is commenced by
filing a complaint with the court.” Therefore, the reasoning of Wilkinson and
ARCAP 4(a) is inapplicable.
¶19 In Martinez, the appealing party filed his petition for special
action from an Industrial Commission award with the Industrial
Commission instead of with the court of appeals. Martinez, 213 Ariz. at 531-
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Opinion of the Court
32, ¶ 1, 144 P.3d at 1260-61. In addition to examining ARCAP 4(a), the court
also considered A.R.S. § 12-120.22(B) (2016),3 which provides:
No case, appeal or petition for a writ brought in
the supreme court or court of appeals shall be
dismissed for the reason only that it was not
brought in the proper court or division, but it
shall be transferred to the proper court or
division.
Id. at 532, ¶ 6, 144 P.3d at 1261.
¶20 Because the Arizona Rules of Procedure for Special Actions
incorporated ARCAP, and the Industrial Commission acts as a “quasi-
judicial body,” we concluded that under ARCAP 4(a) and A.R.S. § 12-
120.22(B), the misfiled petition for special action was timely. Id. at 533, ¶ 8,
144 P.3d at 1262.
¶21 Here, as discussed, see supra ¶ 18, former ARCAP 4(a) is
inapplicable. Further, A.R.S. § 12-120.22(B) addresses appeals “brought in
the supreme court or court of appeals.” Johnson’s appeal did not involve
an appeal brought in either the supreme court or the court of appeals.
Instead, the superior court sits as an appellate court in its review of the
Registrar’s final decision. See A.R.S. § 12-911 (outlining powers of superior
court in reviewing agency’s final decision). Finally, as discussed, see supra
¶ 8, on its face, A.R.S. § 12-904(A) requires an appealing party to file the
notice of appeal with the superior court. Therefore, A.R.S. § 12-120.22(B) is
inapplicable.
CONCLUSION
¶22 For the foregoing reasons, we agree with the superior court
that Johnson did not timely appeal the September 15 Registrar Decision.
Therefore, we affirm the superior court’s order dismissing her appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
3This statute has not been amended since its adoption, we
therefore cite the current version.
8