Appeal from the Superior Court in Pinal County No. S1100CV201201479 The Honorable Robert Carter Olson, Judge
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
Leonard & Felker, P.L.C., Tucson By Donna M. Aversa Counsel for Respondent/Defendant/Appellee Pinal County Employee Merit System Commission
Chief Judge Howard authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.
HOWARD, 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. On May 25, 2012, Rash filed a statutory special action 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. 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).
¶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).
¶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 ...