SOUTHWEST BARRICADES, L.L.C., an Arizona LLC, Plaintiff/Appellant,
TRAFFIC MANAGEMENT, INC., a California corporation, Defendant/Appellee.
from the Superior Court in Maricopa County No. CV2010-054957
The Honorable Michael D. Gordon, Judge
Law Office of Scott J. McWilliams, LLC, Phoenix By Scott J.
McWilliams, Lisa C. Boddington, Drew P. Buffington Counsel
Panzarella Rich, Phoenix By David T. Panzarella, Elizabeth L.
Fleming Counsel for Defendant/Appellee.
John C. Gemmill delivered the opinion of the Court, in which
Presiding Judge Andrew W. Gould and Judge Margaret H. Downie
Southwest Barricades, L.L.C. ("Southwest") appeals
from the final judgment entered after the superior court set
aside an arbitration award pursuant to Arizona Rule of Civil
Procedure ("Rule") 60(c). For the following
reasons, we conclude that Rule 60(c) cannot be used to set
aside a compulsory arbitration award. We therefore vacate
that portion of the superior court's minute entry filed
January 13, 2012 setting aside the arbitration award and all
rulings thereafter, including the final judgment against
Southwest. We remand for further proceedings consistent with
Southwest filed a complaint against Traffic Management, Inc.
("TMI") for breach of contract, breach of the
implied covenant of good faith and fair dealing, and loss of
goodwill involving the rental of, and damage to, an
attenuator truck. Given the amount in controversy, the case
was subject to compulsory arbitration. After an arbitration
hearing, the arbitrator filed his notice of decision in favor
Southwest then asked the arbitrator to award attorney fees,
and TMI filed an objection. On June 10, 2011, the arbitrator
filed the arbitration award granting Southwest $10, 156 in
relief and $4000 in attorney fees. TMI had until June 30,
2011 to appeal the arbitration award. Ariz. R. Civ. P. 77(a)
(providing that a party must file an appeal with the superior
court within 20 days after filing of an award).
On June 30, 2011, the appeal deadline, TMI's attorney
requested a ruling from the arbitrator on its objection to
the attorney fees. TMI requested a response before July 5,
2011, believing that was the deadline to appeal the
arbitration award. On July 1, 2011, the arbitrator advised
that he reviewed and considered the objection before signing
and filing the arbitration award. He notified the parties
that, if they believed the arbitrator had to "file a
written ruling with the court separate and apart from the
arbitration award, " in order to "pass upon the
objection" as required by the Rules, he would "file
an order overruling the objection nunc pro tunc effective
June 10, 2011." Neither party requested the filing of an
amended order. TMI filed its notice of appeal on July 5, 2011
- 25 days after entry of the arbitration award.
Southwest moved to dismiss the appeal as untimely, and after
full briefing, the superior court granted the motion to
dismiss the appeal.
TMI then moved for relief from judgment pursuant to Rule
60(c). TMI argued that any mistake in construing the tolling
rules to apply to the arbitration appeal deadline constituted
excusable neglect. See Rule 60(c)(1). TMI also
argued that, after the arbitration hearing, Southwest
disclosed new evidence demonstrating it had not suffered any
damages, see Rule 60(c)(2), and that Southwest
engaged in misconduct by withholding important documents
before the arbitration hearing, see Rule 60(c)(3).
The superior court granted TMI's motion pursuant to Rule
60(c)(2) and 60(c)(3) and set aside the arbitration award.
Southwest appealed, but we dismissed the appeal because the
minute entry granting the motion for relief from judgment was
unsigned and there was no judgment entered in the superior
court pursuant to Rule 76(c). Southwest then moved to enter
judgment on the arbitration award. The superior court denied
the motion to enter the award and Southwest's subsequent
motion for reconsideration.
The case ultimately proceeded to a second arbitration hearing
and then a jury trial. The jury found in favor of TMI and the