KENDALL v. CAPARN

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEREK A. KENDALL, DANIELLE CAPARN TUTOKEY, Petitioners,

v.

ELOISE CAPARN, NICOLE CAPARN POA, Respondents.

No. 1 CA-SA 26-0386
FILED 11-10-2026

Petition for Special Action from the Superior Court in Maricopa County
No. LC2026-000407-001 DT
The Honorable Jillian Francis, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Derek A. Kendall, Chandler
Petitioner

Danielle Caparn Tutokey, Chandler
Petitioner

Hull Holliday & Holliday PLC, Phoenix
By Denise M. Holliday, Kevin W. Holliday, Matthew Schlabach
Counsel for Respondents

KENDALL, et al. v. CAPARN, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Daniel J. Kiley and Chief Judge Randall M. Howe joined.

J A C O B S, Judge:

¶1 The San Marcos Justice Court entered a judgment of eviction
against Derek Kendall and Danielle Caparn Tutokey (“Petitioners”) on
Tuesday, April 14, 2026. They appealed to the superior court on Monday,
April 20, 2026. The superior court refused to hear their appeal, ruling that
the five calendar day deadline in Superior Court Rule of Appellate
Procedure - Civil (“SCRAP”) 4(a) meant Petitioners had to appeal by
Sunday, April 19, 2026. Petitioners ask us to exercise our discretionary
special action jurisdiction to compel the superior court to hear their appeal,
arguing SCRAP 1(g) extends all deadlines that fall on a weekend to the next
day court is open. They are right, so we exercise our discretionary
jurisdiction and grant relief. Ariz. R.P. Spec. Act. 12(b)(7), (8).

BACKGROUND

¶2 Petitioners live in Chandler, Arizona. On Tuesday, April 14,
2026, after a hearing, the justice court entered an eviction judgment against
them. They appealed on April 20, 2026, which was the Monday following
the fifth day after the eviction judgment. See SCRAP 4(a), 1(g). The superior
court dismissed their appeal as untimely under SCRAP 4(a), and declined
to reconsider that dismissal when Petitioners cited SCRAP 1(g) to the court.
The constable evicted Petitioners Kendall and Tutokey on October 7, 2026.

DISCUSSION

I. We Exercise Our Discretionary Special Action Jurisdiction.

¶3 Petitioners ask us to exercise our discretionary special action
jurisdiction to review and reverse the superior court’s orders. The landlord
doesn’t oppose our exercise of our discretionary jurisdiction. We exercise
our discretionary jurisdiction for two reasons: (1) they were recently
evicted, so promptness in comparison to a conventional appeal matters; and
(2) no rule of law supports the decision at issue. Ariz. R.P. Spec. Act.
12(b)(7), (8).

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KENDALL, et al. v. CAPARN, et al.
Decision of the Court

II. The Superior Court Erred in Ruling It Lacked Jurisdiction Over
the Appeal Because When the Deadline for an Act Falls on a
Weekend or Holiday, the Deadline Is the Next Day Court Is Open.

¶4 We review the superior court’s orders ruling that it lacked
jurisdiction over Petitioners’ appeal de novo. Sanchez-Ravuelta v. Yavapai
Cnty., 259 Ariz. 517, 524 ¶ 26 (2025) (“[A] question of appellate jurisdiction
is an issue of law that is subject to de novo review.”) (cleaned up). We
likewise review the interpretation of court rules de novo. Id. (quoting Wilson
v. Higgins, 251 Ariz. 282, 284 ¶ 7 (2021)).

¶5 Petitioners argue the superior court committed a legal error
when it ruled that it lacked jurisdiction over their appeal. They argue that
SCRAP 1(g) moved their deadline to appeal from April 19 (Sunday) to April
20 (Monday). Their landlord agrees that SCRAP 1(g) applies. The landlord
declines to defend the superior court’s orders, stating “[t]he basis for the
superior court’s initial ruling and order denying the motion for rehearing
in light of [SCRAP] 1(g) is unclear. Landlord does not otherwise represent
the signing judge and does not advocate on the court’s behalf.” Where one
party declines to defend an appealed ruling, as here, we can take that as a
confession of error. See Tiller v. Tiller, 98 Ariz. 156, 157 (1965) (“[T]his [c]ourt
will assume that failure to file an answering brief is a confession of
reversible error on the part of the appellee.”) Here, we take landlord’s brief
as a confession of reversible error. We nonetheless write to explain the
proper construction of SCRAP 4(a) and 1(g).

A. In Arizona’s Court Rules, Including the SCRAP, When a
Deadline Would Fall on a Weekend or Holiday, the
Deadline Carries Forward to the Next Court Day.

¶6 The Superior Court Rules of Appellate Procedure - Civil, like
other sets of rules issued by the Arizona Supreme Court that relate to civil
matters, have provisions governing time. They all work the same: when
something is due to be done over a weekend or holiday, the time period
that would have concluded over the weekend or on the holiday carries
forward to the next day.

¶7 Arizona Rule of Civil Procedure 6(a)(3) and Arizona Rule of
Family Law Procedure 4(a)(3) both provide identically, in computing time
periods, that the last day of a period counts within the time limit, “unless it
is a Saturday, Sunday, or legal holiday. When the last day is excluded, the
period runs until the next day that is not a Saturday, Sunday, or legal
holiday.” Ariz. R. Civ. P. 6(a)(3); Ariz. R. Fam. Law P. 4(a)(3).

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KENDALL, et al. v. CAPARN, et al.
Decision of the Court

¶8 Arizona Rule of Procedure for Eviction Actions 3(d) is
indistinguishable. It provides that the last day of the period is included,
“unless the last day is a Saturday, Sunday or a legal holiday, in which event
the period runs until the end of the next day that is not a Saturday, Sunday
or a legal holiday.” Ariz. R.P. Evic. A. 3(d).

¶9 This design is sufficiently common that other sets of rules
borrow it. Arizona Probate Rule 4(a)(1) borrows from the civil rules to the
extent they are not inconsistent, thus importing the time provision in
Arizona Rule of Civil Procedure 6(a). Ariz. R. Prob. P. 4(a)(1). And Arizona
Rule of Civil Appellate Procedure (“ARCAP”) 5(a) likewise imports the
substance of Arizona Rule of Civil Procedure 6(a). See ARCAP 5(a).

¶10 Rule 1(g) in the SCRAP is just like these. It provides that:

In computing time limits, the “last day” or “deadline” means
that when the last day of any period of time, or the deadline
for completing an act prescribed herein falls on a Saturday,
Sunday, or day when the court is closed, the “last day” or
“deadline” shall be the next day court is open.

SCRAP 1(g). We next apply the rule to this case.

B. The Superior Court Erred by Deciding That the Use of
“Calendar Days” in SCRAP 4 Means the Deadline for
Appeal, Which Would Have Fallen on Sunday, April 19,
Didn’t Carry Over to Monday, April 20.

¶11 When applying a rule, we begin with its plain language. See
State v. Solano, 257 Ariz. 10, 13 ¶ 10 (App. 2024). SCRAP 1(g) indicates that
it applies “when the last day of any period of time . . . falls on a . . . Sunday,”
as here. SCRAP 1(g). “Any” is a modifier that indicates without limitation
— it includes all possible members of the set. See U.S. v. Gonzales, 520 U.S.
1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive meaning, that
is, ‘one or some indiscriminately of whatever kind.’”); see also City of Phoenix
v. Glenayre Electronics, Inc., 242 Ariz. 139, 144 ¶ 17 (2017) (“[T]he word ‘any’
is broadly inclusive.”). Thus, SCRAP 1(g) applies to all cases in which a
time period falls on a Sunday, including this one. And when SCRAP 1(g)
applies to a deadline, that deadline is moved to “the next day court is open.”
SCRAP 1(g). Thus, the plain language of the rule shows that Petitioners
had a deadline that fell on Sunday, April 19 — which meant the rule moved
the deadline to the next day court was open — here, Monday, April 20. For
this reason, the superior court erred in deciding it lacked jurisdiction over
their appeal, filed on Monday, April 20.

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KENDALL, et al. v. CAPARN, et al.
Decision of the Court

¶12 The superior court explained, while denying Petitioners’
motion for reconsideration, that it believed the use of “calendar days” in
SCRAP 4(a)’s appellate deadline meant that SCRAP 1(g) didn’t apply. This
reflects an incorrect understanding of how counting works in court rules.
A comment on a structurally identical rule, Arizona Rule of Civil Procedure
6, illustrates this point. See Comment, Ariz. R. Civ. P. 6(c). That Comment
explained how a five-day period worked in conjunction with weekend
days. It explained that when adding five days to a due date for mailing,
“[i]ntermediate Saturdays, Sundays, and legal holidays are included in
counting these added five days.” Id. In other words, counting those five
calendar days means you don’t skip over weekends — they are included.

¶13 But including those calendar days isn’t the end of the story.
Once they are counted, the Comment directs, “If the fifth day is a Saturday,
Sunday, or legal holiday, the last day to act is the next day that is not a
Saturday, Sunday, or legal holiday.” That’s how it works here, too.
Following SCRAP 4(a)’s “calendar days” language tells us that Petitioners’
five calendar days would elapse on Sunday, April 19. But we have to read
the SCRAP as a whole, meaning that SCRAP 4(a) is meant to work with
SCRAP 1(g). See In re D.S., 262 Ariz. 91, 94 ¶ 11 (App. 2026) (explaining that
we read rules “in conjunction with each other and harmonize them
whenever possible.” (quoting Magee v. Olson, 260 Ariz. 370, 373 ¶ 9 (App.
2025))); see also State ex rel. Berning v. Alfred, 186 Ariz. 403, 405 (App. 1996)
(“We construe rules of procedure together in such a way that they will not
be contradictory, but harmonious.”). When we then consult SCRAP 1(g),
as we must, the deadline moves from Sunday, April 19, 2026 to Monday,
April 20, 2026. This makes the superior court’s ruling error.

MOTION FOR STAY

¶14 Petitioners asked this Court to stay the operation of the
superior court’s ruling that they were not entitled to an appeal. On October
16, 2026, this Court did so, and ordered the restoration of the status quo
before the October 7, 2026 eviction, because the eviction relied on the
superior court’s incorrect ruling. In response, the landlord made the
premises available to Kendall and Tutokey.

¶15 Because our decision is effective immediately, see Paragraph
16, infra, this Court dissolves its October 16, 2026 stay of the superior court’s
ruling. Petitioners may proceed with their appeal. Whatever rights the
landlord had in the posture of their tenants’ appeal, the landlord has again.

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KENDALL, et al. v. CAPARN, et al.
Decision of the Court

CONCLUSION

¶16 We exercise our discretionary special action jurisdiction and
grant relief, vacating the superior court’s orders declining to take
jurisdiction of Petitioners’ appeal. Our decision is effective immediately.
See Ariz. R.P. Spec. Act. 11(a)(1) (the ARCAP apply in special actions to the
extent they are consistent with the Arizona Rules of Procedure for Special
Actions); Ariz. R.P. Spec. Act. 18(c) (permitting this Court to make decisions
“effective immediately”). We direct the superior court to consider the
appeal on its merits.

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

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