Nielson v. Patterson

SUPREME COURT OF ARIZONA

JENNIFER NIELSON and LARRY ) Arizona Supreme Court
NIELSON, wife and husband, ) No. CV-02-0330-SA
)
Petitioners, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 02-0534
)
HON. CECIL B. PATTERSON, JR.; ) Maricopa County Superior
HON. JEFFERSON L. LANKFORD; HON. ) Court
G. MURRAY SNOW; JUDGES OF THE ) No. CV97-92380
STATE OF ARIZONA, in and for )
the Arizona Court of Appeals, )
) O P I N I O N
Respondents, )
)
and )
)
DON H. SMITH and JANE DOE SMITH, )
husband and wife, )
)
Real Parties )
in Interest. )
__________________________________)

Order of the Court of Appeals, Division One
Cause No. CA-CV 02-0534, Sept. 13, 2002
AFFIRMED

Tobler & Associates, P.C. Mesa
by Lorin Tobler
and Maren Tobler
and
Lewin & Schneider, P.C. Phoenix
by Thomas Kleinschmidt
Attorneys for Petitioners Jennifer Nielson and
Larry Nielson

Campbell, Souhrada, Volk & Lauter Phoenix
by Ronald J. Lauter
Attorneys for Real Parties in Interest
Don H. Smith and Jane Doe Smith
M c G R E G O R, Vice Chief Justice

¶1 We granted review to determine whether an appellee, in an

appeal from an order granting the appellee a new trial, must file

a protective cross-appeal if it wishes to preserve its ability to
challenge the underlying judgment, in the event the appellate court

overturns the order granting a new trial. We hold that an order

granting a new trial vacates the original entry of judgment and

that an appellee need not challenge the underlying judgment through

a mandatory protective cross-appeal.

I.

¶2 The Nielsons obtained a $2 million jury verdict against

the Smiths. On August 10, 2000, the trial court entered judgment

for the Nielsons in the amount awarded. Thereafter, the Smiths

moved for a new trial. The trial court granted the motion, vacated

the judgment and set a new trial. The Nielsons filed a timely

notice of appeal from the order granting a new trial. The Smiths

did not file a cross-appeal from the underlying judgment.

¶3 In a memorandum decision, the court of appeals reversed

the trial court’s order granting a new trial and instructed the

trial court to reinstate judgment in favor of the Nielsons. After

we denied the Smiths’ petition for review, the court of appeals

issued its mandate on June 11, 2002, and the trial court reinstated

the original judgment.

¶4 On July 3, 2002, the Smiths filed a notice of appeal from

the underlying August 10, 2000 judgment. The Nielsons moved to

dismiss the appeal, arguing that under Rule 9(b), Arizona Rules of

Civil Appellate Procedure, the Smiths’ failure to challenge the

original judgment by filing a protective cross-appeal to the

2
Nielsons’ appeal from the order granting a new trial barred the

Smiths from now challenging the underlying judgment. The court of

appeals denied the Nielsons’ motion, finding nothing in Arizona law

that required the Smiths to file a mandatory protective cross-

appeal. We granted review to consider this procedural question of

statewide importance. We exercise jurisdiction pursuant to Article

VI, Section 5.4 of the Arizona Constitution and Rule 3(b) of the

Arizona Rules of Procedure for Special Actions.

II.

¶5 We review issues of law de novo. US West Communications,

Inc. v. Ariz. Corp. Comm’n, 201 Ariz. 242, 244 ¶ 7, 34 P.3d 351,

353 (2001). This court has authority to interpret rules of

procedure under the Arizona Constitution, Article VI, Section 5.

Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203 (1981).

We apply general rules of statutory construction to construe

facially unclear or ambiguous rules of procedure. State ex rel.

Corbin v. Marshall, 161 Ariz. 429, 431, 778 P.2d 1325, 1327 (App.

1989).

¶6 According to the Nielsons, the court of appeals lacks

jurisdiction to hear the Smiths’ appeal because the Smiths failed

to file a timely appeal from the judgment entered against them.

That is, they argue, the thirty day limit of Rule 9 began to run on

August 10, 2000, when the trial court entered the original

judgment, even though the court later vacated the judgment and

3
ordered a new trial. Unfortunately, neither Arizona’s procedural

rules nor our case law clearly answers the question whether the

Smiths timely filed their appeal.

¶7 Rule 9,1 on which the Nielsons primarily rely, does not

answer the question posed here. That rule sets forth the time

period required to file an appeal or cross-appeal after entry of

judgment. Rule 9(b)(4) extends the time for filing an appeal if a

1
Rule 9 provides in part:

C
Rule 9. AppealCWhen Taken
(a) Time; Personal Representatives; Cross-Appeal. A
notice of appeal required by Rule 8 shall be filed with
the clerk of the superior court not later than 30 days
after the entry of the judgment from which the appeal is
taken, unless a different time is provided by law. . . .
A notice of cross-appeal may be filed by an opposing
party within 20 days from the date the notice of appeal
is filed.

(b) Extension of Appeal Time. When any of the following
motions are timely filed by any party, the time for
appeal for all parties is extended, and the times set
forth in Rule 9(a) shall be computed from the entry of
any of the following orders:

(1) Granting or denying a motion for judgment
notwithstanding the verdict pursuant to Ariz. Rules Civ.
Proc. 50(b);

(2) Granting or denying a motion to amend or make
additional findings of fact pursuant to Ariz. Rules Civ.
Proc. 52(b), whether or not granting the motion would
alter the judgment;

(3) Granting or denying a motion to alter or amend
the judgment pursuant to Ariz. Rules Civ. Proc. 59(1);
(4) Denying a motion for new trial pursuant to
Ariz. Rules Civ. Proc. 59(a).

Ariz. R. Civ. App. P. 9.
4
party timely files certain motions, including a motion for a new

trial. Nothing in the rule speaks directly to a party’s obligation

to file a cross-appeal to an appeal taken from a trial court’s

order granting a motion for a new trial.

¶8 Nor does Rule 13(b)2 provide guidance. Although an

appellee’s brief to the appellate court may include “any issue

properly presented in the superior court,” Rule 13(b) does not

explain whether an appellee must file a compulsory cross-appeal

under the circumstances involved here. Ariz. R. Civ. App. P.

13(b).

2
Rule 13(b) provides:

(b) Brief of the Appellee. 1. The brief of the appellee
shall conform to the requirements of the preceding
subdivision, except that a statement of the case, a
statement of the facts or a statement of the issues need
not be included unless the appellee finds the statements
of the appellant to be insufficient or incorrect.

2. If a cross-appeal has been filed, the brief of
the appellee or the opening brief of the cross-appellant
shall include in its statement of issues presented for
review the issues presented in the cross-appeal.

3. The brief of the appellee may, without need for
a cross-appeal, include in the statement of issues
presented for review and in the argument any issue
properly presented in the superior court. The appellate
court may affirm the judgment based on any such grounds.
The appellate court may direct that the judgment be
modified to enlarge the rights of the appellee or to
lessen the rights of the appellant only if the appellee
has cross-appealed seeking such relief.

Ariz. R. Civ. App. P. 13(b).

5
¶9 We also find no clear answer in Arizona case law. Both

the Nielsons and the Smiths rely upon decisions that have little

relevance to the issue before us.3 One opinion of this court, not

referred to by either party, lends some support to the Nielsons’

position. In Blakely Oil, Inc. v. Wells Truckways, Ltd., 83 Ariz.

274, 320 P.2d 464 (1958), we decided a similar challenge to

appellate jurisdiction. After a jury returned a verdict for the

defendants, the plaintiffs moved for judgment notwithstanding the

verdict (JNOV)4 as to liability, for a new trial on damages and for

a new trial on all issues. Id. at 279, 320 P.2d at 466. The trial

court granted a new trial on all issues. Id. at 278, 320 P.2d at

466. The defendants appealed from the order granting the new

trial, but the plaintiffs did not cross-appeal from the order

3
In Arizona-Parral Mining Co. v. Forbes, we referred to
language in an Indiana Supreme Court case supporting the
proposition that, following a final judgment, a party must
consolidate all appealable issues in its appeal. 16 Ariz. 395,
402, 146 P. 504, 506 (1915) (quoting Ohio Valley Trust Co. v.
Wernke, 99 N.E. 734, 736 (Ind. 1912)). We reaffirmed this
principle in Paramount Pictures, Inc. v. Holmes, 58 Ariz. 1, 4,
117 P.2d 90, 91 (1941). These cases are inapposite because the
Smiths had no final judgment from which to appeal.
In Hawkins v. Allstate Ins. Co., we admonished a party for
raising a constitutional issue for the first time on appeal. 152
Ariz. 490, 503, 733 P.2d 1073, 1086 (1987). Hawkins resolved
whether a party can raise on appeal an issue that was not raised in
the trial court, an entirely different question than that posed by
the case at bar.
4
The Arizona Rules of Civil Procedure now refer to a
motion for JNOV as a renewed “motion for a judgment as a matter of
law.” Ariz. R. Civ. P. 50(b).

6
denying their motion for JNOV. We affirmed the order granting a

new trial and also held that the plaintiffs’ failure to file a

cross-appeal deprived us of jurisdiction to consider the trial

court’s order denying their motion for JNOV. Id. at 279, 320 P.2d

at 467. Although this decision provides some guidance, we do not

regard it as controlling for several reasons. First, the court’s

decision simply relies upon the accepted principle that an appeal

must be timely filed. Id. The court did not discuss the issue

presented here: When does the time for filing an appeal from an

underlying judgment begin to run if the trial court orders a new

trial? Our concern lies not with the question whether an appeal

must be timely, as our rules clearly require, but with designating

the date on which the time to file an appeal begins to run.

¶10 In addition, the plaintiffs in Blakely Oil were

“aggrieved parties” as to that portion of the trial court’s order

that denied their motion for JNOV. The Smiths, in contrast, found

themselves appellees in a challenge to an order decided entirely in

their favor. A second Arizona appellate decision, Aegerter v.

Duncan, directly addresses the right of a party not aggrieved by a

decision to file a cross-appeal. 7 Ariz. App. 239, 243, 437 P.2d

991, 995 (1968). In Aegerter, the court of appeals held that the

plaintiffs, in whose favor the trial court granted a new trial,

could not file a cross-appeal. After noting that the trial court’s

judgment entirely favored the plaintiffs, the court pointed out

7
that “the mere fact that an appeal has been filed by the aggrieved

party [does not] give the prevailing party grounds to file a cross

appeal.” Id.; accord Ariz. R. Civ. App. P. 1. Obviously, we

cannot instruct non-aggrieved parties both that they cannot file a

cross-appeal and that they must file a cross-appeal to preserve a

challenge to an underlying judgment.

¶11 The Nielsons seek to bolster their argument by pointing

to other jurisdictions, particularly California, Florida and

Oregon, that require protective cross-appeals. Courts in both

California and Oregon long have required protective cross-appeals

in scenarios similar to that involved here. See Puckhaber v.

Henry, 81 P. 1105 (Cal. 1905); Frank v. Matthiesen, 240 P. 551 (Or.

1925). These states, however, have codified the judicially

established rule mandating protective cross-appeals in either

statutes or court rules. Or. Rev. Stat. § 19.205 (2001); Cal. R.

of Court 3(e)(2). Arizona, in contrast, has adopted no clear rule

to inform parties whether they should file a protective cross-

appeal.

¶12 Because litigants have no definitive rule or decision of

this court on which to rely, we next consider the policy reasons

underlying our decision as to whether we should regard protective

cross-appeals as mandatory. Our resolution of this issue largely

turns upon whether we interpret the effect of the trial court’s

order granting a new trial as vacating or merely suspending the

8
original judgment. A vacated judgment lacks force or effect and

places parties in the position they occupied before entry of the

judgment. Illinois v. Eidel, 745 N.E.2d 736, 744 (Ill. App. 2001)

(“The vacatur restores the parties to the status quo ante, as

though the trial court judgment had never been entered.”); see

State v. Cramer, 192 Ariz. 150, 153 ¶ 16, 962 P.2d 224, 227 (App.

1998) (holding that a voidable judgment “is binding and enforceable

and has all the ordinary attributes of a valid judgment until it is

reversed or vacated”). If the trial court order truly vacated the

original judgment, nothing remained of the judgment for the Smiths

to challenge. Therefore, their time to appeal could not begin to

run until, following issuance of the court of appeals’ mandate, the

trial court reinstated the judgment. On the other hand, if the

order granting a new trial only suspended the original judgment

pending the new trial, then the Neilsons’ view would prevail.

Because we view a vacated judgment as lacking force or effect, we

regard the Smiths’ approach as more in keeping with our traditional

view of the status of a vacated judgment. Cramer, 192 Ariz. at 153

¶ 16, 962 P.2d at 227.

¶13 Moreover, when a rule of procedure does not speak to a

set of facts or speaks ambiguously, courts should give the rule a

liberal construction rather than create a pitfall for the unwary.

See, e.g., Witt v. Merrill et ux., 208 F.2d 285, 286 (4th Cir.

1953) (“The liberal [Federal] Rules of Civil Procedure must not be

9
transformed by judicial interpretation into technical traps for the

unwary.”); Union Interchange, Inc. v. Benton, 100 Ariz. 33, 36, 410

P.2d 477, 479 (1966) (construing Rule 67(d), Arizona Rules of Civil

Procedure); Di Pietruntonio v. Superior Court, 84 Ariz. 291, 293,

327 P.2d 746, 747 (1958) (construing Arizona Rules of Civil

Procedure). If we were to hold that the court of appeals lacks

jurisdiction to hear the Smiths’ appeal, we would opt for the more

restrictive reading of unclear rules. Although we expect litigants

to follow procedural rules, we prefer that they not be turned away

from the courthouse before being given an opportunity to present

meritorious claims. Rodriguez v. Williams, 104 Ariz. 280, 283, 451

P.2d 609, 612 (1969).

¶14 We are also concerned with the effect of our decision on

judicial economy. Both parties argue that their position better

promotes judicial economy. In reality, neither approach assures

economy of effort. In this case, had the court of appeals affirmed

the order granting a new trial, neither party would have invested

time and expense in briefing and arguing issues related to the

underlying judgment. Under that circumstance, then, economy would

result from avoiding the cross-appeal issues. On the other hand,

if, as happened here, the court of appeals reverses an order

granting a new trial, requiring a protective cross-appeal would

have served the goal of judicial economy. The economy produced for

10
the judicial system thus depends upon the outcome of the appeal

from the order granting a new trial.5

¶15 Requiring a protective cross-appeal, however, affects

entities other than the judicial system. If an appellee were

required to appeal from the original judgment and that appeal

turned out to be unnecessary, not only judicial resources but also

attorney time and resources would be wasted. Moreover, the impact

of an unnecessary appeal falls most heavily not on lawyers or the

court but upon those clients who incur unnecessary expense. Given

the close nature of the issue before us, we conclude that the best

policy is to adopt the approach more likely to protect litigants

from unnecessary expenditures. Therefore, we hold that in the

situation presented by this action, an appellee need not file a

protective cross-appeal. The time to appeal the underlying

judgment will run from the date the judgment is reinstated.

III.

¶16 For the foregoing reasons, we affirm the order of the

court of appeals denying the Nielsons’ motion to dismiss the

5
An appellate decision reversing an order granting a new
trial is less likely than a decision upholding such an order. An
appellate court can reverse an order granting a new trial only upon
a showing of abuse of discretion. Martinez v. Schneider Enter.,
Inc., 178 Ariz. 346, 348, 873 P.2d 684, 686 (App. 1994); see
Hutcherson v. City of Phoenix, 192 Ariz. 51, 53 ¶ 12, 961 P.2d 449,
451 (1998) (“We review the trial judge's decision to deny post-
trial motions for an abuse of discretion, recognizing that he had
substantial latitude in deciding whether to upset the verdict.”).

11
Smiths’ appeal. We also vacate our October 29, 2002 order staying

all further proceedings in the court of appeals.

_____________________________________
Ruth V. McGregor, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Justice

_____________________________________
Michael D. Ryan, Justice

12