                                                                  FILED BY CLERK
                                                                     JUL 18 2007
                             IN THE COURT OF APPEALS                 COURT OF APPEALS
                                 STATE OF ARIZONA                      DIVISION TWO
                                   DIVISION TWO


MANUEL RUESGA, Personal                       )        2 CA-CV 2006-0114
Representative of the Estate of ROBERT        )        DEPARTMENT A
RUESGA on behalf of the ESTATE OF             )
ROBERT RUESGA,                                )        OPINION
                                              )
                       Plaintiff/Appellant,   )
                                              )
                  v.                          )
                                              )
KINDRED NURSING CENTERS WEST,                 )
L.L.C., a Delaware limited liability          )
company, dba DESERT LIFE                      )
REHABILITATION AND CARE                       )
CENTER; KINDRED HEALTHCARE                    )
OPERATING, INC., a Delaware                   )
corporation; KINDRED HEALTHCARE,              )
INC., a Delaware corporation; and             )
JACQUELINE LANTER, Administrator,             )
                                              )
                  Defendants/Appellees.       )
                                              )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. C20050082

                             Honorable John E. Davis, Judge

                                       AFFIRMED


Wilkes & McHugh, P.A.
 By Melanie L. Bossie and James M. Morgan                                  Phoenix

  and
Copple, Boehm & Murphy, P.C.
 By Scott E. Boehm                                                                   Phoenix
                                                            Attorneys for Plaintiff/Appellant

Bowman and Brooke LLP
 By Vincent J. Montell, Curtis M. Bergen, and
 David W. Williams                                                                Phoenix
                                                        Attorneys for Defendants/Appellees


P E L A N D E R, Chief Judge.


¶1            Manuel Ruesga, as personal representative and on behalf of the Estate of

Robert Ruesga (hereinafter “the estate”), appeals from the trial court’s order granting a

motion for relief from judgment, filed pursuant to Rule 60(c), Ariz. R. Civ. P., 16 A.R.S.,

Pt. 2, by defendants/appellees Kindred Nursing Centers West, L.L.C., doing business as

Desert Life Rehabilitation and Care Center; Kindred Healthcare Operating, Inc.; Kindred

Healthcare, Inc.; and Jacqueline Lanter, Administrator (collectively, “Desert Life”). In this

action, the estate alleged various claims in connection with Robert’s stay at the Desert Life

facility. In ultimately granting Desert Life’s Rule 60(c) motion, the trial court ruled that

Robert’s wife, Florentine, had validly acted as Robert’s agent in executing and binding him

to an arbitration agreement with Desert Life, precluding a jury trial. The estate argues the

trial court erred, inter alia, in finding an agency relationship between Florentine and Robert.

Finding no error, we affirm.




                                              2
                                    BACKGROUND

¶2           The pertinent background facts are essentially undisputed. The parties agree

that on November 10, 2003, Robert Ruesga was admitted to Desert Life Rehabilitation and

Care Center in a severely compromised state. He had suffered a “massive stroke,” a “heart

attack,” had “had a feeding tube” and “a trache[o]stomy tube for breathing” inserted, and

“was virtually non-responsive.” Robert was an in-patient resident at Desert Life until

March 5, 2004.

¶3           When her husband was admitted to the facility, Florentine Ruesga was given

a series of admission documents, including an arbitration agreement entitled “Alternative

Dispute Resolution Agreement Between Resident and Facility” (ADR agreement). That six-

page agreement provided, inter alia,

                    Any and all claims or controversies arising out of or in
             any way relating to this Agreement or the Resident[’]s stay at
             the Facility including disputes regarding the interpretation of
             this Agreement, whether arising out of State or Federal law,
             whether existing or arising in the future, whether for statutory,
             compensatory or punitive damages and whether sounding in
             breach of contract, tort or breach of statutory duties (including,
             without limitation, any claim based on violation of rights,
             negligence, medical malpractice, any other departure from the
             accepted standards of health care or safety or unpaid nursing
             home charges), irrespective of the basis for the duty or of the
             legal theories upon which the Claim is asserted, shall be
             submitted to alternative dispute resolution as described in the
             ADR Rules.

¶4           On its fifth page, the ADR agreement further provided:



                                             3
                      By signing this Agreement, the Resident is
              acknowledging that he/she understands the following: (1) he/she
              has the right to seek legal counsel concerning this Agreement;
              (2) the execution of this Agreement is not a precondition of
              admission or to the furnishing of services to the Resident by
              facility, and the decision of whether to sign the Agreement is
              solely a matter for the Resident’s determination without any
              influence[;] (3) nothing in this Agreement shall prevent
              Resident or any other person from reporting alleged violations
              of law to the facility, or the appropriate administrative,
              regulatory or law enforcement agency(s); (4) the ADR process
              adopted by this Agreement contains provisions for both
              mediation and binding arbitration, and if the parties are
              unable to reach settlement informally, or through
              mediation, the dispute shall proceed to binding arbitration;
              and (5) agreeing to the ADR process in this Agreement means
              that the parties are waiving their right to a trial in court,
              including their right to a jury trial, their right to a trial by
              judge, and their right to appeal the decision of the
              arbitrator(s) in a court of law.

(Emphasis in original.)

¶5            A social worker who had been employed by Desert Life when Robert was

admitted averred she had “presented the [ADR] agreement to [Florentine] on November 11,

2003,” and had “informed her that if she felt she had a grievance with Desert Life over the

care Mr. Ruesga received, the ADR Agreement was an option for her and Mr. Ruesga.” The

social worker also averred that “if [Florentine] did not sign it, it would not affect whether

or not Mr. Ruesga could stay at Desert Life.” Florentine apparently took the ADR

agreement with her that day and returned and signed it in the social worker’s presence on

November 17, 2003.        Florentine signed the agreement on a line labeled “Legal

Representative.” Immediately above her signature the agreement stated: “By virtue of the

                                             4
Resident’s consent, instruction, durable power of attorney, or appointment as guardian,

I hereby certify that I am authorized to act as Resident’s agent in executing and

delivering this Agreement.” On a line below her signature, labeled “Authority and Title,”

the word “wife” was hand written. It is undisputed that at the time she executed the ADR

agreement, Florentine was not acting under any power of attorney or as legal guardian for

Robert, nor had Robert expressly or specifically authorized her to do so.

¶6            In January 2005, Florentine filed this action against Desert Life, “on behalf of

Robert” as his “next friend,” alleging claims of negligence; negligence per se for violating

statutory duties; violations of A.R.S. §§ 46-454 and 46-455, portions of Arizona’s Adult

Protective Services Act; breach of contract; and fraud. 1 Based on the ADR agreement,

Desert Life moved to dismiss the complaint and to compel arbitration. The trial court

initially denied those motions, noting that Florentine “did not have a binding power of

attorney for her husband and had not been appointed guardian for [him]” and concluding

that “[t]he arbitration agreement [wa]s not a valid contract because it [had not been] signed

by Mr. Ruesga or his authorized agent.”




       1
        Robert died on October 10, 2005, and his estate was substituted as the plaintiff. See
A.R.S. § 14-3110 (with various exceptions, and excluding any damages for pain and
suffering, every cause of action survives death of claimant and may be asserted by decedent’s
personal representative). The estate has not alleged that any acts or omissions of Desert Life
caused Robert’s death. Although the record is not clear on this point, Florentine apparently
died between January and October 2005.

                                              5
¶7            Subsequent discovery revealed several medical records that Desert Life

presented as newly discovered evidence of an agency relationship between Robert and

Florentine. Based on those documents, within six months of the trial court’s ruling, Desert

Life moved for relief from that ruling pursuant to Rule 60(c)(2). Following oral argument,

the trial court granted Desert Life’s motion and directed the parties to “arbitrate all claims

in accordance with the terms of the arbitration agreement.” This appeal followed.

                                     JURISDICTION

¶8            Without elaboration, both sides assert in their briefs that this court has

appellate jurisdiction pursuant to A.R.S. § 12-2101(C) and (D). “We are not bound by [the

parties’ assertion,] however, because of this court’s independent duty to determine whether

we have jurisdiction.” Bothell v. Two Point Acres, Inc., 192 Ariz. 313, n.2, 965 P.2d 47,

50 n.2 (App. 1998); see also Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981).

¶9            At oral argument in this court, the estate argued, and Desert Life agreed, the

trial court’s order compelling arbitration is appealable pursuant to A.R.S. § 12-2101(C) as

a “special order made after final judgment.” The estate correctly pointed out that the trial

court’s initial order, which denied Desert Life’s motions to dismiss and compel arbitration,

was appealable pursuant to A.R.S. § 12-2101.01(A)(1) and thus constituted a “judgment”

pursuant to Rule 54(a), Ariz. R. Civ. P., 16 A.R.S., Pt. 2 (“‘Judgment’ as used in these Rules

includes a decree and an order from which an appeal lies.”). Therefore, the estate further




                                              6
argued, the trial court’s subsequent order granting Desert Life’s Rule 60(c) motion amounted

to a “special order made after final judgment.” § 12-2101(C).

¶10           That an order is statutorily appealable and qualifies as a “judgment” for

purposes of Rule 54(a), however, does not necessarily make it a “final judgment” for

purposes of § 12-2101. See Prop. Investors Enters., Ltd. v. Found. for Airborne Relief,

Inc., 115 Ariz. 52, 54, 563 P.2d 307, 309 (App. 1977) (“[The] order was not final, even

though it was denominated ‘judgment’”). Rather, “‘[a] final judgment . . . decides and

disposes of the cause on its merits, leaving no question open for judicial determination.’”

Id., quoting Decker v. City of Tucson, 4 Ariz. App. 270, 272, 419 P.2d 400, 402 (1966);

see also Kim v. Mansoori, 214 Ariz. 457, ¶ 6, 153 P.3d 1086, 1088 (App. 2007) (final

judgment disposes of at least one claim in a multiclaim action); Davis v. Cessna Aircraft

Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991) (final judgment is “‘an

ultimate disposition of an individual claim’”), quoting Sears, Roebuck & Co. v. Mackey,

351 U.S. 427, 436, 76 S. Ct. 895, 900 (1956).

¶11           The trial court’s first order that denied Desert Life’s motions to dismiss and

to compel arbitration did not ultimately dispose of any claim on the merits or otherwise. In

fact, that order did just the opposite, allowing the estate’s claims to proceed in superior

court rather than referring the case to arbitration. Thus, because the trial court did not enter

any final judgment, we reject the parties’ position that the court’s later order granting Rule

60(c) relief was a special order made after final judgment for jurisdiction purposes under §


                                               7
12-2101(C). If the legislature had intended that statute to apply to “special orders” made

after any and all “judgments,” it presumably would have had no reason to instead use the

phrase “final judgment” in subsection (C). See Speros v. Yu, 207 Ariz. 153, ¶ 16, 83 P.3d

1094, 1098 (App. 2004) (“When interpreting a statute, each word or phrase must be given

meaning so that no part is rendered void, superfluous, contradictory or insignificant.”).

¶12           Additionally, the substance or effect of an order determines its character for

appeal purposes. See Prop. Investors Enters., 115 Ariz. at 54, 563 P.2d at 309. The trial

court’s order from which the estate appeals merely compelled arbitration. The legislature

has not made such orders appealable. See A.R.S. § 12-120.21, 12-2101, 12-2101.01. To

hold that the trial court’s final order is appealable based on the procedural anomaly that it

was entered after a previous order that had refused to refer the case to arbitration would

defeat the legislature’s intent in making orders compelling arbitration nonappealable. See

S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, ¶ 20, 977 P.2d 769, 775 (1999).

¶13           We further note that “[a]n order denying or granting a motion to set aside a

judgment under Rule 60(c) . . . is appealable as a ‘special order made after final judgment.’”

M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d

665, 667 (App. 1990), quoting § 12-2101(C). Again, however, there has never been a final

judgment entered in this case. Consequently, although the trial court’s order granted Rule

60(c) relief, that fact alone does not make the order appealable under § 12-2101.




                                              8
¶14           Similarly, any claim of jurisdiction pursuant to § 12-2101(D) is also dubious.

That subsection permits an appeal “[f]rom any order affecting a substantial right made in any

action when the order in effect determines the action and prevents judgment from which an

appeal might be taken.” At oral argument in this court, pointing to language in the ADR

agreement that prevents the parties from “appeal[ing] the decision of the arbitrator(s) in a

court of law,” the estate argued that subsection (D) applies. But, even assuming the trial

court’s order granting Rule 60(c) relief “affect[s] a substantial right” and “prevents judgment

from which an appeal might be taken,” we fail to see how “the order in effect determines the

action.” § 12-2101(D). Thus, § 12-2101(D) does not provide a basis for appeal.

¶15           In essence, although it granted Rule 60(c) relief, the trial court’s order

ultimately compelled arbitration. And, generally, “[a]n order compelling arbitration is not

a final judgment and therefore not an appealable order.” 1 State Bar of Arizona, Arizona

Appellate Handbook § 3.3.1.12.2.7, at 3-22 (4th ed. 2006); see also Roeder v. Huish, 105

Ariz. 508, 509-10, 467 P.2d 902, 903-04 (1970) (trial court order compelling arbitration

and staying superior court proceedings pending arbitration deemed interlocutory and not

appealable). On the other hand, “an order that compels arbitration, dismisses the arbitrable

claims and includes a Rule 54(b)[, Ariz. R. Civ. P., 16 A.R.S., Pt. 2,] certification of finality

is appealable.” W. Agric. Ins. Co. v. Chrysler Corp., 198 Ariz. 64, ¶ 8, 6 P.3d 768, 770

(App. 2000); see also S. Cal. Edison Co., 194 Ariz. 47, ¶ 20, 977 P.2d at 775 (absent Rule

54(b) certification, “order compelling arbitration remains interlocutory and is not


                                               9
appealable”); Dusold v. Porta-John Corp., 167 Ariz. 358, 361, 807 P.2d 526, 529 (App.

1990). The trial court’s order compelling arbitration neither dismissed any claims nor

included any Rule 54(b) certification. Therefore, under the foregoing authorities, the order,

without more, is interlocutory and not appealable.2

¶16            In sum, we find no basis to exercise subject matter jurisdiction in this case. See

Cordova v. City of Tucson, 15 Ariz. App. 469, 470, 489 P.2d 727, 728 (1971) (“[T]he right

to appeal exists only by force of statute . . . .”). In the exercise of our discretion, however,

we may elect to treat an appeal as a petition for special action, despite our lack of appellate

jurisdiction. See Danielson v. Evans, 201 Ariz. 401, ¶ 35, 36 P.3d 749, 759 (App. 2001);

Lloyd v. State Farm Mut. Auto. Ins. Co., 189 Ariz. 369, 375, 943 P.2d 729, 735 (App.

1996); A.R.S. § 12-120.21(A)(4). We elect to do so here and accept special action

jurisdiction because there is no “equally plain, speedy, and adequate remedy by appeal” and

some of the issues raised are purely legal in nature. Ariz. R. P. Spec. Actions 1(a), 17B

A.R.S.; see Winner Enters., Ltd. v. Superior Court, 159 Ariz. 106, 108, 765 P.2d 116, 118

(App. 1988). In addition, the delay the legislature had hoped to avoid by making orders


       2
        We note that in Western Agricultural Insurance Co. v. Chrysler Corp., 198 Ariz.
64, ¶ 8, 6 P.3d 768, 770 (App. 2000), Division One of this court determined that it had
jurisdiction over an appeal from an order compelling arbitration that “did not contain Rule
54(b) certification.” There, unlike in this case, the trial court ultimately “clarif[ied] . . . it
had intended the order to be a final order of dismissal.” Id. Although the trial court in
Western Agricultural (and the trial court in this case) should have followed the mandatory
stay procedure prescribed in A.R.S. § 12-1502(D), the order entered in Western
Agricultural dismissing the entire case constituted a final, appealable judgment which,
again, is lacking in this case.

                                               10
compelling arbitration nonappealable already has occurred in this case. Thus, resolving the

agency issue without further delay promotes judicial economy and efficient use of the

parties’ and the court’s resources. Cf. ChartOne Inc. v. Bernini, 207 Ariz. 162, ¶¶ 8, 10,

83 P.3d 1103, 1107 (App. 2004) (special action review appropriate when questions of law

raised and when it may avoid “unnecessary expenditure of time and money”).

                                       DISCUSSION

I. Agency

¶17           The estate first argues the trial court erred in granting relief because Desert Life

“did not (and cannot) satisfy the . . . Rule 60(c) requirement that their new evidence would

probably change the result.” Rule 60(c)(2), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, allows relief

from a judgment or order when the moving party produces “newly discovered evidence

which by due diligence could not have been discovered in time to move for a new trial.” But

“‘[a] judgment will not be reopened if the evidence is merely cumulative and would not have

changed the result.’” Ashton v. Sierrita Mining & Ranching, 21 Ariz. App. 303, 305, 518

P.2d 1020, 1022 (1974), quoting 11 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2859 (1973). “We will not disturb the trial court’s decision on

a motion to set aside a judgment absent an abuse of discretion.” Tovrea v. Nolan, 178 Ariz.

485, 490-91, 875 P.2d 144, 149-50 (App. 1993); see also McKernan v. Dupont, 192 Ariz.

550, ¶ 10, 968 P.2d 623, 627 (App. 1998) (“The trial court has broad discretion in

determining whether to grant relief under Rule 60(c) and, absent an abuse of that discretion,


                                               11
we will not disturb its decision.”). A trial court abuses its discretion if it misapplies the law

in ruling on a Rule 60(c) motion. See City of Phoenix v. Geyler, 144 Ariz. 323, 329, 697

P.2d 1073, 1079 (1985).

¶18           As noted above, the trial court initially denied Desert Life’s motions to dismiss

and to compel arbitration, finding “[t]he arbitration agreement [wa]s not a valid contract

because it [had not been] signed by Mr. Ruesga or his authorized agent.” Desert Life later

moved for relief from that ruling, arguing that newly discovered medical records were

“cogent evidence that [Florentine] did, in fact, have the authority to bind her husband to the

terms of the ADR Agreement when she signed it on his behalf, thereby giving rise to a valid

and enforceable agreement to arbitrate his claims.”

¶19           In support of its motion, Desert Life cited various medical records, including

a 1989 Tucson Medical Center “Conditions of Admission” form signed by both Robert, who

had signed as the “Patient,” and Florentine, who had signed as Robert’s “Agent or Legally

Authorized Representative.” Desert Life also produced a June 2003 document in which

Robert had authorized his insurance company to disclose his protected health information

to Florentine. In executing that document, Robert further authorized Florentine “to act

upon and/or make changes to [his] member information,” allowing her to make, inter alia,

a “primary care physician change,” or a “change in network.” That document also stated

that Robert’s authorization to Florentine was “valid from always to all the time.” Desert

Life’s proffered new evidence also included medical records from 2003 that indicated


                                               12
Florentine had controlled Robert’s care even when he was conscious and able to “follow

some simple commands.” In addition, several medical consent forms from July and August

2003 named Robert as the patient and were signed by Florentine as his “legally authorized

representative.”

¶20           Based on the newly discovered evidence, the trial court granted Desert Life’s

motion under Rule 60(c), finding Robert had “created an actual or apparent agency

relationship that empowered his wife to act on his behalf, ” and therefore, she had “had the

authority to bind him to the arbitration provisions.” The estate argues the trial court’s ruling

was incorrect because the evidence produced in support of Desert Life’s Rule 60 motion

did not establish that Florentine had acted as Robert’s express or apparent agent in

executing the ADR agreement.

¶21           Generally, “[t]he question of whether an agency existed is one of fact.” Corral

v. Fid. Bankers Life Ins. Co., 129 Ariz. 323, 326, 630 P.2d 1055, 1058 (App. 1981). But

“[t]he question of whether an agency relationship exists is a question of law for the court

when the material facts from which it is to be inferred are not in dispute.” Cote v. A.J.

Bayless Markets, Inc., 128 Ariz. 438, 444, 626 P.2d 602, 608 (App. 1981). For the first

time at oral argument in this court,3 the estate urged that the facts bearing on actual agency


       3
        “Generally, issues and arguments raised for the first time at oral argument on appeal
are untimely and deemed waived.” Mitchell v. Gamble, 207 Ariz. 364, ¶ 16, 86 P.3d 944,
949-50 (App. 2004). But that is a procedural rule that courts do not automatically apply.
Id. In our discretion, we address the estate’s new argument because it implicates the
meaning and effect of a statute, A.R.S. § 12-1502.

                                              13
were in dispute, and therefore, the question of agency should have been determined by a

jury. It claimed that certain “negative evidence,” such as the absence of any express contract

of agency, power of attorney, or guardianship undermined Desert Life’s newly discovered

evidence.

¶22           All the facts to which that negative evidence relates, however, are undisputed,

and the estate has never questioned the existence, content, or dates of the various records

on which Desert Life relies. Nonetheless, in determining the agency issue, a trier could draw

different inferences from the uncontroverted facts each side presented. See Orme School

v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990) (weighing of evidence and

“‘drawing of legitimate inferences from the facts’” are generally functions for trier of fact),

quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986).

But even if that is so, we reject the estate’s belated suggestion that only a jury can resolve

any factual issues and determine the question of agency in this context.

¶23           The estate’s assertion that Florentine had had no agency authority related

directly to its argument on the ultimate question of whether the ADR agreement was binding

on Robert. In other words, the estate contested any agency relationship in order to

challenge the validity or enforceability of the ADR agreement. But, when a party “denies

the existence of [an] agreement to arbitrate, the [superior] court shall proceed summarily to

the determination of the issue so raised and shall order arbitration if found for the moving

party.” A.R.S. § 12-1502(A). And courts “have repeatedly analogized a trial court’s duty


                                              14
in ruling on a motion to compel arbitration to its duty in ruling on a motion for a summary

judgment.” Ex parte Greenstreet, Inc., 806 So. 2d 1203, 1207 (Ala. 2001); see also Brake

Masters Sys., Inc. v. Gabbay, 206 Ariz. 360, ¶¶ 13-14, 78 P.3d 1081, 1086 (App. 2003)

(trial court should hold evidentiary hearing when genuine issue of material fact exists on

existence or terms of arbitration agreement, but court should apply same standard used to

determine summary judgment motions in deciding whether any such hearing required);

Haynes v. Kuder, 591 A.2d 1286, 1290 (D.C. 1991); DeArmond v. Halliburton Energy

Servs., Inc., 81 P.3d 573, 576 (N.M. Ct. App. 2003).

¶24           “Proceeding ‘summarily’ means that the court initially determines whether

material issues of fact are disputed and, if such factual disputes exist, then conducts an

‘expedited evidentiary hearing’ to resolve the dispute.” Haynes, 591 A.2d at 1290, quoting

Merrill Lynch Pierce Fenner & Smith v. Melamed, 425 So. 2d 127, 128-29 (Fla. Dist. Ct.

App. 1982). Further, the party claiming that there is a dispute of fact regarding arbitrability

has the burden of requesting an evidentiary hearing. See Greenstreet, 806 So. 2d at 1207.

Therefore, as the party denying the existence of a valid or enforceable arbitration agreement,

the estate was required to request an evidentiary hearing if it believed that issues of fact

remained. Because it failed to do so, the estate waived any right to such a hearing.4 See




       For that same reason, the estate waived its argument that “the trial court at least
       4

should have deferred enforcement [of the ADR agreement] until trial or an evidentiary
hearing to decide questions of fact regarding apparent agency” because “fact questions”
remain about what Desert Life “relied upon to determine agency.” (Emphasis added.)

                                              15
Brake Masters Sys., 206 Ariz. 360, ¶ 15, 78 P.3d at 1086 (absent request for evidentiary

hearing, “any error in . . . not holding an evidentiary hearing is waived” on appeal). And,

even assuming there were disputed facts regarding agency, the issue would have been

“summarily” determined by the superior court, not a jury. See § 12-1502(A).

¶25           Accordingly, we reject the estate’s contention that the issue of agency

presented triable questions of fact that only a jury could determine. Rather, when, as here,

no party requested a hearing and the trial court is statutorily obligated to summarily

determine whether a valid ADR agreement exists, § 12-1502(A), the trial court did not err

by ruling on the agency issue without having held an evidentiary hearing.

¶26           We now turn to the merits of the trial court’s ruling on agency. In view of the

procedural mandate in § 12-1502(A) and the absence of any request for an evidentiary

hearing, the trial court was authorized to make “‘[i]ncidental findings of fact,’” to which we

“‘accord[] the usual weight given to such findings of fact in appellate review.’” Maxwell v.

Fid. Fin. Servs., Inc., 184 Ariz. 82, 87, 907 P.2d 51, 56 (1995), quoting Angus Med. Co.

v. Digital Equip. Corp., 173 Ariz. 159, 167, 840 P.2d 1024, 1032 (App. 1992). The

court’s factual finding of agency “is not clearly erroneous if substantial evidence supports

it.” Brake Masters Sys., 206 Ariz. 360, ¶ 16, 78 P.3d at 1086.

¶27           To the extent the parties presented facts from which conflicting inferences

could be drawn on the agency issue, it was for the trial court, not this court, to weigh those

facts. See In re Gen. Adjudication of Rights in Gila River Sys., 198 Ariz. 330, ¶ 25, 9 P.3d


                                             16
1069, 1079 (2000). In other words, in ruling on the agency question, the trial court

presumably weighed Desert Life’s newly discovered evidence against the “negative evidence”

on which the estate relies. We will uphold a trial court’s findings “unless they are shown

to be clearly erroneous.” Id. And “we do not reweigh conflicting evidence or redetermine

the preponderance of the evidence, but examine the record only to determine whether

substantial evidence exists to support the trial court’s action.” In re Estate of Pouser, 193

Ariz. 574, ¶ 13, 975 P.2d 704, 709 (1999). We may affirm a trial court’s grant or denial of

Rule 60(c) relief “where any reasonable view of the facts and law might support the

judgment of the trial court . . . even if the trial court has reached the right result for the

wrong reason.” Geyler, 144 Ariz. at 330, 697 P.2d at 1080.

¶28           “Agency is the fiduciary relationship that arises when one person (a

‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the

principal’s behalf and subject to the principal’s control, and the agent manifests assent or

otherwise consents so to act.” Restatement (Third) of Agency § 1.01 (2006).5 An agency

relationship can derive from either actual or apparent authority. See id. §§ 2.01, 2.03; cf.

Premium Cigars Int’l, Ltd. v. Farmer-Butler-Leavitt Ins. Agency, 208 Ariz. 557, ¶ 30, 96

P.3d 555, 565 (App. 2004) (“There are two usual types of agency, express and apparent.”).




       5
        Arizona courts generally follow the Restatement of Agency, absent prior decisions
to the contrary or other cogent reasons for departing from it. See Maricopa P’ships, Inc.
v. Petyak, 163 Ariz. 624, 626, 790 P.2d 279, 281 (App. 1989).

                                             17
¶29           Actual authority “may be proved by direct evidence of express contract of

agency between the principal and agent or by proof of facts implying such contract or the

ratification thereof.” Corral, 129 Ariz. at 326, 630 P.2d at 1058; see also Restatement

(Third) of Agency § 2.01 cmt. b (actual authority includes both “‘express authority’”—“that

a principal has stated in very specific or detailed language”—and “‘implied

authority’”—when an agent has actual authority “to act in a manner in which an agent

believes the principal wishes the agent to act based on the agent’s reasonable interpretation

of the principal’s manifestation in light of the principal’s objective and other facts known

to the agent”). In contrast, apparent authority exists when “‘the principal has intentionally

or inadvertently induced third persons to believe that such a person was its agent although

no actual or express authority was conferred on him as agent.’” Premium Cigars, 208 Ariz.

557, ¶ 30, 96 P.3d at 565, quoting Curran v. Indus. Comm’n, 156 Ariz. 434, 437, 752 P.2d

523, 526 (App. 1988).

¶30           The parties seemingly agree, as do we, that apparent authority does not apply

here. Robert was “non-responsive” when he was admitted to Desert Life; therefore, on his

arrival he could not have “‘intentionally or inadvertently induced’” Desert Life to believe

Florentine was his agent. See id. Further, as the estate argues, because Desert Life “did not

discover [the aforementioned medical records] until long after Florentine [had] signed the

arbitration agreement, . . . [the records] could not have been relied upon as the source of

apparent agency.” Accordingly, we agree with the parties that apparent agency does not


                                             18
apply because neither Robert nor his medical records—discovered after the fact—could have

induced reliance by Desert Life.

¶31           We turn then to the question of whether Florentine had actual authority to

bind Robert to the ADR agreement.6 The estate argues “[t]here can be no dispute that

Florentine was not Robert’s express agent” because, inter alia, “there was no express

contract of agency.” But, as noted above, “[t]he authority of an actual agent can be either

express, or implied.” Canyon State Canners, Inc. v. Hooks, 74 Ariz. 70, 72, 243 P.2d 1023,

1024 (1952); see also Brown v. Ariz. Dep’t of Real Estate, 181 Ariz. 320, 326, 890 P.2d

615, 621 (App. 1995) (“Agency may be proven by an express contract between the parties

or by facts implying a contract.”); Cote, 128 Ariz. at 444, 626 P.2d at 608 (“No express

contract between principal and agent is required to establish an agency relationship.”);

Restatement (Third) Agency § 2.01, cmt. b.

¶32           As our supreme court has noted:

              The test of whether implied authority exists is well-stated in 2
              C.J.S., Agency, § 23 . . . where it is said:

                    “The relation of agency need not depend upon express
              appointment and acceptance thereof, but may be, and
              frequently is, implied from the words and conduct of the parties


       6
         We reject the estate’s argument that the trial court did not find actual authority but,
rather, relied solely on “ostensible authority” in finding that Florentine had acted as
Robert’s “authorized agent” in executing the ADR agreement. Although the ultimate basis
for its ruling is not totally clear, the trial court expressly found that Robert had “created an
actual or apparent agency relationship.” To the extent the court suggested Florentine “had
ostensible or apparent authority to bind” Robert, we disagree.

                                              19
              and the circumstances of the particular case. If, from the facts
              and circumstances of the particular case, it appears that there
              was at least an implied intention to create it, the relation may be
              held to exist, notwithstanding a denial by the alleged principal,
              and whether or not the parties understood it to be an agency.”

Canyon State Canners, 74 Ariz. at 73, 243 P.2d at 1024, quoting 2 C.J.S. Agency § 23, at

1045-46.

¶33           Further, although “marital relation alone does not make one spouse an agent

for the other,” “an inter-spousal agency may be established by circumstantial as well as

direct evidence.” State Farm Mut. Auto. Ins. Co. v. Long, 16 Ariz. App. 222, 225, 492 P.2d

718, 721 (1972). In fact, “[t]he only meaningful difference between a principal-agent

relation existing between spouses and that existing between non-spouses is the degree of

proof required to establish and define the agency relationship.” Id. Thus, contrary to the

estate’s assertion, the issue of actual authority is not resolved simply because there was no

“express contract of agency.”

¶34           In Gruber v. Castleberry, 23 Ariz. App. 322, 324, 533 P.2d 82, 84 (1975),

Division One of this court found that Gruber was bound by a lease renewal for his office

space that his wife had signed. Although Gruber had never expressly authorized his wife to

act as his agent in carrying out the business affairs of his medical practice, his wife “paid the

office bills, signed the rent checks, signed the lease and signed the renewal notice on behalf

of herself and her husband.” Id. Accordingly, the court found, “[b]y permitting his wife to

conduct these business activities, Dr. Gruber impliedly authorized her to act as his agent in


                                               20
executing the renewal notice.” Id. In another case addressing implied spousal authority, the

single fact that a wife had relied on her husband to take care of the couple’s insurance

matters was held to be “sufficient to create an agency relationship between her and her

husband”; therefore, the court held the husband “had authority to bind [his wife]” in an

insurance contract. Torrez v. State Farm Mut. Auto. Ins. Co., 130 Ariz. 223, 228-29, 635

P.2d 511, 516-17 (App. 1981). Those cases support the trial court’s conclusion, based on

the materials Desert Life presented, that Robert had implicitly authorized Florentine to act

as his agent.

¶35             Desert Life produced several medical records that revealed a history of

Florentine’s acting and making decisions on Robert’s behalf. The records not only

constituted circumstantial evidence of an agency relationship, but arguably contained an

express authorization in the 1989 medical form when Robert failed to contest Florentine’s

signature as “Agent or Legally Authorized Representative.” See Restatement (Third) of

Agency § 1.03, cmt. b (when reasonable person would express dissent to an action, silence

or “[f]ailure . . . to express dissent will be taken as a manifestation of affirmance”).

Admittedly, that document was executed long before Robert’s stay at Desert Life. But

Desert Life also produced various documents dated immediately before his stay showing that

Robert had consented to his wife’s control of his care and his insurance matters. See ¶ 19,

supra. Absent any contrary evidence, the records Desert Life produced reflect that Robert

intended his wife to act as his agent.


                                            21
¶36           Accordingly, we agree with Desert Life that “the trial court properly

determined that there were sufficient facts to show that both [Robert’s] actions and his

wife’s long history of making decisions on his behalf gave rise to an agency relationship such

that [Florentine] could bind her husband to the ADR Agreement.”7 The trial court did not

abuse its discretion in granting Desert Life’s Rule 60(c) motion when the newly discovered

facts produced in support of that motion established an agency relationship. See Tovrea,

178 Ariz. at 490-91, 875 P.2d at 149-50.

II. Contract of adhesion and waiver of rights under Arizona’s Elder Abuse Act

¶37           The estate also argues the trial court “erred by enforcing the arbitration

agreement without determining whether it is a contract of adhesion” and in failing “to

address the waiver of Robert’s rights under Arizona’s elder-abuse statutes.” See A.R.S.

§ 46-455(H). The estate concedes it raised these issues only in opposition to Desert Life’s

motions to compel arbitration and to dismiss, which the trial court initially denied. Those

issues were not reurged in connection with Desert Life’s Rule 60(c) motion for relief from

judgment, the granting of which is the sole ruling from which the estate sought to appeal and




       7
        We note that in support of its agency argument, Desert Life points to several other
medical records containing evidence that Florentine generally had controlled Robert’s
health care decisions. Although those documents arguably lend support to the
determination that Robert had intended Florentine to act as his agent, she had statutory
authority “to make health care decisions” for her spouse who “[wa]s unable to make or
communicate” such decisions, even absent any agency authority. See A.R.S. § 36-
3231(A)(1). Thus, we do not rely on those documents to determine an agency relationship.

                                             22
that is before us now. Nonetheless, the estate argues “the trial court forgot to address them

during the [Rule 60(c)] proceedings.”

¶38           We first note that, although we have opted to treat this as a special action, our

review on appeal is limited to the rulings specified in the notice of appeal. See Brown v.

Karas, 73 Ariz. 62, 66, 237 P.2d 799, 801 (1951) (supreme court would “not . . .

consider[]” assignment of error when “[a]n examination of the notice of appeal indicate[d]

that no appeal [had been] taken from the ruling of the court” that appellant had claimed was

erroneous); see also Lee v. Lee, 133 Ariz. 118, 124, 649 P.2d 997, 1003 (App. 1982); cf.

Hirsch v. Nat’l Van Lines, Inc., 136 Ariz. 304, 311, 666 P.2d 49, 56 (1983) (“The scope

of an appeal from a denial of a Rule 60 motion is restricted to the questions raised by the

motion to set aside . . . .”). We see no reason why that same limitation should not apply

here. Accordingly, because the estate appealed only from “the Court’s signed minute entry

that granted defendants’ Rule 60(c) motion for relief from the Court’s earlier ruling,” and

because that ruling did not address the aforementioned issues, the estate cannot raise them

now.

¶39           Further, by failing to reurge below their arguments about the validity of the

ADR agreement in response to Desert Life’s Rule 60(c) motion, or after the trial court

granted that motion, the estate abandoned those arguments, precluding their review now.

See Aritex Land Co. v. Baker, 14 Ariz. App. 266, 273, 482 P.2d 875, 882 (1971)

(“[A]ppellants are precluded from urging a defense on appeal which they abandoned at


                                             23
trial.”). And, even assuming the estate was not required to reurge the aforementioned

arguments in response to Desert Life’s motion, because the trial court had no real

opportunity to address them, the issues are waived on review.8 See Douglas v. Vancouver

Plywood Co., 16 Ariz. App. 364, 367, 493 P.2d 531, 534 (1972) (“[A]ppellate review of

a case will ordinarily be limited to the theories tried in the court below.”) (emphasis added);

see also Winters v. Ariz. Bd. of Educ., 207 Ariz. 173, ¶ 13, 83 P.3d 1114, 1118 (App.

2004). Therefore, we do not further consider or address these arguments.

                                      DISPOSITION

¶40           The order of the trial court is affirmed. Because the estate is not the successful

party, we deny its request for attorney fees made pursuant to A.R.S. § 12-341.01. In our

discretion, we also deny Desert Life’s attorney fee request. See § 12-341.01(A).



                                               ____________________________________
                                               JOHN PELANDER, Chief Judge

CONCURRING:


____________________________________
JOSEPH W. HOWARD, Presiding Judge


       8
         As noted above, the trial court denied Desert Life’s motions to compel arbitration
and to dismiss the complaint, finding “[t]he arbitration agreement is not a valid contract
because it was not signed by Mr. Ruesga or his authorized agent.” In view of that ruling, the
court had no occasion to reach issues related to the substance or validity of the ADR
agreement itself. And, after the trial court later granted Rule 60(c) relief and ordered the
parties to arbitrate the dispute, the court was not asked to rule on previously raised issues.

                                              24
____________________________________
GARYE L. VÁSQUEZ, Judge




                                 25
