Risser v. Pinewood

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

KEVIN and STEPHANIE RISSER, Plaintiffs/Appellees,

v.

PINEWOOD SANITARY DISTRICT, Defendant/Appellant.

No. 1 CA-CV 14-0454
FILED 5-7-2015

Appeal from the Superior Court in Coconino County
No. S0300CV201300464
The Honorable Cathleen Brown Nichols, Judge

ORDER VACATED; JUDGMENT REINSTATED

COUNSEL

Law Offices of Mary T. Hone PLLC, Scottsdale
By Mary T. Hone
Counsel for Plaintiffs/Appellees

Mangum, Wall, Stoops & Warden PLLC, Flagstaff
By Brandon J. Kavanagh and Thomas E. Dietrich
Counsel for Defendant/Appellant
 RISSER v. PINEWOOD
Decision of the Court

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Acting
Presiding Judge Samuel A. Thumma and Chief Judge Diane M. Johnsen
joined.

K E S S L E R, Judge:

¶1 Defendant/Appellant Pinewood Sanitary District (“the
District”) appeals the superior court’s order granting a motion for
reconsideration of the superior court’s dismissal with prejudice of the
complaint. For the following reasons we have jurisdiction over this appeal,
vacate the superior court’s order granting reconsideration, and reinstate the
judgment in favor of the District.

FACTUAL AND PROCEDURAL HISTORY

¶2 Plaintiffs/Appellees Kevin and Stephanie Risser filed a
complaint against the District for negligence and injunctive relief. In a
signed order filed December 30, 2013, the superior court dismissed the
complaint with prejudice and denied the Rissers’ motion to amend their
complaint and consolidate this case with a related case.

¶3 On January 21, 2014, the Rissers filed a “Motion for
Reconsideration,” citing Arizona Rule of Civil Procedure (“Rule”) 59(l) and
asking the court to amend or alter the December 30, 2013 order. After the
District requested clarification of the basis for the motion, the superior court
issued an order stating that Rule 7.1(e) “is the appropriate rule that pertains
to this matter.”

¶4 After receiving the District’s response, the superior court
granted the motion for reconsideration, allowed the Rissers’ claim for
injunctive relief to proceed, and permitted the Rissers to amend their
complaint. The District timely appealed the grant of the Rissers’ motion for
reconsideration, claiming the superior court lacked jurisdiction to
reconsider the December 30, 2013 order.

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 RISSER v. PINEWOOD
Decision of the Court

DISCUSSION

I. This Court has Appellate Jurisdiction

¶5 The Rissers argue the superior court’s December 30, 2013
order was not a final judgment because it did not include Rule 54(b)
certification.1 The order was in writing, signed by the superior court judge,
and filed with the clerk of the court in compliance with Rule 58(a). The
order dismissed the complaint with prejudice and denied a motion to
consolidate this case with a related case. With no remaining claims or
parties, Rule 54(b) did not apply. Thus, the December 30, 2013 order was a
final judgment.2

¶6 Although the Rissers argue an order granting a motion for
reconsideration is not appealable, an order granting a motion for
reconsideration after entry of final judgment and vacating that judgment is
appealable as a special order after final judgment. See Engineers v. Sharpe, 117 Ariz. 413, 416, 573 P.2d 487, 490 (1977); Young Mines Co. v. Blackburn, 22
Ariz. 199, 202, 196 P. 167, 169 (1921) (order reinstating case after order of
dismissal was the same as order vacating the dismissal and appealable as
special order made after judgment). Accordingly, this Court has jurisdiction
over the District’s appeal from the subsequent order granting the motion
for reconsideration and allowing the Rissers’ injunction claim to proceed.
See Ariz. Rev. Stat. § 12-2101(A)(2) (Supp. 2014) (permitting appeal from a
special order made after final judgment).3

1 Although the Rissers untimely filed an answering brief, we do not deem
that a confession of error. See Nydam v. Crawford, 181 Ariz. 101, 101, 887
P.2d 631, 631 (App. 1994) (stating doctrine of confession of reversible error
is discretionary).

2 Rule 54(c) provides that “[a] judgment shall not be final unless the court
states that no further matters remain pending and that the judgment is
entered pursuant to Rule 54(c).” However, Rule 54(c) does not apply here
because the rule did not go into effect until January 1, 2014—after the clerk
entered judgment in this case.
3We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

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 RISSER v. PINEWOOD
Decision of the Court

II. The Superior Court Lacked Jurisdiction to Grant the Rissers’
Motion for Reconsideration

¶7 The District argues the superior court erred in converting the
Rissers’ untimely post-judgment motion based on Rule 59(l) into a motion
for reconsideration under Rule 7.1(e) and lacked jurisdiction to grant the
motion and modify the final judgment.4

¶8 A superior court lacks jurisdiction to rule on an untimely
post-judgment motion. Einboden v. Martin, 70 Ariz. 245, 249, 219 P.2d 330,
333–34 (1950); see also Preston v. Denkins, 94 Ariz. 214, 219, 382 P.2d 686, 689
(1963). Although Rule 59 permits the superior court to vacate or modify a
judgment, a party must file a Rule 59(l) motion to alter or amend within
fifteen days of entry of judgment. If a Rule 59 motion is filed later than
fifteen days after entry of judgment, the superior court lacks jurisdiction to
address it. Egan-Ryan Mechanical Co. v. Cardon Meadows Dev. Corp., 169 Ariz.
161, 166, 818 P.2d 146, 151 (App. 1990); see also Ariz. R. Civ. P. 6(b)
(prohibiting a court from extending the time to file a Rule 59(l) motion
except under certain conditions not present here). The Rissers did not file
their post-judgment motion based on Rule 59(l) within 15 days of entry of
judgment. Although the superior court treated the motion as one for
reconsideration under Rule 7.1(e), that rule expressly forbids a motion for
reconsideration from being used as a substitute for a Rule 59 motion. See
Ariz. R. Civ. P. 7.1(e) (stating “a motion authorized by this Rule may not be
employed as a substitute for a motion pursuant to Rule . . . 59”). Therefore,
the superior court lacked jurisdiction to grant the Rissers’ motion for
reconsideration.

4The Rissers argue that the District should have raised this issue before the
superior court. However, subject matter jurisdiction can be raised at any
stage of the proceeding and cannot be waived. Swichtenberg v. Brimer, 171
Ariz. 77, 82, 828 P.2d 1218, 1223 (App. 1991).

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 RISSER v. PINEWOOD
Decision of the Court

CONCLUSION

¶9 Because the superior court lacked jurisdiction to grant the
Rissers’ motion for reconsideration, the order granting the motion is
vacated, meaning the December 30, 2013 judgment is reinstated.

:ama

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