Hovannisian v. Hovannisian

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of:

CONNIE HOVANNISIAN, Petitioner/Appellee,

v.

DAMON HOVANNISIAN, Respondent/Appellant.

No. 1 CA-CV 18-0448 FC
FILED 10-24-2019

Appeal from the Superior Court in Maricopa County
No. FC2018-053017
The Honorable Richard F. Albrecht, Judge Pro Tempore

AFFIRMED

COUNSEL

Tiffany & Bosco, PA, Phoenix
By David L. Rose
Counsel for Petitioner/Appellee

Cavanagh Law Firm, Phoenix
By Karen C. Stafford
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Chief Judge Peter B. Swann joined.

W E I N Z W E I G, Judge:

¶1 Damon Hovannisian appeals the superior court’s denial of his
motion for relief from judgment and award of attorney’s fees to Connie
Hovannisian. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The superior court issued a temporary order of protection for
Connie against Damon on May 1, 2018. Connie then moved the court to
extend the order on May 29. That afternoon, the court held an evidentiary
hearing and ruled from the bench “that good cause exists to continue the
Order of Protection in this case with some modifications.” Connie attended
the hearing with her lawyer, and Damon attended the hearing with his
lawyer.

¶3 Damon had until June 28 to file a notice of appeal—30 days
from the May 29 order. And Damon’s lawyer “instructed” his legal
assistant to “calendar the deadline for an appeal to occur within 30 days,”
but the legal assistant confused the number of days in May and mistakenly
calendared the deadline for 31 days or June 29. The lawyer thus filed
Damon’s notice of appeal a day late on June 29, “believing that the date
calendared was accurate.”

¶4 Connie then moved to dismiss the appeal as untimely.
Damon did not contest the timeliness of his appeal, but instead moved the
superior court “to grant relief from the Order of Protection” under Arizona
Rule of Civil Procedure 60(b)(1). 1 Attributing the mistake to “excusable
neglect,” Damon asked the court to vacate and re-enter the order “so that
[he] may re-file a timely Notice of Appeal.”

¶5 The court denied Damon’s motion, reasoning that “the
Court’s order was entered from the bench,” “[Damon] and counsel were

1 Rule 60(b) was renumbered from Rule 60(c) in 2016, but its substance
was unchanged. See Gonzalez v. Nguyen, 243 Ariz. 531, 532, ¶ 1, n.1 (2018).

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present,” and “counting the wrong number of days toward a deadline to
file a Notice of Appeal” is not excusable neglect “without any additional
circumstances as in” City of Phoenix v. Geyler, 144 Ariz. 323 (1985).

¶6 Damon filed timely appeals of the final order denying his
motion for relief and later award of attorney’s fees to Connie, which are
consolidated into this appeal. We have jurisdiction pursuant to A.R.S. § 12-
2101(A)(2).

DISCUSSION

A. Rule 60(b) Motion

¶7 We review the superior court’s ruling on a motion for relief
for abuse of discretion and will affirm the superior court’s decision “where
any reasonable view of the facts and law might support the judgment.”
Geyler, 144 Ariz. at 328, 330. We likewise affirm the superior court’s
decision where it “has reached the right result for the wrong reason.” Id. at
330.

¶8 Rule 60(b) authorizes a court to grant relief from a final order
for mistake, inadvertence or excusable neglect. Geyler, 144 Ariz. at 331. But
Damon must satisfy “more stringent standards” to have a judgment
vacated and reentered for taking a delayed appeal. Geyler, 144 Ariz. at 328.
On top of excusable neglect, Damon must make “[a] stronger showing” that
(1) he did not receive notice of the order of protection, (2) he exercised due
diligence to stay informed about the date of the order, (3) he promptly filed
a motion for relief when discovering the error, and (4) the other party
suffered no prejudice. Id. He must also show “extraordinary,” “unique” or
“compelling” circumstances. Id.

¶9 We find no abuse of discretion here and affirm the superior
court’s denial of relief, but clarify the basis to eliminate any confusion.

¶10 To begin, Damon may have satisfied the threshold standard
for excusable neglect because his attorney had office procedures in place to
ensure timely filing, his legal assistant made “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 332, and the
lawyer reasonably relied on his legal assistant, having no reason to distrust
her based on past performance or prior “inefficiency or undependability,”
Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 121 (1957); See also Daou
v. Harris, 139 Ariz. 353, 360 (1984) (“[C]lerical and secretarial errors . . . are
often unavoidable and often times excusable.”).

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¶11 But the record indicates that Damon did not and could not
meet the “stronger showing” under Geyler or show “extraordinary,”
“unique” or “compelling” circumstances. See J.C. Penney v. Lane, 197 Ariz.
113, 116 (App. 1999) (failure to meet any of the four factors or the lack of
extraordinary circumstances constitutes grounds to deny relief).

¶12 Damon cannot demonstrate the first Geyler factor that he
received no notice of the order of protection because Damon and his lawyer
were present in the courtroom when the trial judge announced her ruling
from the bench on May 29, 2018. Nor does the record reveal the unique and
extraordinary circumstances required for relief to transform an untimely
appeal into a timely appeal. And Damon only asserts that the
“circumstances are those that are specifically contemplated” by the rule.

¶13 Damon also argues the superior court erred because it
provided “no analysis” of the Geyler factors, but courts “generally are not
required to give reasons for discretionary rulings,” Geyler, 144 Ariz. at 329
n.3, and the record contains ample support for the court’s denial of
Damon’s Rule 60(b) motion.

B. Attorney’s Fees

¶14 We examine the superior court’s award of attorney’s fees for
abuse of discretion. Lee v. ING Inv. Mgmt., LLC, 240 Ariz. 158, 161 ¶ 11 (App.
2016). The court makes an abuse of discretion “when the record, viewed in
the light most favorable to upholding the trial court’s decision, is devoid of
competent evidence to support the decision.” State ex rel. Dep’t of Econ. Sec.
v. Burton, 205 Ariz. 27, 30, ¶ 14 (App. 2003).

¶15 The court had authority to grant costs and reasonable
attorney’s fees under A.R.S. § 13-3602(P), after considering (1) the merits of
the defense or claim of the unsuccessful party; (2) extreme hardships that
might be suffered by the unsuccessful party in paying the award; and (3)
the deterrent effect the award might have on valid claims. Ariz. R. Protect.
Ord. P. 39.

¶16 Damon argues the superior court abused its discretion
because he had “valid reasons” to oppose Connie’s motion for protective
order. But he misses the point. The court examined the merits of the
arguments that Damon raised, not his motivation or reasons to contest the
motion. The court found that Damon made several baseless arguments,
including that his surveillance of Connie was not harassment because she
did not know about it and he had “legitimate” reasons to surveil her. The
court did not abuse its discretion.

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CONCLUSION

¶17 We affirm the superior court’s denial of Rule 60(b) relief and
award of attorney’s fees.

AMY M. WOOD • Clerk of the Court
FILED: AA

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