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Schlussel v. Gerlach

Court of Appeals of Arizona, First Division

July 5, 2016

MARK E. SCHLUSSEL, Petitioner,
v.
THE HONORABLE DOUGLAS GERLACH, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, BENTLEY TERRACE DILLARD, as Trustee of the BENTLEY TERRACE DILLARD FAMILY TRUST DATED FEBRUARY 1, 2002, Real Party in Interest.

         Petition for Special Action from the Superior Court in Maricopa County No. CV2015-005994 The Honorable Douglas Gerlach, Judge

          Maynard Cronin Erickson Curran & Reiter, P.L.C., Phoenix By Michael D. Curran, Daniel D. Maynard Counsel for Petitioner

          Osborn Maledon, P.A., Phoenix By Ronda R. Fisk, Nathan T. Arrowsmith Counsel for Real Party in Interest

          Presiding Judge Peter B. Swann delivered the opinion of the court, in which Judge Lawrence F. Winthrop and Judge Donn Kessler joined.

          OPINION

          SWANN, JUDGE.

         ¶1 This special action presents the question whether timely renewal of an amended judgment more than five years after the entry of the original judgment is effective. We answer the question in the affirmative, and hold that the time to renew an amended judgment runs from the time that the amended judgment is entered. Such a renewal is effective as to all relief granted in the amended judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶2 In April 2009, the court entered a judgment against Mark E. Schlussel and in favor of Bentley Terrace Dillard ("the 2009 judgment"). Schlussel filed a motion for a new trial, which the court denied, and Dillard began collection efforts.

         ¶3 On February 1, 2010, the court entered an amended judgment, which consolidated all previous awards and awarded additional attorney's fees arising from Schlussel's motion for a new trial. Two days before the five-year expiration of the original judgment, Dillard recorded a renewal notice of the 2009 judgment but never filed the notice with the clerk of the court. She later withdrew this renewal notice and never renewed the original judgment. On January 21, 2015, before the five-year expiration of the amended judgment, Dillard renewed the amended judgment.

         ¶4 Schlussel brought an action for declaratory judgment, contending that only new amounts awarded for the first time in the amended judgment were collectible because Dillard did not renew the original judgment. Dillard filed a motion for judgment on the pleadings, and Schlussel filed a motion for summary judgment. The trial court denied Schlussel's motion for summary judgment, granted Dillard's judgment on the pleadings as to Schlussel's complaint, and denied it in part as to Dillard's counterclaim for expenses. Schlussel seeks relief by special action.

         JURISDICTION

         ¶5 We accept jurisdiction. Special action review is discretionary but appropriate when there is no "equally plain, speedy, and adequate remedy by appeal, " Ariz. R.P. Spec. Act. 1(a), or "[w]here the issue is a purely legal question of first impression, is of statewide importance, and will arise again, " Sanchez v. Gama, 233 Ariz. 125, 127, 4 (App. 2013). It is rare that we accept jurisdiction over special actions challenging the denial of summary judgment. But here the underlying case has been concluded and collection is ongoing. Unlike a case in which judgment is entered and the judgment debtor appeals without posting a supersedeas bond, no appeal is immediately available here. And if the collections are based on an expired judgment, then Schlussel would face irreparable harm from an unlawful taking of his property. Finally, though the pure legal question we decide today is straightforward, there is no published Arizona decision resolving it.

         DISCUSSION

         ¶6 The parties do not now dispute that Dillard failed to renew the original judgment, or that she properly renewed the amended judgment. They further agree that the ...


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