Opinion
No. 1 CA-CV 14-0347
06-02-2015
In re the Matter of the Estate of: BRENT J. BLUM, Deceased. SHELLIE BLUM, Petitioner/Appellant, v. TAMI BLUM, as Personal Representative of THE ESTATE OF BRENT J. BLUM, Respondent/Appellee.
COUNSEL Bueler Jones, LLP, Chandler By Gordon S. Bueler Counsel for Petitioner/Appellant Wilson Law Firm, Tempe By Mark A. Wilson, Alan W. Wilson Counsel for Respondent/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. PB2012-091266
The Honorable Gary B. Strickland, Judge Pro Tem
AFFIRMED
COUNSEL Bueler Jones, LLP, Chandler
By Gordon S. Bueler
Counsel for Petitioner/Appellant
Wilson Law Firm, Tempe
By Mark A. Wilson, Alan W. Wilson
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Kent E. Cattani joined. NORRIS, Judge:
¶1 The probate court granted summary judgment against Petitioner/Appellant Shellie Blum on her creditor claims against the estate of her brother, Brent J. Blum, and denied her motion to vacate the judgment. On appeal, Shellie argues, first, the probate court should not have granted summary judgment because it led her to believe she could orally respond to the summary judgment motion filed by Brent's wife, Respondent/Appellee Tami Blum; second, material questions of fact precluded summary judgment; and third, the court abused its discretion in denying her motion to vacate the judgment. The record on appeal does not support Shellie's first and third arguments, and we do not have jurisdiction to consider her second argument. Accordingly, we affirm the probate court's order denying her motion to vacate the judgment.
FACTS AND PROCEDURAL BACKGROUND
¶2 After Brent died in 2012, Shellie petitioned the probate court to appoint her as the personal representative of Brent's estate, alleging she was both his heir and creditor. Tami objected to Shellie's petition and cross-petitioned to be appointed as personal representative. The probate court determined Brent died intestate and appointed Tami as personal representative.
¶3 After Tami disallowed Shellie's creditor claims against the estate, Shellie filed the claims in the probate proceeding and alleged Brent owed her $47,000 pursuant to two agreements he executed in 1996. Shellie also alleged that, although the original agreements were executed in 1996, her claims were not time-barred because in 2008 Brent had orally agreed to repay what he owed in exchange for an additional loan from her. Tami moved for summary judgment on Shellie's claims, arguing they were barred by the statute of limitations and lacked merit. Shellie did not timely respond, and, after considering the merits, the probate court granted Tami's motion. On March 6, 2014 the probate court entered judgment against Shellie. In the judgment, the court found "no just cause for delay in the entry of judgment," and dismissed Shellie's petition and creditor claims with prejudice ("March 6 judgment").
Brent's mother, Carol Blum, also signed Shellie's filing, but did not file any other pleading or motion in the proceeding.
¶4 As we discuss in more detail below, Shellie then moved to vacate the March 6 judgment. The probate court denied the motion, citing Arizona Rules of Civil Procedure 7.1(e) and 60(c). On April 22, 2014, Shellie appealed the March 6 judgment and the order denying her motion to vacate.
DISCUSSION
I. Appellate Jurisdiction
¶5 We lack jurisdiction to consider Shellie's arguments challenging the March 6 judgment because she failed to timely appeal it. See Sorensen v. Farmers Ins. Co., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997) (appellate court has independent duty to determine whether it has jurisdiction over appeal). As noted above, the probate court expressly found there was "no just cause" to delay entry of the March 6 judgment. In making this finding, the court certified the March 6 judgment for an immediate appeal pursuant to Arizona Rule of Civil Procedure 54(b). See Grand v. Nacchio, 214 Ariz. 9, 16, ¶ 17, 147 P.3d 763, 770 (App. 2006) (superior court's statement there was "no just reason for delay" and directing entry of judgment was clearly meant to certify judgment for appeal pursuant to Rule 54(b), even though court did not mention rule). Because Shellie did not appeal the March 6 judgment until April 22, 2014, more than 30 days after entry, her appeal from the March 6 judgment was untimely and we do not have jurisdiction to consider it. See ARCAP 9(a) (2014); Mayer v. State, 184 Ariz. 242, 243, 908 P.2d 56, 57 (App. 1995) (appellate court lacks jurisdiction to hear appeal when notice of appeal filed more than 30 days after entry of judgment).
¶6 Shellie did, however, timely appeal the probate court's denial of her motion to vacate the March 6 judgment. The probate court's denial is substantively appealable as a special order after final judgment because, although Shellie did not cite Rule 60(c) as a basis for her motion, the probate court cited Rule 60(c) in its order and thus considered the motion pursuant to that rule. See Ariz. Rev. Stat. ("A.R.S.") § 12-2101(A)(2) (2014); M & M Auto Storage Pool v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App. 1990) (order denying Rule 60(c) motion is appealable as special order after final judgment). II. Denial of the Motion to Vacate
After Shellie filed her notice of appeal, Tami moved to amend the March 6 judgment to include a certification pursuant to Arizona Rule of Civil Procedure 54(c) that no further matters remained pending. Tami's motion asserted the March 6 judgment was not final and appealable without such a certification. The probate court entered an amended judgment containing a Rule 54(c) certification on May 21, 2014. The probate court did not have jurisdiction to enter the amended judgment because Shellie's pending appeal divested it of jurisdiction to do so. See Burkhardt v. Burkhardt, 109 Ariz. 419, 421, 510 P.2d 735, 737 (1973) (superior court generally loses jurisdiction pending appeal unless matter is in furtherance of the appeal). Further, as discussed, the March 6 judgment was final and appealable.
¶7 Although, as noted, Shellie did not cite Rule 60(c) in her motion to vacate, based on the reason she gave for not responding to Tami's summary judgment motion, the probate court could only have considered her motion under Rule 60(c)(1), which allows a court to grant relief from judgment upon a showing of "mistake, inadvertence, surprise or excusable neglect." "The standard for determining whether conduct is 'excusable' is whether the neglect or inadvertence is such as might be the act of a reasonably prudent person under the same circumstances." Aileen H. Char Life Interest v. Maricopa Cnty., 208 Ariz. 286, 299, ¶ 40, 93 P.3d 486, 499 (2004) (citation omitted). We review the probate court's denial of Shellie's Rule 60(c) motion for an abuse of discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985).
The probate court also cited Arizona Rule of Civil Procedure 7.1(e) in denying Shellie's motion to vacate. Rule 7.1(e) concerns motions for reconsideration. The denial of a motion for reconsideration is only appealable if: first, the issues raised by appeal from the order are different from those that would arise from an appeal of the underlying judgment; and second, the order either affects the judgment or relates to its enforcement. Arvizu v. Fernandez, 183 Ariz. 224, 226-27, 902 P.2d 830, 832-33 (App. 1995). Assuming the probate court's order denying Shellie's motion to vacate satisfied this standard, we would also review its ruling under Rule 7.1(e) for an abuse of discretion. Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16, 204 P.3d 1082, 1087 (App. 2009).
¶8 Arizona Rule of Civil Procedure 56(c)(2) requires a party opposing a motion for summary judgment to file a written response within 30 days after service of the motion. Shellie argues she failed to file a response to Tami's motion because, at a September 25, 2013 status conference, the probate court led her to believe she "would be allowed to oppose any dispositive motion filed by [Tami] at an oral argument to be scheduled." According to Shellie, at the status conference, the probate court stated it would schedule oral argument on any dispositive motion filed by Tami and this "caused [her] to reasonably prepare for oral argument in lieu of filing a written response." The status conference transcript does not support Shellie's argument.
¶9 At the status conference, Tami's counsel stated he intended to file a motion for summary judgment on Shellie's creditor claims. The probate court set a deadline for Tami to file the motion and explained that after the parties had fully briefed the motion it would determine whether to hold oral argument. Contrary to Shellie's argument on appeal, the probate court did not state oral argument "would be set;" instead, it specifically stated that after the parties fully briefed the motion it would then assess whether it needed oral argument:
But assuming you have that Motion filed by October 25th, then I'll just let [the] briefing play out. Once it's fully briefed, I'll assess whether I need an oral argument or not and I'll schedule that.Accordingly, we find no support for Shellie's argument that the probate court led her to believe she did not need to file a written response to Tami's summary judgment motion and that, therefore, her failure to do so was excusable.
Under Arizona Rule of Civil Procedure 56(c)(1), a superior court does not need to schedule a hearing on a motion for summary judgment if it determines the motion should be denied or is uncontested.
We appreciate that Shellie was representing herself at the status conference and thereafter. Under Arizona law, however, parties appearing without a lawyer "are entitled to no more consideration than if they had been represented by counsel and are held to the same standards as attorneys with respect to familiarity with required procedures and . . . notice of statutes and local rules." In re Marriage of Williams, 219 Ariz. 546, 549, ¶ 13, 200 P.3d 1043, 1046 (App. 2008) (citation omitted).
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¶10 Finally, Addison v. Cienega, Ltd., 146 Ariz. 322, 705 P.2d 1373 (App. 1985), does not support Shellie's argument that her failure to respond to Tami's motion was excusable. In Addison, a lawyer started to check his file to determine whether he had filed an answer to a complaint and then became distracted. He failed to file an answer and the plaintiff obtained a default judgment against his client. Id. at 323, 705 P.2d at 1374. The superior court vacated the default judgment. This court held the superior court had not abused its discretion in doing so, explaining the lawyer had started "to respond but was deflected from his purpose by one of the many interruptions that beset practitioners in a modern law practice" and his error "'was the type of clerical error which might be made by a reasonably prudent person who attempted to handle the matter in a prompt and diligent fashion.'" Id. at 324, 705 P.2d at 1375 (quoting City of Phoenix v. Geyler, 144 Ariz. at 332, 697 P.2d at 1082). Here, Shellie has never argued that a distraction or a clerical error prevented her from responding to Tami's motion.
¶11 The record supports the probate court's ruling, and it acted within its discretion in denying Shellie's motion to vacate the judgment.
CONCLUSION
¶12 For the foregoing reasons, we affirm the probate court's order denying Shellie's motion to vacate the March 6 judgment.
¶13 Tami has requested an award of attorneys' fees on appeal pursuant to A.R.S. § 12-341.01(A) (2014). That statute authorizes a discretionary award of fees to the successful party in an action arising out of a contract. Because Shellie's claims against the estate arose out of a contract, we award Tami her reasonable attorneys' fees on appeal contingent upon her compliance with Arizona Rule of Civil Appellate Procedure 21. In addition, as the prevailing party, we award Tami costs on appeal also contingent upon her compliance with Rule 21.