                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                  SAMUEL RASH, A SINGLE MAN,
                   Petitioner/Plaintiff/Appellant,

                                 v.

                     TOWN OF MAMMOTH,
                MAMMOTH POLICE DEPARTMENT,
     AND PINAL COUNTY EMPLOYEE MERIT SYSTEM COMMISSION,
                Respondents/Defendants/Appellees.

                     No. 2 CA-CV 2013-0062
                     Filed December 13, 2013


         Appeal from the Superior Court in Pinal County
                    No. S1100CV201201479
           The Honorable Robert Carter Olson, Judge

                 VACATED AND REMANDED


                           COUNSEL

Munger Chadwick, P.L.C., Tucson
By John F. Munger, David Ruiz, and Adriane J. Parsons
Counsel for Petitioner/Plaintiff/Appellant

Jackson Lewis LLP, Phoenix
By Justin S. Pierce and Victoria Torrilhon
Counsel for Respondents/Defendants/Appellees
Town of Mammoth and Mammoth Police Department
                 RASH v. TOWN OF MAMMOTH
                     Opinion of the Court

Leonard & Felker, P.L.C., Tucson
By Donna M. Aversa
Counsel for Respondent/Defendant/Appellee
Pinal County Employee Merit System Commission


                             OPINION

Chief Judge Howard authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Miller concurred.


H O W A R D, Chief Judge:

¶1           In this appeal from a statutory special action, appellant
Samuel Rash appeals the trial court’s dismissal of his claims
challenging his termination from the Town of Mammoth police
force. On appeal, he argues the court erred by finding the time
limits of the Arizona Rules of Civil Appellate Procedure applicable
to statutory special actions and in concluding that the doctrine of
laches would otherwise bar his claims. Because we conclude the
court erred in applying the procedural rules and the laches doctrine,
we vacate and remand.

                Factual and Procedural Background

¶2           The record supports the following procedural history.
On March 22, 2011, the Town of Mammoth (“the Town”) terminated
Rash’s employment. Rash appealed that decision, which the Pinal
County Employee Merit System Commission (“the Commission”)
heard at the Town’s request. After a hearing on November 29, 2011,
the Commission voted to uphold his termination. Rash, however,
did not receive a written decision from the Commission until March
31, 2012.1 On May 25, 2012, Rash filed a statutory special action



      1Rash contended below that he received the written decision
on April 4, 2012, but concedes on appeal that he received the
decision on March 31, 2012.

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                      Opinion of the Court

pursuant to A.R.S. § 38-1004(A) in the superior court appealing the
Commission’s decision.

¶3           The Town and the Commission moved to dismiss the
special action as untimely and for failure to timely join an
indispensable party.2 Finding applicable the thirty-day time limit of
Rule 9(a), Ariz. R. Civ. App. P., the superior court granted the
motions. Additionally, the court found that because Rash waited six
months after becoming aware of the Commission’s decision, “the
equitable doctrine of laches serves as a separate and independent bar
to this action . . . in light of the policy in favor of finality of
decisions.” We have jurisdiction over Rash’s appeal pursuant to
A.R.S. §§ 12-120.21(A)(1), (4) and 12-2101(A)(1).

                              Timeliness

¶4            Rash first argues the superior court erred by dismissing
his statutory special action after finding the thirty-day time limit for
bringing an appeal in Rule 9(a), Ariz. R. Civ. App. P., was applicable
to his special action through Rule 7(i), Ariz. R. P. Spec. Actions,
titled “Special Appellate Court Provisions.” Although we review a
grant of dismissal for an abuse of discretion, Old Republic Nat’l Title
Ins. Co. v. New Falls Corp., 224 Ariz. 526, ¶ 9, 233 P.3d 639, 641 (App.
2010), “we review de novo questions involving the interpretation of
court rules and ‘evaluate procedural rules using principles of
statutory construction,’” Haroutunian v. Valueoptions, Inc., 218 Ariz.
541, ¶ 6, 189 P.3d 1114, 1117 (App. 2008), quoting Fragoso v. Fell, 210
Ariz. 427, ¶¶ 7, 13, 111 P.3d 1027, 1030, 1032 (App. 2005). Where a
rule’s terms are ambiguous, we consider in our interpretation the
rule’s “‘context, language, subject matter, historical background,
effects and consequences, and spirit and purpose.’” Hornbeck v.
Lusk, 217 Ariz. 581, ¶ 6, 177 P.3d 323, 325 (App. 2008), quoting
Estancia Dev. Assocs. v. City of Scottsdale, 196 Ariz. 87, ¶ 11, 993 P.2d
1051, 1054 (App. 1999).


      2The Commission’s motion to dismiss is not part of our record
but it appears the superior court reviewed it at oral argument on the
Town’s motion to dismiss and that Rash had an opportunity to
reply.

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                     Opinion of the Court

¶5           The superior court concluded that Rule 7(i), Ariz. R. P.
Spec. Actions, titled “Special Appellate Court Provisions,” applied
to Rash’s statutory special action. That rule states that “[t]o the
extent they are not inconsistent with these rules, the Arizona Rules
of Civil Appellate Procedure shall apply to special actions.” Ariz. R.
P. Spec. Actions 7(i). Therefore, the court reasoned, the thirty-day
filing time in Rule 9(a), Ariz. R. Civ. App. P., also applied. We
therefore must determine whether Rule 7, Ariz. R. P. Spec. Actions,
applies to statutory special actions filed in superior court.

¶6            Rule 1(b), Ariz. R. P. Spec. Actions, specifically
designates provisions of the special action rules that apply to
statutory special actions. It states “the provisions of this Rule as to
parties, procedure, interlocutory orders and stays, and judgments
shall apply” to statutory special actions. Ariz. R. P. Spec. Actions
1(b). The “provisions” to which Rule 1(b) refers are plainly the titles
of Rules 2, 4, 5, and 6, Ariz. R. P. Spec. Actions. Nowhere does the
rule refer to the “Special Appellate Court Provisions” contained in
Rule 7, Ariz. R. P. Spec. Actions. Id. Under the principle of expressio
unius est exclusio alterius, we may presume items not included in the
list in Rule 1(b) were intentionally excluded. See Sw. Iron & Steel
Indus. v. State, 123 Ariz. 78, 79-80, 597 P.2d 981, 982-83 (1979)
(“[E]xpression of one or more items of a class and the exclusion of
other items of the same class implies . . . intent to exclude those
items not so included.”). Thus, under the plain language of Rule
1(b), statutory special actions filed in superior court are not subject
to the “Special Appellate Court Provisions” of Rule 7.

¶7           Moreover, reading the Rules of Procedure for Special
Actions as a whole, see Hornbeck, 217 Ariz. 581, ¶ 6, 177 P.3d at 325,
the term “appellate court” as used in Rule 7 does not include
superior courts acting in their capacity to hear statutory special
actions that are functionally appeals. Rule 4(f) provides that if a
special action “is filed in an appellate court, that court may . . .
transmit the matter to a Superior Court for trial.” Rule 7(b) also
distinguishes between actions that “might lawfully have been
initiated in a lower court” and those that are “brought in any
appellate court.” The drafters of the special action rules thus have
distinguished the “Superior Court” or “lower court” from an
“appellate court.” Rather than establishing procedures for the
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                      Opinion of the Court

superior courts when they hear special actions that are functionally
appeals, the provisions of Rule 7 instead set out additional and more
specific procedures for special actions filed in appellate courts, i.e.,
the court of appeals or the supreme court.

¶8           The Rules of Civil Appellate Procedure provide
additional support for this distinction. They define “appellate
court” as “the Court of Appeals and the Supreme Court.” Ariz. R.
Civ. App. P. 1. Those rules do not apply to proceedings where the
superior court acts in an appellate capacity. Therefore, given the
absence of any reference to Rule 7, Ariz. R. P. Spec. Actions, in Rule
1(b), Ariz. R. P. Spec. Actions, and the distinction the procedural
rules otherwise draw between “appellate court” and “Superior
Court,” we do not read Rule 7, Ariz. R. P. Spec. Actions, to apply to
statutory special actions filed in the superior courts.

¶9            Here, Rash filed his special action pursuant to A.R.S.
§ 38-1004, a statute authorizing a writ of certiorari in the superior
court for either the employee or the law enforcement department to
appeal the merit system council’s final decision on disciplinary
action. § 38-1004(A), (D). His appeal was therefore a statutory
special action filed in superior court pursuant to Rule 1(b), Ariz. R.
P. Spec. Actions. Accordingly, the court erred in applying both Rule
7(i), Ariz. R. P. Spec. Actions, and Rule 9(a), Ariz. R. Civ. App. P.,
and abused its discretion in dismissing the special action as
untimely pursuant to the thirty-day time limit in Rule 9. See Old
Republic Nat’l Title Ins. Co., 224 Ariz. 526, ¶ 9, 233 P.3d at 641.

¶10          The Town argues that even if the rules do not apply,
dismissal was appropriate under A.R.S. § 12-904(A) of the
Administrative Review Act (ARA), which it claims applies to this
statutory special action.       That section requires appeals of
administrative decisions to be brought in the superior court within
thirty-five days after the decision is served upon the appealing
party. § 12-904(A). Because we will affirm the superior court if it is
legally correct for any reason, we consider whether the ARA applies
to this case. See Hale v. Amphitheater Sch. Dist. No. 10 of Pima Cnty.,
192 Ariz. 111, ¶ 5, 961 P.2d 1059, 1062 (App. 1998). “We first look to
the language of the statute and give the words used their plain

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                    RASH v. TOWN OF MAMMOTH
                        Opinion of the Court

meaning, unless context demands otherwise.” Villa de Jardines Ass’n
v. Flagstar Bank, FSB, 227 Ariz. 91, ¶ 7, 253 P.3d 288, 292 (App. 2011).

¶11           Section 12-901(1), defining administrative agency for
purposes of the ARA, excepts “any political subdivision or
municipal corporation or any agency of a political subdivision or
municipal corporation.” Furthermore, § 12-902(A)(1), defining the
scope of the ARA, excepts a decision “if the act creating or
conferring power on an agency or a separate act provides for judicial
review of the agency decisions and prescribes a definite procedure
for the review.” The Town is a political subdivision of the state and
the Commission is an agency of a political subdivision.
Additionally, § 38-1004 provides a definite procedure for judicial
review. Finally, we have previously concluded the Administrative
Review Act does not apply to statutory special actions brought
pursuant to § 38-1004(A). See Justice v. City of Casa Grande, 116 Ariz.
66, 67, 567 P.2d 1195, 1196 (App. 1977).

¶12          The cases to which the Town cites as support for the
opposite conclusion deal with Department of Public Safety (DPS)
employee appeals, which fall under a different statutory scheme,3
were subject to a different procedural framework that implicated the
Administrative Review Act, or did not address the issue of which
statutory framework was proper. See Taylor v. Ariz. Law Enforcement
Merit Sys. Council, 152 Ariz. 200, 202, 731 P.2d 95, 97 (App. 1986)
(DPS employee); Bishop v. Law Enforcement Merit Sys. Council, 119
Ariz. 417, 418, 581 P.2d 262, 263 (App. 1978) (same); Ayala v. Hill, 136
Ariz. 88, 92, 664 P.2d 238, 242 (App. 1983) (local rules made appeal
by ARA applicable);4 Williams v. Pima County, 164 Ariz. 170, 172, 791
P.2d 1053, 1055 (App. 1989) (considering appeal pursuant to ARA


      3See   A.R.S. § 41-1830.13(B).
      4At  oral argument, the Commission argued for the first time
that its local rules made the ARA applicable and asked us to take
judicial notice of them. In our discretion, we decline to consider this
untimely argument. See Mitchell v. Gamble, 207 Ariz. 364, ¶ 16, 86
P.3d 944, 949-50 (App. 2004) (arguments made for first time at oral
argument untimely and appellate court may deem them waived).

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                 RASH v. TOWN OF MAMMOTH
                     Opinion of the Court

but not considering whether it was proper vehicle for appeal). We
apply the plain language of the statutes, decline to revisit our
conclusion in Justice, and therefore conclude this statutory special
action was not governed by the time limit imposed by § 12-904(A).
See Villa de Jardines Ass’n, 227 Ariz. 91, ¶ 7, 253 P.3d at 292.

¶13           The Town and the Commission finally argue that even
in the absence of a time limit in the rules or by statute, case law
establishes that the “normal appeal period” still governs. Quoting
Felix v. Superior Court, they argue our supreme court held that “in
the absence of a statutory time to file a petition for certiorari, the
normal period granted to file an appeal will apply to bar the remedy
of certiorari unless circumstances of extraordinary character
justifying the delay are shown.” 92 Ariz. 247, 250 n.1, 375 P.2d 730,
732 n.1 (1962). This statement was in a footnote and was preceded
by the words: “Many jurisdictions have adopted the rule that . . . .”
Id. But our supreme court did not adopt this rule or apply it in that
case, and it appears to have been provided merely for context. Id. at
249-50, 375 P.2d at 732. Instead, the court discussed and applied the
doctrine of laches. Id. Thus, Felix does not support the Town’s
position.

¶14          They also argue that, in State v. Mahoney, this court
applied the rule Felix mentioned in a footnote and dismissed a
special action where the state, as petitioner, “presented no reason or
excuse for the delay in filing its special action petition” appealing
the dismissal of a criminal prosecution. 25 Ariz. App. 217, 219, 542
P.2d 410, 412 (1975). But Mahoney concerned the dismissal of a
criminal prosecution and we limited our reasoning to that context.
Id. And in any event, our rationale was based on an application of
the laches doctrine, which “would be the traditional equitable
procedural time-bar to a petition seeking relief from” the non-
appealable order at issue in that case. See State ex rel. Neely v.
Rodriguez, 165 Ariz. 74, 77, 796 P.2d 876, 879 (1990) (discussing
Mahoney).

¶15          The Town and Commission also emphasize the portion
of Rodriguez that states “[w]e decline to extend such an open-ended
time limit to cases in which a right to appeal exists and is ignored by
the party seeking extraordinary relief.” 165 Ariz. at 77, 796 P.2d at
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                  RASH v. TOWN OF MAMMOTH
                      Opinion of the Court

879. But Rodriguez was issued when the jurisdiction of the court of
appeals to hear special actions was limited to its appellate
jurisdiction. See 1990 Ariz. Sess. Laws, ch. 395, § 2 (granting court of
appeals “[j]urisdiction to hear and determine petitions for special
actions . . . without regard to its appellate jurisdiction” several
months after Rodriguez opinion). And in that case, the party seeking
to challenge the order by special action had failed to exercise its
right to appeal within the applicable twenty-day time limit.
Rodriguez, 165 Ariz. at 75, 796 P.2d at 877. As already discussed
above, Rash’s appeal was not subject to a distinct time limit for
appeal and therefore Rodriguez does not support the Town’s and
Commission’s position.

¶16         Here, the statutory procedure for appealing the
Commission’s decision does not have a time limit, and thus there is
no “normal” time for bringing an appeal of this kind. See § 38-
1004(A). Therefore only the laches doctrine could bar the appeal on
timeliness grounds. Felix, 92 Ariz. at 249-50, 375 P.2d at 732;
Mahoney, 25 Ariz. App. at 219, 542 P.2d at 412.

                                Laches

¶17          Rash also argues the superior court erred in concluding
the doctrine of laches barred his claim. He reasons that, absent a
showing of unreasonable delay on his part and prejudice to the
Town or the Commission, the laches doctrine could not bar his
appeal. “We review a trial court’s decision on laches for abuse of
discretion.” McLaughlin v. Bennett, 225 Ariz. 351, ¶ 5, 238 P.3d 619,
621 (2010). The court abuses its discretion if no substantial evidence
in the record supports the court’s conclusion. Flying Diamond
Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 27, 156 P.3d 1149, 1155
(App. 2007). We defer to the court’s factual findings unless clearly
erroneous, but review de novo its legal conclusions. City of Tucson v.
Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 27, 181 P.3d 219, 229
(App. 2008).

¶18            Where neither statute nor procedural rule establish a
time limit for filing a special action, “only the equitable doctrine of
laches . . . bar[s] an extraordinary remedy.” Rodriguez, 165 Ariz. at
77, 796 P.2d at 879. That doctrine “will generally bar a claim when

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                 RASH v. TOWN OF MAMMOTH
                     Opinion of the Court

the delay [in filing a lawsuit] is unreasonable and results in
prejudice to the opposing party.” Sotomayor v. Burns, 199 Ariz. 81,
¶ 6, 13 P.3d 1198, 1200 (2000). We determine whether a delay is
unreasonable by examining “the justification for delay, including the
extent of plaintiff’s advance knowledge of the basis for challenge.”
Harris v. Purcell, 193 Ariz. 409, ¶ 16, 973 P.2d 1166, 1169 (1998). The
unreasonable delay must also cause prejudice to either the opposing
party or the administration of justice, “which may be demonstrated
by showing injury or a change in position as a result of the delay.”
League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, ¶ 6, 201 P.3d
517, 519 (2009). The Town and the Commission, as the parties
asserting the defense, had the burden of showing unreasonableness
and prejudice. See Flynn v. Rogers, 172 Ariz. 62, 66, 834 P.2d 148, 152
(1992).

¶19          Here, the superior court’s only finding on the issue of
laches was that it served “as a separate and independent bar to this
action, considering Petitioner Rash’s six-month delay from the date
on which he became aware of the Commission’s decision on
November 29, 2011, in light of the policy in favor of finality of
decisions.” The court did not discuss whether the six-month delay
was unreasonable. And the Town introduced no evidence about the
reasonableness of Rash’s delay. We note that, although the
Commission upheld Rash’s termination on November 29, 2011, it
did not state its reasoning at the hearing and it therefore would have
been difficult for Rash to know the basis of his challenge before he
received the written decision on March 31, 2012. See Harris, 193
Ariz. 409, ¶ 16, 973 P.2d at 1169. Additionally, the court did not find
that either the Town or the Commission was prejudiced by the
delay. Nor could the court have so found, as they presented no
evidence of “substantial harm” or a change in position based on the
delay. See Martin, 219 Ariz. 556, ¶ 9, 201 P.3d at 520.

¶20         On a more fully developed record after a motion to
dismiss, the superior court might conclude Rash’s delay was
unreasonable or that the Town, the Commission, or the
administration of justice was prejudiced by the delay. On the record
before us, however, we cannot agree substantial evidence supports
the conclusion that the doctrine of laches should bar this action. The
court therefore abused its discretion in applying laches as a bar to
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                 RASH v. TOWN OF MAMMOTH
                     Opinion of the Court

the case proceeding. See McLaughlin, 225 Ariz. 351, ¶ 5, 238 P.3d at
621; Meienberg, 215 Ariz. 44, ¶ 27, 156 P.3d at 1155. Accordingly, we
vacate the dismissal based on laches and remand to the superior
court for further proceedings, including, if the parties pursue the
issue, a determination of whether the laches doctrine should bar this
action.

                    Subject Matter Jurisdiction

¶21           The Town and the Commission further argue that
under Rash’s theory of the case, the trial court lacked subject matter
jurisdiction to proceed pursuant to § 38-1004 because Rash was not
seeking review of the Commission’s decision, but rather the Town’s
decision to uphold the Commission’s decision. They base this claim
on Rash’s argument before the trial court that he was appealing the
Town’s decision. Parties may raise challenges to subject matter
jurisdiction at any time, including for the first time on appeal.
Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218, 1223 (App.
1991). Subject matter jurisdiction is the power of the court to hear
the class of cases involved and is conveyed by statute, not by the
parties. Glover v. Glover, 231 Ariz. 1, ¶ 18, 289 P.3d 12, 16-17 (App.
2012).

¶22          Despite Rash’s inconsistent argument below, his
petition clearly challenges the actions of the Commission. And,
although he did not originally include the Commission as a party, he
added the Commission in his amended petition pursuant to Rule
15(a), Ariz. R. Civ. P., an action not challenged here. Accordingly,
the superior court had subject matter jurisdiction under § 38-1004.

                            Disposition

¶23         For the foregoing reasons, we vacate the dismissal of
Rash’s appeal and remand to the superior court for proceedings
consistent with this opinion.




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