Rosen v. Board of Medical Examiners of State of Ariz.

• Decision Date: 09 November 1995
• Docket Number: No. 1,CA-CV,1
• Citation: 185 Ariz. 139,912 P.2d 1368
• Parties: Baruch D. ROSEN, M.D., Plaintiff/Appellant, v. BOARD OF MEDICAL EXAMINERS OF the STATE of Arizona, an agency of the State of Arizona, Defendant/Appellee. 94-0337.
• Court: Arizona Court of Appeals

Page 1368

912 P.2d 1368

185 Ariz. 139

Baruch D. ROSEN, M.D., Plaintiff/Appellant, v. BOARD OF MEDICAL EXAMINERS OF the STATE of Arizona, an agency of the State of Arizona, Defendant/Appellee.

No. 1 CA-CV 94-0337.

Court of Appeals of Arizona Division 1, Department D.

Nov. 9, 1995.

Review Granted on Issue 2 and

Denied on Other Issues March 19, 1996.

[185 Ariz. 140] Appeal from the Superior Court of Maricopa County; Cause No. CV 94-02749; Honorable Edward C. Rapp, Judge.

Law Offices of William M. Piatt, P.C. by William M. Piatt, Phoenix, for Plaintiff/Appellant.

Grant Woods, Attorney General by Nancy J. Beck, Assistant Attorney General, Phoenix, for Defendant/Appellee.

OPINION

LANKFORD, Judge.

This appeal from the superior court's review of an administrative decision poses two questions. The principal question is whether a motion for new trial extends the time to appeal from the superior court's decision. Also at issue is whether the superior court properly denied a motion for relief from judgment.

The Board of Medical Examiners suspended the license of Baruch D. Rosen, M.D. When Rosen sought judicial review of this decision, the superior court dismissed the action for failure to exhaust his administrative remedies, specifically a motion for rehearing by the Board.

Rosen challenged the dismissal order by filing a motion for new trial or for relief from judgment. After the court denied this motion, Rosen appealed to this Court from both the dismissal order and the order denying the motion.

Because Rosen's motion did not extend the time for appeal, we hold that we lack jurisdiction over the appeal from the dismissal. Although we have jurisdiction over the appeal from the denial of the motion for relief from judgment, we affirm this order on the merits. ¹

Before discussing these issues, we canvass the facts. In September 1993, the Board of Medical Examiners learned that Rosen had written Schedule II controlled substance prescriptions for patient "E.K." without the requisite federal registration certificate. The Board initiated an investigation. In October 1993, the Board received a complaint against Rosen regarding the death of another patient, "L.W." The Board began investigating that matter and ordered a pharmacy survey and an office practice survey of Rosen's office.

In January 1994, Rosen and his counsel appeared before the Board at a public meeting regarding the two matters. The Board issued an order placing Rosen on probation and suspending his license for one year.

Rosen did not request a rehearing by the Board. Instead, he filed a complaint in superior court seeking judicial review of the Board's order. The superior court dismissed the complaint with prejudice, finding that it lacked subject matter jurisdiction because Rosen had failed to exhaust his administrative remedies by requesting a rehearing by the Board as required by Arizona Administrative Code ("A.A.C.") R4-16-106.

On April 4, 1994, Rosen filed a request for rehearing or review with the Board regarding its order. The Board deemed the request untimely ² and denied it.

The superior court dismissed Rosen's case with prejudice. Rosen then filed a motion for new trial or for relief from judgment. The court denied this motion, and this appeal followed.

I.

The threshold question is whether this Court lacks jurisdiction over this appeal because it was untimely filed. We hold that we have jurisdiction to review the superior court order denying Rosen's post-judgment motion, but we lack jurisdiction to review the underlying dismissal order.

Rosen's motion for new trial from the dismissal order did not extend his time to appeal. The timely filing of a motion for new trial generally extends a party's time to appeal from the underlying judgment until the trial court enters a signed order denying the motion. Ariz.R.Civ.App.P. 9(b)(4). ³ Under the rules governing administrative actions however, Rosen was not entitled to file a motion for new trial; therefore, he could not extend his time to appeal by doing so.

Rule 14 of the Rules of Procedure for Judicial Review of Administrative Decisions ("R.P.J.R.A.D.") ⁴ precluded Rosen from filing a motion for new trial. It provides that a motion for new trial pursuant to Rule 59, Arizona Rules of Civil Procedure, may only be filed "[w]here the court accepts new evidence on appeal or conducts a trial de novo as provided in Rule 10 or 11 of these rules." Merely requesting a trial de novo or requesting that new evidence be accepted is insufficient. As Rule 14 indicates, the trial court must actually hold a trial de novo or accept new evidence. Here the trial court did neither. Indeed, the court never reached the substantive issues raised by Rosen; rather, it dismissed the action for lack of subject matter jurisdiction. Thus, a new trial motion was not available and the unauthorized filing of such a motion did not extend the time to appeal from the underlying judgment. See Julie C. Tolleson, New Trial Motions in Garden-Variety Administrative Appeals: Good Riddance, Ariz. Att'y, Jan. 1994, at 16. But see 3 Arizona Appellate Handbook § 32.3.7, at 1994-32-4 (Supp.1994) (Rule 14 is unclear but it does not intend to limit new trial motions.).

Because the notice of appeal was filed after the time to appeal from the judgment had expired, we lack jurisdiction to review the judgment. "Appellate courts do not have jurisdiction to consider appeals which are not timely filed." Butler Products Co. v. Roush, 145 Ariz. 32, 32, 699 P.2d 906, 906 (App.1984).

While we lack jurisdiction to review the underlying judgment, we do have jurisdiction to review the order denying Rosen's motion for relief from judgment pursuant to Rule 60(c), Ariz.R.Civ.P. ⁵ Rule 14, R.P.J.R.A.D., does not preclude the filing of a Rule 60(c) motion. ⁶ As a result, Rosen was entitled to file a Rule 60(c) motion for relief, the trial court properly considered that motion, and Rosen was entitled to appeal from the denial of that motion under Arizona Revised Statutes Annotated ("A.R.S.") section 12-2101(C). See M & M Auto Storage Pool v. Chemical Waste Management, Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App.1990) ("An order denying or granting a motion to set aside a judgment under Rule 60(c), Arizona Rules of Civil Procedure, is appealable as a 'special order made after final judgment.' A.R.S. § 12-2101(C)."). Rosen timely filed a notice of appeal from the order denying his Rule 60(c) motion. Accordingly, we have jurisdiction to review the superior court's denial of his Rule 60(c) motion.

Rosen's Rule 60(c) motion, however, did not extend his time to appeal from the dismissal order. See Ariz.R.Civ.App.P. 9(b). Because he did not timely appeal from the dismissal, our jurisdiction is limited to review of the order denying the Rule 60(c) motion.

II.

We now consider whether the trial court's order denying the Rule 60(c) motion must be reversed. Generally, we will not set aside an order under Rule 60(c) unless a clear abuse of the superior court's discretion is shown. R.A.J. v. L.B.V., 169 Ariz. 92, 94, 817 P.2d 37, 39 (App.1991). However, the Rule 60(c) motion attacked the court's conclusion that it lacked jurisdiction, and we independently review the jurisdiction of the superior court as an issue of law. Id.

In his motion, Rosen argued that the judgment should be set aside under Rule 60(c)(6) ⁷ because the factual predicate on which the judgment was based--that the court lacked jurisdiction because Rosen had failed to exhaust his administrative remedies--no longer existed because Rosen had since filed for (and been denied) a rehearing.

The superior court properly denied Rosen's motion. Although Rosen eventually requested a rehearing with the Board, this request was untimely. The court could not exercise the power of review because Rosen had failed to timely exhaust his administrative remedies. Under A.R.S. section 12-902(B), judicial review of administrative decisions is limited as follows:

B. Unless review is sought of an administrative decision within the time and in the manner provided in this article, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such decision. If under the terms of the law governing procedure before an agency an administrative decision has become final because of failure to file any document in the nature of an objection, protest, petition for hearing or application for administrative review within the time allowed by the law, the decision shall not be subject to judicial review under the provisions of this article except for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter.

A.A.C. R4-16-106 provides that a party aggrieved by a decision of the Board "may file with the Board, not later than ten days after service of the decision, a written motion for rehearing or review" by the Board. Rosen did not request a rehearing until well after the expiration of the ten day period. Because he did not timely exhaust his administrative remedies, the superior court could not review the Board's decision. (Arizona Law Enforcement Merit System v. Dann, 133 Ariz. 429, 431-32, 652 P.2d 168, 170-71 (App.1982). See also Original Apartment Movers v. Waddell, 179 Ariz. 419, 420, 880 P.2d 639, 640 (App.1994)). (Exhaustion doctrine is a matter of judicial administration, not subject matter jurisdiction.

Rosen contends that he was not bound to file a rehearing request because A.A.C. R4-16-106 states that an aggrieved party "may" file such a request. The use of the word "may" indicates an option only in the sense that a party may decide not to pursue any further review. If "the party desires further review then he must file a motion for rehearing." Arizona Law Enforcement, 133 Ariz. at 432-33, 652 P.2d at 171-72 (interpreting a virtually identical administrative rule). Thus, Rosen was required to file a timely ...