Opinion
No. 2 CA-CV 2018-0132
08-07-2019
SHARON ANKIEWICZ, Plaintiff/Appellant, v. PIMA COUNTY, Defendant/Appellee.
COUNSEL Doug Newborn Law Firm PLLC, Tucson By Douglas J. Newborn Counsel for Plaintiff/Appellant Barbara LaWall, Pima County Attorney By James W. Rappaport and Nancy J. Davis, Deputy County Attorneys, Tucson Counsel for Defendant/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20164662
The Honorable Leslie Miller, Judge
APPEAL DISMISSED
COUNSEL Doug Newborn Law Firm PLLC, Tucson
By Douglas J. Newborn
Counsel for Plaintiff/Appellant Barbara LaWall, Pima County Attorney
By James W. Rappaport and Nancy J. Davis, Deputy County Attorneys,
Tucson
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Sharon Ankiewicz appeals from the denial of the post-judgment motion she filed in her personal injury action after the trial court granted summary judgment in favor of Pima County. For the reasons more fully stated below, we dismiss the appeal for lack of jurisdiction.
Factual and Procedural History
¶2 Few facts regarding Ankiewicz's underlying injury were relevant to the trial court's legal determinations, were disputed below, or are necessary to our decision here. In October 2015, Ankiewicz tripped and fell while she was jogging, injuring her right shoulder. She was jogging on a paved path that runs along Old Spanish Trail near Melpomene Way in Pima County. In the area in which she fell, there are paved bikes lanes that are part of Old Spanish Trail. The paved path is separate from the road and the bike lanes and is open to cyclists and pedestrians.
¶3 In October 2016, Ankiewicz filed a complaint against the county, followed by two subsequent amended complaints, in which she alleged, in relevant part, that the county had been negligent in failing to maintain the sidewalk on which she had fallen, even after it received complaints about the sidewalk's "dis-repair."
¶4 In February 2018, the county filed a motion for summary judgment arguing it was immune from suit for injuries sustained by recreational users absent gross negligence, which Ankiewicz had not alleged. It asserted that the place where Ankiewicz had fallen was a multi-use (or "shared-use") path and thus recreational premises under A.R.S. § 33-1551. In her response to the motion, Ankiewicz did not dispute she was a "recreational user" but she argued she had fallen on a sidewalk adjacent to a public roadway, which was not recreational premises. On June 6, 2018, the trial court granted the motion without explanation in a signed order that included finality language under Rule 54(c), Ariz. R. Civ. P.
¶5 On June 21, 2018, Ankiewicz filed a motion purportedly under Rule 59(d), Ariz. R. Civ. P., which she titled, "Plaintiff's ARCP 59(d) Motion for Reconsideration," arguing that § 33-1551 "does not apply to public roadways, or the sidewalks and lanes that accompany them." Five days later on June 26, without waiting for or ordering a response to the motion by the county, the trial court denied the motion without explanation by written order. That order, however, was not signed. On July 17, Ankiewicz filed a notice of appeal, specifying that she was appealing "from the Order made and entered in this case on June 26, 2018 denying Plaintiff's Motion for Reconsideration regarding the granting of Defendant's Motion for Summary Judgment."
Jurisdiction
¶6 We have "an independent duty to determine our jurisdiction to consider an appeal." State v. Kalauli, 243 Ariz. 521, ¶ 4 (App. 2018). We are "a court of limited jurisdiction and ha[ve] only jurisdiction specifically given to [us] by statute." State v. Eby, 226 Ariz. 179, ¶ 3 (App. 2011) (quoting Campbell v. Arnold, 121 Ariz. 370, 371 (1979)).
¶7 If a party fails to file a timely notice of appeal, this court has no jurisdiction over the matter. See Wilkinson v. Fabry, 177 Ariz. 506, 507 (App. 1992) (timely filing of notice of appeal is "a prerequisite to appellate jurisdiction"). To timely appeal a civil judgment, a party must file a notice of appeal no later than thirty days after the entry of final judgment. Ariz. R. Civ. App. P. 9(a). If, however, a party files a timely and proper post-judgment motion under Rules 50(b), 52(b), 59(a), 59(d), 60(a), or 60(b), Ariz. R. Civ. P., within fifteen days of the entry of final judgment, the time for appealing is extended. Ariz. R. Civ. App. P. 9(e)(1)(A)-(E). In such a case, the appealing party may file a notice of appeal within thirty days of the entry of a signed, written order disposing of that motion. See Ariz. R. Civ. App. P. 9(a), (e)(1) (specifying types of motions that extend time for filing notice of appeal).
¶8 Here, the final judgment was entered on June 6, 2018. Ankiewicz did not file a notice of appeal by July 6, which was thirty days after the entry of the final judgment, but eleven days later on July 17. The only post-judgment motion filed by either party was Ankiewicz's "ARCP 59(d) Motion for Reconsideration," which she filed fifteen days after the entry of final judgment. Therefore, for her notice of appeal to have been timely, that motion must have been a proper time-extending, post-judgment motion.
¶9 At the outset, the trial court's order denying Ankiewicz's motion for reconsideration was not signed and was not, therefore, an appealable order. See Ariz. R. Civ. P. 58(b)(1) ("all judgments must be in writing and signed by a judge"); see also Haywood Sec., Inc. v. Ehrlich, 214 Ariz. 114, ¶ 9 (2007). For this reason alone, we could dismiss this appeal for lack of jurisdiction. See Haywood Sec., Inc., 214 Ariz. 114, ¶ 9. That particular impediment to the order's finality and appealability, however, could be cured by the entry of a signed, written order denying the motion for reconsideration and the filing of a new or amended notice of appeal. See generally Ariz. R. Civ. App. P. 9(c); see generally Barassi v. Matison, 130 Ariz. 418, 422 (1981). That is, her notice of appeal would be premature and correctible. See Barassi, 130 Ariz. at 422. But even assuming that prematurity were to be cured, the order cannot, given the nature of the underlying motion, be an appealable order.
¶10 In accord with our independent duty to determine our jurisdiction, after the appellate briefing was complete and this appeal was submitted for decision, we ordered the parties to address certain jurisdictional questions by supplemental briefing. Specifically, we directed Ankiewicz to address whether her motion was a motion for reconsideration under Rule 7.1(e), Ariz. R. Civ. P., not a Rule 59(d) motion, and if so, whether this court had jurisdiction to review the denial of such a motion. We further ordered both parties to address whether this court has jurisdiction to review the underlying judgment given Ankiewicz's specification in her notice of appeal that she was only seeking review of the denial of her June 26 motion. The parties filed supplemental briefs as directed.
"A motion for reconsideration" under Rule 7.1(e) "is not a substitute for a motion filed under Rules 50(b), 52(b), 59, or 60, and will not extend the time within which a notice of appeal must be filed." Rule 7.1(e), Ariz. R. Civ. P.
¶11 Ankiewicz argues in her supplemental brief that, although her motion was called a motion for reconsideration, it was not a motion for reconsideration under Rule 7.1(e); it "was instead [a Rule] 59(d)" time-extending motion to alter or amend judgment "in substance." (Emphasis added). She also concedes it was not a motion for new trial under Rule 59(a), explaining she had not brought it under that rule because she had determined the rule "was not applicable because there was no trial." Ankiewicz asserts it would have been "more appropriate" to caption the motion as a "Rule 59(d) Motion to Alter or Amend Judgment," but states the failure to do so was "not fatal" because the motion "clearly indicates that it was filed with the time-extending provision of [Rule 9(e)(1)(C)] in mind," and did not refer to Rule 7.1(e). We disagree. As explained below, it was a motion for reconsideration under Rule 7.1(e), Ariz. R. Civ. P., and therefore, even if the order denying the motion had been signed or a new one were to be signed, Ankiewicz has not and cannot file a timely notice of appeal.
¶12 We do not necessarily consider a motion to be what the party filing the motion says it is; rather, we look to the substance of the motion and address it accordingly. Hegel v. O'Malley Ins. Co., Agents & Brokers, 117 Ariz. 411, 412 (1977). In Hegel, our supreme court concluded that, irrespective of how the party "style[s]" a motion, if the motion cites to a rule governing time-extending motions, and states a ground recognized by that rule, the court will treat it as a time-extending motion. 117 Ariz. 411, 412. As the court stated:
The notion that only the title of a motion must be examined appears to be contrary to the purpose of the Rules of Civil Procedure which is to insure that every action receives a just, speedy and inexpensive determination. It would be the height of formalism to ignore the obvious intent and substance of a motion because it was inappropriately titled.Id. (internal citation omitted). Because the filing party cited to the rule for a new trial and stated grounds roughly equivalent to those specified in the rule, its post-judgment motion could be considered a time-extending motion for new trial, thus rendering its notice of appeal timely. Consequently, our supreme court concluded the court of appeals had erred dismissing the appeal. Id.
¶13 In Desmond v. J. W. Hancock Enterprises, Inc., 123 Ariz. 474, 475 (1979), our supreme court addressed whether the court of appeals had properly assumed jurisdiction of an appeal notwithstanding the appellees' argument that the appeal from a post-judgment motion was not timely filed. The appellant in that case had filed a "motion for clarification and reconsideration," citing as authority Rules 52 and 59, Ariz. R. Civ. P., relying on Hegel and arguing that the motion was, "in substance . . . equivalent to a motion for a new trial and thereby extended the time limits for appeal." Id.
¶14 On review, our supreme court stated "[i]n order for a party to avail himself" of the substance-over-form rule set forth in Hegel, the party "must satisfy two requirements: 1) refer to Rule 59 as authority for the motion; 2) describe grounds set forth under that rule." Id. Because the moving party "substantially satisfie[d]" those two requirements, citing "Rule 59" and (periphrastically) asserting that it had been denied a fair trial, our supreme court agreed with the court of appeals that the motion was in substance a time-extending motion for new trial and the notice of appeal had been timely filed. Id. at 476.
¶15 In Farmers Insurance Co. of Arizona v. Vagnozzi, our supreme court reaffirmed Hegel and Desmond, holding that, in order for a post-judgment motion to be regarded as time-extending, the party must not only cite the rule for such a motion but must also describe grounds set forth in that rule. 132 Ariz. 219, 221 (1982). But the court determined, even if a motion was not "in substance" a time-extending motion, if the trial court treated it as such, it could be considered such a motion. Id. Disagreeing with the court of appeals, which had dismissed the appeal as untimely filed, our supreme court concluded that the appellant had not satisfied those requirements, but such failures were not fatal because the trial court had nonetheless treated the motion as a time-extending motion for new trial under Rule 59(a). Id. at 221-22; see also Engineers v. Sharp, 117 Ariz. 413, 415 (1977) (trial court did not abuse its discretion when it construed motion for reconsideration as motion for new trial).
¶16 Ankiewicz has persisted in claiming her motion was brought under Rule 59(d) as a motion to alter or amend judgment, but she failed both below and on appeal to establish it was, in substance, such a motion. Ankiewicz's motion reflects that she was not seeking to "[a]lter or [a]mend" the final judgment. See Ariz. R. Civ. P. 59(d). Instead, she was asking the trial court to vacate the final judgment in its entirety after reconsidering the legal argument she previously had made, and to enter judgment in her favor. As our supreme court stated in Maganas v. Northroup, 112 Ariz. 46, 48 (1975), the relief of vacation of a judgment and entry of a new judgment is not afforded by a motion to alter or amend judgment, but is afforded only by a Rule 59(a) motion for a new trial. Ankiewicz's motion was not, therefore, in substance a Rule 59(d) motion to alter or amend judgment. Moreover, the trial court did not treat the motion as one, referring to it as a "motion for reconsideration" and treating it as a motion for reconsideration by denying it summarily. See Ariz. R. Civ. P. 7.1(e) (court may deny motion for reconsideration without response by opposing party). Thus, Ankiewicz's failure to satisfy the requirements of Hegel and Desmond was fatal to any claim that her motion was time-extending, and the relief provided under Vagnozzi is unavailable to her. See also James v. State, 215 Ariz. 182 (App. 2007) (dismissing appeal for lack of jurisdiction, finding appellant's objection to former judgment and order dismissing the claim was not motion to alter or amend judgment under former Rule 59(l) and that trial court had not stated on the record its intent to treat it as such). Because Ankiewicz failed to seek alteration or amendment of the judgment, despite citing to Rule 59(d), her motion was not in substance a motion to alter or amend, and therefore we decline to consider it to be such a time-extending motion.
¶17 Nor can we consider Ankiewicz's motion to be a motion for new trial under Rule 59(a). Despite the fact that she arguably could have been seeking relief afforded by Rule 59(a), given that she (periphrastically) argued the judgment was contrary to law, Ankiewicz has denied she was seeking a new trial under Rule 59(a). She explained she was not seeking a new trial "because there was no trial," and she concluded, therefore, she could not challenge the grant of a motion for summary judgment under Rule 59(a). She is, of course, incorrect on this point; a Rule 59(a) motion for new trial is available after grant of a motion for summary judgment. Maganas, 112 Ariz. at 48. But, because Ankiewicz failed to cite expressly to Rule 59(a) and denied in her supplemental briefing that her motion was intended to be a Rule 59(a) motion, there is no basis for us to construe it as one.
¶18 In sum, the trial court's order denying Ankiewicz's motion for reconsideration was not an appealable order and the motion itself was not a proper time-extending post-judgment motion under Rule 59(d). Notwithstanding her assertions to the contrary, Ankiewicz's motion was in substance a Rule 7.1(e) motion for reconsideration, which did not extend the time for filing a notice of appeal, even if its denial had been appealable. See Ariz. R. Civ. P. 7.1(e)(3). And, because no proper time-extending post-judgment motion was filed, even if we were to construe her July 17 notice of appeal as encompassing an appeal of the June 6 final judgment, that notice of appeal—filed some forty days after final judgment—was untimely. In any case, we do not have jurisdiction.
Even if signed, the order denying Ankiewicz's motion for reconsideration would similarly not be a separately appealable order entered after judgment under A.R.S. § 12-2101(A)(2) because it raised only issues that would have been raised in an appeal of the final judgment. See Arvizu v. Fernandez, 183 Ariz. 224, 226-27 (1995) ("To be appealable . . . 'the issues raised by the appeal from the [post-judgment] order must be different from those that would arise from an appeal from the underlying judgment.'").
Disposition
¶19 For the foregoing reasons, we dismiss the appeal for lack of jurisdiction. We further award Pima County costs incurred on appeal under A.R.S. § 12-342 upon its compliance with Rule 21, Ariz. R. Civ. App. P.