Williams v. Aps

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANNY L. WILLIAMS, as Trustee of the DANNY L. WILLIAMS
REVOCABLE TRUST ESTABLISHED DECEMBER 5, 2012,
Plaintiff/Appellant,

v.

ARIZONA PUBLIC SERVICE COMPANY, an Arizona corporation,
Defendant/Appellee.

No. 1 CA-CV 24-0100

FILED 11-07-2024

Appeal from the Superior Court in Yavapai County
No. V1300CV202180324
The Honorable Linda Wallace, Judge Pro Tempore

AFFIRMED

COUNSEL

Rmorales Law PLLC, Carefree
By Raandi L. Morales
Counsel for Plaintiff/Appellant

Gaona Law Firm, Phoenix
By David F. Gaona
Counsel for Defendant/Appellee
 WILLIAMS v. APS
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Vice Chief Judge Randall M. Howe
joined.

P E R K I N S, Judge:

¶1 Danny L. Williams challenges the superior court’s ruling
denying his motion for relief from judgment under Arizona Rule of Civil
Procedure 60. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Arizona Public Service Company (“APS”) owns and operates
distribution power lines that border part of Williams’ property. In May
2020, a fire damaged Williams’ property. In October 2021, Williams sued
APS, alleging that APS’s failure to properly maintain its power lines caused
the fire and related damage.

¶3 On August 23, 2023, the parties electronically filed five
documents: APS filed three, Williams filed one, and Moch (a defendant
below who is not a party to this appeal) filed one. APS moved for summary
judgment, filed a supporting statement of facts, and responded to one of
Williams’ pending motions. In that response, APS explained it had filed the
motion for summary judgment “contemporaneous with” the response.
Williams filed a reply related to his motion to reset scheduling deadlines.

¶4 Williams did not respond to APS’s motion for summary
judgment, so the superior court granted summary judgment for APS.
Williams then moved for relief from judgment under Rule 60. In a
declaration attached to the Rule 60 motion, Williams’ counsel admitted she
“missed” APS’s summary judgment motion. Counsel “recall[ed] looking at
the Turbo Court emails,” but stated she did not open the email alerting her
to APS’s filing because she thought it was merely confirming a filing she
had just made.

¶5 APS opposed Williams’ motion, arguing that relief under
Rule 60 was improper because Williams failed to act with due diligence.
Williams replied, noting that his counsel is a sole practitioner who
“choose[s] to handle very few matters,” and whose firm “only has about

2
 WILLIAMS v. APS
Decision of the Court

five (5) active litigation matters at this time.” The reply also detailed
Williams’ counsel’s “standard process” in her practice, which included:
checking her “twenty (20) or so” incoming emails every day; filing emails
and paper pleadings into appropriate folders; returning phone calls;
calendaring critical dates; and filing pleadings through Turbo Court.

¶6 The superior court denied Williams’ request for relief from
judgment. Williams timely appealed and we have jurisdiction. A.R.S. § 12-
2101(A)(1).

DISCUSSION

¶7 Williams argues the superior court erred by failing to hold a
hearing and then denying his Rule 60 motion. “Subject to Rule 56(c)(1), the
court may decide motions without oral argument, even if oral argument is
requested.” Ariz. R. Civ. P. 7.1(d). The superior court acted within its
discretion to rule on the motion without hearing additional argument from
the parties. Cristall v. Cristall, 225 Ariz. 591, 597, ¶ 29 (App. 2010) (“[T]he
trial court has discretion to . . . deny a request for oral argument.”).

¶8 As to the motion itself, we review the superior court’s
decision to deny relief under Rule 60(b) for an abuse of discretion. Aloia v.
Gore, 252 Ariz. 548, 551, ¶ 11 (App. 2022). A party seeking relief under Rule
60(b)(1) must establish (1) mistake, inadvertence, surprise, or excusable
neglect; (2) that it promptly sought relief; and (3) that it had a meritorious
claim. Maher v. Urman, 211 Ariz. 543, 550, ¶ 21 (App. 2005) (analyzing Rule
60(c), now renumbered at Rule 60(b)).

¶9 Rule 60(b)(1) permits courts to relieve a party from judgment
upon a showing of mistake, inadvertence, surprise, or excusable neglect.
Ariz. R. Civ. P. 60(b)(1). A party’s conduct is excusable if a reasonably
prudent person might have made the same mistake under the same
circumstances. Maher, 211 Ariz. at 550, ¶ 22. But a party’s mere neglect or
forgetfulness does not entitle him to relief, Aloia, 252 Ariz. at 552, ¶ 15, and
“diligence is the final arbiter of whether mistake or neglect is excusable,”
City of Phoenix v. Geyler, 144 Ariz. 323, 332 (1985). “Carelessness does not
equate with excusable neglect.” Ulibarri v. Gerstenberger, 178 Ariz. 151, 163
(App. 1993).

¶10 Williams’ counsel explains that a “flurry of electronic filing
activity” caused her to mistake the email notifying her of APS’s summary
judgment motion for confirmation of her own filing. Even accepting
counsel’s explanation, her mistake is unreasonable. Aloia, 252 Ariz. at 552,
¶ 15 (a party seeking Rule 60(b)(1) relief must provide “a reasonable

3
 WILLIAMS v. APS
Decision of the Court

excuse” for her neglect). APS notes, and Williams does not dispute, that the
confirmatory email an attorney receives after filing a document is “wholly
different” from the email an attorney receives when opposing counsel files
a document in the case. Williams’ counsel’s failure to open the Turbo Court
email was careless, not diligent.

¶11 Williams contends that “a reasonably prudent lawyer could
be diligent yet miss an e-filed pleading on a day when 5 (five) such
pleadings in the same case were flying back and forth.” We disagree. A
reasonably prudent solo practitioner handling five cases and receiving just
“twenty (20) or so” emails per day would open and read her emails. See
Ariz. R. Civ. P. 5.3(b) (“Each attorney of record is responsible for keeping
advised of the status of, and the deadlines in, pending actions in which that
attorney has appeared.”). She would also read filings by opposing counsel
in her pending cases. Id. On the same day APS moved for summary
judgment, it also responded to one of Williams’ motions and explicitly
referenced its summary judgment motion. Williams’ counsel thus had two
opportunities to learn of APS’s summary judgment motion. There is no
reasonable excuse for counsel’s failure to (1) open the Turbo Court email
notifying her about the motion and (2) thoroughly read the contents of
APS’s other filing.

¶12 Finally, in arguing his counsel’s error was “excusable
neglect,” Williams relies on our decision in Ulibarri. In Ulibarri, the plaintiff
failed to timely respond to defense counsel’s motion for summary
judgment. 178 Ariz. at 154. This Court found the plaintiff’s counsel’s
conduct was excusable neglect because he did not receive a copy of the
summary judgment motion until the response deadline had passed and he
acted reasonably under the circumstances given his lack of notice. Id. at 163–
64. Williams also cites to Geyler, in which our supreme court found a
mistake resulting in counsel’s untimely post-trial motion “was 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.” 144 Ariz.
at 332.

¶13 Neither case helps Williams. It is undisputed that Williams’
counsel received APS’s electronic filing on August 23, 2023. Unlike the
attorney in Ulibarri, Williams’ counsel had notice of the pending summary
judgment motion well before the response deadline and simply failed to
respond. Geyler is similarly inapplicable because Williams’ counsel’s failure
to open her emails or read opposing counsel’s filings was not a clerical
error—it was neglect.

4
 WILLIAMS v. APS
Decision of the Court

¶14 Because Williams failed to show excusable neglect under Rule
60(b)(1), we need not determine whether he promptly sought relief or had
a meritorious claim against APS. See Gen. Elec. Cap. Corp. v. Osterkamp, 172
Ariz. 191, 194 (App. 1992) (declining to address whether the defendant “met
the other two requirements of meritorious defense and prompt application
for relief” when she did not show excusable neglect).

CONCLUSION

¶15 The superior court did not abuse its discretion in denying
Williams relief. We affirm.

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

5