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Frank Zappa said, “We are a nation of laws; badly written and randomly enforced.” That’s probably the way that Joe Burkhamer feels, having lost his daughter (and son-in-law) in tragic accident in 2003, and now having had his appeal dismissed in a published opinion from Division Two, Burkhamer v. State of Arizona, because two of the three Judges on the panel decided that the appeal was filed too late.

Among other things, the case is an exercise in form over substance and a reminder of just how complicated the wrongful death statute is for people in the “real world.” In Burkhamer, the parties (i.e., the surviving parents) blamed the State of Arizona for negligently designing and maintaining a road that caused the children’s deaths. It is difficult to tell from the opinion, but it appears that Joe Burkhamer and his ex-wife had separate attorneys, separately filed their own Notices of Claim, but may have jointly filed an action against the State of Arizona, along with the parents of the other young man who was killed, altogether.

This, of course, is the first clue that things are squirrelly since we all know that, according to the Supreme Court’s decision in Wilmot v. Wilmot, 203 Ariz. 565, 58 P.3d 507 (2002), “there is ‘one action’ for damages occasioned by a wrongful death,” and there is “but one plaintiff, one of the persons designated by statute.” So, at most, there should have been two plaintiffs in this case, one for the beneficiaries of the lost daughter and another for the beneficiaries of the lost son.

In any event, in what would have been an interesting and important appeal, Mr. Burkhamer delivered his own Notice of Claim via facsimile to the Arizona attorney general’s office and, not surprisingly, the State moved to dismiss Mr. Burkhamer’s claims and/or for partial summary judgment under the premise that his Notice of Claim was not properly served pursuant to A.R.S. § 12-821.01. This would have been an important appeal because, unlike related counterparts, Rule 4.1(h), Ariz.R.Civ.Proc., provides that service upon the State is effected by merely “delivering” a copy of documents to the attorney general as opposed to “serving” such documents. Compare Rule 4.1(j), Ariz.R.Civ.Proc. (concerning service upon “other governmental entities,” requires “serving” the appropriate legal officer).

The trial court, however, agreed with the State that such delivery was ineffective and entered a judgment (dated January 26) against Mr. Burkhamer, pursuant to Rule 54(b), stating that “this shall constitute the Court’s Final Judgment dismissing all claims asserted by [him] against the State of Arizona in this matter.” It is not clear when this judgment was submitted by the State, but a few days after the judgment was entered, Mr. Burkhamer filed an “Objection to Defendant’s Final Judgment and Order Dismissing Claim.”

Again, something seems squirrelly because Rule 58(d), Ariz.R.Civ.Proc., provides a mechanism to object to the form of a judgment. That Rule requires that no judgment may be entered until “five days after the proposed form [of judgment] . . . has been served upon opposing counsel.” Either the Judgment was entered too soon (which should make it defective, something which is not addressed in the opinion and something that Mr. Burkhamer appears to have belatedly argued and waived, ¶34) or Mr. Burkhamer’s Objection came too late. Anyway, the Objection is a document that becomes the centerpiece of why the appeal was dismissed, and Rule 58(d) becomes important later.

In the Objection, Mr. Burkhamer objected to the Judgment on the ground its language “dismissing all [his] claims” was “overbroad” because the trial court supposedly had agreed at the hearing on the State’s motion to dismiss that, even though it was dismissing his claim, he could still file a motion to amend the pleadings “to assert a claim as a beneficiary of the claim of Plaintiff Marjorie Surine [i.e., Mr. Burkhamer’s ex-wife] in her status as the statutory plaintiff for the wrongful death claim.”

Yet again, something seems squirrelly because why would Mr. Burkhamer be able to amend pleadings to assert a claim brought on behalf of another plaintiff for his benefit? This makes no sense. Anyway, about a week later, Mr. Burkhamer also filed a motion to amend the pleadings, seeking permission “to continue his involvement in this case” as a nonparty, statutory beneficiary under his ex-wife’s claim and asking for “his damages [to] be considered in any award ultimately determined in this matter.” Evidently, the trial court did not see things the way Mr. Burkhamer saw them and, after a hearing on that motion, the trial court signed an order (dated May 22) denying both Mr. Burkhamer’s motion to amend as well as his Objection to the Judgment.

If you are keeping track of time, you might realize that Mr. Burkhamer is about to have a problem. Mr. Burkhamer filed a notice of appeal on June 19 to both the January 26 judgment and the May 22 order. The timeliness of the appeal became an issue because June 19 is “more than thirty days after the trial court’s entry of judgment” on January 26 and, of course, you generally must file a notice of appeal within 30 days to perfect an appeal.

The Court of Appeals, however, recognized that there are various exceptions to the 30-day rule, including where a party files a motion to “alter of amend the judgment” pursuant to Rule 59(l), Ariz.R.Civ.Proc. And this is where the rubber hits the road with respect the Objection — namely, whether Mr. Burkhamer’s Objection was a motion to “alter of amend the judgment.”

While the majority in Burkhamer acknowledged that, in determining whether a filing constitutes motion to “alter of amend the judgment” pursuant to Rule 59(l), it is the substance of the document that controls — i.e., not the title or “magic incantations” stated in the brief — the Court held that, since Mr. Burkhamer’s Objection “neither cited nor otherwise referred to Rule 59, or any of its grounds, or any other civil procedure rule” and because “[n]othing in the record here suggests that the trial court treated Burkhamer’s objection to the judgment as one of the time-extending motions prescribed in ARCAP 9(b),” it would not be considered a motion to “alter of amend the judgment” pursuant to Rule 59(l). As a result, Mr. Burkhamer’s notice of appeal was untimely.

As you might imagine, Mr. Burkhamer argued that his Objection to the judgment should “be treated as a Rule 59(l) motion” because “[t]he substance of [his] objection was a request that the [trial] court amend or alter the January 26 [judgment] so as to permit him to participate as a wrongful death beneficiary.” In my view, this is where the majority lost its focus and made a mistake.

Rather than address whether the “substance” of the Objection was indeed a request to “alter or amended the judgment,” the majority said they were not persuaded because (1) the Objection “did not cite Rule 59(l ) or any other rule”; (2) “although Burkhamer complained in his objection that the trial court’s judgment was ‘overbroad,’ he did not expressly ask the court to ‘alter or amend’ it”; (3) “before alternatively arguing in his reply brief that his objection should be treated as a Rule 59(l) motion, Burkhamer characterized that filing as a ‘Rule 58(d)[, Ariz.R. Civ. P., 16 A.R.S., Pt. 2,] objection’ to the trial court’s proposed judgment”; and (4) “that the trial court held a hearing on Burkhamer’s motion to amend the pleadings and ultimately denied that motion as well as Burkhamer’s objection to the judgment does not suggest the court treated that objection as a Rule 59(l) motion.”

None of these reasons address the substance of the Objection, which was clearly a request to modify or alter the judgment.

Taking these in turn, the fact that Mr. Burkhamer “did not cite Rule 59(l)” is the epitome of placing “form over substance.” Our Rules do not require “magic words or phrases.”

The fact that Mr. Burkhamer “did not expressly ask the court to ‘alter or amend’ [the judgment]” is a similar technicality and misses the point. Mr. Burkhamer clearly intended — whether expressly or implicitly — that the trial court “alter or amend” the judgment. He called it “overbroad” since it applied to “all” of his claims, and was clearly asking the trial court to change it so that he could still “assert a claim as a beneficiary.” If that is not substantively asking the court to “alter or amend” the Judgment, then what is? Just the fact that it was filed after the Judgment was entered is evidence that it is a request to “alter or amend” the Judgment.

The fact Mr. Burkhamer once characterized the filing as a Rule 58(d) filing is, in a word, unfortunate but should not bear on the substance. Focusing on the mere fact that it was once referred to as a Rule 58(d) filing is really no different than focusing on the fact that he “failed to cite Rule 59(l)” or that it is titled “Objection.” The issue is not the citation to particular Rules or the title of the document, it is the substance of what was being asked of the trial court and, frankly, Mr. Burkhamer’s Objection simply could not have been a Rule 58(d) filing since we know it came after the Judgment was entered and Rule 58(d) is clearly only applicable to filings before Judgment is entered.

And, lastly, notwithstanding “how the court treated [the] objection,” the case law that the majority relied upon, e.g., Farmers Insurance Co. v. Vagnozzi, 132 Ariz. 219, 644 P.2d 1305 (1982), did not require that the trial court had to treat the document as a Rule 59(l) request if the document itself substantively made such a request. To the contrary, the case law simply stated that “when the trial court has stated in the record its intention to do so” then the request will be treated as a Rule 59 request and extend the time for appeal. So whether the trial court did or did not treat Mr. Burkhamer’s request as one under Rule 59(l) should have no bearing on whether it, in fact, was substantively a request to “alter or amend” the Judgment.

Although Mr. Burkhamer went on to posit an alternative argument — namely, that his appeal was at least timely as to the May 22 order and it was that order that adjudicated his claim to participate as a beneficiary — the Court (correctly) shot down this argument since Judgment clearly adjudicated “all claims,” but something the Court said in connection with addressing this contention undermines its earlier reasoning. That is, the Court said “Burkhamer’s own objection to the trial court’s judgment, in which he claimed the judgment was ‘overbroad,’ belies his argument. That objection manifested Burkhamer’s valid concern that the judgment, as framed and filed by the trial court, in fact disposed of any and all claims Burkhamer might have had in this action.” Precisely! And that is why the majority is wrong — i.e., because the “objection manifested Burkhamer’s . . . concern that the judgment . . . disposed of any and all claims” and he clearly wanted that to be “altered or amended.”

And, finally, Mr. Burkhamer argued that the Court should disregard the Rule 54(b) certification on the Judgment and deem the Judgment as premature because his claim — as a statutory beneficiary — could not possibly have been resolved. Once, again, I think Mr. Burkhamer is correct on the appeal (although this is not the way he chose to pursue the case in the trial court). Relying upon the fact that there is supposed to be a single plaintiff that presents all the claims of the statutory beneficiaries, Mr. Burkhamer argued that the Rule 54(b) certification in the Judgment was not appropriate.

Since “there is but ‘one’ plaintiff and ‘one’ judgment” in wrongful death case, it does not make sense that there could a Rule 54(b) judgment as to one beneficiary while leaving the others to continue litigating (unless, of course, that party was held not to be an actual statutory beneficiary for some reason, which is not the case here). Yet the Court of Appeals expressly rejected this, holding that “none of the authorities on which Burkhamer relies precludes a trial court in a wrongful death case from disposing of all claims made by a person, whether as a statutory plaintiff or as a nonplaintiff, statutory beneficiary, via a separate, but final, appealable judgment that applies only to that particular claimant.” Such a conclusion, however, makes no practical sense and violates the one plaintiff, one judgment rule.

As already noted, the Court’s decision was two to one and I obviously side with the dissent, but I also think this case (regardless of whether the Supreme Court accepts review of this opinion) is not over for Mr. Burkhamer. Frankly, notwithstanding the Court of Appeal’s opinion, I think his ex-wife had (and still has) a fiduciary duty under Wilmot to pursue and protect Mr. Burkhamer’s claims and that she may have already abdicated her fiduciary duty by failing to properly preserve and protect his claims. She may also have problems because she was hostile to his appeal (e.g., like the State, she also raised the timeliness issue, ¶ 6, Note 2).

Anyway, this is a mess of a case and the outcome is about as arbitrary as I have ever seen.

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