City of Phoenix v. Geyler, 17615-PR

• Decision Date: 19 March 1985
• Docket Number: No. 17615-PR,17615-PR
• Citation: 697 P.2d 1073,144 Ariz. 323
• Parties: CITY OF PHOENIX, a municipal corporation, Plaintiff-Appellee, v. Richard E. GEYLER, widower of Bernice H. Geyler, deceased, Defendant-Appellant.
• Court: Arizona Supreme Court

Page 1073

697 P.2d 1073

144 Ariz. 323

CITY OF PHOENIX, a municipal corporation, Plaintiff-Appellee, v. Richard E. GEYLER, widower of Bernice H. Geyler, deceased, Defendant-Appellant.

No. 17615-PR.

Supreme Court of Arizona, In Banc.

March 19, 1985.

Andrew Baumert, Phoenix City Atty. by Kent T. Reinhold, Phoenix, for plaintiff-appellee.

Robert C. Stubbs & Associates by Robert C. Stubbs, G. Lawrence Schubart, Trudy Nelson Kapley, Tucson, for defendant-appellant.

OPINION

FELDMAN, Justice.

Defendants, Richard and Bernice Geyler, petitioned us to review a decision of the court of appeals (City of Phoenix v. Geyler, No. 1 CA-CIV 6402, filed May 22, 1984). The memorandum decision affirmed the trial court's order denying defendants' motion for relief from judgment brought pursuant to Rule 60(c), Ariz.R.Civ.P., 16 A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5, and Rule 23, Ariz.R.Civ.App.P., 17A A.R.S.

The issues are as follows:

1. What are the standards upon which to determine whether relief from a civil judgment should be granted in order to accord a litigant the privilege of taking a delayed appeal?

2. What is the test for determining whether the trial court has abused its discretion in granting or denying discretionary relief where that court has failed to indicate the grounds for its decision and where none is patent in the record?

3. What are the standards for determining whether neglect or mistake is "excusable"?

Deeming these questions of law to be important issues which require further clarification, we granted defendants' petition for review. Rule 23(c)(4), supra.

FACTS

On August 8, 1979, the City of Phoenix filed a complaint seeking condemnation of defendants' property. The matter was tried to a jury, which returned a verdict for defendants in the amount of $1,295,507.00. The parties had stipulated that the rate of interest as well as the date of its accrual were to be decided by the court after the verdict. On October 19, 1981, a hearing was held regarding the date of accrual, the only issue on which the parties had been unable to reach an agreement. On October 21, defense counsel mailed alternate forms of judgment to the trial judge. On October 22, the trial judge signed and filed a form of judgment awarding interest from the date of judgment, thus deciding the accrual issue contrary to defendants' contention that interest should accrue from the date of summons. Because more than two years had elapsed between issuance of the summons and the date of judgment, the difference in interest (at the stipulated rate of 12.75%) was over $350,000.00. As required by Rule 77(g), Ariz.R.Civ.P., 16 A.R.S., ¹ notice of entry of judgment was mailed to counsel. The notice consisted of a minute entry order, in the form following:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The date of the minute entry (October 22, 1981) is shown in the "DATE" space near the top of the page. Near the bottom of the page are two other dates:

"Received Oct 24 1981

Processed Oct 26 1981"

Immediately above those dates the words "Mail Distribution Center" were stamped, but the first two words were completely illegible. The only word which might be made out was the word "Center." The three-word, stamped phrase and the dates accompanying it actually identified the respective dates on which the order had been received and mailed to counsel by the central mail distribution center of the Maricopa County Superior Court.

Thus, the stamped dates of October 24 and October 26 had no connection with the date of filing the judgment. However, both defense counsel and his secretary overlooked the date line showing October 22 or misunderstood the form and took the October 24 date to be the date the judgment was filed, and calculated the 15-day time limit for filing a Rule 52(b) motion to alter or amend the judgment from the October 24 date. This produced an erroneous assumption that the last day for filing the motion was Monday, November 9, 1981. Defense counsel filed the papers on that day. Unknown to counsel, the last day to file the motion actually had been Friday, November 6, the fifteenth day after entry of judgment on October 22.

While a timely motion under Rule 52 extends the time for filing a notice of appeal after judgment (Rule 9(b), Ariz.R.Civ.App.P., 17A A.R.S.), the untimely motion filed in the case at bench did not accomplish an extension. Edwards v. Young, 107 Ariz. 283, 486 P.2d 181 (1971). Thus, the last day for appeal from the judgment entered on October 22 was Monday, November 23, the end of the 30-day appeal period allowed when no post-trial motion has been filed. Rule 9(a), Ariz.R.Civ.App.P., 17A A.R.S.

If defendants' counsel had known that the Rule 52 motion had not been timely filed, he could have withdrawn that motion and filed a notice of appeal at any time on or before November 23. He remained in ignorance because the City did not immediately raise the issue of untimeliness in the response which it filed on November 16. On November 24, one day after the time to appeal had expired, the City consulted its calendar and moved to quash the Rule 52(b) motion on grounds of untimely filing. This was the first time that counsel suspected that he had made an error, but it was too late to withdraw his untimely motion and file a notice of appeal. On November 30, however, he did file a motion for relief from judgment under Rule 60(c). The trial judge denied defendants' motion. Subsequently, a different judge correctly denied the Rule 52(b) motion on grounds that it had not been timely filed. Edwards v. Young, supra.

The court of appeals rejected the Geylers' argument that relief should be granted because the trial court had violated Rule 58(d) by signing the proposed form of judgment without waiting, as required by that rule, for five days after the form was lodged by defense counsel. (Slip op. at 7, citing Gutierrez v. Gutierrez, 20 Ariz.App. 388, 513 P.2d 677 (1973) ). We agree with the court of appeals that the Geylers were not prejudiced by the trial court's violation of Rule 58(d). The Geylers also argue that the trial court erred in failing to grant relief by amending the judgment, nunc pro tunc, to reflect entry on October 24. We do not agree. Both the trial judge and the court of appeals were correct in holding that there is no authority to enter a nunc pro tunc order in a situation where the record reflected what the court had actually done. See American Surety Co. v. Mosher, 48 Ariz. 552, 64 P.2d 1025 (1936). We conclude, therefore, that the Geylers were entitled to relief, if at all, only under subsections 1 or 6 of Rule 60(c). While defendants' motion referred only generally to Rule 60(c), the supporting memorandum commenced with explicit reference to and quotation of subsections (1) and (6) of the rule. We deem, therefore, that such issues were fairly presented. They were explicitly presented in the briefs filed in the court of appeals and were the focus of that court's decision.

STANDARDS FOR GRANTING RELIEF FOR TAKING OF DELAYED APPEAL

We begin by noting that defendants' true object here is not "relief from the judgment"--they do not seek to have the judgment vacated so that they may litigate the matter on the merits. The issue has already been argued and decided on the merits. Defendants' objective, rather, is to have the judgment vacated and reentered, so that they may then file a timely appeal from it. What they truly seek, therefore, is the privilege of delayed appeal. In Vital v. Johnson, 128 Ariz. 129, 624 P.2d 326 (1980), our court of appeals held that Rule 60(c) could not be used to relieve a party from a judgment when that party's objective was to have the judgment vacated and then reentered, so as to permit delayed appeal. We disapproved the Vital rule in Park v. Strick, 137 Ariz. 100, 669 P.2d 78 (1983), where we held that Rule 60(c)(6) could be utilized for such a purpose when the "aggrieved party establishes a lack of knowledge that judgment has been entered, and asserts additional reasons that are so extraordinary as to justify relief...." Id. at 104, 669 P.2d at 82.

In recent times other courts have become less devoted to applying the strict letter of procedural law and more concerned with equitable disposition on the merits. E.g., Rodgers v. Watt, 722 F.2d 456 (9th Cir.1983) (en banc); Expeditions Unlimited Aquatic Enterprises v. Smithsonian Institute, 500 F.2d 808 (D.C.Cir.1974). However, there is a "compelling interest in the finality of judgments" which should not lightly be disregarded. Rodgers v. Watt, supra; Park v. Strick, supra. ² In considering whether to allow a delayed appeal, the trial judge should, therefore, remember that the party seeking relief has had his day in court since the case has already been litigated on its merits. In such a situation, the principle of finality carries greater weight than when the movant is seeking relief from judgment by default. A stronger showing, therefore, should ordinarily be required to justify relief. Rodgers v. Watt, supra. We believe the criteria established by an en banc panel of the 9th Circuit in Rodgers v. Watt adequately address these concerns:

"Specifically we hold that in determining whether Rule 60(b) is applicable [in a delayed appeal situation] a court should consider (1) absence of Rule 77(d) notice; (2) lack of prejudice to respondent; (3) prompt filing of a motion after actual notice; and (4) due diligence, or reason for lack thereof, by counsel in attempting to be informed of the date of the decision."

722 F.2d at 460. These factors, combined with a showing under Park v. Strick, supra, of "extraordinary," "unique," or "compelling" circumstances, establish the proper standard for determining whether to grant Rule 60(c) relief. The party seeking delayed appeal must, therefore, not only make the showing generally required for relief under Rule 60(c), but must also meet the more stringent ...