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Johnson v. Arizona registrar of Contractors

Court of Appeals of Arizona, First Division

May 25, 2017

PAMELA A. JOHNSON, Plaintiff/Appellant,
v.
ARIZONA REGISTRAR OF CONTRACTORS, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County No. LC2015-000452-001 The Honorable Crane McClennen, Retired Judge

          Porter Law Firm, Phoenix By Robert S. Porter, Ryan P. Dyches Counsel for Plaintiff/Appellant

          Arizona Attorney General's Office, Phoenix By John R. Tellier, Thomas C. Raine Counsel for Defendant/Appellee

          Judge Patricia K. Norris delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.

          OPINION

          NORRIS, Judge

         ¶1 Pamela A. Johnson, Plaintiff/Appellant, appeals the superior court's order dismissing her "appeal" from a final administrative decision of the Arizona Registrar of Contractors, Defendant/Appellee. Johnson argues that because Arizona Revised Statutes ("A.R.S.") section 12-904(A) (2016) does not state where an appealing party must file a notice of appeal from a final administrative decision, she was entitled to file her notice of appeal with the Registrar, instead of with the superior court. We reject this argument and affirm the superior court's order dismissing her appeal as untimely.

         BACKGROUND AND PROCEDURAL HISTORY

         ¶2 In 2010, homeowners hired Forsythe and Sons Construction, Inc. ("Forsythe") to complete roofing work on their house. In 2012, the homeowners sold the house to Johnson. After Johnson obtained possession of the house, she discovered that the roof leaked. Subsequently, she filed a complaint against Forsythe with the Registrar. An investigator for the Registrar investigated her complaint and issued a "Corrective Work Order" giving Forsythe 15 days to correct the deficient work. Forsythe failed to correct the work and ultimately the Registrar issued a finite suspension of Forsythe's license.

         ¶3 On October 7, 2014, Johnson filed a recovery fund claim with the Registrar.[1] The Registrar denied her claim and Johnson requested a hearing before an administrative law judge ("ALJ") of the Office of Administrative Hearings ("OAH") to challenge the Registrar's denial. After conducting a hearing, the ALJ ruled the Registrar had appropriately denied Johnson's claim. Pursuant to A.R.S. § 41-1092.08(B) (2013) (director may accept, reject, or modify ALJ's decision), the Registrar accepted the ALJ's decision and the Registrar's decision became the final administrative decision in the case on September 15, 2015 ("September 15 Registrar Decision").

         ¶4 On October 14, 2015, Johnson attempted to appeal the September 15 Registrar Decision by filing a document entitled "Complainant's Notice of Appeal" with the Registrar (the "Registrar NOA"). That document listed Forsythe, but not the Registrar, as the "Respondent." Johnson did not file the Registrar NOA in the superior court. On October 21, 2015, Johnson delivered to the Registrar and the OAH a document entitled "Complainant's A.R.S. § 12-904B Notice." Johnson did not file that document in the superior court either. Finally, on October 27, 2015, Johnson filed a document entitled "Notice of Appeal from and Request for Review of Final Administrative Decision" in the superior court, listing Maricopa County as "Appellee" (the "Superior Court NOA"). That document did not list the Registrar as a party, however.

         ¶5 The Registrar moved to dismiss, arguing Johnson's Superior Court NOA was untimely under A.R.S. § 12-904(A), a statute that sets forth the procedure and deadlines for filing an action to review a final administrative decision. While that motion was pending, Johnson moved to amend the caption to substitute the Registrar and Forsythe as appellees. Although the superior court granted that motion, the superior court nevertheless granted the Registrar's motion to dismiss, finding Johnson's Superior Court NOA untimely under A.R.S. § 12-904(A).

         DISCUSSION

         ¶6 On appeal, Johnson does not dispute that she did not file her Superior Court NOA within the deadline established by A.R.S. § 12-904(A).[2]Instead, Johnson argues A.R.S. § 12-904(A) fails to state where an appealing party must file a notice of appeal from a final administrative decision and, therefore, the superior court should not have dismissed her appeal because she filed the Registrar NOA with the Registrar before the statutory appeal deadline expired. Exercising de novo review on this issue, we disagree. See Doty-Perez v. Doty-Perez, 241 Ariz. 372, 375, ¶ 17, 388 P.3d 9, 12 (App. 2016) (appellate court interprets statutes de novo) (citation omitted); M-11 Ltd. P'ship v. Gommard, 235 Ariz. 166, 168, ¶ 6, 330 P.3d 356, 358 (App. 2014) (appellate court reviews motion to dismiss for lack of subject matter jurisdiction de novo).

         ¶7 The process for judicial review of final administrative decisions is set out in title 12, chapter 7, article 6, A.R.S. §§ 12-901 to -914 (2016). Under A.R.S. § 12-904(A), "[a]n action to review a final administrative decision shall be commenced by filing a notice of appeal within thirty-five days from the date when a copy of the decision sought to be reviewed is served upon the party affected." The deadline for filing an administrative appeal is jurisdictional. Smith v. Ariz. Citizens Clean Elections Comm'n,212 Ariz. 407, 413, ¶ 25, 132 P.3d 1187, 1193 (2006) (citation omitted). An untimely filing deprives the court of subject matter jurisdiction, and the appealing party forfeits the right to seek judicial review. M-11 Ltd. P'ship, 235 Ariz. at 168, ¶ 2, 330 P.3d at 358; see also A.R.S. ยง 12-902(B) ("Unless review is sought of an ...


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