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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


              TERRI KEMP, a single person, Plaintiff/Appellant,

                                         v.

             KEVIN KEMP, a single person, Defendant/Appellee.

                              No. 1 CA-CV 14-0520
                                FILED 10-01-2015


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-006670
            The Honorable Colleen L. French, Judge Pro Tempore

                       REVERSED AND REMANDED


                                    COUNSEL

Clifford I. Levenson, Attorney at Law, Phoenix
By Clifford I. Levenson
Counsel for Plaintiff/Appellant

Charles Hultstrand P.C., Mesa
By Charles Hultstrand
Counsel for Defendant/Appellee
                              KEMP v. KEMP
                            Decision of the Court



                       MEMORANDUM DECISION

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


K E S S L E R, Presiding Judge:

¶1             Plaintiff/Appellant Terri Kemp (“Terri”) appeals the superior
court’s dismissal of her civil complaint against Defendant/Appellee Kevin
Kemp (“Kevin”). For the following reasons, we reverse the dismissal and
award of attorneys’ fees and costs to Kevin, and remand to the superior
court to reinstate the complaint and for further proceedings consistent with
this decision.

               FACTUAL AND PROCEDURAL HISTORY

¶2            After a family court presiding over the Kemps’ divorce
proceedings determined that Kevin owed a debt to the Estate of Opal F.
Buzan (“Estate”) and that the Estate must pursue repayment, Terri, in her
capacity as the personal representative of the Estate commenced an action
against Kevin in probate court for breach of an oral contract and fraud. See
Arizona Revised Statutes (“A.R.S.”) section 12-543(1), (3) (2003).1

¶3             In February 2012, Terri as personal representative of the
Estate, assigned to herself, as an individual, the Estate’s claims against
Kevin. She was substituted as the plaintiff for the contract claim, and joined
as a plaintiff for the tort claim. The probate court then determined that
because the fraud tort was economic only, it was assignable and had been
assigned to Terri. The court concluded that the Estate no longer had an
interest in the action, was no longer a party, and the court dismissed the
probate case without prejudice in a signed ruling dated October 5, 2012,
stating that Terri could file a civil action. The order of dismissal was entered
by the superior court clerk on October 23, 2012.

¶4            Terri and the Estate appealed the probate court’s order of
dismissal. In February 2013, this Court issued an order ruling that because


1 We cite to the current language of statutes unless the language has been
amended since the underlying events in a manner which would affect
resolution of the appeal.


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                            Decision of the Court

the order of dismissal by the probate court was without prejudice, Terri in
her personal capacity could not appeal but Terri could file a new action in
her own name and it appeared that such a claim would not be barred by
the statute of limitations. Terri then filed the complaint in this civil matter
on April 19, 2013. On April 4, 2014, this Court filed an order dismissing the
Estate’s appeal from the probate court order for lack of jurisdiction because
the probate court’s order of dismissal was without prejudice. We then
issued an order awarding Kevin attorneys’ fees and costs in the probate
appeal, and on May 8, 2014, the clerk of this Court sent a letter to the clerk
of the superior court informing the superior court that the probate appeal
had been dismissed.

¶5            Once the probate appeal was dismissed, Kevin moved for
dismissal of Terri’s civil action pursuant to Arizona Rule of Civil Procedure
12(b). He asserted that her claims had accrued in February 2009, and thus,
the statute of limitations expired in February 2012 barring the claims. In
response, Terri asserted that her complaint was timely because of the
applicability of the savings statute, A.R.S. § 12-504 (2003).

¶6             The superior court dismissed the civil complaint with
prejudice. Terri filed a notice of appeal. The superior court entered a signed
judgment in favor of Kevin including an award of attorneys’ fees and costs
in July 2014. Terri filed an amended notice of appeal.

¶7           Because we determined the judgment in the instant case was
non-final because it lacked certification under Arizona Rule of Civil
Procedure 54(c) that “no further matters remain pending,” we stayed the
appeal and revested jurisdiction in the superior court to permit the entry of
a final judgment including Rule 54(c) language. Pursuant to former
Arizona Rule of Civil Appellate Procedure (“ARCAP”) 9.1, we ordered that
the appeal would be automatically reinstated if the Rule 54(c) judgment
was entered by a specific date.2




2 ARCAP 9.1 was abrogated effective January 1, 2015. The rule permitted
this Court to “suspend the appeal and revest jurisdiction in the superior
court for the purpose of allowing it to consider and determine specified
matters.” In addition, the rule provided that this Court’s “order may
include other terms and conditions, such as a date certain for automatic
reinstatement of the appeal.” ARCAP 9.1.



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                              KEMP v. KEMP
                            Decision of the Court

¶8           On October 16, 2014, the superior court entered a final signed
judgment with Rule 54(c) language. The appeal was automatically
reinstated. Terri did not file an amended notice of appeal.

                                DISCUSSION

¶9             The issue on appeal is whether the superior court erred by
dismissing Terri’s complaint as time barred in violation of the savings
statute, A.R.S. § 12-504. We review de novo orders granting motions to
dismiss under Arizona Rule of Civil Procedure 12(b)(6). Coleman v. City of
Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). We review de novo
issues involving statutory construction and interpretation. Hoffman v.
Chandler, 231 Ariz. 362, 364, ¶ 8, 295 P.3d 939, 941 (2013). If the language of
a statute is clear and unambiguous, we apply the plain language of the
statute which is the best indication of the legislature’s intent. Kent K. v.
Bobby M., 210 Ariz. 279, 283, ¶ 14, 110 P.3d 1013, 1017 (2005).3

I.     Appellate Jurisdiction

¶10           As an initial matter, Kevin suggests we lack jurisdiction of the
appeal because Terri did not file an amended notice of appeal from the
October 16, 2014 final judgment. Kevin relies on ARCAP 9(b)(2)(B) which
provides that if a notice of appeal is filed before tolling motions are filed or
while such motions are pending, we will suspend the appeal to allow the
superior court to rule on the motions and reinstate the appeal when the last
such motion is resolved. That rule further provides that if an appellant
desires to appeal from the order resolving the tolling motions, the appellant
“must file an amended notice of appeal” from the order resolving the last
tolling motion. ARCAP 9(b)(2)(B). Because Terri did not file an amended
notice of appeal from the October 16, 2014 Rule 54(c) judgment, Kevin
suggests we lack jurisdiction over the appeal. We disagree.

¶11            First, former ARCAP 9(b), which corresponds to current
ARCAP 9(e), does not apply in this situation.4 That subsection applies to
the filing of certain enumerated substantive post-judgment motions that
toll the time to appeal and are not at issue here. See ARCAP 9(e) (specifying

3The statute of limitations for commencing actions is three years for breach
of an oral contract, A.R.S. § 12-543(1), and for fraud, A.R.S. § 12-543(3).
4ARCAP 9 was amended effective January 1, 2015 and does not retain the
same subsection structure, but for our purposes here is substantively the
same as the 2014 version of the rule.



                                       4
                              KEMP v. KEMP
                            Decision of the Court

certain substantive motions, which if filed, extend the time for filing an
appeal and may require an amended notice of appeal).

¶12           Second, former ARCAP Rule 9(b)(2)(B), which corresponds to
current ARCAP 9(c), provides that “[a] notice of appeal filed after the court
announces a decision or order―but before the entry of the judgment or
order―is treated as filed on the date of and after the entry of the judgment
or order.” This is exactly what occurred. Terri filed a notice of appeal and
an amended notice of appeal from the signed judgment dismissing the
complaint and the signed judgment awarding Kevin attorneys’ fees.
However, those notices were premature because the judgments were not
appealable unless they included Rule 54(c) certification. Once the October
16, 2014, judgment, containing the Rule 54(c) certification was filed, her
earlier appeals are treated as filed on or after October 16.

¶13            Third, even assuming we had not ordered automatic
reinstatement of the appeal, the superior court’s incorporation of Rule 54(c)
language specifying “[n]o further matters remain pending,” was a
ministerial task that did not substantively alter its prior ruling nor require
a discretionary judicial determination. See Baker v. Bradley, 231 Ariz. 475,
480, ¶ 18, 296 P.3d 1011, 1016 (App. 2013) (explaining cases dismissing
appeals for lack of jurisdiction because notices of appeal are premature
share the common characteristic that they involve pending motions for
substantive relief or require a discretionary judicial determination after the
notice is filed). Thus, the exception to a premature notice of appeal is
applicable here and is sufficient to confer appellate jurisdiction. See id. at
481, ¶ 19, 296 P.3d at 1017 (explaining exception articulated in Barassi v.
Matison, 130 Ariz. 418, 421-22, 636 P.2d 1200, 1203-04 (1981) and stating “if
the ruling preceding the notice of appeal is a final decision . . . and the trial
court merely enters a final judgment consistent with its prior . . . ruling, the
limited Barassi exception will likely apply”).

¶14           Therefore, an amended notice of appeal from the October 16,
2014 judgment was unnecessary and we have jurisdiction pursuant to
A.R.S. §§ 12-2101(A)(1) (Supp. 2015), and 12-120.21(A)(1) (2003).

II.    The Civil Complaint was Timely Filed Pursuant to the Savings
       Statute, A.R.S. § 12-504(A)

¶15           The facts are undisputed. The parties assume that the causes
of action accrued in 2009, that there was a three year statute of limitations,
and the record shows Terri’s civil complaint was filed April 19, 2013. The
probate court issued its order dismissing the complaint on October 5, 2012,



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                              KEMP v. KEMP
                            Decision of the Court

but the clerk of the court did not file it until October 23, 2012, and thus, it
was not “entered” until October 23, 2012. Terri asserts that she filed her
civil action within six months of the filing of the probate court’s dismissal,5
and thus within the six month period from termination of the probate action
as permitted by A.R.S. § 12-504(A). Relying on Roller Village, Inc. v. Superior
Court, 154 Ariz. 195, 198, 741 P.2d 328, 331 (App. 1987), she argues that the
probate matter terminated when the probate court filed the order of
dismissal.

¶16           Kevin argues that the civil complaint was not filed within six
months of the termination of the probate matter because for purposes of
A.R.S. § 12-504(A), termination occurred when the superior court ruled and
signed the order dismissing the case on October 5, 2012, rather than when
the order was filed and thus entered by the court clerk on October 23, 2012.
He maintains that the April 19, 2013 civil complaint was therefore filed
more than six months later and was too late. Kevin reasons that had the
legislature intended “termination” to mean the point in time when a
dismissal order is filed by the court clerk, it would have so stated. He
maintains that our decision in Roller Village is inapplicable here because
“the language defining ‘entry of judgment’” in that case was decided
“while discussing Rules 54 and 58 [of the Arizona Rules of Civil
Procedure].”

¶17           As applicable here, the savings statute permits refiling of an
otherwise timely lawsuit within six months of termination by dismissal in
the superior court. See Roller Village, 154 Ariz. at 197, 741 P.2d at 330. The
savings statute, A.R.S. § 12-504(A), provides in relevant part:

       If an action is commenced within the time limited for the
       action, and the action is terminated in any manner other than
       by abatement, voluntary dismissal, dismissal for lack of
       prosecution or a final judgment on the merits, the plaintiff, or
       a successor or personal representative, may commence a new
       action for the same cause after the expiration of the time so
       limited and within six months after such termination.

¶18          The right to refile if dismissal is not based on “abatement,
voluntary dismissal, dismissal for lack of prosecution or a final judgment
on the merits,” A.R.S. § 12-504(A), is automatic and not subjected to court


5Because we determine the civil complaint was timely filed for purposes of
A.R.S. § 12-504(A), we need not address the alternative arguments about
A.R.S. § 12-504(B).


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                               KEMP v. KEMP
                             Decision of the Court

discretion. See Roller Village, 154 Ariz. at 197, 741 P.2d at 330; see also Jepson
v. New, 164 Ariz. 265, 271, 792 P.2d 728, 734 (1990) (explaining statute
provides both automatic and discretionary relief depending on the reason
for dismissal).

¶19            Kevin does not dispute that the probate matter was timely
filed for purposes of the statute of limitations and that Terri was substituted
as the plaintiff after an assignment of the Estate’s claims to her during that
time. It is also undisputed that the civil complaint raises the same causes
of action against Kevin as did the probate matter. See A.R.S. § 12-504(D) (“If
an action timely commenced is dismissed because the named plaintiff is not
the proper party to bring the action, the provisions of this section apply to
an action subsequently brought by the proper party, provided that the
dismissed action was sufficient to put the defendant on notice of the claim
sought to be asserted.”). Finally, it is undisputed that the dismissal of the
probate matter was not based on “abatement, voluntary dismissal,
dismissal for lack of prosecution or a final judgment on the merits,” A.R.S.
§ 12-504(A).

¶20            Therefore, the operative question is whether “termination” of
an action for purposes of the savings statute, occurs on the date the superior
court signs the order of dismissal, or on the date the dismissal is filed by the
clerk of the superior court.

¶21           In Roller Village we specifically addressed the question of the
definition of “termination” for purposes of the savings statute: “[w]hen
does ‘termination’ occur after a dismissal?” 154 Ariz. at 197, 741 P.2d at 330.
We stated “if there is no appeal, an action is terminated upon entry of an
order of dismissal by the trial judge.” Id. (emphasis added). We
determined that “[a]n order is ‘entered’ when it is reduced to writing,
signed by the judge, and filed with the clerk.” Id. at 198, 741 P.2d at 331
(emphasis added).

¶22          Kevin asserts that because Roller Village relied upon Rules
54(a) and 58(a) of the Arizona Rules of Civil Procedure pertaining to the
entry of “judgments,” the case and reasoning are inapplicable here.6 He


6Rule 54(a) defines “judgment” in relevant part as “an order from which
an appeal lies.” Rule 58(a) states, “[t]he filing with the clerk of the judgment
constitutes entry of such judgment, and the judgment is not effective before
such entry . . . .”




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                              KEMP v. KEMP
                            Decision of the Court

maintains that entry of the order of dismissal is inconsequential in this case
because there was no appealable “judgment” in the probate matter as
evidenced by our dismissal of that matter on appeal for lack of jurisdiction.
We are not persuaded. To the extent Kevin identifies a difference between
this case and Roller Village, he does not explain why this compels a
determination that the order of dismissal here need not be “entered.”
Although Roller Village was primarily concerned with A.R.S. § 12-504(E),7
154 Ariz. at 198, 741 P.2d at 331, it too was considering the effect of an order
of dismissal, id. at 196, 741 P.2d at 329. We see no reason to depart from
Roller Village’s analysis and conclusion about the definition of
“termination” of an action.

¶23           Roller Village compels our determination that the six-month
time period for refiling an action for purposes of A.R.S. § 12-504(A) is
triggered by court clerk’s entry of the signed order of dismissal. Because
the order of dismissal terminating the probate action was entered on
October 23, 2013, Terri’s civil complaint filed on April 19, 2014 was timely
for purposes of the savings statute. We also conclude that given the
applicability of the savings statute, the superior court had no discretion to
dismiss the civil complaint on the basis that the statute of limitations had
expired. See Roller Village, 154 Ariz. at 197, 741 P.2d at 330. Thus, as a matter
of law, the court should not have dismissed the civil complaint. We
therefore reverse the dismissal and remand to the superior court with
instructions to reinstate the complaint and for further proceedings
consistent with this decision.

III.   Attorneys’ Fees

¶24           Kevin requested an award of attorneys’ fees for both the civil
action in the amount of $4,400, and for the earlier probate action in the
amount of $30,025, because the actions arose out of contract, see A.R.S. § 12-
341.01 (Supp. 2015). In its discretion, the superior court awarded attorneys’
fees and costs for the civil action in the amount of $4,400. See A.R.S. § 12-
341.01(A) (“In any contested action arising out of a contract, express or
implied, the court may award the successful party reasonable attorney
fees.”). Because we reverse the dismissal of the civil complaint, Kevin




7“The provisions of this section are applicable to actions terminated by
orders of dismissal entered on or after the effective date of this section.”
A.R.S. § 12-504(E).



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                             KEMP v. KEMP
                           Decision of the Court

cannot be considered the successful party for purposes of A.R.S. § 12-
341.01(A). Thus we reverse the superior court’s award of attorneys’ fees.

¶25          On appeal both parties request attorneys’ fees pursuant to
A.R.S. § 12-341.01. Kevin cannot be considered the successful party and
therefore we decline his request. In our discretion we award attorneys’ fees
and taxable costs on appeal to Terri pursuant to A.R.S. §§ 12-341.01 and 12-
341 (2003) upon her timely compliance with ARCAP 21.

                              CONCLUSION

¶26          For the reasons stated, we reverse the dismissal of the
complaint and the award of attorneys’ fees to Kevin. We remand this matter
to the superior court with instructions to reinstate the complaint and for
further proceedings consistent with this decision.




                                 :ama




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