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Chung v. Choulet - 1/28/2020

Arizona Court of Appeals Division One holds that courts may only grant a delayed appeal upon a showing of due diligence or extraordinary circumstances.


Property owners sued over renovations.  The trial court granted partial summary judgment to the defendants, who filed a proposed form of judgment.  The court entered partial final judgment under Rule 54(b) but the clerk did not notify the parties as required by Rule 58(c).  The property owners first learned of the entered judgment over two month later.  Two days after learning of the judgment, the property owners moved the trial court to extend the time to file an appeal under Arizona Rule of Civil Appellate Procedure (“ARCAP”) 9(f) or to have the judgment set aside under Rule 60(b) and re-entered to allow a delayed appeal. 

If a party does not receive notice under Rule 58(c), then ARCAP 9(f) allows trial courts to reopen the time to file a notice of appeal.  But a trial court can only reopen the period for fourteen days and can only do so within twenty-one days after it entered the judgment.  Here, the trial court initially granted the property owners an extension under Rule 9(f).  But in a previous appeal, the court of appeals denied that relief as untimely.

When ARCAP 9(f) no longer applies, a party may request that the judgment be set aside under Rule 60(b), and then reentered for purposes of taking a delayed appeal.  City of Phoenix v. Geyler, 144 Ariz. 323, 328 (1985).  In Gyler, the Court held that in considering such requests, trial courts should consider factors including whether there was proper notice, prejudice, a prompt request, due diligence, and extraordinary circumstances.  Here, after the first appeal was denied, the trial court set aside the judgment and then re-entered it.  But the property owners failed to offer any evidence of due diligence or extraordinary circumstances.  The property owners then made a delayed appeal based on the re-entered judgment.

The court of appeals reversed, holding that due diligence or extraordinary circumstances are required and were not shown here.  Due diligence is of paramount importance and it is not enough that counsel failed to learn of the judgment, or that the clerk failed to give proper notice under Rule 58(c).  Here, the property owners knew that the court had granted partial summary judgment, and knew that the defendants had submitted a form of judgment.  The property owners should have known a judgment was forthcoming and they offered no evidence showing they exercised due diligence.  The court distinguished a 1980 case decided before Gyler that noted parties could rely on the mail and were not required to contact the court clerk daily to determine if judgment was entered.  It noted that docket information is now readily available online.  The property owners also failed to provide any evidence that there were extraordinary, compelling, or unique circumstances here.  The court of appeals held that the trial court abused its discretion because the record failed to provide substantial evidence to support setting aside the Rule 54(b) judgment.

Judge Perkins authored and Judges Thumma and McMurdie concurred.

Posted by: Brian K. Mosley

Posted On: 4/15/2020