Murtagian v. Entity

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GREGORIO R. MURTAGIAN, et al., Plaintiffs/Appellants,

v.

ENTITY CANYON, LLC, et al., Defendants/Appellees.

No. 1 CA-CV 23-0492
FILED 08-20-2024

Appeal from the Superior Court in Maricopa County
No. CV2020-090319
The Honorable Peter A. Thompson, Judge

AFFIRMED

COUNSEL

Gregorio R. Murtagian, Veronica L. Ponce, Phoenix
Plaintiffs/Appellants

Law Counsel LLC, Mesa
By Charles M. Leftwich Jr.
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.
 MURTAGIAN, et al. v. ENTITY, et al.
Decision of the Court

M O R S E, Judge:

¶1 Gregorio R. Murtagian and Veronica L. Ponce (collectively,
"Appellants") appeal the superior court's order denying Appellants'
Arizona Rules of Civil Procedure ("Rule") 60 motion. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Appellants became trustees of the Gregorio R. Murtagian and
Veronica L. Ponce Revocable Trust in 2016 ("Trust"). In 2017, Murtagian
acquired a piece of real property in Phoenix, Arizona ("Murtagian Parcel").
In 2019, Murtagian transferred ownership of the parcel to himself and his
wife, Ponce, as trustees of the Trust.

¶3 In 2020, Appellants, as trustees and on behalf of the Trust,
initiated a quiet title action against Entity Canyon, LLC and Secluded
Canyon, LLC, (collectively, "Appellees") seeking an easement and to gain
ingress/egress access to the Murtagian Parcel. After a bench trial, the court
entered final judgment on October 10, 2022, and established a ten-foot
prescriptive easement and granted the Trust's private condemnation claim
for an additional ten feet. The judgment also ordered the Trust to
compensate Appellees $94,744.03 for the condemned parcel.

¶4 On October 19, 2022, Appellants' attorney submitted a motion
to withdraw, which the court granted on October 27. Appellants then filed
several motions on behalf of the Trust, including a motion for a New Trial
pursuant to Rule 59 ("Motion 1") or in the alternative, a motion to alter or
amend a judgment; a motion for reconsideration; a motion to compel; and
a motion for change of judge. Motion 1 contended that the court erred in
the type of easement it granted and that it should have granted Appellants
an implied way of necessity; the court erred in finding Appellants "desired"
to improve the easement and ordering Appellants to bear the cost of
improving and continuing maintenance of the easement; and the judgment
granted excessive and unfair compensation to Appellees. On December 20,
2022, the court denied Appellants' motion for change of judge, reasoning
that a disagreement with a judge's decision "is an impermissible basis to file
a motion for change of judge for cause," and Appellants failed to satisfy
their burden that the judge was biased against them. Appellants moved for
reconsideration of their motion for a change of judge, which the court
denied.

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¶5 Appellees then moved to strike Appellants' other motions
contending that Appellants may not represent the Trust in court without a
license to practice law. In a signed minute entry filed on January 27, 2023,
the court struck the motions and reasoned that the Trust brought the
original action and, pursuant to Arizona Supreme Court Rule 31.2,
"Murtagian cannot represent the Trust in this litigation." The court also
noted that the merits of the motions for reconsideration and for a new trial
were not well taken. On February 9, 2023, an attorney signed and filed a
second Rule 59 motion ("Motion 2") for a new trial and a motion to
reconsider the court's findings of fact and conclusions of law. In Motion 2,
Appellants asserted the same arguments they had made in Motion 1.
Appellees moved to strike those motions, contending the same motions had
already been adjudicated on their merits. The court denied Appellees'
motion to strike on March 10, 2023, because Appellants had counsel file the
motions, and the refiling of the motions "does not reinstate the prior
motion."

¶6 On May 1, 2023, the court denied Appellants' motions
because they failed to establish any basis for granting relief under Rule 59,
were untimely, and the "Court's previous findings, verdict, and judgment
[were] fully supported by the evidence." Appellants filed notices of appeal
to this Court on May 27, 2023. We dismissed the appeal because the
untimely Motion 2 did not extend the time to file a notice of appeal. See
Murtagian v. Entity Canyon, 1 CA-CV 23-0374 (decision order). Appellants
filed a motion for reconsideration, which we also denied. See id.

¶7 Appellants then dissolved the Trust and filed a motion to
substitute themselves as plaintiffs in place of the Trust. Appellants, in their
individual capacity but on behalf of the Trust, filed a Rule 60(b) motion for
Relief from Judgment and to Vacate Judgment, asking the court to vacate
the January 27, 2023 judgment, to "[r]econsider, alter or amend" the ruling
of the May 2023 judgment, and to grant "other and further relief as the
Court deems just and proper." Specifically, Appellants contended
Appellees "incorrectly served three Motions to strike"; excusable neglect
justifies relief because the court has yet to rule on their motion to alter or
amend a judgment; their previous counsel erred in "setting and allowing"
Appellants as trustees, which constitutes excusable neglect; and granting
the motion will not prejudice Appellees. Appellants also filed a motion to
stay the proceedings in the superior court while their May 27 appeal was
pending. On July 6, 2023, in separate orders, the court granted the motion
to substitute parties and denied the Rule 60(b) motion and Appellants'
motion to stay proceedings. The court reasoned that the Rule 60 motion
was filed "well beyond the 15-day limit for filing to request relief under

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Rule 60(b)," and the six-month time limit for alleging fraud upon the court
"had long passed." The court also noted that "even if the motion had been
timely filed, [it] presents no new basis to grant relief under any one of the
grounds set forth in Rule 60(b)," and the motion "lacks merit." Appellants
timely appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶8 We review the denial of a Rule 60 motion for an abuse of
discretion. State ex rel. Brnovich v. Culver, 240 Ariz. 18, 19–20, ¶ 4 (App.
2016). A court abuses its discretion when it "commits a legal error by
misinterpreting or misapplying the law." Voice of Surprise v. Hall, 255 Ariz.
510, 513, ¶ 11 (2023). "The scope of an appeal from a denial of a Rule 60
motion is restricted to the questions raised by the motion to set aside."
Hirsch v. Nat'l Van Lines, Inc., 136 Ariz. 304, 311 (1983).

I. Arguments Raised on Appeal.

¶9 On appeal, Appellants never specify the subsection of Rule
60(b) on which they rely. Instead, they generically argue that: (1) the court
erred by ruling their Rule 60(b) motion was untimely; (2) this error led to
"an incorrect grouping of their post-judgment motions" which led the court
to misconstrue the Rule 60(b) motion and conflate it with prior motions; (3)
the court erred in denying their Rule 60(b) motion because Appellants'
"initial procedural mistake" of representing the Trust in their individual
capacity constituted excusable neglect; (4) the court should have addressed
Appellants' allegation of fraud by "Appellees and/or their Counsel"; and
(5) the court should have assessed the issues left "unaddressed or
incorrectly resolved" in prior motions. The court did not specify which
clause of Rule 60(b) it relied upon when denying Appellants' motion. In
such situations, we "may inquire into the applicability of any clause." Webb
v. Erickson, 134 Ariz. 182, 186 (1982).

A. Timeliness.

¶10 In its order denying Appellants' Rule 60(b) motion, the court
noted that the motion presented "no new basis to grant relief under any one
of the grounds set forth in Rule 60(b)." While the court incorrectly noted a
"15-day limit" for requesting relief under Rule 60(b), it also correctly noted
that each of the issues presented before it had "been fully examined . . . on
the merits" and that the Rule 60(b) motion "lacks merit." "This court will
affirm the judgment 'even if the trial court has reached the right result for
the wrong reason.'" Mining Inv. Grp., LLC v. Roberts, 217 Ariz. 635, 640, ¶ 22
(App. 2008) (quoting City of Phoenix v. Geyler, 144 Ariz. 323, 330 (1985)).

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Because the court correctly ruled on the merits of the Rule 60(b) motion, it
did not abuse its discretion by denying the motion.

B. Incorrect Grouping.

¶11 Appellants also contend that the court "incorrectly grouped"
and conflated their Rule 60(b) motion with prior motions when it denied
their Rule 60(b) motion. Specifically, Appellants contend that because the
court did not consider the Rule 60(b) motion "on its merits, the Court
effectively foreclosed the Appellant's [sic] opportunity to address and
rectify perceived errors in the judgment." However, the court did rule on
the merits of the Rule 60(b) motion and noted that the Rule 60(b) motion
"lacks merit" and "present[ed] no new basis to grant relief." Further, as
discussed infra ¶ 15, Appellants' Rule 60(b) motion lacked merit. See Geyler,
144 Ariz. at 330 (noting that we may "examine the facts of the case to
determine whether tenable grounds might exist for denial of relief").

C. Excusable Neglect.

¶12 Appellants' sole surviving argument is that their "initial
procedural mistake" of representing the Trust in their individual capacity
in Motion 1 "should not be a decisive factor in the case's outcome."
Specifically, Appellants contend that they took "substantive efforts" to
"comply with legal procedures," and should have a "decision that considers
the merits of [their] arguments." This argument lacks merit. "It is well
established that where a party conducts his case in propria persona he is
entitled to no more consideration than if he had been represented by
counsel, and he is held to the same familiarity with required procedures . . .
as would be attributed to a qualified member of the bar." Copper State Bank
v. Saggio, 139 Ariz. 438, 441 (App. 1983). "A party's mere neglect,
inadvertence, or forgetfulness without a reasonable excuse, however, does
not warrant relief, meaning the party must suffer the consequences of the
judgment." Aloia v. Gore, 252 Ariz. 548, 552, ¶ 15 (App. 2022). "[T]he test of
what is excusable is whether the neglect or inadvertence is such as might
be the act of a reasonably prudent person under similar circumstances."
Daou v. Harris, 139 Ariz. 353, 359 (1984). Here, Appellants willingly
dismissed their legal counsel in favor of representing themselves and then
proceeded to file multiple motions on behalf of the Trust when they were
not authorized to do so. Appellants' actions and subsequent mistakes
cannot be considered "reasonably prudent," nor do they meet the high bar
for relief under Rule 60(b). See Hyman v. Arden–Mayfair, Inc., 150 Ariz. 444,
447 (App. 1986) (holding that there was no reason "why a Rule 60(c) motion
should have been attempted by counsel or considered by the trial court" in

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a situation where "the remedies of a Rule 59 motion for reconsideration or
an appeal from . . . a denial of the motion for reconsideration [were]
available").

D. Waived Arguments.

¶13 Appellants also argue that the court erred by "dismissing
allegations of apparent fraud" and ruling that "all arguments had been
thoroughly and justly resolved on the merits." Specifically, Appellants
contend the court failed to address "issues in the underlying judgment"
including the court's expertise in property law, the judge's bias, legal errors
regarding the granted easement, their attorney fees, the correct valuation of
the easement, and "the scope of their legal action." None of these arguments
were raised in Appellants' Rule 60(b) motion and are waived on appeal. See
Hirsch, 136 Ariz. at 311 (noting that the "scope of an appeal from a denial of
a Rule 60 motion is restricted to the questions raised by the motion to set
aside").

II. Other Arguments Raised in Rule 60(b) motion.

¶14 Appellants raised a variety of arguments in their Rule
60(b)motion but only pursue one of those arguments on appeal — that their
representation of the Trust in their individual capacity constituted
excusable neglect. Appellants have waived all but their self-representation
constituting excusable neglect arguments on appeal by not raising them in
their opening brief. See Robert Schalkenbach Found. v. Lincoln Found., Inc., 208
Ariz. 176, 180, ¶ 17 (App. 2004) ("Generally, we will consider an issue not
raised in an appellant's opening brief as abandoned or conceded."); Schabel
v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996) ("Issues
not clearly raised and argued in a party's appellate brief are waived.").

¶15 Even if we excuse waiver on appeal, Appellants' Rule 60(b)
arguments lack merit. Appellants have waived any claim that Appellees
"improperly" served the motions to strike because they failed to raise this
argument in their responses to those motions. See Ariz. R. Civ. P. 12(b)(5)
(stating that defense of insufficient service of process must be made in the
responsive pleading or by motion before a responsive pleading). Further,
in their response to the motions to strike, Appellants conceded that they
were served "on 01/03/2023." Appellants' argument that the court "has yet
to rule on their Motion to Alter or Amend a Judgement" is inaccurate. In
the order denying Motion 2, the court noted that "[Appellants] have failed
to establish any grounds for a new trial or to alter or amend the judgment."
Finally, Appellants contend that granting the Rule 60 motion "will not

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prejudice the Defendants" as Appellants are "merely seek[ing] to correct
improperly filed motions to retain their collateral rights of appeal." But a
court may grant a Rule 60(b) motion only for the limited reasons set forth
under the Rule. See Gonzalez v. Nguyen, 243 Ariz. 531, 534, ¶¶ 10–12 (2018).
Lack of prejudice to the opposing party is not a basis on which a court may
grant relief from a final judgment. See Ariz. R. Civ. P. 60(b)(1)–(6); Trisha A.
v. Dep't of Child Safety, 247 Ariz. 84, 89, ¶ 18 (2019) (noting that it is a "'well-
settled requirement[] of law' that a motion to set aside a judgment be
supported by a meritorious defense" (quoting Copper King of Ariz. v. Johnson, 9 Ariz. 67, 71 (1904))).

CONCLUSION

¶16 For the foregoing reasons, we affirm the court's denial of
Appellants' Rule 60(b) motion.

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

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