Opinion
No. 2 CA-CV 2015-0030
08-31-2015
IN RE THE NEWMAN-PAULEY RESIDENTIAL TRUST DATED JUNE 8, 1998
COUNSEL Richards Brandt Miller Nelson, Salt Lake City, Utah By Russell C. Fericks and Larson Law Office, PLLC, Mesa By Robert Larson Counsel for Appellants David Newman, Randy Newman, Patty Jarolim, and Glenda Newman Mesch, Clark & Rothschild, P.C., Tucson By Mark Rubin Counsel for Appellee Kim McCann
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NOT FOR PUBLICATION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. PB20130820
The Honorable Kyle Bryson, Judge
APPEAL DISMISSED
COUNSEL Richards Brandt Miller Nelson, Salt Lake City, Utah
By Russell C. Fericks
and Larson Law Office, PLLC, Mesa
By Robert Larson
Counsel for Appellants David Newman, Randy Newman, Patty Jarolim,
and Glenda Newman
Mesch, Clark & Rothschild, P.C., Tucson
By Mark Rubin
Counsel for Appellee Kim McCann
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 David Newman, Randy Newman, Patty Jarolim, and Glenda Newman (the Newman children) appeal from the trial court's decision denying their motion, made pursuant to Rule 60(a), Ariz. R. Civ. P., to correct computational errors in the court's under-advisement ruling. For the following reasons, we dismiss the appeal for lack of jurisdiction.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's decision. In re Estate of Newman, 219 Ariz. 260, ¶ 3, 196 P.3d 863, 866 (App. 2008). Dale Pauley and Mary Newman, a married couple, were the settlors of a residential trust. The trust estate consisted of a single family residence in Green Valley, Arizona, which was acquired pursuant to a prenuptial agreement between Dale and Mary. Dale died in August 2005, and Mary died in November 2009. The terms of the trust provided that, upon the death of the first settlor, the trustee was to divide the trust into two separate estates—the survivor's trust and the decedent's trust. The trustee was to allocate to the survivor's trust one-half of the value of the assets of the trust estate, and the decedent's trust was to consist of the remaining assets of the trust estate. The beneficiaries of the survivor's estate were Mary's children, and the beneficiaries of the decedent's estate were Dale's children.
¶3 In July 2013, Kim McCann, one of Dale's children, filed a petition for accounting, determination of beneficial interests, and termination of the trust and establishment of a constructive trust. She also asserted claims for conversion and forcible entry and detainer. The respondents were Mary's children.
¶4 After a trial, the court denied McCann's claims for accounting, constructive trust, and forcible detainer. The court ordered that the Newman children were entitled to distribution of the survivor's trust, and McCann and her siblings were entitled to distribution of the decedent's trust. The court further ordered the trust to be distributed pursuant to its terms, except that the decedent's trust was entitled to an offset in the amount of $33,429.33 for the Newman children's use of the residence after Mary's death. Specifically, the court calculated the rental value of the residence at $900 per month from March 2010 through August 2014 and deducted verified expenses incurred by the Newman children for taxes, homeowner association fees, and mortgage payments.
The trial court also ordered that the decedent's trust was entitled to an offset from the survivor's trust for damages for substitution of the residence as collateral on a loan Mary had taken out.
¶5 The Newman children filed a motion for correction of computational errors, pursuant to Rule 60(a), asserting that the trial court had erred in calculating rent starting on March 10, 2010, instead of October 10, 2010; calculating rent at $900 per month without allowing for deductions for associated expenses; and failing to divide the net occupancy value by two to account for the respective interests of the trusts. The court denied the Rule 60(a) motion, stating that it could not find any clerical or computational errors. This appeal followed.
¶6 Because the trial court's minute entry denying the Rule 60(a) motion was unsigned, we stayed the appeal for twenty days to allow counsel to obtain a signed order and directed counsel to file a status report on or before August 25, 2015. Counsel filed a status report on August 24, 2015, indicating the court had signed the order, and the clerk of the court filed a signed order, which was incorporated into the record on appeal. We then vacated the stay.
Discussion
¶7 Although the parties do not explain the basis for our jurisdiction, we have an independent duty to determine whether we have jurisdiction over an appeal. See Baker v. Bradley, 231 Ariz. 475, ¶ 8, 296 P.3d 1011, 1014 (App. 2013). "The general rule is that an appeal lies only from a final judgment." Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991). Section 12-2101(A)(2), A.R.S., provides that an appeal may be taken from "any special order made after final judgment."
¶8 The Newman children's motion for correction was filed pursuant to Rule 60(a). Generally, an order denying a Rule 60(a) motion is appealable as a special order after judgment. See Crye v. Edwards, 178 Ariz. 327, 329, 873 P.2d 665, 667 (App. 1993) (appeal from grant of Rule 60(a) motion). "The scope of an appeal from a denial of a Rule 60 motion . . . does not extend to a review of whether the trial court was substantively correct in entering the judgment from which relief was sought." Hirsch v. Nat'l Van Lines, Inc., 136 Ariz. 304, 311, 666 P.2d 49, 56 (1983). "[T]he 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." Arvizu v. Fernandez, 183 Ariz. 224, 226, 902 P.2d 830, 832 (App. 1995).
¶9 The Newman children styled their motion as a motion to correct computational errors, but "the nature of a motion will be determined by its substance and not by its title." State ex rel. Corbin v. Tolleson, 152 Ariz. 376, 380-81, 732 P.2d 1114, 1118-19 (App. 1986). Rather than identify clerical or computational mistakes, the Newman children actually challenge the trial court's determination of the facts and law, as they did in their motion below. They object to the court's calculation of the rental value of the residence beginning in March 2010, rather than October 2010, because they claim they did not legally possess the residence until October. The court's finding that the Newman children had occupied the residence since February 2010 indicates it intended to calculate rent from March rather than October, and the judgment accurately reflects that intent. In addition, although the Newman children assert that the court should have reduced the net occupancy value to account for expenses paid through August 2014, rather than December 2013, the court specifically found that the expense receipts reflected payments only through December 2013.
¶10 The Newman children also contend the trial court should have divided the net occupancy value by two to account for the 50 percent interest of each trust in the residence. But the court found the Newman children had possession of the residence beginning in February 2010 and that the loss of the rental value constituted a conversion. Moreover, in considering the Rule 60(a) motion, the court necessarily considered whether it had made any clerical or computational errors in the judgment and determined that it had not. There is nothing in the record to suggest the court made a computational error or that the judgment did not reflect the court's intent with respect to the offsets.
¶11 Rule 60(a) provides that the trial court may correct "[c]lerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission." The errors the Newman children allege did not arise from oversight or omission; rather, if there was error, the error was "judgmental" and not "clerical." See Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 142-43, 750 P.2d 898, 900-01 (App. 1987) ("Whether error is judgmental or clerical turns on the question whether the error occurred in rendering judgment or in recording the judgment rendered."). The Newman children's appeal does not raise different issues than would be raised in an appeal from the underlying judgment. See Arvizu, 183 Ariz. at 226-27, 902 P.2d at 832-33. Accordingly, the denial of their Rule 60(a) motion is not appealable as a special order after judgment, and we lack jurisdiction. See Lally v. Lally, 228 Ariz. 269, ¶¶ 5, 7, 265 P.3d 1068, 1069-70 (App. 2011).
Moreover, we also lack jurisdiction because the trial court's under-advisement ruling on McCann's petition did not contain a statement "that no further matters remain pending and that judgment is entered pursuant to Rule 54(c)," as required by Rule 54(c), Ariz. R. Civ. P., and therefore was not a final judgment. See A.R.S. § 12-2101(A). --------
¶12 The Newman children also argue that this court should correct the "errors" in the judgment pursuant to Rule 60(c)(1), Ariz. R. Civ. P. That subsection allows the court to relieve a party from a judgment based on the party's mistake, see Maher v. Urman, 211 Ariz. 543, ¶ 21, 124 P.3d 770, 777 (App. 2005) (party seeking relief under Rule 60(c)(1) must show "'(1) mistake, inadvertence, surprise or excusable neglect; (2) that relief was sought promptly; and (3) that a meritorious claim existed'"), quoting Copeland v. Ariz. Veterans Mem'l Coliseum & Exposition Ctr., 176 Ariz. 86, 89, 859 P.2d 196, 199 (App. 1993).
¶13 But here, the Newman children brought their motion for correction solely pursuant to Rule 60(a). They did not cite Rule 60(c)(1) or set forth the standard for relief under that rule, and the trial court did not address it. We generally do not consider arguments raised for the first time on appeal. See McDowell Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 5, 945 P.2d 312, 316 (1997).
¶14 The Newman children nevertheless maintain they properly raised their arguments concerning Rule 60(c)(1) because they "referenced Rule 60 generally and laid out the errors" for the trial court. We disagree. Rule 60(a) permits the court to correct clerical mistakes made by the court, clerk, jury, or party, see Crye, 178 Ariz. at 329, 873 P.2d at 667, whereas Rule 60(c)(1) allows the court to relieve a party from a judgment based on the party's mistake. Thus, the inquiry under Rule 60(a) is different from the inquiry under Rule 60(c)(1), and, by failing to present an argument pursuant to Rule 60(c)(1), the Newman children deprived the court of the opportunity to consider their claim for relief under that subsection of the rule. Payne v. Payne, 12 Ariz. App. 434, 435, 471 P.2d 319, 320 (1970). We conclude the Newman children did not properly raise their arguments pursuant to Rule 60(c)(1) in the trial court, and we do not consider them here.
Disposition
¶15 For the foregoing reasons, we dismiss the appeal.