Ghb Construction v. Solomon

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GHB CONSTRUCTION, LLC, Plaintiff/Appellee,

v.

GARY C. SOLOMON, et al., Defendants/Appellants.

No. 1 CA-CV 19-0104
FILED 3-12-2020

Appeal from the Superior Court in Navajo County
No. S0900CV201500418
The Honorable Michala M. Ruechel, Judge

APPEAL DISMISSED

COUNSEL

Copper Canyon Law PLC, Mesa
By D. Cody Huffaker
Counsel for Plaintiff/Appellee

Nick D. Patton, Attorney at Law, Show Low
By Nicholas D. Patton
Co-Counsel for Defendants/Appellants

Escolar Law Office, Oroville, California
By M. Philip Escolar
Co-Counsel for Defendants/Appellants
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Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 Gary C. Solomon, Bobbie Sue Solomon, and Curtis Solomon
(collectively, the “Solomons”)1 appeal from a superior court order enforcing
a judgment in favor of GHB Construction, LLC (“GHB”). For the following
reasons, we dismiss the Solomons’ appeal for lack of jurisdiction.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2005, Gary and Bobbie sold real property in Taylor,
Arizona, to GHB. GHB executed a promissory note for $70,000, secured by
a deed of trust. The parties agreed GHB did not satisfy the promissory note
by the 2006 due date but disputed whether they agreed to amended
payment terms.

¶3 In 2014, Gary and Bobbie assigned and transferred the
beneficial interest in the promissory note and deed of trust to Gary’s
brother, Curtis, who initiated foreclosure proceedings against GHB the
following year. GHB subsequently filed suit against the Solomons to stop
a trustee’s sale of the real property, arguing wrongful foreclosure and
fraudulent assignment of the note to Curtis.

¶4 Before trial, GHB filed a motion in limine regarding the
assignment of interest in a 2011 judgment (the “Hatch Judgment”) against
Gary, Bobbie, and Gary’s company, Sol’s Construction, Inc. That judgment
resulted from litigation brought by Jason Hatch (“Hatch”) and Hatch
Development, LLC. Hatch, a co-member of GHB, assigned the interest in
the Hatch Judgment to GHB in 2015 (the “Assignment”). After hearing oral
argument, the superior court granted GHB’s motion to preclude
introduction of evidence regarding the Assignment at the jury trial.

¶5 After a three-day trial, a jury entered a verdict for GHB and
awarded GHB its attorneys’ fees and costs as punitive damages, which

1 We identify the Solomons by first name only as necessary for ease of
reference.

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amounted to $177,301.47. The superior court filed the order on June 1, 2018
(the “June 2018 Judgment”). The Solomons did not file a notice of appeal
within thirty days of the June 2018 Judgment.

¶6 On July 24, 2018, GHB filed a “Motion to Amend Judgment
Entered on June 1, 2018,” which stated in part:

In the interest of justice and judicial economy the Judgment
entered on June 1, 2018, should be amended and reduced by
the amount of $41,939.24, which is the amount due and owing
by [GHB] to Defendants Gary and Bobbie Sue Solomon on the
Promissory Note and Deed of Trust.

The motion requested “the Promissory Note be deemed satisfied and the
Deed of Trust released.” The Solomons objected to the motion, challenging
the amount due on the promissory note. Shortly thereafter, GHB recorded
the June 2018 Judgment with the Navajo County Recorder’s Office and the
Apache County Recorder’s Office. GHB also initiated garnishment
proceedings, requesting to withhold the amount due on the promissory
note and apply it to the judgment the Solomons owed to GHB. The
Solomons and GHB then stipulated to vacate the scheduled garnishment
hearing if the superior court amended the June 2018 Judgment.

¶7 After the parties stipulated to a balance of $67,009.94
remaining on the promissory note, the court issued an order on January 11,
2019 (the “January 2019 Order”), which reduced the $177,301.47 by the
stipulated balance, ordered the promissory note “deemed satisfied,” and
ordered the deed of trust released. On February 8, 2019, the Solomons filed
a notice of appeal.

DISCUSSION

¶8 The Solomons raise a single issue on appeal: They challenge
the superior court’s grant of GHB’s motion in limine as to the Assignment
of the Hatch Judgment to GHB. In its answering brief, GHB argues we lack
jurisdiction over this appeal because the Solomons did not timely appeal
the June 2018 Judgment.

¶9 We have an independent duty to determine whether we have
jurisdiction over an appeal. Fields v. Oates, 230 Ariz. 411, 413, ¶ 7 (App.
2012). Our jurisdiction is limited by statute as outlined in Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A). As is relevant here, we have
jurisdiction over an appeal taken from “a final judgment entered in an

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action . . . commenced in a superior court” or “any special order made after
final judgment.” A.R.S. § 12-2101(A)(1), (2).

¶10 A final, appealable judgment is one which resolves all issues
of the litigation. Fields, 230 Ariz. at 415-16, ¶ 17; see Ariz. R. Civ. P. 54(c). A
party must file a notice of appeal within thirty days of a final, appealable
judgment. ARCAP 9(a). Certain post-judgment motions will extend the
timeline for filing a notice of appeal, including a motion to alter or amend
the judgment pursuant to Rule 59(d). ARCAP 9(e)(1)(C). The timely filing
of a notice of appeal is required for appellate court jurisdiction. James v.
State, 215 Ariz. 182, 185, ¶ 11 (App. 2007).

¶11 Here, the Solomons did not file a notice of appeal within thirty
days of the June 2018 Judgment. GHB did not file its motion to amend until
seven weeks after the June 2018 Judgment. A party must file a motion to
alter or amend a judgment within fifteen days of the judgment, and the
superior court may not extend that deadline except under limited
circumstances, which do not apply here. See Ariz. R. Civ. P. 59(d).
Accordingly, no party filed a timely motion that under ARCAP 9(e) would
extend the time to file a notice of appeal.

¶12 In their reply brief, the Solomons argue the January 2019
Order substantially alters the June 2018 Judgment, which renews their time
to appeal regardless of a time-extending Rule 59 motion. See Fields, 230
Ariz. at 416, ¶¶ 21-22; Baker v. Emmerson, 153 Ariz. 4, 8 (App. 1986). But the
January 2019 Order did not alter the outcome of or disturb the obligations
of the parties settled by the June 2018 Judgment. The substantial alteration
alleged by the Solomons—crediting the outstanding balance of the
promissory note against the June 2018 Judgment and the release of the deed
of trust—relate to matters not at issue at trial and not amenable to settlement
by the June 2018 Judgment. Thus, as a practical matter, the January 2019
Order did not actually amend the June 2018 Judgment.

¶13 Although the superior court titled its order “Amended
Judgment,” the name of an order is not dispositive. For appeal purposes,
we look to the substance and effect of a document. See Fields, 230 Ariz. at
416, ¶ 17. For context, we begin with GHB’s July 24, 2018 motion titled
“Motion to Amend Judgment Entered on June 1, 2018.” GHB’s motion did
not cite or otherwise refer to Rule 59, and the superior court did not state in
the record it intended to treat the motion as a time-extending motion
pursuant to ARCAP 9. See James, 215 Ariz. at 186, ¶ 16. The substance of
GHB’s motion sought to enforce the June 2018 judgment, as evidenced by
references to the promissory note and deed of trust as “a collectable

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intangible asset” and describing the Solomons as having “been proven to
be uncollectable.” Finally, neither the January 2019 Order nor the prior
order it references2 cites Rule 59.

¶14 The January 2019 Order did not change the fact of the June
2018 Judgment in GHB’s favor, did not change the amount of damages
awarded to GHB, and did not reexamine any issues from the trial. Aside
from the title of the order, nothing indicates the January 2019 Order is in
fact an amended judgment. Rather, the substance and effect of the January
2019 Order strongly suggest the superior court issued it as means to enforce
the June 2018 Judgment, and we construe it as such. See A.R.S. § 12-1551(A);
Ariz. R. Civ. P. 69. Because the January 2019 Order was not an amended
judgment, it did not extend the Solomons’ time to appeal the underlying
June 2018 Judgment.

¶15 Even if the Solomons did not timely appeal the June 2018
Judgment, their notice of appeal is timely as to the January 2019 Order. We
have jurisdiction over the appeal if the January 2019 Order is a special order
after judgment under A.R.S. § 12-2101(A)(2). Post-judgment orders are
appealable if the order relates to the judgment or enforcement of the
underlying judgment, and if the issue raised on appeal from the order is
different from those that would arise from appeal of the judgment. Vincent
v. Shanovich, 243 Ariz. 269, 271, ¶ 9 (2017); see Reidy v. O’Malley Lumber Co.,
92 Ariz. 130, 136 (1962).

¶16 The January 2019 Order does relate to the enforcement of the
June 2018 Judgment, satisfying the first requirement. However, the second
requirement for a post-judgment order to be appealable is not satisfied. The
Solomons raise a single issue on appeal: Whether the court erred in granting
GHB’s motion in limine related to the assignment of interest in the Hatch
Judgment from Hatch to GHB. “An order made after judgment is not
appealable if the appeal presents the same question as would be presented
on an appeal from the judgment.” Reidy, 92 Ariz. at 136. The issue of the
motion in limine could have been presented in a timely appeal from the
June 2018 Judgment and was not. The Solomons do not argue otherwise.
Accordingly, we lack jurisdiction to consider the Solomons’ appeal of the
January 2019 Order.

2 The January 2019 Order refers to the parties’ joint motion stipulating
to the outstanding balance on the promissory note and a December 4, 2018
order, directing GHB to file “a new proposed amended judgment”
reflecting the stipulated amounts.

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CONCLUSION

¶17 We dismiss this appeal for lack of jurisdiction.

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

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