Jennifer Nielson and Larry Nielson, wife and husband, v Hon. Cecil B. Patterson, Jr.; Hon Jefferson L. Lankford; Hon G. Murray Snow; Judges of the State of Arizona, in and for the Arizona Court of Appeals and Don H. Smith and Jane Doe Smith, husband and wife

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FILED SUPREME COURT OF ARIZONA MAR 2 7 2003 NOEL K. DESSAINT Petitioners, v. HON. CECIL B. PATTERSON, JR.; HON. JEFFERSON L. LANKFORD; HON. G. MURRAY SNOW; JUDGES OF THE STATE OF ARIZONA, in and for the Arizona Court of Appeals, ) ) Arizona Supreme Coi. No. CV-02-0330-SA ) ) JENNIFER NIELSON and LARRY NIELSON, wife and husband, Court of Appeals Division One No. 1 CA-CV 02-0534 ) ) ) Maricopa County Superior Court No. CV97-92380 _______________ OPINION 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 AFFIBMED Tobler & Associates, P.C. by Lorin Tobler and Maren Tobler and Lewin & Schneider, P.C. by Thomas Kleinschmidt Attorneys for Petitioners Jennifer Nielson and Larry Nielson Campbell, Souhrada, yolk & Lauter by Ronald J. Lauter Attorneys for Real Parties in Interest Don H. Smith and Jane Doe Smith N c G R E G 0 R, Vice Chief Justice ¶1 Mesa Phoenix Phoenix 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. moved for a new trial. Thereafter, the Smiths 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 trial court s order the court of appeals reversed granting a new trial and instructed trial court to reinstate judgment in favor of the Nielsons. we denied the Smiths petition for review, the court the After 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, original judgment by the Smiths filing a failure protective 2 to challenge the cross-appeal to the Nielsons appeal from the order granting a new trial Smiths from now challenging the underlying judgment. barred the The court of appeals denied the Nielsons motion, finding nothing in Arizona law that required the appeal. Smiths to a mandatory protective cross- We granted review to consider this procedural question of statewide importance. VI, file We exercise jurisdiction pursuant to Article 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. Inc. v. Ariz. 353 (2001) Comm n, 201 Ariz. 242, This . Corp. court has authority US West Communications, 244 ¶ 7, to 34 P.3d 351, interpret procedure under the Arizona Constitution, Article VI, rules Section 5. Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203 We apply general rules of statutory construction facially unclear or ambiguous rules of procedure. Corbin v. Marshall, 161 Ariz. 429, 431, of (1981) to construe State ex rd. 778 P.2d 1325, 1327 (App. of appeals lacks 1989). ¶6 According to the Nielsons, the court 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, judgment, 2000, even when the trial though the court court later 3 entered vacated the the original judgment and ordered a new trial. rules Unfortunately, neither Arizona s procedural nor our case law clearly answers the question whether the Smiths timely filed their appeal. ¶7 Rule 9, on which the Nielsons primarily rely, does not answer the question posed here. That rule sets period required to file an appeal or cross-appeal judgment. forth the time- after ehtry of Rule 9(b) (4) extends the time for filing an appeal if a Rule 9 provides in part: Rule 9. Appeal When 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 fhe 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 Ariz. Rules Civ. Proc. 59(a). Ariz. R. Civ. App. P. 9. 4 new trial pursuant to party timely files trial. to certain motions, including a motion for a new Nothing in the rule speaks directly to a party s obligation file a cross-appeal to an appeal taken from a trial court s order granting a motion for a new trial. ¶8 Nor appellee s does brief Rule to the 13(b)2 appellate properly presented in the explain whether under the provide circumstances court may superior an appellee must guidance. court, Although include Rule 13(b) file a compulsory involved here. Ariz. R. any Civ. App. Rule 13(b) provides: 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 not cross-appeal (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. - issue does 13 (b). 2 an P. ¶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.~ One opinion of this court, referred to by either party, position. 274, 320 appellate not lends some support to the Nielsons In Blakely Oil, Inc. v. Wells Truckways, Ltd., 83 Ariz, P.2d 464 (1958), jurisdiction. we decided a similar challenge to After a jury returned a verdict for the defendants, the plaintiffs moved for judgment notwithstanding the verdict (JNOV)4 as to liability, a new trial on all issues. for a new trial on damages and for Id. at 279, 320 P.2d at 466. court granted a new trial on all issues. 466. trial, The but defendants the appealed plaintiffs did Id. at 278, The trial 320 P.2d at from the order granting not cross appeal from the the new order In Arizona Parral Mining Co. v. Forbe~, 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 Arid. 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. . . 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. new trial We affirmed the order granting a and also held that cross appeal deprived us of the plaintiffs jurisdiction to to consider court s order denying their motion for JNOV. at 467. failure the Id. at 279, Although this decision provides some guidance, regard it as controlling for several reasons. file a trial 320 P.2d we do not First, the court s decision simply relies upon the accepted principle that an appeal must be timely filed. presented here: underlying trial? Id. When does judgment The court did not discuss the begin time for to run if the filing trial an appeal court the issue from orders an a new 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, di~ ectlyaddresses the right of a party not aggrieved by a decision to file 991, 995 (1968) plaintiffs, in a cross appeal. . In Aegerter, whose favor the could not file a cross appeal. 7 Ariz. App. 239, 243, 437 P.2d the court of appeals held that the trial court granted a new trial, After noting that the trial court s judgment entirely favored the plaintiffs, 7 the court pointed out 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 to - The Nielsons seek to bolster their argument by pointing - other Oregon, - jurisdictions, that particularly require protective California, cross-appeals. Florida Courts in and both California and Oregon long have required protective cross appeals in scenarios similar to that involved here. See Puckhaber Henry, 81 P. 1105 (Cal. 1905); Frank v. Matthiesen, 240 P. 551 1925) These . established states, rule however, mandating statutes or court rules. of Court 3(e) (2) to . inform parties have protective Or. Rev. codified the cross-appeals Stat. § 19.205 v. (Or. judicially in either (2001); Cal. R. Arizona, in contrast, has adopted no clear rule 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 order granting a new trial the effect of the trial court s 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 judgment. ( The Illinois v. Fidel, 745 N.E.2d vacatur restores though the trial State v. Cramer, 1998) the parties court judgment 192 Ariz. 150, 736, to the 744 status had never been 153 ¶ 16, (Ill. App. quo 2001) ante, entered. ) 962 P.2d 224, the 227 as see ; (App. (holding that a voidable judgment is binding and enforceable and has all the ordinary attributes of a valid judgment until it reversed or vacated ) . is 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. order granting a new trial only pending the new trial, then On the other hand, suspended the original the Neilsons view would if the judgment 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. ¶ 16, Cramer, 192 Ariz. at 153 962 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, 1953) e.g., Witt v. Merrill ( The liberal [Federal] et ux., 208 F.2d 285, 286 (4th Cir. Rules of Civil Procedure must not be 9 transformed by judicial interpretation into technical traps for one unwary. ); Union Interchange, Inc. P.2d 477, 479 (1966) (construing P.2d 746, Procedure) If . jurisdict-ion restrictive 747 (1958) we were to Arizona Superior Court, (construing hold Rules of Civil 84 Ariz. Arizona that the court Rules 291, 293, of Civil of appeals lacks to hear the Smiths appeal, we would opt for the more reading of unclear rules. Although we expect to follow procedural rules, we prefer from the courthouse before being meritorious Benton, 100 Ariz. 33, 36, 410 Rule 67(d), Procedure); Di Pietruntonio v. 327 V. claims. that given litigants they not be turned an opportunity away to present 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. economy of effort. In reality, In this case, had the court of appeals affirmed the order granting a new trial, time and expense neither approach assures neither party would have invested in briefing and arguing underlying judgment, issues related to the Under that circumstance, then, economy would result from avoiding the cross-appeal issues. On the other hand, if, appeals reverses as happened here, granting a new trial, the court requiring of a protective have served the goal of judicial economy. 10 an order cross-appeal would The economy produced for - the judicial system thus depends upon the outcome of the appeal from the order ¶15 granting Requiring entities other required to than appeal a new trial.5 a protective the cross appeal, judicial from the system. original however, If an judgment affects appellee and that were appeal turned out to be unnecessary, not only judicial resources but also attorney time and resources would be wasted. of an unnecessary appeal falls most heavily Moreover, the impact 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 from unnecessary expenditures. Therefore, judgment cross-appeal. will The run from the date time the we hold that in the an appellee need not situation presented by this action, protective litigants file a to appeal judgment is the underlying reinstated. III. ¶16 codrt For the of foregoing reasons, appeals denying the we affirm the order Nielsons motion to of the dismiss the 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 stavino all further proceedings in the court of appeals. Ruth V. McGregof, Vice Chief Justice CONCURRING: Rebecca White Berch, Justice Michael D. Ryan, Justice 12 -

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