Nielson v. Patterson

• Decision Date: 27 March 2003
• Docket Number: No. CV-02-0330-SA.,CV-02-0330-SA.
• Citation: 204 Ariz. 530,65 P.3d 911
• Parties: Jennifer NIELSON and Larry Nielson, wife and husband, Petitioners, v. Hon. Cecil B. PATTERSON, Jr.; Hon. Jefferson L. Lankford; Hon. G. Murray Snow; Judges of the State of Arizona, in and for the Arizona Court of Appeals, Respondents, and Don H. Smith and Jane Doe Smith, husband and wife, Real Parties in Interest.
• Court: Arizona Supreme Court

65 P.3d 911

204 Ariz. 530

Jennifer NIELSON and Larry Nielson, wife and husband, Petitioners, v. Hon. Cecil B. PATTERSON, Jr.; Hon. Jefferson L. Lankford; Hon. G. Murray Snow; Judges of the State of Arizona, in and for the Arizona Court of Appeals, Respondents, and Don H. Smith and Jane Doe Smith, husband and wife, Real Parties in Interest.

No. CV-02-0330-SA.

Supreme Court of Arizona.

March 27, 2003.

Tobler & Associates, P.C. by Lorin Tobler and Maren Tobler, Mesa, and Lewin & Schneider, P.C. by Thomas Kleinschmidt, Phoenix, Attorneys for Petitioners Jennifer Nielson and Larry Nielson.

Campbell, Souhrada, Volk & Lauter by Ronald J. Lauter, Phoenix, Attorneys for Real Parties in Interest Don H. Smith and Jane Doe Smith.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 We granted review to determine whether an appellee, in an appeal from an order granting the appellee a new trial, must file a protective cross-appeal if it wishes to preserve its ability to challenge the underlying judgment, in the event the appellate court overturns the order granting a new trial. We hold that an order granting a new trial vacates the original entry of judgment and that an appellee need not challenge the underlying judgment through a mandatory protective cross-appeal.

I.

¶ 2 The Nielsons obtained a $2 million jury verdict against the Smiths. On August 10, 2000, the trial court entered judgment for the Nielsons in the amount awarded. Thereafter, the Smiths moved for a new trial. The trial court granted the motion, vacated the judgment and set a new trial. The Nielsons filed a timely notice of appeal from the order granting a new trial. The Smiths did not file a cross-appeal from the underlying judgment.

¶ 3 In a memorandum decision, the court of appeals reversed the trial court's order granting a new trial and instructed the trial court to reinstate judgment in favor of the Nielsons. After we denied the Smiths' petition for review, the court of appeals issued its mandate on June 11, 2002, and the trial court reinstated the original judgment.

¶ 4 On July 3, 2002, the Smiths filed a notice of appeal from the underlying August 10, 2000 judgment. The Nielsons moved to dismiss the appeal, arguing that under Rule 9(b), Arizona Rules of Civil Appellate Procedure, the Smiths' failure to challenge the original judgment by filing a protective cross-appeal to the Nielsons' appeal from the order granting a new trial barred the Smiths from now challenging the underlying judgment. The court of appeals denied the Nielsons' motion, finding nothing in Arizona law that required the Smiths to file a mandatory protective cross-appeal. We granted review to consider this procedural question of statewide importance. We exercise jurisdiction pursuant to Article VI, Section 5.4 of the Arizona Constitution and Rule 3(b) of the Arizona Rules of Procedure for Special Actions.

II.

¶ 5 We review issues of law de novo. US West Communications, Inc. v. Ariz. Corp. Comm'n, 201 Ariz. 242, 244 ¶ 7, 34 P.3d 351, 353 (2001). This court has authority to interpret rules of procedure under the Arizona Constitution, Article VI, Section 5. Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203 (1981). We apply general rules of statutory construction to construe facially unclear or ambiguous rules of procedure. State ex rel. Corbin v. Marshall, 161 Ariz. 429, 431, 778 P.2d 1325, 1327 (App.1989).

¶ 6 According to the Nielsons, the court of appeals lacks jurisdiction to hear the Smiths' appeal because the Smiths failed to file a timely appeal from the judgment entered against them. That is, they argue, the thirty day limit of Rule 9 began to run on August 10, 2000, when the trial court entered the original judgment, even though the court later vacated the judgment and ordered a new trial. Unfortunately, neither Arizona's procedural rules nor our case law clearly answers the question whether the Smiths timely filed their appeal.

¶ 7 Rule 9,¹ on which the Nielsons primarily rely, does not answer the question posed here. That rule sets forth the time period required to file an appeal or cross-appeal after entry of judgment. Rule 9(b)(4) extends the time for filing an appeal if a party timely files certain motions, including a motion for a new trial. Nothing in the rule speaks directly to a party's obligation to file a cross-appeal to an appeal taken from a trial court's order granting a motion for a new trial.

¶ 8 Nor does Rule 13(b)² provide guidance. Although an appellee's brief to the appellate court may include "any issue properly presented in the superior court," Rule 13(b) does not explain whether an appellee must file a compulsory cross-appeal under the circumstances involved here. Ariz. R. Civ.App. P. 13(b).

¶ 9 We also find no clear answer in Arizona case law. Both the Nielsons and the Smiths rely upon decisions that have little relevance to the issue before us.³ One opinion of this court, not referred to by either party, lends some support to the Nielsons' position. In Blakely Oil, Inc. v. Wells Truckways, Ltd., 83 Ariz. 274, 320 P.2d 464 (1958), we decided a similar challenge to appellate jurisdiction. After a jury returned a verdict for the defendants, the plaintiffs moved for judgment notwithstanding the verdict (JNOV)⁴ as to liability, for a new trial on damages and for a new trial on all issues. Id. at 279, 320 P.2d at 466. The trial court granted a new trial on all issues. Id. at 278, 320 P.2d at 466. The defendants appealed from the order granting the new trial, but the plaintiffs did not cross-appeal from the order denying their motion for JNOV. We affirmed the order granting a new trial and also held that the plaintiffs' failure to file a cross-appeal deprived us of jurisdiction to consider the trial court's order denying their motion for JNOV. Id. at 279, 320 P.2d at 467. Although this decision provides some guidance, we do not regard it as controlling for several reasons. First, the court's decision simply relies upon the accepted principle that an appeal must be timely filed. Id. The court did not discuss the issue presented here: When does the time for filing an appeal from an underlying judgment begin to run if the trial court orders a new trial? Our concern lies not with the question whether an appeal must be timely, as our rules clearly require, but with designating the date on which the time to file an appeal begins to run.

¶ 10 In addition, the plaintiffs in Blakely Oil were "aggrieved parties" as to that portion of the trial court's order that denied their motion for JNOV. The Smiths, in contrast, found themselves appellees in a challenge to an order decided entirely in their favor. A second Arizona appellate decision, Aegerter v. Duncan, directly addresses the right of a party not aggrieved by a decision to file a cross-appeal. 7 Ariz.App. 239, 243, 437 P.2d 991, 995 (1968). In Aegerter, the court of appeals held that the plaintiffs, in whose favor the trial court granted a new trial, could not file a cross-appeal. After noting that the trial court's judgment entirely favored the plaintiffs, the court pointed out that "the mere fact that an appeal has been filed by the aggrieved party [does not] give the prevailing party grounds to file a cross appeal." Id.; accord Ariz. R. Civ.App. P. 1. Obviously, we cannot instruct non-aggrieved parties both that they cannot file a cross-appeal and that they must file a cross-appeal to preserve a challenge to an underlying judgment.

¶ 11 The Nielsons seek to bolster their argument by pointing to other jurisdictions, particularly California, Florida and Oregon, that require protective cross-appeals. Courts in both California and Oregon long have required protective cross-appeals in scenarios similar to that involved here. See Puckhaber v. Henry, 147 Cal. 424, 81 P. 1105 (1905); Frank v. Matthiesen, 116 Or. 94, 240 P. 551 (1925). These states, however, have codified the judicially established rule mandating protective cross-appeals in either statutes or court rules. Or.Rev.Stat. § 19.205 (2001); Cal. R. of Court 3(e)(2). Arizona, in contrast, has adopted no clear rule to inform parties whether they should file a protective cross-appeal.

¶ 12 Because litigants have no definitive rule or decision of this court on which to rely, we next consider the policy reasons underlying our decision as to whether we should regard protective cross-appeals as mandatory. Our resolution of this issue largely turns upon whether we interpret the effect of the trial court's order granting a new trial as vacating or merely suspending the original judgment. A vacated judgment lacks force or effect and places parties in the position they occupied before entry of the judgment. Illinois v. Eidel, 319 Ill.App.3d 496, 253 Ill.Dec. 613, 745 N.E.2d 736, 744 (2001) ("The vacatur restores the parties to the status quo ante, as though the trial court judgment had never been entered."); see State v. Cramer, 192 Ariz. 150, 153

¶ 16, 962 P.2d 224, 227 (App.1998) (holding that a voidable judgment "is binding and enforceable and has all the ordinary attributes of a valid judgment until it is reversed or vacated"). If the trial court order truly vacated the original judgment, nothing remained of the judgment for the Smiths to challenge. Therefore, their time to appeal could not begin to run until, following issuance of the court of appeals' mandate, the trial court reinstated the judgment. On the other hand, if the order granting a new trial only suspended the original judgment pending the new trial, then the Neilsons' view would prevail. Because we view a vacated judgment as lacking force or effect, we regard the Smiths' approach as more in keeping with our traditional view of the status of a vacated judgment. Cramer, 192 Ariz. at 153 ¶ 16, 962 P.2d at 227.

¶ 13 Moreover, when a rule of procedure does not speak to a set of facts or speaks ambiguously, courts should give the rule a liberal construction rather than create a pitfall...