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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                        In the Matter of the Estate of:

                          FERNE BEVERLY FORD,

                           Deceased.
              _________________________________
    MICHAEL DENNIS GOHR and FERNE CATHERINE RABAGO,
                   Appellants/Cross-Appellees,

                                        v.

          HORATIO CLARK FORD, III, Appellee/Cross-Appellant,

             THE NORTHERN TRUST COMPANY, Appellee.

                             No. 1 CA-CV 16-0179
                               FILED 1-9-2018


           Appeal from the Superior Court in Maricopa County
                          No. PB1991-004240
            The Honorable Terri L. Clarke, Judge Pro Tempore

                      REVERSED AND REMANDED


                                   COUNSEL

Broening, Oberg Woods & Wilson, P.C., Phoenix
By Brian Holohan, Terrence P. Woods, Kevin R. Myer
Counsel for Appellants/Cross-Appellees
Gallagher & Kennedy, P.A., Phoenix
By Mark A. Fuller, Christopher W. Thompson
Counsel for Appellee/Cross-Appellant

Tiffany & Bosco, P.A., Phoenix
By Darren T. Case, Alisa J. Gray
Counsel for Appellee



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Kent E. Cattani joined.


H O W E, Judge:

¶1             Appellants/Cross-Appellees Michael Gohr and Ferne Rabago
(collectively “Gohr Beneficiaries”) appeal the trial court’s orders
interpreting the Ferne Beverly Ford Trust and awarding attorneys’ fees to
Appellee/Cross-Appellant Horatio Clark Ford, III (“Ford”). Ford
cross-appeals, arguing that the trial court abused its discretion by granting
the Gohr Beneficiaries’ relief from judgment motion pursuant to Arizona
Rule of Civil Procedure 60(b).1 For the following reasons, we reverse the
trial court’s order granting the Gohr Beneficiaries’ Rule 60(b) motion. We
also reverse the trial court’s order awarding Ford attorneys’ fees.

                 FACTS AND PROCEDURAL HISTORY

¶2             The relevant facts arise out of the trial court’s interpretation
of the trust. After the trustee requested instructions from the court on how
to interpret the trust, both the Gohr Beneficiaries and Ford submitted their
respective interpretations. The trial court found that the trust was
ambiguous and held an evidentiary hearing to determine the trustor’s
intent. Following the hearing, the trial court ruled in Ford’s favor.

¶3           The court’s June 2015 under advisement ruling (the “original
judgment”) included the following language: “Pursuant to Rule 54(c) . . . no
further matters remain pending, and the Court, therefore, enters this as a

1      At the time of the underlying proceedings, Rule 60(b) was Rule 60(c).
We cite the current version of Rule 60 because the rule’s material provisions
have not changed since the date of the lawsuit.


                                      2
                             GOHR v. FORD
                           Decision of the Court

final, appealable order.” The court then signed the minute entry as a formal
court order. The Gohr Beneficiaries failed to appeal from the original
judgment within the required 30-day time limit.

¶4            Almost two months later, the Gohr Beneficiaries, represented
by new counsel, moved for relief from the original judgment pursuant to
Rule 60(b) to file a delayed appeal. The Gohr Beneficiaries submitted with
their Rule 60(b) motion an affidavit from their previous counsel who
avowed that he did not timely appeal because although he had received the
original judgment, he “stopped reading the minute entry once [he] read
how the issues in the case had been decided against [the Gohr
Beneficiaries].” He continued that he “did not see the need to read beyond
what [he] needed to know to explain the outcome[.]” Counsel stated that he
read a portion of the minute entry just two lines above the court’s finality
language and signature but that he did not notice the Rule 54(c) language
or the signature.

¶5             In September 2015, the trial court granted the Gohr
Beneficiaries Rule 60(b) motion in a signed minute entry (the “re-entered
judgment”) without providing its reasoning. In that same minute entry, the
court sua sponte awarded Ford attorneys’ fees after finding that the need
for the delayed appeal “was solely caused by counsel for the Gohr
Beneficiaries . . . .”

¶6             Believing that the re-entered judgment’s language did not use
the correct terminology that a delayed appeal requires, the Gohr
Beneficiaries moved to amend the judgment and for a new trial. The Gohr
Beneficiaries’ request for a new trial pertained only to the attorneys’ fees
portion of the re-entered judgment. The Gohr Beneficiaries argued that the
trial court did not have the authority to award attorneys’ fees pursuant to
Rule 60(b). Both parties subsequently briefed the attorneys’ fees issue and
the court heard oral argument on the issue. Ford requested attorneys’ fees
for having to respond to the motion to amend the judgment and for a new
trial. Following oral argument, the court ordered Ford’s counsel to provide
a fee statement and took the matter under advisement.

¶7             In February 2016, the trial court entered a signed order
resolving the Gohr Beneficiaries’ motion to amend judgment and the
attorneys’ fees issue. This minute entry amended the re-entered judgment
to state that the “judgment dated June 18, 2015 . . . is hereby vacated, and
re-entered nunc pro tunc, to September 23, 2015,” thereby resetting the
appeal deadline. Before addressing attorneys’ fees, the court stated, “[a]s
the Court has previously found, the Motion for Relief was filed as the result


                                     3
                              GOHR v. FORD
                            Decision of the Court

of an error (whether excusable error or not is irrelevant) caused solely by
counsel for the Gohr Beneficiaries.” The court then granted Ford $14,375 in
attorneys’ fees for the preparation and response to the Rule 60(b) motion
and $12,477.50 in attorneys’ fees for responding to the Gohr Beneficiaries
motion to amend judgment and new trial. The trial court specifically stated
“that since this error was solely caused by counsel for the Gohr
Beneficiaries, [they] shall be responsible for the payment of legal fees and
costs incurred . . . .” The Gohr Beneficiaries timely appealed from the re-
entered judgment and appealed the February 2016 order denying their
motion for new trial on the attorneys’ fees issue. Ford timely
cross-appealed from the re-entered judgment permitting the delayed
appeal pursuant to Rule 60(b).

                               DISCUSSION

              1. Rule 60(b) Cross-Appeal

¶8              Because the resolution of the Rule 60(b) issue determines
whether we address the merits of the Gohr Beneficiaries’ appeal, we discuss
it first. Ford argues that the trial court abused its discretion by granting the
Gohr Beneficiaries Rule 60(b) motion. Ford contends that counsel’s actions
in not reading the original judgment in its entirety cannot constitute
excusable neglect and therefore, as a matter of law, cannot be the basis for
relief pursuant to Rule 60(b). We review the trial court’s order granting
relief under Rule 60(b) for an abuse of discretion. City of Phx. v. Geyler, 144
Ariz. 323, 328 (1985) (analyzing the previous version of Rule 60(b)). An
abuse of discretion occurs when the trial court fails to properly apply the
governing law. Horton v. Mitchell, 200 Ariz. 523, 526 ¶ 13 (App. 2001); LaFaro
v. Cahill, 203 Ariz. 482, 485 ¶ 10 (App. 2002) (“The misapplication of the law
to undisputed facts is an example of an abuse of discretion.”). Because the
trial court did not determine whether counsel’s conduct in failing to read
the original judgment in its entirety constituted excusable neglect, it abused
its discretion by granting Rule 60(b) relief.

¶9             Rule 60(b) allows the trial court on “just terms” to relieve a
party from a final judgment for “mistake, inadvertence, surprise, or
excusable neglect.” Ariz. R. Civ. P. 60(b)(1). In addition to establishing
excusable neglect, the moving party in a delayed appeal case must meet the
more stringent standards than those of Rule 60(b) by showing
“extraordinary, unique, or compelling circumstances[.]” See Geyler, 144
Ariz. at 328. A “stronger showing” is needed to justify granting the request
for a delayed appeal because “the principle of finality carries greater weight
than when the movant is seeking relief from judgment by default.” Id. Our


                                       4
                              GOHR v. FORD
                            Decision of the Court

supreme court has held that to determine whether conduct is “excusable”
for Rule 60(b)(1) purposes, the issue “is whether the neglect or inadvertence
is such as might be the act of a reasonably prudent person under the same
circumstances.” Id. at 331. Excusable neglect does not mean carelessness.
Sign Here Petitions LLC v. Chavez, 243 Ariz. 99, 109 ¶ 37 (App. 2017).
Ultimately, whether a mistake or neglect is excusable depends on whether
counsel acted diligently. Geyler, 144 Ariz. at 332. On its face, the rule
requires that the conduct be excusable to warrant relief.

¶10            The trial court here, however, failed to determine whether
counsel’s conduct in not reading the entire original judgment was
excusable. In granting the Gohr Beneficiaries’ Rule 60(b) motion, the court
stated that “the Motion for Relief was filed as the result of an error (whether
excusable error or not is irrelevant) caused solely by counsel for the Gohr
Beneficiaries.” (Emphasis added). As such, the trial court misapplied the
law and therefore abused its discretion by granting the Rule 60(b) motion.2

¶11          Although the trial court abused its discretion by failing to
determine whether counsel’s conduct constituted excusable neglect, we
need not remand this issue to the trial court because under these facts,
counsel’s conduct does not constitute excusable neglect as a matter of law.
The facts here are not in dispute. Counsel timely received the original
judgment. Though counsel avowed that he did not see the court’s finality
language or signature, he acknowledged reading the original judgment up
to the two lines directly preceding the finality language and signature.
Under these circumstances, counsel did not act diligently and no excusable
neglect occurred. Consequently, we reverse the trial court’s order granting
the Gohr Beneficiaries’ Rule 60(b) motion and remand to the trial court to
enter judgment in Ford’s favor.

              2. The Trial Court’s Award of Attorneys’ Fees

¶12           The Gohr Beneficiaries argue that the court erred by awarding
Ford attorneys’ fees in connection to the Rule 60(b) motion and the motion
to amend judgment and new trial because Rule 60(b) does not give the court
authority to award attorneys’ fees in a motion for a delayed appeal. The
court awarded attorneys’ fees sua sponte in the same minute entry that it
granted the Gohr Beneficiaries’ Rule 60(b) motion. Although Rule 60(b) was
not specifically referred to in the court’s order, Ford contends that Rule
60(b)’s language at the time stating, “upon such terms as are just” gave the


2     Because we find that the trial court erred by granting the delayed
appeal, the Gohr Beneficiaries’ appeal on the underlying merits is moot.


                                      5
                               GOHR v. FORD
                             Decision of the Court

trial court authority to award attorneys’ fees. See Ariz. R. Civ. P. 60(c) (2015).
Ford does not contend that the attorneys’ fees for responding to the Rule
60(b) motion are authorized by any other rule or statute. Relying primarily
on federal cases, Ford argues that Rule 60(b) allows the trial court to
condition relief on the moving party paying attorneys’ fees to the
non-moving party. See Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108,
1110 n.1 (9th Cir. 2011). But because the trial court improperly awarded
relief under Rule 60(b), the rule’s conditioning of relief “upon just terms”
no longer justifies an award of attorneys’ fees. Thus, awarding attorneys’
fees under Rule 60(b) was improper.

¶13           Ford argues, however, that A.R.S. § 12–349 provides an
alternative basis for the trial court’s $12,477.50 attorneys’ fees award to Ford
for responding to the motion to amend judgment and new trial. “In
awarding attorney fees pursuant to § 12–349, the court shall set forth the
specific reasons for the award[.]” A.R.S. § 12–350 (emphasis added).
Although Ford requested, and received, his fees in responding to the
motion to amend judgment and new trial, the trial court did not enter any
findings awarding attorneys’ fees pursuant to A.R.S. § 12–349. Because the
requisite findings were not made, we remand to the trial court to determine
whether its $12,477.50 attorneys’ fees award for responding to the motion
to amend judgment and new trial is supported under A.R.S. § 12–349.

                                CONCLUSION

¶14           For the foregoing reasons, we reverse the trial court’s order
granting the Gohr Beneficiaries’ Rule 60(b) motion and remand to the trial
court with instructions to enter the judgment in Ford’s favor. Further, we
reverse in part and remand in part the trial court’s order granting Ford
attorneys’ fees. We dismiss as moot the Gohr Beneficiaries’ appeal from the
underlying merits.




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




                                         6
