Torres v. Furlong

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EDUARDO CORONA TORRES, Plaintiff/Appellee,

v.

MICHAEL FURLONG, et al., Defendants/Appellants.

No. 1 CA-CV 24-0710
FILED 08-12-2025

Appeal from the Superior Court in Maricopa County
No. CV2021-016209
The Honorable Scott A. Blaney, Judge
Country Meadows Justice Court
CC2020-112697RC

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Jennings Haug Keleher McLeod Waterfall LLP, Phoenix
By Michael H. Orcutt, John Browder
Counsel for Plaintiff/Appellee

Law Offices of Kenneth P. Bemis, Phoenix
By Kenneth P. Bemis
Counsel for Defendants/Appellants
 TORRES v. FURLONG, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Defendants challenge the denial of their ARCAP 9(f) motion
to reopen the time to appeal a judgment. We treat Defendants’ appeal as a
special action and accept jurisdiction. We deny relief because, although
Defendants dispute receiving a copy of the judgment, Defendants do not
dispute receiving a minute entry recording the court’s entry of the
judgment consistent with Arizona Rule of Civil Procedure (“Rule”) 58(c).

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties in this property-line dispute disagreed about
whether they had entered an enforceable settlement agreement. After
holding an evidentiary hearing, the superior court granted Plaintiff’s
motion to enforce the agreement and directed him to lodge a form of
judgment. He did so, with notice to Defendants, in mid-February 2024.

¶3 On March 26, 2024, the court filed a signed final judgment
awarding Plaintiff about $20,500 in damages, attorney’s fees, and taxable
costs. At the same time, the court issued a “JUDGMENT SIGNED” minute
entry, which was filed the next day. The minute entry stated the court was
“approving and settling the formal written Final Judgment against
Defendants . . . as modified and signed by the Court March 26, 2024, and
filed (entered) by the Clerk on March 26, 2024.” The minute entry also stated
that the court “has signed a paper copy of the Judgment which was
originally provided electronically,” with the judgment to be available on
the electronic docket within four to five days.

¶4 Defendants did not file a notice of appeal. Instead, after the
time to file a notice of appeal lapsed, Defendants moved under ARCAP 9(f)
to extend their appeal time on the theory that they failed to receive notice
of the signed judgment under Rule 58(c). The superior court denied the
motion, holding that the minute entry constituted notice under Rule 58(c)
and, in any event, Defendants were on notice that a judgment would issue.
Defendants appealed from the order denying their ARCAP 9(f) motion.

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 TORRES v. FURLONG, et al.
Decision of the Court

JURISDICTION

¶5 There is an issue whether a litigant challenging the denial of
an ARCAP 9(f) motion can appeal or must file a special action. An ARCAP
9(f) motion is made after judgment, and so this court’s appellate jurisdiction
can only be conferred by Arizona Revised Statutes (“A.R.S.”)
§ 12-2101(A)(2). The requirements for a special order after final judgment
are “1) whether the issues raised by the appeal from the order are different
from those that would arise from an appeal, and 2) whether the order
affects the judgment or relates to its execution.” Sotomayor v.
Sotomayor-Muñoz, 239 Ariz. 288, 291, ¶ 11 (App. 2016). Although the first
requirement is fulfilled by an ARCAP 9(f) denial, it is unclear whether the
second requirement would be satisfied. Thus, it is doubtful that an ARCAP
9(f) denial would be appealable as a special order after final judgment,
meaning a litigant would have to file a special action to challenge it.

¶6 We are mindful that another panel of our court came to a
different conclusion, without analysis. See Haroutunian v. Valueoptions, Inc.,
218 Ariz. 541, 544-45, ¶¶ 5, 7-8 (App. 2008) (The court stated it had appellate
jurisdiction from the denial of a motion under ARCAP 9(f) under the
statutory predecessor to A.R.S. § 12-2101(C)(2)). Haroutunian, however,
predated Sotomayor. Given this apparent appellate jurisdictional gap, we
will treat Defendants’ appeal as a special action and accept jurisdiction.
Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 594, ¶ 16 (App. 2007)
(This court may exercise its discretion and “elect to treat an appeal as a
petition for special action, despite [its] lack of appellate jurisdiction.”);
A.R.S. § 12-120.21(A)(4).

DISCUSSION

¶7 We review the interpretation and application of court rules de
novo. Haroutunian, 218 Ariz. at 544, ¶ 6.

¶8 “Immediately upon the entry of a judgment, or the entry of a
minute entry constituting a judgment, the clerk must: (i) distribute notice,
in the form required by Rule 58(c)(2), either electronically, by U.S. mail, or
attorney drop box, to every party not in default for failing to appear; and
(ii) make a record of the distribution.” Ariz. R. Civ. P. 58(c)(1). Rule 58(c)(2)
authorizes three alternative forms of notice: a conformed copy of the
file-stamped judgment, a written notice of the entry of judgment, or a
minute entry. A minute entry stating that the proposed form of judgment
has been signed and filed is sufficient. See Thomas v. W. Savs. & Loan Ass’n,
6 Ariz. App. 511, 513-14 (1967). Such a minute entry is considered

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distributed when the clerk emails it to the address provided by the party or
counsel. Ariz. R. Civ. P. 80(e).

¶9 Lack of notice of the entry of judgment may alter the time to
appeal only as provided by ARCAP 9(f). Ariz. R. Civ. P. 58(c)(3). ARCAP
9(f) gives the superior court discretion to grant a motion to reopen the
appeal period. Haroutunian, 218 Ariz. at 545-46, ¶¶ 8, 13-14. But the court
may exercise that discretion only if enumerated conditions are met. ARCAP
9(f); see also Haroutunian, 218 Ariz. at 545, ¶ 8. The first condition is that the
movant “did not receive notice under Rule 58(c) . . . of entry of the
judgment or order that the party seeks to appeal within 21 days after entry.”
ARCAP 9(f)(1). This condition may be satisfied by counsel’s avowal that he
or she did not receive notice. See United Metro Materials, Inc. v. Pena Blanca
Props., L.L.C., 197 Ariz. 479, 483, ¶ 22 (App. 2000). But when the movant
does not dispute receipt of a correct form of notice (either directly or
through counsel), the court lacks the authority to extend the appeal
deadline. See In re Pima County Mental Health No. AXXXXXXXX, 248 Ariz. 118,
123, ¶ 4 (App. 2020).

¶10 Defendants argue that there is no record of the judgment’s
distribution and that their counsel avowed he did not receive it. But Rule
58(c) and ARCAP 9(f) require distribution and receipt not of the judgment
itself, but of notice of its entry. A minute entry stating that the judgment
has been signed and filed is a sufficient form of notice, and the clerk’s
emailing it to counsel is a sufficient form of distribution. See Ariz. R. Civ. P.
58(c), 80; Thomas, 6 Ariz. App. at 513-14. Here, the court’s minute entry
clearly stated the court had signed and filed the judgment (and that it
would soon be available on the electronic docket). Defense counsel was
identified on the minute entry, and Defendants have never disputed its
distribution and receipt. On this record, the court had to deny Defendants’
motion for additional time to appeal based on their receipt of notice of the
judgment’s entry.

CONCLUSION

¶11 We grant review of the denial of Defendants’ motion to
extend, but deny relief.

¶12 Plaintiff requests attorney’s fees on appeal on two theories:
(1) A.R.S. § 12-1103(B), because he alleged in the property-line dispute that
Defendants refused to execute a quitclaim deed; and (2) A.R.S.
§ 12-341.01(A), because the settlement-enforcement dispute arose out of
contract. Fees are discretionary under both statutes, and we decline to

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award them here. As the prevailing party, Plaintiff may recover his costs
under A.R.S. § 12-341 upon compliance with ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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