                                                                      FILED BY CLERK
                                                                         MAY 31 2007
                             IN THE COURT OF APPEALS                      COURT OF APPEALS
                                 STATE OF ARIZONA                           DIVISION TWO
                                   DIVISION TWO


DONNA JAMES, the mother of decedent           )
COREY JAMES; JOHN JAMES, the                  )
father of decedent COREY JAMES; and           )
MARJORIE SURINE, the mother of                )        2 CA-CV 2006-0124
decedent MICHELLE JAMES,                      )        DEPARTMENT A
                                              )
                  Plaintiffs/Intervenors,     )        OPINION
                                              )
JOSEPH BURKHAMER, the father of               )
decedent MICHELLE JAMES,                      )
                                              )
                       Plaintiff/Appellant,   )
                                              )
                  v.                          )
                                              )
THE STATE OF ARIZONA, a body                  )
politic,                                      )
                                              )
                   Defendant/Appellee.        )
                                              )

          APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                                Cause No. CV200400744

                           Honorable William J. O’Neil, Judge

                                 APPEAL DISMISSED


Rubin & Samuels PLC
 By Michael S. Samuels                                                           Phoenix
                                                     Attorneys for Plaintiffs/Intervenors

Meagher & Geer, P.L.L.P.
 By Thomas H. Crouch                                                          Scottsdale
     and

Law Office of Gary M. Gallner
 By Gary M. Gallner                                                                Avondale
                                                           Attorneys for Plaintiff/Appellant

Burke - Panzarella - Rich
 By Thomas P. Burke, II and Randy L. Kingery                                       Phoenix
                                                          Attorneys for Defendant/Appellee


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


¶1            In this wrongful death action, the trial court granted defendant/appellee State

of Arizona’s motion to dismiss or for partial summary judgment on plaintiff/appellant

Joseph Burkhamer’s claim on the ground he had failed to properly file a notice of claim

against the state, as A.R.S. § 12-821.01 requires. Burkhamer appeals from the ensuing

judgment, entered pursuant to Rule 54(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, and from the

trial court’s subsequent order denying Burkhamer’s objection to the judgment and his

motion to amend the pleadings.

¶2            The substantive issue Burkhamer raises is whether providing a notice of claim

via facsimile delivered to, and received by, the Arizona attorney general’s office constitutes

proper filing of the notice against the state under § 12-821.01. The preliminary procedural

issue we find dispositive, however, is whether Burkhamer’s notice of appeal from the trial

court’s judgment was untimely filed, thereby depriving this court of subject matter

jurisdiction. We conclude it was and, therefore, must dismiss the appeal.



                                              2
                                          Background

¶3             The following facts are undisputed. On August 17, 2003, Corey and Michelle

James, husband and wife, were killed in an automobile accident while traveling on a state

highway in Pinal County. In 2004, John and Donna James, Corey’s parents, and Marjorie

Surine and Joseph Burkhamer, Michelle’s parents, filed this wrongful death action, alleging

the state had negligently designed and maintained the road and caused their children’s

deaths. Before filing the action, Burkhamer sent a notice of claim via facsimile on February

13, 2004, to the Arizona attorney general’s office. Several months later, Burkhamer and the

other three plaintiffs filed this case.

¶4             The state moved to dismiss Burkhamer’s claim in this action under Rule

12(b)(6), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, or, in the alternative, for partial summary

judgment on that claim under Rule 56(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2. The state

argued Burkhamer’s claim was barred under § 12-821.01(A) because he had “failed to file

and serve” a notice of claim on the state within 180 days after the cause of action accrued.1



       1
        Section 12-821.01(A), A.R.S., provides:

                      Persons who have claims against a public entity or a
               public employee shall file claims with the person or persons
               authorized to accept service for the public entity or public
               employee as set forth in the Arizona rules of civil procedure
               within one hundred eighty days after the cause of action
               accrues. . . . Any claim which is not filed within one hundred
               eighty days after the cause of action accrues is barred and no
               action may be maintained thereon.


                                              3
¶5            In response, Burkhamer asserted his delivery of his notice of claim via facsimile

to the attorney general’s office within the required time satisfied the statutory requirements.

After a hearing, the trial court granted the state’s motion. Because matters outside the

pleadings were presented to and not excluded by the court, the trial court apparently treated

the motion as one for partial summary judgment on Burkhamer’s claim despite its statement

in the judgment that it “grant[ed] Defendant’s Motion to Dismiss.” See Ariz. R. Civ. P.

12(b). Thus, were we to reach the merits, we would do the same. See Franzi v. Koedyker,

157 Ariz. 401, 408, 758 P.2d 1303, 1310 (App. 1985). But, for the reasons explained

below, we instead dismiss the appeal for lack of jurisdiction.

                                   Timeliness of Appeal

¶6            As a threshold issue, we first must determine whether Burkhamer timely filed

his appeal, an issue the state raised in its answering brief.2 The trial court’s judgment

dismissing Burkhamer’s claim with prejudice was filed on January 26, 2006. Pursuant to

Rule 54(b), Ariz. R. Civ. P., the judgment expressly stated “there is no just reason for delay

in the entry of this Judgment and Order dismissing the claim of Joseph Burkhamer [and] this

shall constitute the Court’s Final Judgment dismissing all claims asserted by [him] against

the State of Arizona in this matter.”




       2
         The other plaintiffs, including Marjorie Surine (Burkhamer’s former wife), moved
to intervene in the appeal, which we granted, and to dismiss the appeal on the ground it was
not timely filed. Because the intervenors’ arguments are essentially the same as the state’s,
we refer only to the state and its arguments.

                                              4
¶7            The procedural history of this case following the entry of that judgment is

somewhat muddied. On January 30, without citing any civil procedural rule, Burkhamer

filed an “Objection to Defendant’s Final Judgment and Order Dismissing Claim.” In that

document, Burkhamer objected to the judgment on the ground its language “dismissing all

[his] claims” was “overbroad” because the trial court supposedly had agreed at the hearing

on the state’s motion to dismiss that, even though it was dismissing his claim, he could still

file a motion to amend the pleadings “to assert a claim as a beneficiary of the claim of

Plaintiff Marjorie Surine in her status as the statutory plaintiff for the wrongful death claim.”

About a week later, Burkhamer also filed a motion to amend the pleadings, seeking

permission “to continue his involvement in this case” as a nonparty, statutory beneficiary

under Surine’s claim and asking for “his damages [to] be considered in any award ultimately

determined in this matter.”

¶8            The state did not respond to Burkhamer’s objection to the judgment but

opposed his motion to amend the pleadings, arguing he should not be permitted “to present

and assert [his] barred and dismissed claim ‘through the back door.’” The trial court then

set oral argument on Burkhamer’s motion to amend. After the March 20 hearing on that

motion,3 the trial court signed an order that was filed on May 22 denying both Burkhamer’s

motion to amend and his objection to the judgment. Burkhamer filed his notice of appeal

on June 19 from both the January 26 judgment and the May 22 order.

       3
        Although a court reporter attended that hearing, the record contains no reporter’s
transcript of it.

                                               5
¶9            The state argues Burkhamer’s appeal is untimely because it was filed more

than thirty days after the trial court’s entry of judgment. See Ariz. R. Civ. App. P. (ARCAP)

9(a), 17B A.R.S. (requiring notice of appeal to be filed within thirty days after entry of

judgment being appealed). In his reply brief, Burkhamer advances multiple, alternative

arguments that his appeal was timely.4 We first address the state’s position.

¶10           Citing ARCAP 9(a), the state argues Burkhamer’s notice of appeal “did not

come until nearly five months after” the trial court’s January 26 judgment, and

consequently, “this court lacks jurisdiction to hear the appeal as related to [that] final

judgment.” The thirty-day filing deadline prescribed in ARCAP 9(a) is extended under

certain circumstances specified in ARCAP 9(b), which provides in pertinent part:

                     When any of the following motions are timely filed by
              any party, the time for appeal for all parties is extended, and the
              times set forth in Rule 9(a) shall be computed from the entry of
              any of the following orders:

                     (1) Granting or denying a motion for judgment
              notwithstanding the verdict pursuant to Ariz. Rules Civ. Proc.
              50(b);

                     (2) Granting or denying a motion to amend or make
              additional findings of fact pursuant to Ariz. Rules Civ. Proc.
              52(b), . . . whether or not granting the motion would alter the
              judgment;

                    (3) Granting or denying a motion to alter or amend the
              judgment pursuant to Ariz. Rules Civ. Proc. 59(l) . . . ;

       4
         Burkhamer’s opening brief does not address this court’s jurisdiction at all, therefore
failing to comply with the requirement that an appellant briefly state “the basis of the
appellate court’s jurisdiction.” Ariz. R. Civ. App. P. 13(a)(3), 17B A.R.S.

                                              6
                    (4) Denying a motion for new trial pursuant to Ariz.
              Rules Civ. Proc. 59(a) . . . .

¶11           “It is settled in Arizona that the perfecting of an appeal within the time

prescribed is jurisdictional; and, hence, where the appeal is not timely filed, the appellate

court acquires no jurisdiction other than to dismiss the attempted appeal.” Edwards v.

Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971); see also Mayer v. State, 184 Ariz.

242, 243, 908 P.2d 56, 57 (App. 1995) (“Appellate courts lack jurisdiction to consider

appeals that are not timely filed.”); Ariz. Dep’t of Econ. Sec. v. Hall, 120 Ariz. 514, 515,

586 P.2d 1326, 1327 (App. 1978) (“The timely filing of a notice of appeal is jurisdictional,

and the time for the filing of a notice of appeal as set forth in ARCAP 9 may not be extended

by the Court.”), overruled on other grounds by In re Marriage of Gray, 144 Ariz. 89, 695

P.2d 1127 (1985); cf. Ariz. R. Civ. App. P. 8(a) (“Failure of an appellant to take any step

other than the timely filing of a notice of appeal does not affect the validity of the appeal

. . . .”) (emphasis added).

¶12           A series of Arizona Supreme Court cases, which the parties do not address,5

compel us to find that we lack jurisdiction here. In Arizona State Liquor Board v. Slonsky,

106 Ariz. 25, 25, 470 P.2d 106, 106 (1970), the court dismissed the appeal, stating very

succinctly:



       5
        Even had the state and the intervening plaintiffs not challenged this court’s
jurisdiction, we must independently examine our jurisdiction, including any pertinent
authorities relating to that issue. See Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90
(1981); Zoellner v. Zoellner, 4 Ariz. App. 561, 561, 422 P.2d 392, 392 (1967).

                                             7
              [Former] Rule 73(b) . . . enumerates the motions which extend
              the time in which the notice of appeal may be filed beyond sixty
              days from the entry of judgment. A “motion to vacate
              judgment” is not one of the motions enumerated, hence the
              filing of such motion does not extend the time.6

Burkhamer’s January 30 objection to the trial court’s judgment entered four days earlier

clearly “is not one of the motions enumerated” in ARCAP 9(b). 106 Ariz. at 25, 470 P.2d

at 106. Thus, if Slonsky still controls, Burkhamer’s filing of that objection did not extend

his time to appeal from the judgment.

¶13           In several subsequent cases, however, our supreme court has refined Slonsky’s

rather strict rule by essentially creating several exceptions to it. In Hegel v. O’Malley

Insurance Co., 117 Ariz. 411, 411, 573 P.2d 485, 485 (1977), the court addressed the issue

of “whether a motion styled ‘Motion to Vacate’ with a reference to Rule 59(a), [Ariz. R.

Civ. P.,] in the text is sufficient to toll the appeal time under [former] Rule 73(b).” The

court held that,

              irrespective of the title of a motion, if its substance shows
              clearly that it seeks relief under Rule 59(a) on the grounds set
              forth in that rule with appropriate reference to the rule as
              authority for the motion, the motion must be treated as a motion
              for new trial under Rule 59(a),

thereby “toll[ing] the running of the appeal time.” 117 Ariz. at 412, 573 P.2d at 486. In

so holding, the court in Hegel stated, “[a]ny suggestion to the contrary in Slonsky is

overruled.” 117 Ariz. at 412, 573 P.2d at 486.


       6
       Former Rule 73(b) essentially mirrored the provisions relating to time-extending
motions now found in ARCAP 9. See 116 Ariz. XXXII-XXXIII, XLIII-XLIV (1978).

                                             8
¶14             Next, in Desmond v. J.W. Hancock Enterprises, Inc., 123 Ariz. 474, 475-76,

600 P.2d 1106, 1107-08 (1979), our supreme court concluded that a party’s motion for

clarification and reconsideration of the trial court’s denial of a motion for relief from a

judgment of dismissal was properly treated as a time-extending, Rule 59(a) motion for a new

trial. The court held the motion “substantially satisfie[d] the requirements enunciated in

Hegel” because the motion specifically stated it was brought pursuant to Rule 59 and also

alleged one of the grounds for relief under Rule 59(a). Desmond, 123 Ariz. at 476, 600

P.2d at 1108.

¶15             Finally, in Farmers Insurance Co. v. Vagnozzi, 132 Ariz. 219, 221, 644 P.2d

1305, 1307 (1982), our supreme court “reaffirm[ed] the holdings of Hegel and Desmond

that in order for a party to be assured of the time-extending qualities of a motion for new

trial, [the party] must both refer to rule 59 as authority for the motion and describe grounds

set forth in that rule.” The court in Vagnozzi further stated:

                Hegel and Desmond apply to situations in which the trial court
                has made a ruling on the questioned motion without indication
                by the trial court of what rule is involved. In such instances the
                motion, to be considered as one for a new trial, must both refer
                to rule 59 as authority for the motion and set forth as grounds
                for the motion those grounds found in rule 59. . . . [T]he trial
                court may treat a so-called “motion for rehearing” as one under
                rule 59, and, when the trial court has stated in the record its
                intention to do so, the motion will also be treated by the
                appellate courts as one under rule 59(a).

132 Ariz. at 221-22, 644 P.2d at 1307-08.




                                                9
¶16           Neither of the two alternative requirements our supreme court has established

was met here. First, Burkhamer’s objection neither cited nor otherwise referred to Rule 59,

or any of its grounds, or any other civil procedure rule. Therefore, unlike the situation in

Desmond, we cannot say Burkhamer’s objection “substantially satisfies the requirements

enunciated in Hegel.” Desmond, 123 Ariz. at 476, 600 P.2d at 1108. Second, although a

trial court may treat an undesignated or otherwise deficient motion “as one under rule 59,”

thereby bestowing the appeal time-extending benefits of ARCAP 9(b), that result hinges on

the trial court’s having “stated in the record its intention to do so.” Vagnozzi, 132 Ariz. at

222, 644 P.2d at 1308. Nothing in the record here suggests that the trial court treated

Burkhamer’s objection to the judgment as one of the time-extending motions prescribed in

ARCAP 9(b) or that the court even implicitly, let alone expressly, “inten[ded] to do so.”

132 Ariz. at 222, 644 P.2d at 1308.

¶17           Without addressing the foregoing cases, Burkhamer argues, inter alia, his

objection to the judgment should “be treated as a Rule 59(l) motion, which extends the time

for an appeal until the court rules on the requested amendment.”7 See ARCAP 9(b).

According to Burkhamer, “[t]he substance of [his] objection was a request that the [trial]

court amend or alter the January 26 [judgment] so as to permit him to participate as a

       7
          Adopting that argument, the dissent would find subject matter jurisdiction exists
because Burkhamer’s objection to the judgment “could be construed as a Rule 59(l) motion”
or “could have been treated” as such a motion. Although we do not disagree with those
general propositions, unless and until our supreme court says otherwise, the Vagnozzi
requirements apply, and neither Burkhamer’s objection nor the trial court’s ruling on it
fulfills those prerequisites.

                                             10
wrongful death beneficiary.” Citing Sanders v. Foley, 190 Ariz. 182, 945 P.2d 1313 (App.

1997), Burkhamer further argues “justice demands that the objection be treated as a Rule

59(l) motion for purposes of extending the time for an appeal,” particularly when “the trial

court accept[ed] the objection and the motion to amend, conduct[ed] a hearing, and issu[ed]

an order disposing of them.” For several reasons, we do not find these arguments persuasive.

¶18           First, as noted above, Burkhamer’s objection to the judgment did not cite Rule

59(l ) or any other rule. Second, although Burkhamer complained in his objection that the

trial court’s judgment was “overbroad,” he did not expressly ask the court to “alter or

amend” it. Third, before alternatively arguing in his reply brief that his objection should be

treated as a Rule 59(l ) motion, Burkhamer characterized that filing as a “Rule 58(d)[, Ariz.

R. Civ. P., 16 A.R.S., Pt. 2,] objection” to the trial court’s proposed judgment. An objection

filed pursuant to Rule 58(d), however, does not extend the time for appeal under ARCAP

9(b). Fourth, that the trial court held a hearing on Burkhamer’s motion to amend the

pleadings and ultimately denied that motion as well as Burkhamer’s objection to the

judgment does not suggest the court treated that objection as a Rule 59(l ) motion.

¶19           In addition, Burkhamer’s reliance on Sanders is misplaced because that case

is readily distinguishable. There, after obtaining a jury verdict in his favor, Sanders filed an

application for attorney fees with the trial court. 190 Ariz. at 184, 945 P.2d at 1315. The

trial court, however, subsequently entered a judgment in favor of Sanders in accordance with

the verdict but did not award him attorney fees, mistakenly stating he had not filed an



                                              11
application for fees. Id. After Sanders submitted a letter to the trial court, including a copy

of the application for fees, the court then awarded Sanders attorney fees in a minute entry

and filed an amended judgment that included the attorney fee award. Id. at 184-85, 945

P.2d at 1315-16. Thereafter, the Foleys timely filed their notice of appeal from the amended

judgment. Id. at 185, 945 P.2d at 1316.

¶20           Sanders contended the notice of appeal was untimely because it was filed more

than thirty days after entry of the original judgment, which did not include a fee award. Id.

The Foleys contended their appeal was timely “because the trial court could have treated

either Sanders’ application for attorneys’ fees or his letter . . . as a motion to alter or amend

the judgment pursuant to Rule 59(l),” which would extend the time allowed for filing the

appeal until thirty days after entry of the amended judgment that included the attorney fee

award. 190 Ariz. at 185, 945 P.2d at 1316. Division One of this court stated it “agree[d]

with the Foleys” and found they had “timely appealed from the entire amended judgment.”

Id. at 185-86, 945 P.2d at 1316-17. But the court based that conclusion on its interpreting

the trial court’s ultimate ruling on Sanders’s attorney fee request “as implicitly vacating the

original judgment and authorizing an amended judgment with the amount of the attorneys’

fees included.” Id. at 185, 945 P.2d at 1316. In other words, pursuant to its authority under

Rule 59(g), Ariz. R. Civ. P., the trial court “effectively vacated the original judgment.” 190

Ariz. at 186, 945 P.2d at 1317.




                                               12
¶21           Here, in contrast, the trial court neither vacated nor amended its judgment.

Rather, the court’s judgment was unchanged and intact when Burkhamer attempted to

appeal from it some five months later, without having filed any motion pursuant to Rule 59

or otherwise that would have extended the time for appeal under ARCAP 9(b). Although

Sanders arguably supports the proposition that a trial court may treat an undesignated filing

“as a motion to alter or amend the judgment pursuant to Rule 59(l ),” 190 Ariz. at 185, 945

P.2d at 1316, nothing in the record suggests that occurred here. In sum, Sanders does not

help Burkhamer. See 1 Arizona Appellate Handbook § 3.4.1.2.1, at 3-41 (4th ed. 2006)

(construing Sanders for proposition that trial court, on its own initiative and within fifteen

days after entry of judgment, may implicitly vacate that judgment and authorize entry of

new, amended judgment, with time for appeal then commencing from entry of amended

judgment).

¶22           Our dissenting colleague maintains that Hegel and its progeny should not

control because those cases involved motions for new trial pursuant to Rule 59(a), whereas

Burkhamer never sought that relief. In addition, the dissent correctly points out that a Rule

59(a) motion seeks different, and arguably more extreme, recourse than a Rule 59(l ) motion

to alter or amend a judgment. And, although a motion for new trial “shall specify generally

the grounds upon which the motion is based,” Rule 59(c)(1), Rule 59(l ) prescribes no such

requirement for a motion to alter or amend a judgment.




                                             13
¶23           These distinctions, however, do not provide a principled basis for limiting

Hegel, Desmond, and Vagnozzi to their facts or refusing to apply their broader principles

in this context. Although those cases only addressed motions for new trial under Rule 59(a),

presumably that is because the procedural facts in those cases only involved such motions.

In none of those cases did our supreme court suggest that the requirements it prescribed “for

a party to be assured of the time-extending qualities of a motion for new trial” would not

apply equally to other motions set forth in ARCAP 9(b). Vagnozzi, 132 Ariz. at 221, 644

P.2d at 1307. Nor has any authority been cited to support any such differentiation. In short,

differences in the nature or scope of relief sought in a Rule 59(a) motion for new trial vìs-a-

vis motions made pursuant to Rule 50(b), Rule 52(b), or Rule 59(l ) do not materially bear

on the controlling question that determines our jurisdiction here: whether the particular

filing effectively extends the appeal time under ARCAP 9(b).

¶24           Although a finding of no jurisdiction here might be considered a harsh

outcome, absent a legitimate basis for distinguishing or circumventing Hegel and its progeny,

we are constrained to reach this result.8 And, even if a finding of jurisdiction were more

       8
        At oral argument in this court, without citing any authority, Burkhamer contended
this court should liberally examine the scope of its jurisdiction and, whenever possible,
explore any “reasonable” or “rational” way to find appellate jurisdiction. But we are not
faced here with a timely filed or premature notice of appeal that is allegedly deficient or
defective, in which case, “fairness demands that ‘no mere technical error should prevent the
appellate court from reaching the merits of the appeal.’” Hill v. City of Phoenix, 193 Ariz.
570, ¶ 10, 975 P.2d 700, 702 (1999), quoting Hanen v. Willis, 102 Ariz. 6, 9, 423 P.2d 95,
98 (1967); see also Schwab v. Ames Constr., 207 Ariz. 56, ¶ 11, 83 P.3d 56, 59 (App.
2004) (absent prejudice to appellee, “technical defects or omissions in a notice of appeal are
usually not jurisdictional”); McKillip v. Smitty’s Super Valu, Inc., 190 Ariz. 61, 62-63, 945

                                              14
palatable or even preferable, this court is bound by applicable decisions of our supreme

court and has no authority to modify or disregard them. See State v. Smyers, 207 Ariz. 314,

n.4, 86 P.3d 370, 374 n.4 (2004); Mullin v. Brown, 210 Ariz. 545, ¶ 14, 115 P.3d 139, 143

(App. 2005). Of course, if our supreme court did not intend the principles that apply to

motions for new trial under Rule 59(a) to apply to any other motions for purposes of

ARCAP 9(b), it is the appropriate court to draw that distinction.

¶25           We find no merit in Burkhamer’s remaining jurisdictional arguments. He

alternatively contends his notice of appeal was timely even as to the January 26 judgment

because it was filed within thirty days of the trial court’s May 22 order, “which is the earliest

time at which an entire claim could be said to have been finally adjudicated.” Burkhamer

posits two separate theories of recovery in this case—first, as a named plaintiff who allegedly

had timely and properly filed a notice of claim against the state pursuant to A.R.S. § 12-

821.01, and second, “as a statutory beneficiary in the wrongful death action being pursued

by [his former wife,] plaintiff Surine.” According to Burkhamer, the trial court’s January

26 judgment disposed of only the first claim, not the second. Consequently, Burkhamer

argues, the trial court’s inclusion of Rule 54(b) language in the judgment was premature and



P.2d 372, 373-74 (App. 1997) (because appellants “filed a timely notice of appeal,” court
would “overlook a technical defect in their notice of appeal that was neither misleading nor
prejudicial to the appellee”). Rather, it is the untimely filing of Burkhamer’s appeal, not any
concerns relating to form or content of his notice of appeal, that divests this court of
jurisdiction. See ¶ 11, supra. Although “the court should strive to resolve an appeal on the
merits,” that is only possible when “the court of appeals has general subject matter
jurisdiction,” which is lacking here. Hill, 193 Ariz. 570, ¶ 18, 975 P.2d at 704.

                                               15
ineffective to render that judgment final and appealable, inasmuch as his “entire claim ha[d]

not yet been finally adjudicated.” Rather, Burkhamer contends, his alternative “theories of

liability” were not fully adjudicated until the trial court “finally rejected the second of his

theories” in its May 22 order,9 after which he timely filed his notice of appeal within thirty

days, and “[t]he trial court’s Rule 54(b) certification could only become effective on that

date.”

¶26           This argument fails for at least two reasons. First, the trial court’s judgment

filed on January 26 broadly dismissed with prejudice “all claims asserted by Joseph

Burkhamer against the State of Arizona in this matter.” The judgment was unqualified and

contained no exceptions for possible derivative, nonparty claims. Second, Burkhamer’s own

objection to the trial court’s judgment, in which he claimed the judgment was “overbroad,”

belies his argument. That objection manifested Burkhamer’s valid concern that the

judgment, as framed and filed by the trial court, in fact disposed of any and all claims

Burkhamer might have had in this action. Thus, the trial court’s Rule 54(b) certification was

neither premature nor ineffective, but rather, rendered the judgment final and appealable.

¶27           Seeking to avoid this conclusion, Burkhamer points to the Arizona statutes

that create and define a wrongful death action and Arizona case law describing such actions.



       We note that the only “theories of liability” alleged in Burkhamer’s complaint were
         9

“negligence, gross negligence and recklessness.” In addition, the trial court was well aware
of Burkhamer’s alternative “statutory beneficiary” theory of recovery when it entered its
January 26 judgment, inasmuch as Burkhamer had extensively argued that theory in
responding to the state’s motion to dismiss several weeks before.

                                              16
Under A.R.S. § 12-612(B), “[e]ither parent may maintain the action for the death of a

child.” And, as Division One of this court recently explained:

                      Arizona Revised Statutes § 12-612 (2003) provides that
              “[a]n action for wrongful death” shall be brought by a statutory
              plaintiff “for and on behalf of the surviving husband or wife,
              children or parents.” (Emphasis added.) Our courts have
              consistently construed this to mean that there is “one action for
              damages with one plaintiff and one judgment.” Begay v. City
              of Tucson, 148 Ariz. 505, 508, 715 P.2d 758, 761 (1986); see
              also Wilmot v. Wilmot, 203 Ariz. 565, 569, ¶ 11, 58 P.3d 507,
              511 (2002) (same); Nunez v. Nunez, 25 Ariz. App. 558, 562,
              545 P.2d 69, 73 (1976) (stating “there is ‘one action’ for
              damages occasioned by a wrongful death,” and there is “but one
              plaintiff, one of the persons designated by statute”). Because of
              this, “[f]ollowing a successful action, there is ‘one judgment,
              the proceeds of which are held by the statutory plaintiff as
              trustee for the persons on whose behalf the suit was brought.’”
              Wilmot, 203 Ariz. at 569, ¶ 12, 58 P.3d at 511 (citation
              omitted).

Valder Law Offices v. Keenan Law Firm, 212 Ariz. 244, ¶ 19, 129 P.3d 966, 972 (App.

2006).

¶28           Thus, as Burkhamer correctly observes, and as the state acknowledges, “in

Arizona, there is one wrongful death plaintiff, one wrongful death action, and one judgment

on behalf of all [statutory] beneficiaries.” Relying on those well-established principles and

on his former wife’s timely filing of a notice of claim against the state under § 12-821.01 and

her continuing status as a statutory, named plaintiff in this case, Burkhamer argues:

              Given that there is but one action for wrongful death, and given
              that such action for the death of [his daughter] Michelle James
              has not yet been resolved in its entirety, this court could rule
              that an entire separate action has not yet been finally


                                              17
              adjudicated. Consequently, the court could decide that this
              appeal is premature, despite the Rule 54(b) certification.

We are not persuaded.

¶29           Neither Arizona’s wrongful death statutes nor case law suggests that a

statutory beneficiary such as Burkhamer does not have a separate, cognizable claim, albeit

in a single, unified wrongful death action. See Wilmot, 203 Ariz. 565, ¶ 11, 58 P.3d at 511

(“The text of the wrongful death statute contemplates that claims by all statutory

beneficiaries be consolidated in a single action.”) (emphasis added). Indeed, as the state

points out, “a wrongful death action is made up of the claims of the beneficiaries entitled to

bring claims under the statute.” See id. ¶ 23 (award of damages in wrongful death action

requires “examination of each claim”). And, as the court in Valder Law Offices observed,

“‘[s]imply because claims are consolidated in one action, as our statute provides, it does not

follow that the interest[s] of the various beneficiaries are identical or that damages can

be determined other than by adding the sum of each beneficiary’s separate damages.’” 212

Ariz. 244, ¶ 21, 129 P.3d at 972-73, quoting Wilmot, 203 Ariz. 565, ¶ 22, 58 P.3d at 513

(first alteration and emphasis in Valder Law Offices); see also Quinonez v. Andersen, 144

Ariz. 193, 196, 696 P.2d 1342, 1345 (App. 1984) (although “there is but ‘one’ plaintiff and

‘one’ judgment” in wrongful death case, damage “apportionment is based on individual

pecuniary loss”; therefore, nothing “prohibits an individual statutory beneficiary from

appealing the inadequacy or evidentiary insufficiency of that individual award, regardless of

the merits of an award to other statutory beneficiaries”).


                                             18
¶30           In addition, none of the authorities on which Burkhamer relies precludes a trial

court in a wrongful death case from disposing of all claims made by a person, whether as a

statutory plaintiff or as a nonplaintiff, statutory beneficiary, via a separate, but final,

appealable judgment that applies only to that particular claimant. As noted earlier, the trial

court’s final judgment not only included the requisite finality language of Rule 54(b) but

also expressly “dismiss[ed] all claims asserted by Joseph Burkhamer against the State of

Arizona in this matter.” That judgment, as the state correctly notes, did not leave open the

possibility of Burkhamer’s “backdoor[ing] his dismissed claim with that of [his former wife]

Marjorie Surine,” even though he later sought unsuccessfully to do so. Although Burkhamer

might have had a cognizable claim as a statutory beneficiary in this action, the trial court’s

broad judgment encompassed that claim. In short, that judgment was neither premature nor

ineffective in dismissing all of Burkhamer’s claims in their entirety.

¶31           For these same reasons, we find misplaced Burkhamer’s reliance on several

cases for the proposition that a trial court’s determination pursuant to Rule 54(b) does not

make a judgment final and appealable if, in fact, it is premature because it does not dispose

of one or more claims in their entirety. See Musa v. Adrian, 130 Ariz. 311, 313, 636 P.2d

89, 91 (1981) (“Rule 54(b) language does not make the judgment final and appealable”

when judgment disposed of some but not all of plaintiff’s legal theories); McAlister v.

Citibank, 171 Ariz. 207, 211, 829 P.2d 1253, 1257 (App. 1992) (trial court improperly

included Rule 54(b) language in “order relating to consequential damages” that “merely



                                             19
eliminated a potential remedy while not disposing of a single claim”); Davis v. Cessna

Aircraft Corp., 168 Ariz. 301, 305, 812 P.2d 1119, 1123 (App. 1991) (order dismissing

plaintiff’s strict liability claim not appealable, despite Rule 54(b) language, when negligence

claim remained); Sizemore v. Farmers Ins. Co., 161 Ariz. 564, 567, 779 P.2d 1303, 1306

(App. 1989) (judgment rejecting plaintiffs’ request for punitive damages not appealable

because such request “is not a separate claim for relief under Rule 54(b)”).

¶32           Unlike those cases, however, the trial court’s Rule 54(b) judgment here did

not merely dispose of one of multiple liability theories (as in Davis) or one aspect of the

plaintiff’s damage claims (as in McAlister and Sizemore). Rather, the trial court’s judgment

broadly eliminated any and all claims Burkhamer might have had in this case and, therefore,

was “‘final’ in that it [was] the ultimate disposition of [his] individual claim.” McAlister,

171 Ariz. at 211, 829 P.2d at 1257; cf. Cont’l Cas. v. Superior Court, 130 Ariz. 189, 191,

635 P.2d 174, 176 (1981) (“‘For the purpose of rule 54(b), multiple claims exist if the

factual basis for recovery states a number of different claims that could have been enforced

separately,’” and separate claim need not “be entirely distinct from all the other claims in

the action” or “arise from a different occurrence or transaction”), quoting Title Ins. Co. v.

Acumen Trading Co., 121 Ariz. 525, 526, 591 P.2d 1302, 1303 (1979). We further note

that Burkhamer did not challenge on appeal the trial court’s inclusion of Rule 54(b)

language in the judgment, nor is this a situation in which an appellate court likely would




                                              20
have to decide the same issues more than once in subsequent appeals. See Cont’l Cas., 130

Ariz. at 191, 635 P.2d at 176.

¶33            Burkhamer also argues the trial court’s January 26 judgment “could not be

deemed final and appealable until the court ruled on [his] timely-filed Rule 58(d)

objection.” Because he timely lodged an objection to the proposed judgment pursuant to

Rule 58(d), Burkhamer argues, the judgment “could not be signed or finalized until the

objection was ruled upon.”10 Burkhamer alleges that after receiving the state’s proposed

form of judgment, he prepared and mailed his objection. The objection, however, was not

filed until January 30, and in the interim, the trial court signed and filed its judgment on

January 26, apparently before it received or considered Burkhamer’s objection.

¶34            According to Burkhamer, “[a]n order signed before disposition of a timely-

filed Rule 58(d) objection cannot be final for appellate purposes when the objection relates

to whether the party has additional theories that would permit continued participation in the

action.” Therefore, Burkhamer further argues, “the earliest date the time for appeal could

have been triggered” was when the trial court denied his objection to the judgment on May

22. We first note that Rule 58(d)(1) does not apply to a judgment “that all relief be denied,”

such as the judgment entered against Burkhamer here. But, even assuming any violations

       10
         Rule 58(d)(1), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, provides in part that “a judgment
other than . . . that all relief be denied . . . shall not be settled, approved and signed until the
expiration of five days after the proposed form thereof has been served upon opposing
counsel.” Subsection (d)(2) states that if the opposing party objects to the proposed
judgment within the time frame allowed, “the matter shall thereafter be presented to the
court for determination.”

                                                21
or irregularities relating to Rule 58(d) occurred below, the time and place for Burkhamer to

seek any recourse on those were in the trial court. Moreover, Burkhamer did not raise as an

issue in his opening brief the trial court’s alleged noncompliance with Rule 58(d) and

thereby waived the issue. See Van Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d 214,

216 (1977) (arguments raised for first time on appeal are waived); see also Health for Life

Brands, Inc. v. Powley, 203 Ariz. 536, ¶ 11, 57 P.3d 726, 728 (App. 2002) (challenges to

procedures waived if not raised in trial court). In other words, any procedural complaints

about the timing or entry of the trial court’s judgment should have been raised below and

have no bearing on the question of this court’s jurisdiction now.

¶35           Finally, although Burkhamer timely filed his notice of appeal within thirty

days after the trial court’s May 22 order denying his objection to the judgment and his

motion to amend the pleadings, that order is not appealable. See A.R.S. § 12-2101; Dollar

A Day Rent A Car Sys., Inc. v. Superior Court, 107 Ariz. 87, 89, 482 P.2d 454, 456 (1971)

(“Denial of a motion to amend complaint is not an appealable order.”); see also In re

Marriage of Dorman, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000) (“To be appealable,

a special order after judgment must raise different issues than those that would be raised by

appealing the underlying judgment.”). Absent jurisdiction, we do not address Burkhamer’s

arguments that the trial court erred in denying his motion to amend the complaint or caption,

filed pursuant to Rule 15, Ariz. R. Civ. P., 16 A.R.S., Pt. 1, “to reflect that plaintiff Surine




                                              22
was bringing the action on behalf of all statutory beneficiaries,” including him, and to add

a new defendant. For all of the reasons set forth above, this appeal is dismissed.


                                              ____________________________________
                                              JOHN PELANDER, Chief Judge
CONCURRING:


____________________________________
JOSEPH W. HOWARD, Presiding Judge


V Á S Q U E Z, Judge, dissenting.


¶36           I agree with the majority regarding Burkhamer’s other jurisdictional arguments,

but unlike my colleagues, I believe the trial court could have properly construed

Burkhamer’s “Objection to Defendant’s Final Judgment and Order Dismissing Claim” as a

motion to alter or amend the judgment pursuant to Rule 59(l), Ariz. R. Civ. P., 16 A.R.S.,

Pt. 2, thereby extending the time for him to file his notice of appeal.

¶37           I, of course, agree that this court is bound by applicable decisions of our

supreme court and lacks authority to disregard them. However, I disagree with the majority’s

view that Farmers Insurance Co. v. Vagnozzi, 132 Ariz. 219, 644 P.2d 1305 (1982);

Desmond v. J.W. Hancock Enterprises, Inc., 123 Ariz. 474, 600 P.2d 1106 (1979); Hegel

v. O’Malley Insurance Co., 117 Ariz. 411, 573 P.2d 485 (1977); and Arizona State Liquor

Board v. Slonsky, 106 Ariz. 25, 470 P.2d 106 (1970), control this case and mandate a

conclusion that we lack jurisdiction to decide this appeal on the merits.


                                             23
¶38           First, I believe Slonsky’s holding was essentially gutted and not merely

“refined” by Hegel, as the majority suggests. In Slonsky, the court held that a particular

motion did not extend the time in which a notice of appeal may be filed because it was not

enumerated as a time-extending motion under the relevant rule. 106 Ariz. at 25, 470 P.2d

at 106. But, in Hegel, the supreme court “overruled” any “suggestion” in Slonsky that only

the title of a motion must be considered. 117 Ariz. at 412, 573 P.2d at 486. Thus, it does

not appear that there is much, if anything, left of Slonsky after Hegel.

¶39           Second, Hegel, Desmond, and Vagnozzi are factually and procedurally

distinguishable from this case and do not compel the result reached by the majority. All

three of these cases specifically addressed the issue of whether a party’s motion should have

been treated as a motion for new trial under Rule 59(a), Ariz. R. Civ. P. They do not

address the issue presented here, which is whether a party’s filing could have been treated

as a Rule 59(l) motion to alter or amend the judgment. Unlike the majority, I believe that

distinction alone provides sufficient basis for limiting Hegel, Desmond, and Vagnozzi to

their facts and declining to apply them in this case.

¶40           And I do not believe that a Rule 59(l) motion must comply with the same

specificity requirements as a Rule 59(a) motion, even though they are both subparts of the

same rule, because the scope of the remedies associated with new trial motions and motions

to alter or amend the judgment is so different. The rule itself supplies the necessary

distinction. Rule 59(a) provides: “A verdict, decision or judgment may be vacated and a



                                             24
new trial granted on motion of the aggrieved party for any of the following causes,” such as

newly discovered evidence, accident or surprise, and misconduct of the jury or prevailing

party. The granting of a Rule 59(a) motion for new trial results in a new trial after the entire

judgment has been vacated. Rule 59(l), in contrast, provides only for altering or amending

a judgment, clearly a less extreme remedy than vacating a judgment and granting a new trial.

See also Maganas v. Northroup, 112 Ariz. 46, 48, 537 P.2d 595, 597 (1975) (noting that

“Rule 59(l) refers only to a motion to alter or amend a judgment” while “[t]he grounds for

vacation of a judgment are set forth in . . . Rule 59(a)”). Furthermore, Rule 59(c),11 which




       11
        Rule 59(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, provides:

                     1. The motion for new trial shall be in writing, shall
              specify generally the grounds upon which the motion is based,
              and may be amended at any time before it is ruled upon by the
              court.

                     2. Upon the general ground that the court erred in
              admitting or rejecting evidence, the court shall review all rulings
              during the trial upon objections to evidence.

                     3. Upon the general ground that the court erred in
              charging the jury and in refusing instructions requested, the
              court shall review the charge and the rulings refusing an
              instruction requested.

                     4. Upon the general ground that the verdict, decision,
              findings of fact, or judgment is not justified by the evidence, the
              court shall review the sufficiency of the evidence.

                                              25
describes the required contents of a new trial motion, does not even mention, let alone

require, the same contents for a motion to amend a judgment.12

¶41           The majority acknowledges that Sanders v. Foley, 190 Ariz. 182, 185, 945

P.2d 1313, 1316 (App. 1997), the case upon which Burkhamer relies, “arguably supports

the proposition that a trial court may treat an undesignated filing ‘as a motion to alter or

amend the judgment pursuant to Rule 59(l)’” despite being factually distinguishable.

However, the majority further states that “nothing in the record suggests that occurred here.”

I disagree with that proposition. Although the court did not explain how it was treating

Burkhamer’s objection, the fact that it did not dismiss the objection outright as being

untimely or procedurally improper supports an inference that the court decided the

objection on its merits.

¶42           Finally, I believe the majority unnecessarily emphasizes form over substance

in faulting Burkhamer’s objection for his failure to cite Rule 59(l) and expressly ask the trial

court to “alter or amend” its judgment. The rules of civil procedure are intended “to insure

that every action receives a just, speedy and inexpensive determination.” Hegel, 117 Ariz.

at 412, 573 P.2d at 486. To that end, courts may not “ignore the obvious intent and

substance of a motion because it was inappropriately titled.” Id. Burkhamer’s objection to

       12
         Unlike the special requirements imposed by Rule 59(c) and case law for Rule 59(a)
new trial motions, the supreme court has promulgated no such requirements of specificity
for the other two time-extending motions: Rule 50(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 1,
motions for judgments notwithstanding the verdict or Rule 52(b), Ariz. R. Civ. P., 16 A.R.S.,
Pt. 1, motions to amend or make additional findings of fact.


                                              26
the judgment as being “overbroad” essentially sought the relief afforded by Rule 59(l), to

alter or amend the judgment. Any errors in the procedure by which Burkhamer presented

his objection, or in the manner in which the trial court handled the objection, are “harmless

and non-prejudicial.” Hill v. City of Phoenix, 193 Ariz. 570, ¶ 10, 975 P.2d 700, 702

(1999) (“[A]n overriding purpose of the Rules of Civil Procedure is to dispose of cases on

the merits where errors in procedure can be characterized as harmless and non-prejudicial.”).



¶43           Thus, I would conclude that, because Burkhamer had filed what could be

construed as a Rule 59(l) motion, his appeal filed less than thirty days after the court’s

denial of that motion was timely. See Ariz. R. Civ. App. P. 9(b)(3), 17B A.R.S. (providing

that time for appeal is computed from date of entry of order disposing of Rule 59(l) motion);

Performance Funding, LLC v. Barcon Corp., 197 Ariz. 286, n.1, 3 P.3d 1206, 1207-08 n.1

(App. 2000) (motion to amend judgment extended time to appeal until thirty days after court

ruled on it). I would therefore find that we have jurisdiction over this appeal and would

reach its merits.



                                              ____________________________________
                                              GARYE L. VÁSQUEZ, Judge




                                             27
