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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


     KATHY WYER NP-C, an Arizona Professional Limited Liability
                 Company, Plaintiff/Appellant,

                                         v.

  SHAWN HERMENAU, MD and JESSICA HERMENAU, husband and
   wife, and DESERT SPINE INSTITUTE PLLC, Arizona Professional
            Limited Liability Company, Defendants/Appellees.

                              No. 1 CA-CV 17-0491
                                FILED 8-14-2018


              Appeal from the Superior Court in Yuma County
                         No. S1400CV201500116
               The Honorable Lawrence C. Kenworthy, Judge

                                   AFFIRMED


                                    COUNSEL

Don B. Engler PC, Yuma
By Don B. Engler
Counsel for Plaintiff/Appellant

Schneider & Onofry PC, Yuma
By Charles D. Onofry, Luane Rosen
Counsel for Defendants/Appellees
                       WYER v. HERMENAU, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Jennifer M. Perkins joined.


B R O W N, Judge:

¶1           Kathy Wyer NP-C, PLLC (“Wyer”), appeals the superior
court’s order denying her motion to reopen the time for appeal of the
underlying judgment.1 For the following reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             Wyer filed a complaint against Shawn Hermenau, M.D.,
Jessica Hermenau, and Desert Spine Institute, PLLC (collectively, “Desert
Spine”), alleging claims related to work she performed for Desert Spine. At
trial, the superior court directed a verdict for Desert Spine on two of Wyer’s
claims, and the jury found in favor of Desert Spine on the remaining claims.
The court later awarded Desert Spine its attorneys’ fees and costs.

¶3             On December 14, 2016, the superior court signed Desert
Spine’s proposed form of judgment, which included the attorneys’ fees and
cost awards and certification of finality pursuant to Arizona Rule of Civil
Procedure (“Rule”) 54(c). That morning, the judge’s judicial assistant
emailed an unconformed copy of the signed judgment to the parties’
counsel and wrote: “Attached is a scanned copy of the judgment entered in
the above referenced matter. The original and copies will be forwarded to
the Clerk of the Court for filing and distribution.” The superior court clerk
entered the judgment later that day, but did not distribute a notice of entry
of judgment as required by Rule 58(c). Desert Spine’s counsel received a
conformed copy of the judgment in its courthouse mailbox, and although it
was his practice to notify opposing counsel of the judgment as Rule
58(c)(1)(B) allows, there is no evidence he did so in this case. Desert Spine
did, however, record a certified copy of the judgment in the Yuma County
Recorder’s Office on December 16, 2016.




1      Although Wyer is an entity, for ease of reference we refer to it as
“her” and “she.”


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                       WYER v. HERMENAU, et al.
                         Decision of the Court

¶4           On December 29, 2016, the last day to timely do so, Wyer filed
a motion for new trial. The superior court denied the motion in a signed
order entered February 15, 2017. On March 6, 2017, Desert Spine requested
an award of the attorneys’ fees and costs it incurred in responding to the
motion for new trial.

¶5            On April 11, 2017, while Desert Spine’s request for attorneys’
fees was pending, Wyer filed a motion to reopen the time for appeal. She
asserted that her counsel had only learned on April 10, 2017, when counsel’s
staff searched the court file, that the judgment had been entered on
December 14, 2016, because the court clerk did not send the required notice
of entry of judgment. Wyer asked the court to reopen the time to appeal
the judgment under Arizona Rule of Civil Appellate Procedure (“ARCAP”)
9(f), which provides that the superior court “may” reopen the time for filing
a notice of appeal if the following conditions are satisfied: (1) the moving
party did not receive notice of the judgment or order within 21 days after
entry; (2) the motion seeking relief is filed within 30 days after the
expiration of the time for appeal; and (3) no party would be prejudiced.

¶6             Wyer argued she satisfied these criteria because (1) the clerk
did not provide notice of the judgment under Rule 58(c); (2) the time for
appeal expired on March 17, 2017, and she filed her request to reopen
within 30 days of that date; and (3) the delayed appeal would not prejudice
Desert Spine. The superior court denied Wyer’s motion to reopen, ruling
that although Wyer satisfied ARCAP 9(f)’s three elements, it would exercise
its discretion to deny the motion because it determined that Wyer’s counsel
“knew or believed” that the court had entered the judgment on December
14, 2016. This timely appeal followed.

                              DISCUSSION

¶7            Wyer argues the superior court erred in denying the motion
to reopen, asserting that the court applied an incorrect legal standard by
considering whether Wyer believed or had actual notice of the entered
judgment before April 10, 2017. We review the superior court’s denial of a
motion to reopen the time to appeal for an abuse of discretion. Haroutunian
v. Valueoptions, Inc., 218 Ariz. 541, 544, ¶ 6 (App. 2008).

¶8           ARCAP 9(f)2 was amended in 1994 “to allow extension of the
time to appeal when the clerk fails to give notice of entry of judgment, but


2     ARCAP 9(f) was previously numbered ARCAP 9(a) but was not
materially different. For clarity, we refer only to ARCAP 9(f).


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                        WYER v. HERMENAU, et al.
                          Decision of the Court

under very limited time constraints and other circumstances.” J.C. Penny v.
Lane, 197 Ariz. 113, 116, ¶¶ 16-17 (App. 1999). The superior court is not
required to grant relief if all the conditions of ARCAP 9(f) are satisfied, but
has discretion to deny relief based on procedural, factual, and equitable
considerations. See Haroutunian, 218 Ariz. at 546-47, ¶¶ 14-15. In
Haroutunian, the clerk of the court did not timely provide notice of the
judgment to the parties and, in fact, erroneously told the defendant the
court had not entered a judgment. Id. at 543-44, ¶ 3. The superior court
denied the defendant’s motion to extend the time for filing an appeal
because the defendant did not show “excusable neglect” or “good cause”
for its failure to ascertain whether the court had entered the judgment. Id.
at 545, ¶ 9.

¶9              On appeal, this court held that the trial court erred as a matter
of law because it applied an incorrect legal standard by requiring the
defendant to establish “good cause” or “excusable neglect” in addition to
the ARCAP 9(f) requirements. Id. at 545, ¶¶ 12-13. Although we recognized
that the court retains discretion under ARCAP 9(f), we noted that its
determination that the defendant had not acted reasonably under the
circumstances was not based on any evidence or a weighing of conflicting
facts, but was simply a conclusion that overlooked several undisputed facts.
Id. at 547, ¶¶ 15-16. And because both parties were not aware that the
judgment had been entered until after the time for filing post-trial motions
and a notice of appeal, the trial court’s ruling was inconsistent with ARCAP
9(f). Id. at ¶ 18.

¶10             Wyer suggests that because the superior court found she had
satisfied all three elements of ARCAP 9(f), it had no discretion to deny her
motion to extend. Relying on Haroutunian, Wyer contends that by
considering whether she believed or had actual notice of the entered
judgment, the court improperly imposed an additional legal element under
ARCAP 9(f). We disagree. The court’s analysis of Wyer’s belief or actual
notice was part of its discretionary consideration of all the facts and
circumstances. And the court expressly declined to address whether
Wyer’s counsel acted reasonably after he received the December 14 email,
noting the Haroutunian court’s ruling that good cause and excusable neglect
are not issues a court should consider under ARCAP 9(f). Instead, the court
exercised its discretion to deny Wyer’s motion to reopen because it found
her counsel knew or believed that the court had entered the judgment
before the motion for new trial was filed.

¶11         The court’s conclusion was based on comments made by
Wyer’s counsel at oral argument indicating that (1) counsel searched the


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                       WYER v. HERMENAU, et al.
                         Decision of the Court

court file in April 2017 because he was uncertain “whether the 30 day
appeal period began to run” after the court entered an order denying the
motion for new trial on February 15, 2017; and (2) counsel was unsure
whether the appeal period had started due to a pending March 6 motion
for attorneys’ fees filed by Desert Spine. The court found “this thought
process significant because the 30 day appeal period never even begins
unless an appealable judgment, like the one entered on December 14, 2016,
is entered. No matter how many motions referenced in Rule 9(e)(1) are filed
and decided, the 30 day period cannot begin until a judgment is entered.”
The court therefore concluded that Wyer’s counsel knew or believed that
the December 14, 2016 judgment had been entered because he would not
have thought the time for appeal would start running from the denial of the
motion for new trial unless he was aware an appealable judgment had been
entered. See ARCAP 9(a) (“To appeal a judgment, a party must file a notice
of appeal under Rule 8 no later than 30 days after entry of the judgment
from which the appeal is taken, except as otherwise provided in this Rule
or unless the law provides a different time.”); Rule 54(a) (“‘Judgment’ as
used in these rules includes a decree and any order from which an appeal
lies.”).

¶12            Wyer argues the superior court erred in relying on what her
counsel said at oral argument because those comments concerned the
timeliness of her ARCAP 9(f) motion to reopen, not the notice of appeal.
Although not clearly stated, Wyer appears to contend the comments were
directed at whether she had filed that motion within 30 days after the
expiration of the time for appeal, because it was not clear that the court had
fully resolved the motion for new trial given Desert Spine’s pending request
for attorneys’ fees.3 That distinction, however, does not change the relevant
analysis; either way, counsel understood the time for appeal would
commence when the court resolved the motion for new trial and therefore,
it follows, counsel knew that the court had entered the judgment. See
ARCAP 9(e) (explaining that the deadline to file a notice of appeal when a
party “timely and properly” files a motion for new trial “begins to run from
the entry by the superior court clerk of a signed written order disposing of
the last such remaining motion”).

¶13         Accordingly, the superior court did not impose a new legal
standard, but assessed the relevant procedural, factual, and equitable

3       Wyer does not assert that the time to appeal the judgment started
when the superior court ruled on Desert Spine’s motion for an award of
attorneys’ fees related to the motion for new trial. Thus, we do not consider
that issue.


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                        WYER v. HERMENAU, et al.
                          Decision of the Court

considerations and exercised its discretion under ARCAP 9(f) to deny
Wyer’s motion to reopen. Moreover, unlike the circumstances in
Haroutunian, there were factual issues in this case regarding whether Wyer
had actual notice of the entry of judgment. Counsel admitted that he
received the court’s email, with a signed copy of the judgment attached,
stating that the court was forwarding the judgment to the court clerk for
filing. Although counsel avowed that he did not learn until April that the
court had entered the judgment almost four months earlier, the record
indicates that Wyer filed her motion for new trial on the last day to timely
do so, December 29, 2016.

¶14             Based upon this timing and counsel’s admitted belief that the
time to appeal would begin to run once the court resolved the motion for
new trial, the superior court could reasonably infer that counsel “knew or
believed” the judgment had been entered. We defer to a discretionary
decision unless the undisputed facts compel a different result. Cf. City of
Phoenix v. Geyler, 144 Ariz. 323, 330 (1985) (“[O]n appeal from denial of Rule
60(c) relief, the trial court will be sustained unless ‘undisputed facts and
circumstances require a contrary ruling . . . .’”) (quoting Coconino Pulp &
Paper Co. v. Marvin, 83 Ariz. 117, 121 (1957)); United Metro Materials, Inc. v.
Pena Blanca Properties, L.L.C., 197 Ariz. 479, 483, ¶ 22 (App. 2000)
(concluding the superior court did not abuse its discretion by granting the
defendant an extension of time to file a Rule 59 motion where counsel
avowed he did not receive notice of the judgment and the record did not
contain any contrary evidence). Under the circumstances of this case, we
find no abuse of discretion in the superior court’s decision to deny Wyer’s
ARCAP 9(f) motion to reopen.




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                      WYER v. HERMENAU, et al.
                        Decision of the Court

                             CONCLUSION

¶15          For the foregoing reasons, we affirm. Both parties request an
 award of attorneys’ fees on appeal pursuant to A.R.S. § 12-341.01, which
allows an award of reasonable fees to the successful party in a contract
action. We deny Wyer’s request because she did not prevail on appeal. In
our discretion, we also deny Desert Spine’s request. We award taxable
costs, however, to Desert Spine upon compliance with ARCAP 21.




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




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