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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    DALE W. BLACK, Plaintiff/Appellant,

                                        v.

            BNSF RAILWAY COMPANY, Defendant/Appellee.
            ____________________________________________

                     DALE W. BLACK, Plaintiff/Appellee,

                                        v.

            BNSF RAILWAY COMPANY, Defendant/Appellant.

                             No. 1 CA-CV 14-0419
                               FILED 10-13-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2008-022738
               The Honorable David O. Cunanan, Judge

        VACATED AND REMANDED WITH INSTRUCTIONS


                                   COUNSEL

Osborn Maledon P.A., Phoenix
By Mark I. Harrison, Thomas L. Hudson
Co-Counsel for Plaintiff
St. John & Romero PLLC, Mesa
By Jason J. Romero
Co-Counsel for Plaintiff

Thorpe Shwer, P.C., Phoenix
By William L. Thorpe, Bradley D. Shwer, Adam T. Reich
Co-Counsel for Defendant

Fennemore Craig, P.C., Phoenix
By Patrick Irvine
Co-Counsel for Defendant


                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.


N O R R I S, Judge:

¶1             This appeal arises out of a superior court order vacating a
judgment in favor of plaintiff/appellant Dale Black pursuant to Arizona
Rule of Civil Procedure 60(c). The superior court vacated the judgment so
defendant/appellee BNSF Railway Company (“BNSF”) could file a delayed
appeal after this court dismissed its original appeal because its attorneys
missed the deadline for filing a new trial motion. On appeal, Black argues
the superior court should not have vacated the judgment because BNSF’s
attorneys’ failure to timely file the new trial motion was not excusable. We
agree.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On April 3, 2013, after a three-week trial, a jury returned a
verdict for Black on a Federal Employers Liability Act claim, for injuries he
sustained while working for BNSF. Over four months later, on August 26,
2013, the superior court, pursuant to the jury’s verdict, entered a $1.6
million judgment against BNSF (“Original Judgment”). Despite having
more than four months to prepare a motion for a new trial, and after Black’s
attorneys declined to agree to extend the deadline for such a motion, on
September 6, 2013, BNSF moved to extend the deadline for filing a motion
for new trial pursuant to Arizona Rule of Civil Procedure 59 (“Motion to
Extend”) from September 10—the deadline for the motion under Arizona
Rule of Civil Procedure 6(a)—to September 18. BNSF’s Motion to Extend


                                     2
                             BLACK v. BNSF
                           Decision of the Court
sought an extension of time “[d]ue to numerous preexisting professional
and personal conflicts for undersigned counsel, including ones that
require[d] all undersigned counsel to be out of town.” The superior court
granted BNSF’s Motion to Extend, but subsequently denied BNSF’s motion
for new trial. Ninety-three days after the superior court entered the
Original Judgment, on November 27, 2013, BNSF appealed.

¶3            This court dismissed BNSF’s appeal. Because a motion for
new trial must be filed no later than 15 days after entry of the judgment,
Arizona Rule of Civil Procedure 59(d), and a superior court is prohibited
from extending the time for filing such a motion by Arizona Rule of Civil
Procedure 6(b), except in limited circumstances that were inapplicable to
BNSF’s appeal, we concluded its new trial motion was untimely and thus
failed to extend its time to appeal. See generally Arizona Rule of Civil
Appellate Procedure 9(b).1 In full, Rule 6(b) reads as follows:

             When by these rules or by a notice given
             thereunder or by order of court an act is
             required or allowed to be done at or within a
             specified time, the court for cause shown may at
             any time in its discretion (1) with or without
             motion or notice order the period enlarged if
             request therefor is made before the expiration of
             the period originally prescribed or as extended
             by a previous order or (2) upon motion made
             after the expiration of the specified period
             permit the act to be done where the failure to act
             was the result of excusable neglect; but it may not
             extend the time for taking any action under Rules
             50(b), 52(b), 59(d), (g) and (l), and 60(c), except to
             the extent and under the conditions stated in
             them, unless the court finds (a) that a party
             entitled to notice of the entry of judgment or
             order did not receive such notice from the clerk
             or any party within 21 days of its entry, and (b)
             that no party would be prejudiced, in which
             case the court may, upon motion filed within
             thirty days after the expiration of the period
             originally prescribed or within 7 days of receipt
             of such notice, whichever is earlier, extend the


             1Effective
                     January 1, 2015, ARCAP 9(b), as amended, was
designated ARCAP 9(e).


                                       3
                              BLACK v. BNSF
                            Decision of the Court
              time for taking such action for a period of 10
              days from the date of entry of the order
              extending the time for taking such action.

(Emphasis added).

¶4             BNSF then moved to vacate the Original Judgment under
Rule 60(c)(6) (“Rule 60 Motion”), so the superior court could reenter the
judgment (“Reinstated Judgment”), thereby resetting the appeal deadline.
The superior court granted BNSF’s Rule 60 Motion. Quoting Rule 60(c)(1)
and 60(c)(6), the court concluded it had “discretion” to grant relief because
“to deny the Defendant the right to appeal would be an injustice . . . .” Black
appealed that ruling, and BNSF appealed the Reinstated Judgment and the
superior court’s denial of its new trial motion.

                               DISCUSSION

¶5            Black argues the superior court abused its discretion in
granting BNSF’s Rule 60 Motion because BNSF’s attorneys’ failure to know
the applicable procedural rules was not excusable. Although we review a
superior court’s ruling on a Rule 60 motion for an abuse of discretion, we
are nevertheless required to make sure the superior court properly applied
the governing law. City of Phoenix v. Geyler, 144 Ariz. 323, 328-29, 697 P.2d
1073, 1078-79 (1985); see also Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13, 29
P.3d 870, 873 (App. 2001) (superior court “abuse[s] its discretion by
misapplying the law”). Here, under the governing law regarding what
constitutes an excusable mistake under Rule 60(c), the superior court
should not have vacated the Original Judgment so BNSF could file a
delayed appeal.

¶6             Rule 60(c) permits courts to “relieve a party . . . from a final
judgment . . . for the following reasons: (1) mistake, inadvertence, surprise
or excusable neglect; . . . or (6) any other reason justifying relief from the
operation of the judgment.” The superior court’s “broad discretion when
deciding whether to set aside judgments under Rule 60(c) . . . ‘is
circumscribed by public policy favoring finality of judgments and
termination of litigation.’” Panzino v. City of Phoenix, 196 Ariz. 442, 448, ¶
19, 999 P.2d 198, 204 (2000) (quoting Waifersong, Ltd. v. Classic Music
Vending, 976 F.2d 290, 292 (6th Cir. 1992)).

¶7             A party may obtain relief under Rule 60(c)(1) if the conduct is
“excusable,” that is, “the neglect or inadvertence is such as might be the act
of a reasonably prudent person under the same circumstances.” Geyler, 144
Ariz. at 331, 697 P.2d at 1081. And, “a party can obtain Rule 60(c)(6) relief


                                      4
                               BLACK v. BNSF
                             Decision of the Court
from a judgment entered due to his or her attorney’s failure to act only if
that failure is legally excusable.” Panzino, 196 Ariz. at 445, ¶ 7, 999 P.2d at
201. Thus, the initial and determinative issue here is whether, under either
Rule 60(c)(1) or (6), BNSF’s failure to timely move for a new trial was
“excusable.”2

¶8             The mistake was not excusable under Rule 60(c)(1) or (6)
because it rested on the failure of BNSF’s counsel to know, under the
circumstances presented here, that Rule 6(b) prohibited the superior court
from extending BNSF’s time to move for a new trial. “[I]gnorance of the
rules of procedure is not the type of excuse contemplated in rule 60(c).”
Daou v. Harris, 139 Ariz. 353, 359, 678 P.2d 934, 940 (1984). In Daou, for
example, the defendant moved to set aside a default judgment entered
against him, claiming his failure to file a timely answer was excusable
because he mistakenly believed that because the “action was filed in a
county other than his county of residence, he did not have to answer [the]
complaint.” Id. at 360, 678 P.2d at 941. The supreme court concluded, “the
trial court did not abuse its discretion in holding that [the defendant] failed
to show excusable neglect” when the defendant’s failure to act rested on his
ignorance of the applicable procedural rules. Id. at 361, 678 P.2d at 942.

¶9             This court considered a similar situation in Jarostchuk v. Aricol
Communications, Inc. 189 Ariz. 346, 942 P.2d 1178 (App. 1997). There, the
plaintiff failed to timely appeal an arbitration award to the superior court.


              2A   party may not seek relief under Rule 60(c)(6) if relief is
available under one of the other five subsections of Rule 60(c), which, here,
is (c)(1). See Webb v. Erickson, 134 Ariz. 182, 186, 655 P.2d 6, 10 (1982) (reason
for granting relief under Rule 60(c)(6) “must not be one of the reasons set
forth in the five preceding clauses” because “[c]lause 6 and the first five
clauses are mutually exclusive”); cf. Amanti Elec., Inc. v. Engineered
Structures, Inc., 229 Ariz. 430, 433, ¶ 10, 276 P.3d 499, 502 (App. 2012)
(“[E]ven when relief might have been available under one of the first five
clauses [of Rule 60(c)] but for the fact that the time limits of the rule had
elapsed, this does not necessarily preclude relief under clause (6) if the
motion also raises exceptional additional circumstances that convince the
court the movant should be granted relief in the interest of justice.”). We
need not address that issue here, because, even under Rule 60(c)(6), an
attorney’s failure to act must still be “legally excusable.” Panzino, 196 Ariz.
at 445, ¶ 7, 999 P.2d at 201. Thus, under either subsection, the dispositive
issue is the same—whether BNSF’s attorneys’ failure to know the time
limitations imposed by Rule 6(b) on new trial motions was excusable.



                                        5
                               BLACK v. BNSF
                             Decision of the Court
Id. at 347, 942 P.2d at 1179. The superior court granted plaintiff’s request to
file a delayed appeal, finding the attorney’s secretary’s failure to correctly
calculate the appeal deadline under Rule 6(a), by excluding Saturdays and
Sundays, amounted to excusable neglect. Id. at 348-49, 942 P.2d at 1180-81.
We reversed, holding the miscalculation was not excusable under Rule
60(c) because the rule’s explicit and clear language required the calculation
to include Saturdays and Sundays, and a reasonably prudent legal secretary
could not have read Rule 6(a) any differently. Id. at 349, 942 P.2d at 1181.

¶10           The legal principle we draw from these cases is this: failure to
know the applicable procedural rules, especially when those rules are clear,
is not excusable under Rule 60(c)(1) or (6).

¶11            Here, BNSF’s attorneys admitted they “overlooked” and were
“unaware of the Rule 6(b) restrictions.”3 The restriction in Rule 6(b) is clear:
it bars extensions of time for filing a new trial motion, except under limited
circumstances that were inapplicable here; and BNSF does not argue
otherwise. This is not a case involving complicated, ambiguous, or vague
rules resulting in an excusable misunderstanding, but rather a case
involving counsel’s failure to know about the restrictions on new trial
motions imposed by Rule 6(b). Thus, the superior court should not have
granted the Rule 60 Motion because “ignorance of the rules of procedure is
not the type of excuse contemplated in rule 60(c).” Daou, 139 Ariz. at 359,
678 P.2d at 940; see Geyler, 144 Ariz. at 328-29, 697 P.2d at 1078-79 (although
we review “a trial court’s order granting or denying relief under Rule 60(c)”
for an abuse of discretion, “[i]n exercising its discretion, the trial court is not
authorized to act arbitrarily or inequitably, nor to make decisions
unsupported by facts or sound legal policy”; discretion does not “leave a
court free to misapply law or legal principle”).

¶12            Nevertheless, BNSF argues its attorneys acted in good faith in
filing the Motion to Extend. We agree BNSF’s attorneys, in good faith, did
not know of Rule 6(b). BNSF’s attorneys’ failure to know the rules,
however, does not transform their mistake into an excusable one. Neither
does their failure to understand a clear rule of procedure.

¶13          BNSF also suggests, albeit subtly, that the superior court
contributed to its attorneys’ mistake because “had the trial court not

               3AlthoughBNSF’s attorneys acknowledged to the superior
court they were unaware of Rule 6(b)’s restrictions, they also suggested
they misunderstood the rule. On its face, Rule 6(b) is clear and a reasonably
prudent lawyer could not have read it to authorize the extension BNSF
sought and received.


                                        6
                              BLACK v. BNSF
                            Decision of the Court
granted the [Motion to Extend], BNSF would have filed . . . timely.” Only
after we dismissed the appeal did BNSF begin to intimate that the superior
court contributed to the error. Although the superior court should not have
granted the Motion to Extend, it did not force or entice BNSF to file the
motion or to accept the extension. Indeed, in its Motion to Extend, BNSF’s
attorneys explained they were requesting the extension “[d]ue to numerous
preexisting professional and personal conflicts.” See supra ¶ 2.

¶14            Finally, BNSF argues the supreme court’s decision in Craig v.
Craig, 227 Ariz. 105, 253 P.3d 624 (2011), allows parties to file delayed
appeals even when an extension is improperly granted under Rule 6(b). We
do not read Craig this broadly. In Craig, after the superior court issued a
decree dissolving a marriage between Husband and Wife, Husband timely
moved for a new trial, but, before the court could rule on the motion, Wife
filed a notice of appeal. Id. at 105, ¶ 2, 253 P.3d at 624. Husband cross-
appealed. Id. After the superior court denied Husband’s motion, neither
party filed new notices of appeal. Id. We dismissed both appeals for lack
of jurisdiction. Id. at 105, ¶ 3, 253 P.3d at 624. After analyzing the confused
state of the law regarding premature appeals, the supreme court upheld
our dismissal for lack of jurisdiction stating:

              “[A] limited exception to the final judgment rule .
              . . allows a notice of appeal to be filed after the
              trial court has made its final decision, but before
              it has entered a formal judgment, if no decision
              of the court could change and the only
              remaining task is merely ministerial.” In all
              other cases, a notice of appeal filed in the
              absence of a final judgment, or while any party’s
              time-extending motion is pending before the
              trial court, is “ineffective” and a nullity.

Id. at 107, ¶ 13, 253 P.3d at 626 (citation omitted). The supreme court then
noted:

              At oral argument, Husband did not oppose
              Wife's argument that the two appeals should be
              considered on the merits. Accordingly,
              Husband and Wife agreed to file a stipulated
              request in the superior court under Arizona
              Rule of Family Law Procedure 85(C)(1)(f),
              seeking temporary relief from—and immediate
              reinstatement of—the dissolution decree and
              the order denying Husband's motion for new


                                      7
                              BLACK v. BNSF
                            Decision of the Court
              trial. Because these appeals relate only to the
              division of property, we are confident that the
              trial court will grant such a stipulated motion,
              allowing both parties to file fresh notices of
              appeal. The court of appeals can then reinstate
              the previously dismissed appeals and consider
              them on the briefing already submitted.

Id. at 107-08, ¶ 16, 253 P.3d at 626-27. Seizing on this language, BNSF argues
it was in the same position as the parties in Craig, and, thus, the superior
court was authorized to vacate the Original Judgment so it could file a
“fresh” notice of appeal. BNSF also argues this language indicates “a shift
away from rigidly applying rules of procedure in a manner that prevents a
party from pursuing their appeals.”

¶15            BNSF is not similarly situated to the parties in Craig, and that
case does not announce a new rule, jettisoning 30 years of longstanding
Arizona law, that a lawyer’s failure to know the applicable rules of
procedure is excusable. First, Craig arose during a time of widespread
confusion in the law regarding premature appeals, and the parties may
have relied on a prior decision of this court that validated their notice of
appeal. Id. at 106-07, ¶¶ 4, 11-12, 253 P.3d at 625-26 (discussing Performance
Funding, L.L.C. v. Barcon Corp., 197 Ariz. 286, 3 P.3d 1206 (App. 2000)). In
contrast, as we have explained, Rule 6(b) is not confusing or unclear.
Second, the parties in Craig stipulated to vacating the underlying judgment,
thus implicitly acknowledging neither would be prejudiced by a delayed
appeal. Although Craig did not mention Geyler, lack of prejudice is an
important factor for a superior court to consider in allowing a delayed
appeal under Rule 60(c). See Geyler, 144 Ariz. at 328, 697 P.2d at 1078. Here,
the parties did not enter into such a stipulation. Third, in its fact-specific
statement, the supreme court gave no indication it intended to overrule the
well-established principle that “ignorance of the rules of procedure is not
the type of excuse contemplated in rule 60(c).” Daou, 139 Ariz. at 359, 678
P.2d at 940.




                                      8
                             BLACK v. BNSF
                           Decision of the Court
                              CONCLUSION

¶16           For the foregoing reasons, we reverse and vacate the superior
court’s order granting BNSF’s Rule 60 Motion, and vacate the Reinstated
Judgment entered by the superior court pursuant to that order. We remand
to the superior court and instruct it to reenter the August 26, 2013 Original
Judgment in Black’s favor. We dismiss as moot BNSF’s appeal from the
Reinstated Judgment and the superior court’s denial of its new trial motion.




                                  :ama




                                     9
