James v. State

• Decision Date: 31 May 2007
• Docket Number: No. 2 CA-CV 2006-0124.,2 CA-CV 2006-0124.
• Citation: 215 Ariz. 182,158 P.3d 905
• Parties: Donna JAMES, the mother of decedent Corey James; John James, the father of decedent Corey James; and Marjorie Surine, the mother of decedent Michelle James, Plaintiffs/Intervenors, Joseph Burkhamer, the father of decedent Michelle James, Plaintiff/Appellant, v. The STATE of Arizona, a body politic, Defendant/Appellee.
• Court: Arizona Court of Appeals

158 P.3d 905

215 Ariz. 182

Donna JAMES, the mother of decedent Corey James; John James, the father of decedent Corey James; and Marjorie Surine, the mother of decedent Michelle James, Plaintiffs/Intervenors Joseph Burkhamer, the father of decedent Michelle James, Plaintiff/Appellant, v. The STATE of Arizona, a body politic, Defendant/Appellee.

No. 2 CA-CV 2006-0124.

Court of Appeals of Arizona, Division 2, Department A.

May 31, 2007.

Rubin & Samuels PLC, By Michael S. Samuels, Phoenix, Attorneys for Plaintiffs/Intervenors.

Meagher & Geer, P.L.L.P. By Thomas H. Crouch, Scottsdale, and Law Office of Gary M. Gallner, By Gary M. Gallner, Avondale, Attorneys for Plaintiff/Appellant.

Burke-Panzarella-Rich, By Thomas P. Burke, II and Randy L. Kingery, Phoenix, Attorneys for Defendant/Appellee.

OPINION

PELANDER, Chief Judge.

¶ 1 In this wrongful death action, the trial court granted defendant/appellee State of Arizona's motion to dismiss or for partial summary judgment on plaintiff/appellant Joseph Burkhamer's claim on the ground he had failed to properly file a notice of claim against the state, as A.R.S. § 12-821.01 requires. Burkhamer appeals from the ensuing judgment, entered pursuant to Rule 54(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, and from the trial court's subsequent order denying Burkhamer's objection to the judgment and his motion to amend the pleadings.

¶ 2 The substantive issue Burkhamer raises is whether providing a notice of claim via facsimile delivered to, and received by, the Arizona attorney general's office constitutes proper filing of the notice against the state under § 12-821.01. The preliminary procedural issue we find dispositive, however, is whether Burkhamer's notice of appeal from the trial court's judgment was untimely filed, thereby depriving this court of subject matter jurisdiction. We conclude it was and, therefore, must dismiss the appeal.

Background

¶ 3 The following facts are undisputed. On August 17, 2003, Corey and Michelle James, husband and wife, were killed in an automobile accident while traveling on a state highway in Pinal County. In 2004, John and Donna James, Corey's parents, and Marjorie Surine and Joseph Burkhamer, Michelle's parents, filed this wrongful death action, alleging the state had negligently designed and maintained the road and caused their children's deaths. Before filing the action, Burkhamer sent a notice of claim via facsimile on February 13, 2004, to the Arizona attorney general's office. Several months later, Burkhamer and the other three plaintiffs filed this case.

¶ 4 The state moved to dismiss Burkhamer's claim in this action under Rule 12(b)(6), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, or, in the alternative, for partial summary judgment on that claim under Rule 56(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2. The state argued Burkhamer's claim was barred under § 12-821.01(A) because he had "failed to file and serve" a notice of claim on the state within 180 days after the cause of action accrued.¹

¶ 5 In response, Burkhamer asserted his delivery of his notice of claim via facsimile to the attorney general's office within the required time satisfied the statutory requirements. After a hearing, the trial court granted the state's motion. Because matters outside the pleadings were presented to and not excluded by the court, the trial court apparently treated the motion as one for partial summary judgment on Burkhamer's claim despite its statement in the judgment that it "grant[ed] Defendant's Motion to Dismiss." See Ariz. R. Civ. P. 12(b). Thus, were we to reach the merits, we would do the same. See Franzi v. Koedyker, 157 Ariz. 401, 408, 758 P.2d 1303, 1310 (App.1985). But, for the reasons explained below, we instead dismiss the appeal for lack of jurisdiction.

Timeliness of Appeal

¶ 6 As a threshold issue, we first must determine whether Burkhamer timely filed his appeal, an issue the state raised in its answering brief.² The trial court's judgment dismissing Burkhamer's claim with prejudice was filed on January 26, 2006. Pursuant to Rule 54(b), Ariz. R. Civ. P., the judgment expressly stated "there is no just reason for delay in the entry of this Judgment and Order dismissing the claim of Joseph Burkhamer [and] this shall constitute the Court's Final Judgment dismissing all claims asserted by [him] against the State of Arizona in this matter."

¶ 7 The procedural history of this case following the entry of that judgment is somewhat muddied. On January 30, without citing any civil procedural rule, Burkhamer filed an "Objection to Defendant's Final Judgment and Order Dismissing Claim." In that document, Burkhamer objected to the judgment on the ground its language "dismissing all [his] claims" was "overbroad" because the trial court supposedly had agreed at the hearing on the state's motion to dismiss that, even though it was dismissing his claim, he could still file a motion to amend the pleadings "to assert a claim as a beneficiary of the claim of Plaintiff Marjorie Surine in her status as the statutory plaintiff for the wrongful death claim." About a week later, Burkhamer also filed a motion to amend the pleadings, seeking permission "to continue his involvement in this case" as a nonparty, statutory beneficiary under Surine's claim and asking for "his damages [to] be considered in any award ultimately determined in this matter."

¶ 8 The state did not respond to Burkhamer's objection to the judgment but opposed his motion to amend the pleadings, arguing he should not be permitted "to present and assert [his] barred and dismissed claim `through the back door.'" The trial court then set oral argument on Burkhamer's motion to amend. After the March 20 hearing on that motion,³ the trial court signed an order that was filed on May 22 denying both Burkhamer's motion to amend and his objection to the judgment. Burkhamer filed his notice of appeal on June 19 from both the January 26 judgment and the May 22 order.

¶ 9 The state argues Burkhamer's appeal is untimely because it was filed more than thirty days after the trial court's entry of judgment. See Ariz. R. Civ.App. P. (ARCAP) 9(a), 17B A.R.S. (requiring notice of appeal to be filed within thirty days after entry of judgment being appealed). In his reply brief, Burkhamer advances multiple, alternative arguments that his appeal was timely.⁴ We first address the state's position.

¶ 10 Citing ARCAP 9(a), the state argues Burkhamer's notice of appeal "did not come until nearly five months after" the trial court's January 26 judgment, and consequently, "this court lacks jurisdiction to hear the appeal as related to [that] final judgment." The thirty-day filing deadline prescribed in ARCAP 9(a) is extended under certain circumstances specified in ARCAP 9(b), which provides in pertinent part:

When any of the following motions are timely filed by any party, the time for appeal for all parties is extended, and the times set forth in Rule 9(a) shall be computed from the entry of any of the following orders:

(1) Granting or denying a motion for judgment notwithstanding the verdict pursuant to Ariz. Rules Civ. Proc. 50(b);

(2) Granting or denying a motion to amend or make additional findings of fact pursuant to Ariz. Rules Civ. Proc. 52(b), ... whether or not granting the motion would alter the judgment;

(3) Granting or denying a motion to alter or amend the judgment pursuant to Ariz. Rules Civ. Proc. 59(l) ...;

(4) Denying a motion for new trial pursuant to Ariz. Rules Civ. Proc. 59(a)....

¶ 11 "It is settled in Arizona that the perfecting of an appeal within the time prescribed is jurisdictional; and, hence, where the appeal is not timely filed, the appellate court acquires no jurisdiction other than to dismiss the attempted appeal." Edwards v. Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971); see also Mayer v. State, 184 Ariz. 242, 243, 908 P.2d 56, 57 (App.1995) ("Appellate courts lack jurisdiction to consider appeals that are not timely filed."); Ariz. Dep't of Econ. Sec. v. Hall, 120 Ariz. 514, 515, 586 P.2d 1326, 1327 (App.1978) ("The timely filing of a notice of appeal is jurisdictional, and the time for the filing of a notice of appeal as set forth in ARCAP 9 may not be extended by the Court."), overruled on other grounds by In re Marriage of Gray, 144 Ariz. 89, 695 P.2d 1127 (1985); cf. Ariz. R. Civ.App. P. 8(a) ("Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal ....") (emphasis added).

¶ 12 A series of Arizona Supreme Court cases, which the parties do not address,⁵ compel us to find that we lack jurisdiction here. In Arizona State Liquor Board v. Slonsky, 106 Ariz. 25, 25, 470 P.2d 106, 106 (1970), the court dismissed the appeal, stating very succinctly:

[Former] Rule 73(b) ... enumerates the motions which extend the time in which the notice of appeal may be filed beyond sixty days from the entry of judgment. A "motion to vacate judgment" is not one of the motions enumerated, hence the filing of such motion does not extend the time.⁶

Burkhamer's January 30 objection to the trial court's judgment entered four days earlier clearly "is not one of the motions enumerated" in ARCAP 9(b). 106 Ariz. at 25, 470 P.2d at 106. Thus, if Slonsky still controls, Burkhamer's filing of that objection did not extend his time to appeal from the judgment.

¶ 13 In several subsequent cases, however, our supreme court has refined Slonsky's rather strict rule by essentially creating several exceptions to it. In Hegel v. O'Malley Insurance Co., 117 Ariz. 411, 411, 573 P.2d 485, 485 (1977), the court addressed the issue of "whether a motion styled `Motion to Vacate' with a reference to Rule 59(a), [Ariz. R. Civ. P.,] in the text is sufficient to toll the appeal time under [former] Rule 73(b)." The court held that,

irrespective of the title of a motion, if its substance shows clearly that it seeks relief under Rule 59(a...