JC Penney v. Lane

• Decision Date: 26 November 1999
• Docket Number: No. 1 CA-CV 99-0095.,1 CA-CV 99-0095.
• Citation: 197 Ariz. 113,3 P.3d 1033
• Parties: J.C. PENNEY, Plaintiff-Appellee, Cross-Appellant, v. Jay LANE and Mina Lane, husband and wife, Defendants-Appellants, Cross-Appellees.
• Court: Arizona Court of Appeals

3 P.3d 1033

197 Ariz. 113

J.C. PENNEY, Plaintiff-Appellee, Cross-Appellant, v. Jay LANE and Mina Lane, husband and wife, Defendants-Appellants, Cross-Appellees.

No. -0095.

Court of Appeals of Arizona, Division 1, Department E.

November 26, 1999.

Aron & Associates, P.C. by Peter M. Balsino, Esther B. Simon, Tucson, for Appellee/Cross-Appellant. Thaddeus G. Baker, Jr., Flagstaff, for Appellants/Cross-Appellees.

OPINION

GRANT, Judge.

¶ 1 Two issues are presented in this appeal and cross appeal: (1) Because of amendments to Rule 77(g), Arizona Rules of Civil Procedure, and Rule 9(a), Arizona Rules of Civil Appellate Procedure, did the trial court lack discretion under the facts presented to vacate and reenter an order pursuant to Rule 60(c)(6), Arizona Rules of Civil Procedure, to allow an appeal that otherwise would have been untimely? (2) Assuming that we uphold the decision to vacate and reenter the order, did the trial court err in determining that pursuant to its interpretation of relevant statutes, the filing of an affidavit of renewal of judgment in the Maricopa County Superior Court was effective to renew a judgment of the Coconino County Superior Court? We are asked to decide whether the trial court erred by allowing renewal of a judgment after the expiration of the statutory period, and whether the judgment renewal must be in the superior court of the county where the judgment was first obtained. But before we reach that issue we must decide whether the trial court lacked discretion under Rule 60(c)(6), Arizona Rules of Civil Procedure, to allow an appeal that otherwise would be untimely. We hold that no error and no abuse of discretion occurred in the trial court's decision to vacate and reenter the judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2 On June 1, 1992, J.C. Penney ("Penney") was awarded a default judgment in the amount of $1,878.18 against Jay and Mina Lane ("the Lanes") in the justice court for Page, Arizona. Penney recorded the judgment with the Coconino County Recorder's Office on October 15, 1992, in Docket 1513, Page 488. In May of 1996, Penney transferred the judgment to the Coconino County Superior Court in order to employ execution methods to try to collect on the judgment. The judgment was assigned Coconino County Superior Court case number T 1265.

¶ 3 Within ninety days prior to the expiration of the statutory five-year period from the date of entry of judgment, Penney's attorney's office prepared an affidavit for renewal of judgment, pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 12-1612. By mistake, the affidavit referred to the judgment as a Maricopa County judgment rather than a Coconino County judgment, stated that the judgment was recorded in the Office of the Maricopa County Recorder rather than the Coconino County Recorder, and named the Maricopa County Superior Court in its caption instead of Coconino County Superior Court. Although the affidavit was timely filed on May 5, 1997, it was filed in Maricopa County Superior Court instead of Coconino County Superior Court. These mistakes were not detected for several months, and, as a consequence, no affidavit of renewal was filed in the Coconino County Superior Court within the ninety days preceding the expiration of five years from the date of entry of the judgment as required by A.R.S. section 12-1612 to keep the judgment enforceable pursuant to A.R.S. section 12-1551(B).

¶ 4 On June 19, 1998, Penney filed a motion in the Coconino County Superior Court, asking that its affidavit of renewal of judgment be entered in its records nunc pro tunc to May 5, 1997. The Lanes opposed the motion arguing that the judgment became unenforceable when Penney failed to file a timely affidavit of renewal of judgment in the correct county of the superior court. The trial court granted the motion, concluding that the error was not fatal. The trial court explained in the judgment:

NOW, THEREFORE, the Court finds that there is only one Superior Court in the State of Arizona and that although the Affidavit of Renewal was filed in Maricopa County rather than Coconino County, the court of issuance of the judgment, such error is merely a venue error, therefore

IT IS ORDERED granting the Motion to Enter Affidavit of Renewal of Judgment.

¶ 5 The Lanes intended to appeal from the trial court's ruling after a final, appealable order was entered in the case. Their attorney communicated that intention to Penney's attorney, asking him to prepare a formal order. After learning that Penney's attorney did not intend to prepare an order, the Lanes' attorney prepared one. Because the Lanes' motion for reconsideration was pending, their attorney sent the form of order with a letter to the trial court asking that the order be entered after the court ruled on the motion for reconsideration.

¶ 6 The trial court denied the motion for reconsideration on November 27, 1998. On December 3, 1998, the Lanes' attorney checked on the status of the order lodged with the court. Counsel learned for the first time that the trial court had signed and entered the order he had lodged with it on September 11, 1998, but that the clerk's office had failed to send out any notice of the entry of judgment.

¶ 7 The Lanes quickly filed a motion on December 7, 1998, to vacate and reenter the order pursuant to Rule 60(c)(6) of the Arizona Rules of Civil Procedure. The trial court granted the motion over Penney's opposition, and reentered its order on January 13, 1999.

¶ 8 The Lanes filed a timely appeal from the reentered order. Penney filed a timely cross-appeal, objecting to the trial court's reentry of the order to allow the Lanes to timely appeal.

STANDARD OF REVIEW

¶ 9 The Lanes' appeal centers upon an issue of statutory interpretation. Penney's cross appeal questions the effect of the amendments to certain rules of court. Because these are issues of law, we review them de novo. See Hawkins v. State Dep't of Econ. Sec., 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App.1995)

.

CROSS APPEAL

¶ 10 The threshold issue is whether the trial court erred in determining it had discretion to grant the Lanes' request for relief pursuant to Rule 60(c)(6) of the Arizona Rules of Civil Procedure, vacating and reentering its previous order to allow the appeal, which otherwise would have been untimely. Penney argues that the 1994 amendments to Rule 77(g) of the Arizona Rules of Civil Procedure and Rule 9(a) of the Arizona Rules of Civil Appellate Procedure—which deal with the effect that failing to receive notice of the entry of judgments and orders has on the time for appeal—precluded the trial court from granting the Rule 60(c)(6) relief requested by the Lanes. To decide this question, we must examine what the relevant law was previously.

¶ 11 Prior to its 1994 amendment, Rule 77(g) provided, in relevant part:

The clerk shall mail copies of all minute entries to all parties. Immediately upon the entry of a judgment as defined in Rule 54(a), the clerk shall mail a notice of the entry of judgment stating the date of entry, in the manner provided for in Rule 5, to every party who is not in default for failure to appear, and shall make a record of the mailing. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed.

(Emphasis added.) Rule 9(a) of the Arizona Rules of Civil Appellate Procedure at that time provided that notice of appeal "shall be filed with the clerk of the superior court not later than 30 days after the entry of the judgment from which the appeal is taken. . . ." The rule contained no provision for extending the time for appeal if a party did not receive notice of the entry of judgment.

¶ 12 In Vital v. Johnson, 128 Ariz. 129, 624 P.2d 326 (App.1980), this court was asked to determine whether the language in the last sentence of Rule 77(g), referred to above, left trial courts without authority to vacate and reenter the same judgment in order to begin again the time for filing a notice of appeal when no notice of entry of the judgment had been sent to the party by the clerk. We determined that the language of that rule left a trial court with no authority to do so. Id. at 132, 624 P.2d at 329. The Arizona Supreme Court denied review in Vital.

¶ 13 Two years later, however, in Park v. Strick, 137 Ariz. 100, 669 P.2d 78 (1983), our supreme court accepted jurisdiction of a special action challenging the ruling of the trial court that Vital precluded it from granting Rule 60(c)(6) relief under similar circumstances, such as when a party seeking to appeal has received no notice of entry of the judgment. The supreme court stated that it accepted the petition in order to examine the decision in Vital and the interplay between Rules 60(c) and 77(g).

¶ 14 After examining all the relevant competing principles behind these rules, the supreme court in Park held that "Rule 77(g) restricts the power of an Arizona trial court to grant Rule 60(c)(6) relief where the only ground is the failure to give or receive the notice required by Rule 77(g)." Id. at 104, 669 P.2d at 82. It further held, though, that the trial court has authority under Rule 60(c)(6) to vacate the judgment and enter a new judgment in order to allow a party to file a timely appeal when the party did not have knowledge from any source that a previous judgment had been entered and when there are "extraordinary," "unique," or "compelling" circumstances. Id. The court provided no hard-and-fast rule to determine when such extraordinary circumstances justify relief, but it cited several federal cases as persuasive authority to determine whether unique circumstances warranted relief from judgment. Id. at 105, 669 P.2d at 83. The court remanded the case to the trial court for it to consider the merits of the request for Rule 60(c)(6) relief. Id.

¶ 15 Concerned that the compelling interest...