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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 ROBERT A. GONZALES, Plaintiff/Appellant,

                                         v.

              STATE OF ARIZONA, et al., Defendants/Appellees.

                              No. 1 CA-CV 19-0092
                                FILED 02-04-2020

            Appeal from the Superior Court in Maricopa County
                         No. LC2018-000402-001
                  The Honorable Patricia A. Starr, Judge

                                   AFFIRMED


                                    COUNSEL

Richard M. Martinez, Esq., Tucson
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Defendants/Appellees State of Arizona; Arizona Department of
Economic Security, Adult Protective Services Division
                       GONZALES v. STATE, et al.
                         Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani
joined.


M c M U R D I E, Judge:

¶1            Robert A. Gonzales appeals the superior court’s dismissal of
his appeal from an administrative decision substantiating a finding that he
exploited a vulnerable adult. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Between 2017 and 2018, Gonzales took care of his 91-year-old
mother, Jessie Collins, who suffered from significant cognitive impairment
and dementia. Gonzales managed Collins’ finances and provided housing
and transportation for her. However, the Arizona Department of Economic
Security (“DES”), Adult Protective Services division (“APS”) suspected
Gonzales of exploiting Collins, a vulnerable adult, by improperly using her
resources to his advantage. Gonzales allegedly made $350 in transactions
from Collins’ checking account without her consent and “for purposes
which did not benefit [her].”

¶3             After an investigation, DES concluded Gonzales exploited
Collins in violation of Arizona Revised Statutes (“A.R.S.”) section
46-451(A)(4) (2018). Gonzales requested a hearing before the Office of
Administrative Hearings (“OAH”) to decide whether the proposed
findings should be listed in the APS Registry. 1 In June 2018, the OAH held
a hearing in which Gonzales appeared pro se. The Administrative Law
Judge (“ALJ”) concluded that Gonzales exploited a vulnerable adult and
that the proposed findings should be “maintained in the APS Registry as
substantiated.” On July 24, 2018, the DES Director reviewed the order and
issued a final administrative decision accepting the ALJ’s recommendations
without modification. That same day, DES mailed a copy of the decision to

1      The APS Registry is a database “of substantiated reports of abuse,
neglect and exploitation of vulnerable adults made pursuant to § 46-458.”
A.R.S. § 46-459(A).



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                         GONZALES v. STATE, et al.
                           Decision of the Court

Gonzales’ last known address—the same one used throughout the hearing
process.

¶4             On October 5, 2018, Gonzales appealed the administrative
decision to the superior court. Conceding that his appeal was untimely,
Gonzales argued that because he left the country for work on July 20, 2018,
the time restrictions associated with administrative appeals should be
equitably tolled and commence on the date of his return to Tucson. The
State filed a motion to dismiss the appeal stating that the court lacked
subject-matter jurisdiction because the appeal was untimely. The superior
court agreed with the State that Gonzales’ untimely appeal deprived it of
jurisdiction and dismissed the appeal with prejudice. Gonzales appealed
the superior court’s dismissal, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1) and -913. See Svendsen v. Ariz. Dep’t of Transp., Motor
Vehicle Div., 234 Ariz. 528, 533, ¶ 13 (App. 2014) (A.R.S. § 12-913 has been
“construed as also allowing an appeal to the court of appeals”).

                                 DISCUSSION

¶5            Gonzales argues that the superior court should not have
dismissed his case with prejudice because: (1) the deadline should have
been equitably tolled; and (2) the court’s decision violated his due-process
rights. We review a court’s dismissal for lack of subject-matter jurisdiction
de novo. M-11 Ltd. P’Ship v. Gommard, 235 Ariz. 166, 168, ¶ 6 (App. 2014).
Interpretation of statutes and court rules are also subject to de novo review.
Id.

A.     The Superior Court Lacked the Authority to Equitably Toll
       Gonzales’ Deadline to File a Notice of Appeal.

¶6             “An action to review a final administrative decision shall be
commenced by filing a notice of appeal within thirty-five days from the
date when a copy of the decision sought to be reviewed is served upon the
party affected.” A.R.S. § 12-904(A). “Service is complete on personal service
or five days after the date that the final administrative decision is mailed to
the party’s last known address.” Id. “Unless review is sought of an
administrative decision within the time and in the manner provided in this
article, the parties to the proceeding before the administrative agency shall
be barred from obtaining judicial review of the decision.” A.R.S.
§ 12-902(B); see also Johnson v. Ariz. Registrar of Contractors, 242 Ariz. 409, 412,
¶ 7 (App. 2017) (“An untimely filing deprives the [superior] court of subject
matter jurisdiction, and the appealing party forfeits the right to seek judicial
review.”). A court reviewing an administrative decision “may not extend



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                         GONZALES v. STATE, et al.
                           Decision of the Court

the time for the filing of a notice of appeal.” Ariz. R.P. Jud. Rev. Admin.
Dec. 2(b).

¶7            Gonzales concedes his appeal was untimely and that the
“deadline to file the notice of appeal normally would have been Tuesday,
September 4, 2018.” However, he argues his absence from the country
should excuse his untimely filing because the notice of appeal would have
been timely if the “time to appeal . . . commence[d] on the date of his return
to Tucson, Arizona.”

¶8             However, A.R.S. § 12-904’s time requirement is a
“jurisdictional prerequisite” and “must be strictly complied with to achieve
entrance to appellate review.” ADES v. Holland, 120 Ariz. 371, 373 (App.
1978). Equitable tolling is a concept applicable exclusively to extending the
statute of limitations, a procedural requirement. Nolde v. Frankie, 192 Ariz.
276, 279, ¶ 13 (1998) (equitable tolling is a recognized exception to the
application of a statute of limitations “when necessary to prevent
injustice”); Hosogai v. Kadota, 145 Ariz. 227, 231 (1985) (“The equitable
tolling doctrine is rooted in a number of common law exceptions to statutes
of limitations . . . . Equitable tolling is appropriate when it would effectuate:
1) the policies underlying the statute, and 2) the purposes underlying the
statute of limitations.”), superseded by statute on other grounds as recognized in
Jepson v. New, 164 Ariz. 265, 270–71 (1990); Kyles v. Contractors/Engineers
Supply, Inc., 190 Ariz. 403, 405 (App. 1997) (“Equitable tolling applies when
the plaintiff is excusably ignorant of the limitations period and the
defendant would not be prejudiced by the late filing.”).

¶9            The superior court could not apply equitable tolling to an
untimely filing of a notice of appeal from an administrative decision. Legacy
Found. Action Fund v. Citizens Clean Elections Comm’n, 243 Ariz. 404, 408, ¶ 17
(2018) (Statutes containing specific time limits regarding appeals from
administrative decisions “are not statutes of limitations but rather confer
limited appellate jurisdiction subject to timely action by the appealing
party. Failure to appeal in a timely manner thus deprives the appellate
court (here the superior court) of jurisdiction.”); Gommard, 235 Ariz. at 168,
¶ 2 (“The timely filing of an appeal under A.R.S. § 12-904([A]) is a
jurisdictional requirement, and a tardy filing results in a lack of subject
matter jurisdiction and the appellant’s loss of its right to seek judicial
review.”).

¶10        To support his contention, Gonzales nevertheless argues that
the 35-day filing requirement is not jurisdictional, but rather
procedural—meaning it can be equitably tolled. Gonzales relies on State Tax


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                        GONZALES v. STATE, et al.
                          Decision of the Court

Comm’n v. Miami Copper Co., which states that “the time within which the
notice of appeal must be filed . . . is procedural and subject to reasonable
regulations by the courts.” 74 Ariz. 234, 238 (1952). However, Gonzales’
reliance on Miami Copper Co. is misplaced. The Miami Copper Co. decision
concerned a statutory deadline for the filing of an appeal that conflicted
with a rule promulgated by the Arizona Supreme Court. 74 Ariz. at 237–38.
The appellant, in that case, had complied with the court rule. Here, there is
no conflicting rule that Gonzales met in filing his appeal, and the time
required to appeal an administrative decision has been determined to be
jurisdictional. A.R.S. § 12-904(A); Johnson, 242 Ariz. at 412, ¶ 7 (“The
deadline for filing an administrative appeal is jurisdictional.”).

¶11            Gonzales also argues that his pro se status during the
proceedings should be considered in determining whether the court should
have equitably tolled his appeal. However, courts “hold unrepresented
litigants in Arizona to the same standards as attorneys” and require they be
aware of statutory deadlines. Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017).
Thus, the court did not err by refusing to toll the time requirement
equitably.

B.     Gonzales’ Due-Process Rights Were Not Violated.

¶12           Gonzales claims his procedural due-process rights were
violated by: (1) DES’s failure to inform him that he had a right to appeal
and that the right was subject to a time restraint; and (2) the court’s failure
to allow Gonzales a chance to present evidence of his absence from the
country. We disagree.

¶13            To satisfy procedural due process, a party must have had
notice and an opportunity to be heard “at a meaningful time and in a
meaningful manner.” Comeau v. Ariz. State Bd. of Dental Examiners, 196 Ariz.
102, 106–07, ¶ 20 (App. 1999) (quoting Mathews v. Eldridge, 424 U.S. 319, 333
(1976)). “When [an] opportunity to be heard is granted to a complainant
who chooses not to exercise it, that complainant cannot later plead a denial
of procedural due process.” Watahomigie v. Ariz. Bd. of Water Quality Appeals,
181 Ariz. 20, 27 (App. 1994).

¶14           Gonzales had notice of his right to appeal and received an
opportunity to be heard. He had a hearing, received the final decision at his
last known address, and was afforded a chance to appeal the decision as
detailed by statute. A.R.S. § 12-904(A). Therefore, missing the deadline was
not because his opportunity to be heard was inadequate, but because he
neglected the notice of the deadline provided by statute. Id.; A.R.S.



                                      5
                        GONZALES v. STATE, et al.
                          Decision of the Court

§ 41-1092.08(A)–(B). Gonzales’ failure to update his address was
particularly significant, considering the advisement that a decision would
be forthcoming. At the hearing, the ALJ specifically told Gonzales:

       Within 20 days of the conclusion of today’s hearing, I will
       make my recommendations to [DES], who then has 30 days
       to accept, reject or modify that recommendation. In the event
       [DES] takes no action in those 30 days, my recommendation
       becomes the final administrative order. Any questions or
       concerns before we get started?

Gonzales stated he had no questions. He was aware that a decision would
be coming soon and was responsible for knowing when to appeal. See
Flynn, 243 Ariz. at 83, ¶ 24. Yet, he failed to inform DES that he would be
leaving the country or give an updated mailing address. Thus, we find that
Gonzales had an opportunity to be heard satisfying due process but chose
not to exercise it. Watahomigie, 181 Ariz. at 27.

¶15            Gonzales next contends that his due-process rights were
violated when the superior court dismissed the case with prejudice before
allowing him to submit evidence of his absence from the country. However,
the court dismissed Gonzales’ appeal for lack of jurisdiction and not
because he failed to prove his absence. The court mentioned that Gonzales
failed to provide any evidence about his absence but asserted that “[e]ven
if he had, he provides no authority for the proposition that the concept of
equitable tolling applies in this context.” As a result, the court ordered that
“[b]ecause the notice of appeal was not timely filed, this Court has no
jurisdiction and must dismiss the appeal.” No error occurred.

                    ATTORNEY’S FEES AND COSTS

¶16           Gonzales requests attorney’s fees and costs under Arizona
Rules of Civil Appellate Procedure 21(a). Because he has not prevailed on
appeal, we decline to award Gonzales attorney’s fees and costs.

                              CONCLUSION

¶17           We affirm the superior court’s decision.




                             AMY M. WOOD • Clerk of the Court
                             FILED:    HB

                                           6
