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Burkhamer v. State of Arizona - 5/31/2007

Split Panel of Division Two Rules Appeal Untimely Because Post-Judgment Motion Failed to Extend Time under ARCAP 9(a).


The superior court entered judgment against Plaintiff Burkhamer in his wrongful death suit against the State, ruling that his notice of claim was not properly filed because it had been filed via facsimile. In this bound-to-stir-controversy decision, Division Two dismissed Burkhamer's appeal finding that the appellate court was without jurisdiction.

Four days after the superior court entered judgment against him, on January 30, Burkhamer filed in that court an "Objection to Defendant's Final Judgment and Order Dismissing Claim" which argued that the superior court's judgment was "overbroad." The Objection cited no rule of civil procedure or other authority allowing it to be filed. The superior court, though, set oral argument on it. On May 22, the superior court denied the motion and objection to the judgment. Then on June 19, Burkhamer filed his notice of appeal.

Writing for a 2-1 majority, Chief Judge Pelander was joined by Judge Howard and he first noted the well-established rule that the need to timely perfect an appeal is jurisdictional. See Edwards v. Young, 107 Ariz. 283, 284 (1971). Judge Pelander then continued that Burkhamer's Objection was not "one of the motions enumerated in ARCAP 9(b)." Op. at Para. 12. Citing and quoting Farmers Ins. Co. v. Vagnozzi, 132 Ariz. 219, 221 (1982), the majority stated that in order for the time to file an appeal to be extended, a motion "must both refer to rule 59 as authority for the motion and describe the grounds set forth in that rule." Op. at Para. 15, quoting Vagnozzi, 132 Ariz. at 221. Thus, because Burkhamer's Objection did not cite Rule 59 and because the trial court did not state that it was treating the Objection as coming under Rule 59, the Majority held that the appeal was untimely and had to be dismissed. In reaching that conclusion, the majority also noted that it was unpersuaded by the argument, relying on Sanders v. Foley, 190 Ariz. 182 (App. 1987), that the trial court's consideration of the merits sufficed to demonstrate its treatment of the Objection as a Rule 59 motion.

Dissenting, Judge Vasquez wrote that Vagnozzi did not compel the outcome reached by the majority, nor did the other cases it relied on. Judge Vasquez framed the issue in this case as "whether a party's filing could have been treated as a Rule 59(l) motion to alter or amend the judgment." Dissenting Op. at Para. 39. He continued that a Rule 59(l) motion need not comply with the same specificity requirements as a motion under Rule 59(a) "because the scope of the remedies associated with" each motion is so different. Id. at Para. 40. Particularly, he wrote that Rule 59(l) "provides only for altering or amending a judgment, clearly a less extreme remedy than vacating a judgment [under Rule 59(a)]...." Id.

Judge Vasquez noted that the fact that the superior court treated the Objection on its merits instead of dismissing it outright "supports an inference that the court decided the objection on its merits." Id. at 41. He concluded by writing that the majority needlessly placed form over substance in dismissing the appeal. He would have found the failure to explicitly cite Rule 59(l) a harmless and non-prejudicial error and would have reached the merits.

PRACTICE POINTERS: 1) Considering the superior court's ruling on the propriety of serving a notice of claim under ARS 12-821.01 via fax, counsel should serve these notices using the traditional means authorized by Rule 4 until the issue is authoritatively decided by the appellate courts; 2) Counsel filing post-judgment motions must be on their guard to explicitly invoke one of the grounds listed under ARCAP 9(b) to ensure that their time to file an appeal is extended.

Posted On: 6/8/2007