Sanders v. Foley

• Court: Arizona Court of Appeals
• Writing for the Court: WEISBERG
• Citation: Sanders v. Foley, 945 P.2d 1313, 190 Ariz. 182 (Ariz. App. 1997)
• Decision Date: 31 July 1997
• Docket Number: CA-CV,No. 1,1
• Parties: , 249 Ariz. Adv. Rep. 28 Robert K. SANDERS, Plaintiff-Appellee, v. Robert FOLEY and Donna Foley, Defendants-Appellants. 96-0522.

Page 1313

945 P.2d 1313

190 Ariz. 182, 249 Ariz. Adv. Rep. 28

Robert K. SANDERS, Plaintiff-Appellee, v. Robert FOLEY and Donna Foley, Defendants-Appellants.

No. 1 CA-CV 96-0522.

Court of Appeals of Arizona Division 1, Department A.

July 31, 1997.

Review Denied Nov. 12, 1997.

Paul M. Rybarsyk, P.C. by Paul M. Rybarsyk and Owens & Perkins, P.C. by C.D. Owens, Jr., Scottsdale, for Plaintiff-Appellee.

Curtis Ensign, Phoenix, for Defendants-Appellants.

OPINION

WEISBERG, Judge.

Rob and Donna Foley (collectively, "the Foleys") appeal from a judgment entered in favor of Robert K. Sanders ("Sanders"), a contractor who brought suit against them for sums due under a residential remodeling contract. We consider the following issues:

1. Whether this court lacks jurisdiction because the Foleys failed to commence a timely appeal;

2. Whether the Foleys waived the argument that Sanders could not bring suit because he was not a duly licensed contractor as required by Ariz.Rev.Stat. Ann. (A.R.S.) section 32-1153; and

3. Whether Sanders' Class B-1 General Commercial Contractor's license legally authorized him to engage in residential contracting.

For the following reasons, we reverse.

FACTS AND PROCEDURAL BACKGROUND

The relevant facts are not in dispute. On May 22, 1993, the parties entered into a contract under which Sanders agreed to remodel portions of the Foleys' residence. At the time, Sanders held a valid Class B-1 General Commercial Contractor license issued by the Registrar of Contractors. Under the contract, the total price for the remodeling was not to exceed $37,000. The Foleys paid Sanders approximately $36,200. Sanders then demanded an additional $30,000 for extra work he allegedly performed pursuant to changes in the contract.

When the Foleys declined to pay, Sanders brought this action for breach of contract or, alternatively, quantum meruit, and to foreclose the mechanic's lien he had recorded against the Foleys' residence. The Foleys counterclaimed for $29,000 in damages for failure to perform the contract in a workmanlike manner, wrongful filing of a lien, consumer fraud, and fraudulent misrepresentation. Most of their claims rested upon the proposition that Sanders was not licensed to do residential contracting.

The Foleys moved for summary judgment on Sanders' complaint, arguing that, under A.R.S. section 32-1153, he was precluded from bringing suit because he was not a licensed residential contractor. Sanders likewise moved for partial summary judgment on the Foleys' counterclaim to the extent that it alleged theories of recovery dependant upon their contention that Sanders was not properly licensed. ¹ After briefing and argument, the trial court granted Sanders' motion and denied the Foleys' motion. It ruled that Sanders was properly licensed because his Class B-1 commercial license also authorized residential work. ²

In the joint pretrial statement, the Foleys did not list Sanders' status as a duly licensed contractor as a contested issue of fact or law. After Sanders rested at trial, the Foleys moved for a directed verdict, arguing that Sanders had failed to prove he was a licensed contractor as required by A.R.S. section 32-1153. The trial court denied the motion, stating that, when it previously denied the Foleys' motion for summary judgment, it determined as a matter of law that Sanders was a properly licensed contractor. After submission, the jury found against the Foleys and returned a verdict of $22,454.75 for Sanders.

On May 22, 1996, Sanders' counsel applied for an award of attorneys' fees pursuant to A.R.S. sections 12-341.01 and 33-998. On the same date, he lodged a form of judgment with the trial court which awarded Sanders "the principal sum of $22,454.75 together with pre-judgment interest in the amount of ______, reasonable attorneys' fees of $______, and costs of $______."

By minute entry of June 10, 1996, the trial court awarded judgment to Sanders in accordance with the verdict, with $6,184.64 in prejudgment interest and $339.95 in costs. The trial court further stated:

Plaintiff not having filed an application and affidavit in support of attorney fees, the Court declines to award attorney fees at this time.

The Judgment is signed this date but is not filed. It is placed in the division's out box for pick up because counsel failed to provide a Judgment Information Form. (See Rule 3.7 of the Local Rules of Practice for Maricopa County Superior Court).

On appeal, Sanders contends that he supplied the Judgment Information Form when he received the June 10 minute entry. The judgment, signed by the trial judge on June 10, 1996, was filed with the clerk of the superior court on June 18, 1996. The spaces for prejudgment interest and costs were filled in by hand with the sums set forth in the minute entry order of June 10, 1996. The space for attorneys' fees remained blank.

By letter dated June 19, 1996, Sanders notified the trial court that it had been mistaken in believing that Sanders had not filed an application for attorneys' fees. The letter included a copy of the application, and informed the trial court that it had been filed and served on May 22, 1996, and that no opposition had been filed. The letter concluded:

Please review the enclosed Application and Affidavit, and enter an appropriate Order. Because no opposition to the fee request, [sic] I trust that the Court will enter an Order awarding attorneys' fees. Upon notice of the amount of the award, I will submit an amended Judgment for your signature.

The letter was hand-delivered to the trial court and a copy was sent to the Foleys' counsel. Neither the original letter nor a copy was filed directly with the clerk of the superior court.

By minute entry dated June 26, 1996, the trial court ruled as follows:

The Court has received and considered plaintiff's application and affidavit for attorneys fees. No response or objection having been received by the Court, and good cause appearing,

IT IS HEREBY ORDERED awarding plaintiff his attorneys' fees against defendant in the sum of $8,260.00, together with his taxable costs in the sum of $339.95.

On or before July 31, 1996, Sanders' counsel lodged an amended form of judgment. The body of the amended judgment was identical to that entered on June 18, 1996, except that the figures for prejudgment interest, attorneys' fees, and costs were part of the typed text.

The signed amended judgment was filed with the clerk of superior court on August 6, 1996. On September 5, 1996, the Foleys filed a notice of appeal from the amended judgment and the denial of their motions for summary judgment and directed verdict. Sanders has filed a motion to dismiss the appeal for lack of jurisdiction.

ANALYSIS

A. MOTION TO DISMISS APPEAL

In his motion to dismiss, Sanders contends that the original judgment entered June 18, 1996, was final and unappealable when no notice of appeal was filed within 30 days of its entry. Sanders concedes that the Foleys timely appealed from the amended judgment, but argues that the appeal must be limited to the only new issue determined by the amended judgment, i.e., the amount of attorneys' fees. Because the Foleys do not challenge the attorneys' fees award in the opening brief, Sanders thus argues that the appeal must be dismissed.

The Foleys respond that the appeal is proper because the trial court could have treated either Sanders' application for attorneys' fees or his letter of June 19, 1996, as a motion to alter or amend the judgment pursuant to Rule 59(l). If this is the case, the time for filing a notice of appeal would have commenced to run anew on the entry of the amended judgment. We agree with the Foleys. ³

Rule 59(a), Arizona Rules of Civil Procedure ("Rule(s)"), permits the court, on motion of the aggrieved party, to vacate a judgment and grant a new trial for any of eight reasons. One of those reasons is an "[a]ccident or surprise which could not have been prevented by ordinary prudence." Ariz. R. Civ. P. 59(a)(3). Further, a trial court may vacate a judgment on grounds provided in Rule 59 regardless of whether a new trial would follow. See Hegel v. O'Malley Ins. Co., 117 Ariz. 411, 412, 573 P.2d 485, 486 (1977). Finally, Rule 59(g) allows the trial court to take such action on its own initiative:

On Initiative of Court. Not later than 15 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party.... [T]he court shall specify in the order the grounds therefor.

Sanders' letter of June 19, 1996 informed the trial court that Sanders had filed an application for attorneys' fees and that he would submit an amended form of judgment on receiving notice of the court's ruling on the application. Eight days after entry of judgment, the trial court issued a minute entry indicating that it had received the pending application and granted it in a specific sum. This supplied the only element that had been missing from the original judgment. In this context, we interpret the minute entry as implicitly vacating the original judgment and authorizing an amended judgment with the amount of the attorneys' fees included.

Although the minute entry did not specify the grounds for relief as required by Rule 59(g), the consequence is not to invalidate the order, but to place on the appellee the burden of convincing this court that the trial court did not err. See Yoo Thun Lim v. Crespin, 100 Ariz. 80, 83, 411 P.2d 809, 811 (1966); State Bar Committee Note to 1966 amendment to Ariz. R. Civ. P. 59(g). Here, Sanders has understandably neither appealed nor cross-appealed from the minute entry and does not otherwise attack the amended judgment that followed it. He instead seeks to enjoy all the benefits of the final "amended judgment" while denying the Foleys the opportunity to challenge it on appeal.

Sanders relies upon Title Ins. Co. v. Acumen Trading Co....