Rash v. Town of Mammoth

• Decision Date: 13 December 2013
• Docket Number: No. 2 CA–CV 2013–0062.,2 CA–CV 2013–0062.
• Citation: 233 Ariz. 577,675 Ariz. Adv. Rep. 10,315 P.3d 1234
• Parties: Samuel RASH, a Single Man, Petitioner/Plaintiff/Appellant, v. TOWN OF MAMMOTH, Mammoth Police Department, and Pinal County Employee Merit System Commission, Respondents/Defendants/Appellees.
• Court: Arizona Court of Appeals

233 Ariz. 577

315 P.3d 1234

675 Ariz. Adv. Rep. 10

Samuel RASH, a Single Man, Petitioner/Plaintiff/Appellant,

v.TOWN OF MAMMOTH, Mammoth Police Department, and Pinal County Employee Merit System Commission, Respondents/Defendants/Appellees.

No. 2 CA–CV 2013–0062.

Court of Appeals of Arizona,

Division 2.

Dec. 13, 2013.

Munger Chadwick, P.L.C., By John F. Munger, David Ruiz, and Adriane J. Parsons, Tucson, Counsel for Petitioner/Plaintiff/Appellant.

Jackson Lewis LLP, By Justin S. Pierce and Victoria Torrilhon, Phoenix, Counsel for Respondents/Defendants/Appellees, Town of Mammoth and Mammoth Police Department.

Leonard & Felker, P.L.C., By Donna M. Aversa, Tucson, Counsel for Respondent/Defendant/Appellee, Pinal County Employee Merit System Commission.

Chief Judge HOWARD authored the opinion of the Court, in which Presiding Judge VÁSQUEZ and Judge MILLER concurred.

OPINION

HOWARD, Chief Judge.

¶ 1 In this appeal from a statutory special action, appellant Samuel Rash appeals the trial court's dismissal of his claims challenging his termination from the Town of Mammoth police force. On appeal, he argues the court erred by finding the time limits of the Arizona Rules of Civil Appellate Procedure applicable to statutory special actions and in concluding that the doctrine of laches would otherwise bar his claims. Because we conclude the court erred in applying the procedural rules and the laches doctrine, we vacate and remand.

Factual and Procedural Background

¶ 2 The record supports the following procedural history. On March 22, 2011, the Town of Mammoth (“the Town”) terminated Rash's employment. Rash appealed that decision, which the Pinal County Employee Merit System Commission (“the Commission”) heard at the Town's request. After a hearing on November 29, 2011, the Commission voted to uphold his termination. Rash, however, did not receive a written decision from the Commission until March 31, 2012.¹ On May 25, 2012, Rash filed a statutory special action pursuant to A.R.S. § 38–1004(A) in the superior court appealing the Commission's decision.

¶ 3 The Town and the Commission moved to dismiss the special action as untimely and for failure to timely join an indispensable party.² Finding applicable the thirty-day time limit of Rule 9(a), Ariz. R. Civ.App. P., the superior court granted the motions. Additionally, the court found that because Rash waited six months after becoming aware of the Commission's decision, “the equitable doctrine of laches serves as a separate and independent bar to this action ... in light of the policy in favor of finality of decisions.” We have jurisdiction over Rash's appeal pursuant to A.R.S. §§ 12–120.21(A)(1), (4) and 12–2101(A)(1).

Timeliness

¶ 4 Rash first argues the superior court erred by dismissing his statutory special action after finding the thirty-day time limit for bringing an appeal in Rule 9(a), Ariz. R. Civ.App. P., was applicable to his special action through Rule 7(i), Ariz. R.P. Spec. Actions, titled “Special Appellate Court Provisions.” Although we review a grant of dismissal for an abuse of discretion, Old Republic Nat'l Title Ins. Co. v. New Falls Corp., 224 Ariz. 526, ¶ 9, 233 P.3d 639, 641 (App.2010), “we review de novo questions involving the interpretation of court rules and ‘evaluate procedural rules using principles of statutory construction,’ ” Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶ 6, 189 P.3d 1114, 1117 (App.2008), quoting Fragoso v. Fell, 210 Ariz. 427, ¶¶ 7, 13, 111 P.3d 1027, 1030, 1032 (App.2005). Where a rule's terms are ambiguous, we consider in our interpretation the rule's “ ‘context, language, subject matter, historical background, effects and consequences, and spirit and purpose.’ ” Hornbeck v. Lusk, 217 Ariz. 581, ¶ 6, 177 P.3d 323, 325 (App.2008), quoting Estancia Dev. Assocs. v. City of Scottsdale, 196 Ariz. 87, ¶ 11, 993 P.2d 1051, 1054 (App.1999).

¶ 5 The superior court concluded that Rule 7(i), Ariz. R.P. Spec. Actions, titled “Special Appellate Court Provisions,” applied to Rash's statutory special action. That rule states that “[t]o the extent they are not inconsistent with these rules, the Arizona Rules of Civil Appellate Procedure shall apply to special actions.” Ariz. R.P. Spec. Actions 7(i). Therefore, the court reasoned, the thirty-day filing time in Rule 9(a), Ariz. R. Civ.App. P., also applied. We therefore must determine whether Rule 7, Ariz. R.P. Spec. Actions, applies to statutory special actions filed in superior court.

¶ 6 Rule 1(b), Ariz. R.P. Spec. Actions, specifically designates provisions of the special action rules that apply to statutory special actions. It states “the provisions of this Rule as to parties, procedure, interlocutory orders and stays, and judgments shall apply” to statutory special actions. Ariz. R.P. Spec. Actions 1(b). The “provisions” to which Rule 1(b) refers are plainly the titles of Rules 2, 4, 5, and 6, Ariz. R.P. Spec. Actions. Nowhere does the rule refer to the “Special Appellate Court Provisions” contained in Rule 7, Ariz. R.P. Spec. Actions. Id. Under the principle of expressio unius est exclusio alterius,

we may presume items not included in the list in Rule 1(b) were intentionally excluded. See Sw. Iron & Steel Indus. v. State, 123 Ariz. 78, 79–80, 597 P.2d 981, 982–83 (1979) (“[E]xpression of one or more items of a class and the exclusion of other items of the same class implies ... intent to exclude those items not so included.”). Thus, under the plain language of Rule 1(b), statutory special actions filed in superior court are not subject to the “Special Appellate Court Provisions” of Rule 7.

¶ 7 Moreover, reading the Rules of Procedure for Special Actions as a whole, see Hornbeck, 217 Ariz. 581, ¶ 6, 177 P.3d at 325, the term “appellate court” as used in Rule 7 does not include superior courts acting in their capacity to hear statutory special actions that are functionally appeals. Rule 4(f) provides that if a special action “is filed in an appellate court, that court may ... transmit the matter to a Superior Court for trial.” Rule 7(b) also distinguishes between actions that “might lawfully have been initiated in a lower court” and those that are “brought in any appellate court.” The drafters of the special action rules thus have distinguished the “Superior Court” or “lower court” from an “appellate court.” Rather than establishing procedures for the superior courts when they hear special actions that are functionally appeals, the provisions of Rule 7 instead set out additional and more specific procedures for special actions filed in appellate courts, i.e., the court of appeals or the supreme court.

¶ 8 The Rules of Civil Appellate Procedure provide additional support for this distinction. They define “appellate court” as “the Court of Appeals and the Supreme Court.” Ariz. R. Civ.App. P. 1. Those rules do not apply to proceedings where the superior court acts in an appellate capacity. Therefore, given the absence of any reference to Rule 7, Ariz. R.P. Spec. Actions, in Rule 1(b), Ariz. R.P. Spec. Actions, and the distinction the procedural rules otherwise draw between “appellate court” and “Superior Court,” we do not read Rule 7, Ariz. R.P. Spec. Actions, to apply to statutory special actions filed in the superior courts.

¶ 9 Here, Rash filed his special action pursuant to A.R.S. § 38–1004, a statute authorizing a writ of certiorari in the superior court for either the employee or the law enforcement department to appeal the merit system council's final decision on disciplinary action. § 38–1004(A), (D). His appeal was therefore a statutory special action filed in superior court pursuant to Rule 1(b), Ariz. R.P. Spec. Actions. Accordingly, the court erred in applying both Rule 7(i), Ariz. R.P. Spec. Actions, and Rule 9(a), Ariz. R. Civ.App. P., and abused its discretion in dismissing the special action as untimely pursuant to the thirty-day time limit in Rule 9. See Old Republic Nat'l Title Ins. Co., 224 Ariz. 526, ¶ 9, 233 P.3d at 641.

¶ 10 The Town argues that even if the rules do not apply, dismissal was appropriate under A.R.S. § 12–904(A) of the Administrative Review Act (ARA), which it claims applies to this statutory special action. That section requires appeals of administrative decisions to be brought in the superior court within thirty-five days after the decision is served upon the appealing party. § 12–904(A). Because we will affirm the superior court if it is legally correct for any reason, we consider whether the ARA applies to this case. See Hale v. Amphitheater Sch. Dist. No. 10 of Pima Cnty., 192 Ariz. 111, ¶ 5, 961 P.2d 1059, 1062 (App.1998). “We first look to the language of the statute and give the words used their plain meaning, unless context demands otherwise.” Villa de Jardines Ass'n v. Flagstar Bank, FSB, 227 Ariz. 91, ¶ 7, 253 P.3d 288, 292 (App.2011).

¶ 11 Section 12–901(1), defining administrative agency for purposes of the ARA, excepts “any political subdivision or municipal corporation or any agency of a political subdivision or municipal corporation.” Furthermore, § 12–902(A)(1), defining the scope of the ARA, excepts a decision “if the act creating or conferring power on an agency or a separate act provides for judicial review of the agency decisions and prescribes a definite procedure for the review.” The Town is a political subdivision of the state and the Commission is an agency of a political subdivision. Additionally, § 38–1004 provides a definite procedure for judicial review. Finally we have previously concluded the Administrative Review Act does not apply to statutory special actions brought pursuant to § 38–1004(A). See Justice v. City of Casa Grande, 116 Ariz. 66, 67, 567 P.2d 1195, 1196 (App.1977).

¶ 12 The cases to which the Town cites as support for the opposite conclusion deal with Department of Public Safety (DPS) employee appeals, which fall under a different statutory scheme,³ were subject to a different...