MARK E. SCHLUSSEL, Petitioner,
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.
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
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
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.
AND PROCEDURAL HISTORY
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
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.
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.
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
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 ...