IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO REPLY BRIEF

Transcription

1 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO MM&A Productions, LLC, an Arizona limited liability company, v. Plaintiff-Appellant, 2 CA-CV Pima County Superior Court Cause No. C YAVAPAI-APACHE NATION, a federally recognized Indian Tribe; YAVAPAI-APACHE NATION S CLIFF CASTLE CASINO, A BUSINESS ENTERPRISE OF THE Yavapai-Apache Nation; TRIBAL GAMING BOARD; and CLIFF CASTLE BOARD OF DIRECTORS, Defendants-Appellees. REPLY BRIEF Michael J. Meehan, # LAW OFFICE OF MICHAEL MEEHAN 3938 E. Grant Road, No. 423 Tucson, Arizona (520) (phone) mmeehan.az@msn.com Attorney for Plaintiff-Appellant

2 TABLE OF CONTENTS 1. Standard of Review, 2 2. Neglect is excusable for purposes of Rule 60 relief if it is such as might be the act of a reasonably prudent person under the circumstances. Such was the case here..., 6 3. These circumstances were extraordinary, unique or compelling..., The procedure to utilize if relief is granted., 11 CONCLUSION 13

3 TABLE OF AUTHORITIES Cases Ackerman v. United States, 340 U.S. 193, 198 (1950)... 3 City of Phoenix v. Geyler, 144 Ariz. 323, 697 P.2d 1073 (1985)... Passim Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, , 317 P.2d 550 (1957):... 9 Gorman v. Phoenix,152 Ariz. 179, 182, 7331 P.2d 74 (1987)... 2 Park v. Strick, 137 Ariz. 100, 104, 643 P.2d 738 (1942).2,3, 5 Rodgers v. Watt, 722 F.2d 456, 460 (9 th Cir. 1983) Roll v. Janca, 22 Ariz. App. 335, 337, 527 P.2d 294 (1974),... 3 Ulibarri v. Gerstenberger, 178 Ariz. 151; 871 P.2d 698 (App. 1993)... 2 Rules Ariz. R. Civ. P. (60(c)...1, 4, 12 13

4 1 The Defendant disputes only one of the four considerations for finding excusable neglect for purposes of Ariz. R. Civ. P. 60(c)(1) or (6) which City of Phoenix v. Geyler, 144 Ariz. 323, 697 P.2d 1073 (1985) borrowed from Rodgers v. Watt, 722 F.2d 456, 460 (9 th Cir. 1983). Defendant argues only that MM&A has not shown that its neglect in missing the appeal deadline was excusable. 2 Defendant also disputes whether the circumstances in this were extraordinary, unique or compelling, which Geyler requires to exist in addition to satisfying its four-factor test for Rule 60 relief. 3 Defendant argues these two positions using an erroneous standard of review. This brief discusses the proper standard of review. It then addresses Defendant s arguments about excusable neglect and replies to Defendant s claim that the circumstances here were neither extraordinary, unique or compelling. 4 Defendant further contends that if this Court decides that MM&A should be granted relief under Rule 60, the only permitted procedure is to remand for the trial court to enter a formal appealable order from which MM&A must take a brand-new, start over appeal. MM&A will explain why that is not necessary. 1

5 5 1. Standard of Review. In this case, the record is one of those described in Geyler where the facts or inferences are not in dispute and where there are few or no conflicting procedural, factual or equitable considerations. It is, therefore, a case in which this Court has a final responsibility to determine law and policy and it becomes our duty to look over the shoulder of the trial judge and, if appropriate, substitute our judgment for his or hers. Geyler, supra, 144 Ariz. at 329. Defendant does not acknowledge this holding of Geyler. 1 6 Instead of discussing the standard of review established by Geyler for a case like this, Defendant offers a variety of standards without explaining whether one, another, or all, should govern the decision of this case. 7 Defendant urges this Court to invoke a rule that a delayed appeal should not be permitted to relieve a party from the free, calculated and deliberate choices he has made, citing Park v. Strick, 137 Ariz. 100, 1 Neither does it acknowledge or try to distinguish two additional cases cited, Op. Br. 31, which confirm the same rule. Gorman v. Phoenix,152 Ariz. 179, 182, 7331 P.2d 74 (1987)( when uncontroverted facts in the record reveal circumstances that we believe warrant relief... this court can and will overturn the trial court s discretionary ruling. ); Ulibarri v. Gerstenberger, 178 Ariz. 151; 871 P.2d 698 (App. 1993)(refusing to set aside the judgment in these circumstances is harsh, rather than fair and equitable. In such a case, the appellate court can look over the shoulder of the trial court and appropriately substitute its judgment for that of the trial court.) 2

6 104, 643 P.2d 738 (1942). Answering Brief 24, 35, 36 (Hereinafter Br. ). The statement in Park was dictum and not necessary for the Court s decision. The statement Park quoted it from dictum in Roll v. Janca, 22 Ariz. App. 335, 337, 527 P.2d 294 (1974), which in turn quoted the statement from Ackerman v. United States, 340 U.S. 193, 198 (1950). Ackerman involved a party who made a considered choice not to appeal. Id. That is not this case. Nor does Defendant even attempt to identify what deliberate choice it refers to. 8 Defendant then urges the decision be based upon the statement in Park, supra, that counsel has a duty to take legal steps to protect his or her interests, and attorneys have a duty to insure that matters subject to prescribed time limits are acted upon within those limits... Br. 23. These statements are of course accurate portrayals of the responsibility of counsel. But Defendant does not explain how these general statements apply to this case. After all, the one issue from the four Geyler factors which Defendant disputes is whether MM&A s counsel had excusable neglect in falling short of such duties, by missing the appeal deadline by two days. 3

7 9 Defendant then says that the ruling by the trial court must be affirmed if any reasonable view of the facts and law supports the judgment of the trial court. Br. 27, What Defendant does not do, in its discussion of the standard of review, is to recognize that only the last description of a standard of review could qualify for this case; but that given the undisputed record here, it does not. The particular standard from Geyler, summarized supra, 5, and discussed in the Opening Brief, 31, 32, applies in place of the general reasonable view of the facts and law basic standard Defendant does dispute MM&A s assertion that this case did not involve determinations of credibility, saying that the trial judge had asked MM&A counsel to explain or provide evidence of excusable neglect with respect to various events in counsel s office. Br. 28. It is true that the trial Court asked questions of MM&A counsel, but counsel s statements were not disputed or controverted by any other evidence, nor disbelieved by the Court in any way. The transcript of the hearing, App. B to Op. Br., and 2 In its Brief, 25, Defendant acknowledges MM&A s statement that the record in this case gives this Court more latitude in reviewing the trial court decision, but dismisses it in a discussion found in the remainder of that paragraph which is, frankly, a non-sequitur. The Brief veers away from a discussion of the proper standard of review into a historical discussion of the evolution of the procedural remedy under Rule 60(c), along with a description of how the Geyler court set out guiding rules but did not resolve the issue, because of the fact that the trial court in Geyler had exercised no discretion, one way or the other. This discussion does not rebut the Opening Brief s description of the proper standard of review. 4

8 the Court s Minute Entry Ruling, App. A to same, demonstrate that. Indeed, MM&A counsel offered to be placed under oath. Op. Br. App. B p. 6. The trial court then asked counsel for Defendant if he wished that to be done. Id. After Defense counsel made a statement that he did not think the evidence already furnished in the moving papers was sufficient, id., MM&A counsel proposed that what I would suggest is after I describe it [a narrative of what happened] if Mr. Crowell has an objection or wants to explore it further, then we can deal with that at that time. Id. The trial court asked whether that worked for Mr. Crowell, who said Yes. Id. 12 After MM&A counsel provided his narrative of events, id. at 7 13, 16 19, 20 23, Defendant s counsel made no objection. He did not ask any questions of MM&A counsel. He did not ask to cross examine him under oath. He did not argue that any part of MM&A counsel s narrative was untrue or incorrect. He only argued the motion. Id., passim. 13 That the record and MM&A counsel s narrative did not contain an explanation of every last detail about how the December 19 th order came to be omitted from docketing, or whether or when Phoenix assisting counsel received the null and void order by the trial court which pulled the rug out from under MM&A s expectation that it had validly docketed the final judgment for appeal, does not make the record one where there were facts 5

9 or inferences in dispute, nor one where there were more than a few or no conflicting procedural, factual or equitable considerations. See Geyler, supra, 144 Ariz. at 329. Yet that is the sum and substance of Defendant s quibble with the standard of review which MM&A has demonstrated applies here Neglect is excusable for purposes of Rule 60 relief if it is such as might be the act of a reasonably prudent person under the circumstances. Such was the case here. The act of a reasonably prudent person under the circumstances, Geyler, supra, 144 Ariz. at 331, is the measuring stick for this Court s decision on the excusable neglect factor. As noted, that is the only Geyler factor that either Defendant or the trial court thought to be missing in this case. The record in this case does show that what neglect occurred was such as may have been that of such a reasonably prudent person under the circumstances of this case. Defendant s arguments to the contrary are not persuasive. 15 Defendant s treatment of the excusable neglect issue in the case is unfocussed, and fails to focus on the key occurrences and points in time which were determinative of whether there was excusable neglect. 6

10 16 Defendants make several, unconnected, arguments about what was inexcusable neglect, which the trial court did not rely upon, and which would not justify ruling against MM&A on this factor. 17 For example, Defendant faults MM&A counsel for allowing delay between the entry of trial court orders and their receipt by counsel as a product of Snell & Wilmer s cumbersome manner of shuttling documents from its box at the Court Clerk s office to Snell & Wilmer s Tucson office. Br. 30 n. 5. Not only was whatever delay this procedure may have occasioned irrelevant to whether Snell & Wilmer displayed excusable neglect, it is a long-standing, widely-used, customary method for law firms having regular business in the Pima County Superior Court to receive court papers. 18 Defendant fails to discuss the actions of MM&A counsel within the time actually available to them, and in light of the multiple orders that had been received. Defendant s Brief does not respond to the discussion, Opening Brief 42 48, describing MM&A counsel actions in relation to the time available, and the information known to counsel. To briefly recap: The order of December 26, 2008 was properly docketed for appeal. Had the trial judge not later expunged that order from the record, sua 7

11 sponte, as well as ex parte, and under dubious or non-existent authority, no problem would have arisen. The trial court order vacating the order of December 26 th arrived on MM&A counsel s desk on Friday, January 16, 2009 doubtless in the afternoon, after a court messenger returned from the day s courthouse run. There was about to be a three-day weekend, because Martin Luther King day was Monday, January 19. MM&A s Tucson counsel was departing for a trip; but he was only going to be gone for two business days Tuesday January 20, and Wednesday, January 21. Thus, the idea that he should have, on Friday, made some formal delegation to Phoenix assisting counsel to monitor the case is unrealistic. The order received by MM&A counsel on Friday afternoon did not disclose on its face the gotcha action which it worked. It was surely not inexcusable neglect for MM&A counsel not to immediately have grasped the import of the trial court null and void order, nor to have immediately perceived that it applied to the order which his firm had docketed for appeal. The criticism by the trial court, and the Defendant, of MM&A s assisting counsel in phoenix not having taken action is similarly 8

12 unpersuasive. As noted, Opening Brief 44, and not responded to by Defendant, the absolute first day that the null and void order could have arrived on his desk in Phoenix would have been Tuesday, January 20 th. This was the last day available to appeal the December 19 th order. And, as was true with MM&A s Tucson counsel s likely perception of the trial court null and void order when he had received it on the previous Friday, it was surely not inexcusable neglect for the Phoenix lawyer not to immediately have grasped the import of the order. Finally, unless and until MM&A counsel had received and understood the effect of the null and void order, it is inappropriate and incorrect to charge counsel with inexcusable neglect for not focusing upon and having the December 19, 2008 order docketed for appeal. It would have appeared superseded, and would properly be thought unnecessary to docket. Indeed, to docket both for appeal may have sown confusion in counsel s office. In addition, this mistake, in an office having regular docketing procedures, is excusable without the above-described unique conditions. 3 3 There is precedent involving the same law firm, holding what happened here to be excusable neglect. Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, , 317 P.2d 550 (1957): It seems to us that in a large law firm, with many lawsuits in the 9

13 19 These events, actions or inactions by counsel, surely were such as might be the act of a reasonably prudent person under the circumstances. Geyler, 144 Ariz. at These circumstances were extraordinary, unique or compelling. Geyler imposed a second consideration before a court can grant Rule 60(c) relief in a case like this. It requires a court to find that the case involves, in effect, special circumstances in addition to excusable neglect. Note that the Geyler court defined those special circumstances by a disjunctive phrase, using three different terms. The circumstances must be extraordinary, unique, or compelling. 144 Ariz. at 328 (emphasis supplied.) If any of these three terms applies to what happened here, this part of Geyler is satisfied. 21 Defendant presses only two points upon which to dispute the existence of extraordinary, unique or compelling circumstances. various courts, the problem of determining the respective times within which appearances must be made is one that reasonably requires the services of a secretary whose duty it is to keep informed as to the status of all litigation and in turn remind the attorneys of the condition of the calendar with respect to the cases being handled by them. Such a system is conducive to efficiency and the elimination of mistakes and oversights. When the conditions warrant the operation of this system, absent some showing of inefficiency or undependability of the secretary, the attorneys should be justified in assuming that they will be properly informed concerning the status of their cases. Any reasonable person under such circumstances would place reliance upon the proper performance of the services of such a secretary. If through some inadvertent clerical error the lawyer is not informed, his conduct resulting therefrom we believe is excusable. 10

14 22 First, Defendant says that the trial court properly rejected an argument which MM&A did not make that the occurrence of a Christmas holiday, a law firm clerical error [and] a long-planned family vacation comprised the extraordinary circumstances. Br. 35. Defendant misperceives the significance of those facts. They help provide context and a basis for a conclusion that, under those circumstances, the neglect was excusable. 23 Secondly, Defendant argues that the confusing issuance of three different orders from the Court s chambers could not be extraordinary, or unique. But with all respect, the trial court s decision not to take this into account, and Defendant s argument, are belied simply by describing what happened. In a forty year law practice, MM&A s counsel has never seen such a flurry of orders; let alone the subsequent sua sponte, ex parte, issuance of an order scrubbing a signed, appealable judgment, from the Superior Court record. This is, indeed, a case presenting unique and extraordinary circumstances The procedure to utilize if relief is granted. Defendant asserts that if this Court decides in MM&A s favor, the only possible procedure is for this Court to reverse and remand for the Superior Court to enter the Rule 60(c) order. Then, Defendant contends, MM&A could then 11

15 file yet another notice of appeal and pay the various fees in that Court in this, the Superior Court Clerk would presumably have to assemble yet another certificate of record, with the accustomed delay, and the parties would then be back in front of this Court to determine the merits of the case. The long-ago thought justice delayed is justice denied comes to mind. There is a more appropriate, expeditious and efficient way to proceed. 25 Rule 60(c) permits the Court to grant relief from a final judgment, or from an order or other proceeding. If the Court determines that on this record Geyler relief is appropriate, it may simply grant MM&A relief from the trial court s order of January 13, To do so would revive the December 26, 2008 order, which had been appealed, but as to which the appeal had been dismissed because of the trial court null and void order of January 13, 2008). 26 On January 23, Snell and Wilmer had filed a notice of appeal from the Court s orders of December 19, 2008, December 26, 2008 and January 14, But as is reflected in this Court s November 19, 2009 Memorandum Decision in No. 2 CA-CV the December 26 order had been voided by the trial court and, therefore, could not be appealed. If the December 26 th order could be vacated simply because it duplicated an earlier order, surely the authority of Rule 60(c) to relieve a 12

16 party from the operation of a judgment covers vacating the January 13, 2006 order. 27 With the January 13, 2006 order vitiated, the original appeal of the December 26, 2008 order becomes viable. This Court may then consolidate that appeal with this one, set a briefing schedule on it, and adjudicate it. 28 Alternatively, this Court can and should order a limited remand, for the entry of an appropriate Rule 60(c) judgment, allow MM&A to file a notice of appeal, and stipulate in its order of remand that the case be restored to this Court s docket without the need for the delay of another Clerk s Certificate of Record. 29 Surely this Court has the jurisdiction and power to set a proper procedure without MM&A having to again return to square one, and start the process completely anew. CONCLUSION 30 This Court should reverse the trial court order denying Rule 60(c) relief, and set an appropriate procedure for the expeditious resolution of this too-long pending case. 13

17 31 Respectfully Submitted. Dated: July 20, Michael J. Meehan LAW OFFICE OF MICHAEL MEEHAN By s/ Michael J. Meehan Attorneys for Plaintiff -Appellant 14

18 CERTIFICATE OF COMPLIANCE Under ARCAP 6(c) and 14(b), I certify that this Opening Brief uses proportionately spaced type of 14 points, is double-spaced using a roman font and contains 3,046 words. Dated: May 9, 2012 By s/ Michael J. Meehan 15

19 CERTIFICATE OF SERVICE A copy of the foregoing was served on all counsel of record this 20 th day of July, 2012, via the Court s ECF system and via electronic mail upon: William Foreman William Foreman P.C E. Indian School Road, Suite 203 Scottsdale, AZ william.foreman@azbar.org Scott D. Crowell, Esq. Crowell Law Offices 10 N. Post, Suite 445 Spokane, WA scottcrowell@hotmail.com Attorneys for Defendants-Appellees Dated: July 20, By s/ Michael J. Meehan 16