PETITION FOR SPECIAL ACTION 2013 AZ Appeals

ARIZONA COURT OF APPEALS

DIVISION TWO

No. ___________________

Superior Court No.

CV2-01102200

PETITION FOR SPECIAL ACTION

DATED: September 10, 2013                                   Suesie Hempfling,

                                                                                        Lee Hempfling, Pro Se

                                                                                        Apache Junction, AZ 85120

                                                                                       

TABLE OF CONTENTS

TABLE OF CONTENTS ………………………………………………………………………….. 1

TABLE OF AUTHORITIES ……………………………………………………………………… 2

INTRODUCTION ……………………………………………………………………………………. 4

JURISDICTIONAL STATEMENT ……………………………………………………………. 5

STATEMENT OF ISSUES ………………………………………………………………………. 7

STATEMENT OF FACTS ……………………………………………………………………….. 7

ARGUMENT …………………………………………………………………………………………. 13

CONCLUSION ………………………………………………………………………………………. 16

CERTIFICATE OF COMPLIANCE …………………………………………………………. 18

CERTIFICATE OF FILINGS AND SERVICE ………………………………………….. 19

TABLE OF AUTHORITIES

Cases

Ruiz v. Lopez, 236 P.3d 444, 449–50 (Ariz. Ct. App. 2010);

Gen. Electric Capital Corp. v. Osterkamp, 836 P.2d 398, 401–03 (Ariz. Ct. App. 1999);

Corbet v. Superior Court, 798 P.2d 383, 385–86 (Ariz. Ct. App. 1990);

Martin v. Martin, 182 Ariz. 11, 14, 893 P.2d 11, 14 (App. 1994);

Int’l Glass & Mirror, Inc. v. Banco Ganadero Y Agricola, S.A., 25 Ariz. App. 604, 605, 545 P.2d 452, 453 (1976)’

Darnell v. Denton, 137 Ariz. 204, 206, 669 P.2d 981, 983 (App. 1983);

Walls v. Stewart Bldg. & Roofing Supply, Inc., 23 Ariz.App. 123, 531 P.2d 168 (1975);

Brooks v. Consol. Freightways, 173 Ariz. 66, 71, 839 P.2d 1111, 1116 (App. 1992);

Martin v. Martin 182 Ariz. at 15, 893 P.2d at 15;

State v. Cramer, 192 Ariz. 150, ¶ 16, 962 P.2d 224, 227 (App. 1998)

Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App. 2006) (quoting State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983)). See Darnell v. Denton, 137 Ariz. 204, 206, 669 P.2d 981, 983 (App. 1983); Walls v. Stewart Bldg. & Roofing Supply, Inc., 23 Ariz.App. 123, 531 P.2d 168 (1975); Brooks v. Consol. Freightways, 173 Ariz. 66, 71, 839 P.2d 1111, 1116 (App. 1992);

National Inv. Co.,Inc. v. Estate of Bronner , 146 Ariz. 138, 140, 704 P.2d 268,270 (App. 1985)(citing Springfield Credit Union v. Johnson, 123Ariz. 319, 599 P.2d 772 (1979));

City of Phoenix v. Geyler, 144 Ariz. at 328-29, 697 P.2d at 1078-79;

Cockerham v. Zikratch, 127 Ariz. 230, 234, 619 P.2d 739, 743 (1980);

United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010);

Rules

Ariz Rules Civil Procedure 60(c)(4)

Ariz. R. P. Spec. Actions 3(a)

Ariz. R. P. Spec. Actions 3(b)

Ariz. R. P. Spec. Actions 3(c)

Ariz Rules Civil Procedure 54(b)

Ariz. R. P. Spec. Actions 1(a)

Ariz Rules Civil Procedure Rule 54(a)

Ariz Rules Civil Procedure Rule Rule 4(a)

Ariz Rules Civil Procedure Rule Rule 4(b))

Other

Black’s Law Dictionary

Statutes

Title 12-302 (f)

INTRODUCTION

This Special Action, a matter of utmost urgency, seeks expedited review of the trial court’s orders denying Petitioners’ Motion to declare judgment orders as void, Ariz Rules Civil Procedure 60(c)(4). The Respondent has [erred in exercising] “discretion which he has a duty to exercise[,] and to perform a duty required by law as to which he has no discretion;” Ariz. R. P. Spec. Actions 3(a) ; “the defendant has proceeded or is threatening to proceed without [and] in excess of jurisdiction or legal authority” Ariz. R. P. Spec. Actions 3(b) and the “determination[s] [were] arbitrary and capricious [and] an abuse of discretion” Ariz. R. P. Spec. Actions 3(c).

All three conditions display a clear bright line of violation at first impression. This Special Action is a matter of utmost urgency as the void orders are non-appealable rulings for the lack of all defendants and the lack of an express determination that there is no just reason for delay, Ariz R.C.P. 54(b) ; dismissing Petitioners’ complaint with prejudice, granting relief to parties not properly before the court and awarding costs undue. This Special Action has state-wide importance in that it is attempting to halt obviously void orders, granting dismissal with prejudice and taxable costs of a case awarded to defendants that have not properly appeared and have never been listed as represented by counsel on the court’s records; in an order that does not address all defendants, depriving Petitioners of their Constitutional rights to Due Process and Equal Protection under the law.

JURISDICTIONAL STATEMENT

Petitioners filed a motion to vacate orders of judgment as void for lack of jurisdiction pursuant to Arizona Rules of Civil Procedure 60(c)(4) on August 16, 2013 (See Exhibit A). On August 22, 2013 Judge Soos issued a Notice in a minute entry, ordering denial of the motion on grounds that “Rule 60 requires that such motions be filed within a reasonable time” and “Plaintiffs do not demonstrate any good cause for the undue delay in filing such a motion.” Judge Soos found, “that the Motion was not filed within a reasonable time.” (See Exhibit B)

Petitioners filed a Motion for Reconsideration (See Exhibit C) on August 27, 2013. Judge Soos responded in a Notice/Order on September 4, 2013 summarily denying the Motion. (See Exhibit D.)

Special Action jurisdiction is appropriate when there is not “… an equally plain, speedy, and adequate remedy by appeal.” Ariz. R. P. Spec. Actions 1(a). The order sought to be vacated does not contain an express determination that there is no just reason for delay, prohibiting the normal appeal process and the orders do not address all defendants. Rule A.C.P. 54(b). No other form of review is possible.

The Trial Court has demanded and sought active collection of initial filing fees (See Exhibit E) by reporting the fees as debt to the Arizona Debt Set Off Program, (See Exhibit Q) Ariz. R. P. Spec. Actions 3(b). Then on August 27, 2013 Judge Soos denied Petitioners’ supplemental application request for waiver (filed August 7, 2013).’ (See Exhibit F)

Petitioners respectfully request that this Court accept Special Action jurisdiction and address the very serious merits of this matter.

STATEMENT OF ISSUES

1. Did Respondent Judge Soos abuse his discretion which he has a duty to exercise, and fail to perform a duty required by law as to which he has no discretion? Ariz. R. P. Spec. Actions 3(a)

2. Did the Trial Court proceed to, or is it threatening to proceed without and in excess of jurisdiction or legal authority? Ariz. R. P. Spec. Actions 3(b)

3. Were Respondent Judge Soos’ determinations arbitrary, capricious or an abuse of discretion? Ariz. R. P. Spec. Actions 3(c).

STATEMENT OF FACTS

1. Respondent Judge Soos stated: “Rule 60 requires that such motions be filed within a reasonable time.” The statement and reasoning is legally incorrect. The only use of the phrase “reasonable time” is contained within the pertinent part: “The motion shall be filed within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment or order was entered or proceeding was taken.” “The ‘reasonable time’ requirement of Rule 60(c) . . . does not apply when a judgment is attacked as void.” (“There is no time limit for filing a motion under Rule 60(c)(4), and the court must vacate the void judgment even if the moving party unreasonably delayed bringing such motion.”). Ruiz v. Lopez, 236 P.3d 444, 449–50 (Ariz. Ct. App. 2010); Gen. Electric Capital Corp. v. Osterkamp, 836 P.2d 398, 401–03 (Ariz. Ct. App. 1999); Corbet v. Superior Court, 798 P.2d 383, 385–86 (Ariz. Ct. App. 1990). “Motions for relief from judgment must be filed within a reasonable time, and relief under reasons (1), (2), and (3) must be sought within six months of the judgment. Ariz. R. Civ. P. 60(c). However, there is no time limit in which a motion for a void judgment must be brought under Rule 60(c)(4), and the court must vacate such a judgment even in the case of unreasonable delay by the party seeking relief. Martin v. Martin, 182 Ariz. 11, 14, 893 P.2d 11, 14 (App. 1994); see also Int’l Glass & Mirror, Inc. v. Banco Ganadero Y Agricola, S.A., 25 Ariz. App. 604, 605, 545 P.2d 452, 453 (1976)” .

The Court stated: “Plaintiffs do not demonstrate any good cause for the undue delay in filing such a motion.” The statement is legally incorrect. “A judgment or order is void if the court lacked jurisdiction over the subject matter, over the person, or over the particular judgment or order entered. Martin, 182 Ariz. at 15, 893 P.2d at 15. Moreover, a party seeking relief from a void judgment need not show that their failure to file a timely answer was excusable, that they acted promptly in seeking relief from the [default] judgment, or that they had a meritorious defense. Darnell v. Denton, 137 Ariz. 204, 206, 669 P.2d 981, 983 (App. 1983).” “Good cause” is applicable to Rule 60(c)(1), (2) or (3), but is not applicable to a motion on the grounds that the judgment is void. Walls v. Stewart Bldg. & Roofing Supply, Inc., 23 Ariz.App. 123, 531 P.2d 168 (1975).

The Court stated: “Therefore, the Court finds that the motion was not filed within a reasonable time. “The statement is legally incorrect. (“There is no time limit in which a motion under Rule 60(c)(4) may be brought; the court must vacate a void judgment or order ‘even if the party seeking relief delayed unreasonably.’” Brooks v. Consol. Freightways, 173 Ariz. 66, 71, 839 P.2d 1111, 1116 (App. 1992).

2. On or about December 7, 2012 the office of the Clerk of the Pinal County Superior Court referred a debt placed upon Petitioners, without standing to do so, to their collections department, based on a document, demanding payment in installments, that was not a valid order of the trial court and is void on its face. (See Exhibit F) the order issued without real or electronic signature. The “order” shows a case name that is not the case Petitioners filed; lists a defendant Petitioners did not serve summons to: a Dr. John A. Gibler; is missing two defendants that were summoned to appear: Peggy Caffall (See Exhibit G) and Dr. John Bigler (See Exhibit H); imposed a date certain to collect fees that is not greater than 30 days after the final order (as the judgment order is void) [12-302 F.]; the document does not contain a filing stamp by the clerk; and the document is issued by Judge Johnson, who at the time was not the judge of record in the case (See Exhibit I).

A deputy clerk, via phone, informed Petitioners that the debt on the docket, was placed against Petitioner Suesie Hempfling, but the State of Arizona’s Debt Set Off, as of 7/10/2013 carried the debt assigned to the social security number of Petitioner Lee Hempfling.

On April 24, 2013 the collection’s department of the office of the Clerk of the Pinal County Superior Court was properly asked to immediately cease the claim of debt and collection proceedings and remove it from the docket. On April 24 the manager of the collection’s department, one Mary C. Bell, responded in mail (See Exhibit J) claiming the void ‘order’ was ‘in full force’, further compounding the placement and collection of the debt against Petitioners.

On April 30, 2013 Petitioners attempted again to resolve the improper collection of debt (not owed as no final order upon which an appeal can be sought, existed.) “‘Judgment’ as used in these Rules includes a decree and an order from which an appeal lies.” Rule 54(a). No such appeal is possible from a void order without all defendants and no express determination that there is no just reason for delay, Ariz R.C.P. 54(b).

On May 13, 2013 Collections Manager Mary C. Bell responded with a FAILURE TO PAY NOTICE. (See Exhibit K).

On July 31, 2013 in telephone conference with the Clerk and Chief Deputy Clerk of the Pinal County Superior Court, confirmation was provided that the collection placed with the Arizona Debt Set Off Program was removed, after having been advised of such on July 30, 2013 in email along with a copy of the Deferral Supplement form in PDF format, which was subsequently denied by Respondent Judge Soos. Petitioners were advised that if the Judge denied the submission, a payment plan could be worked out.

3. In denying both the Motion to Vacate (See Exhibit B based on Exhibit A, Exhibit L) and the subsequent Motion For Reconsideration (See Exhibit C) the Respondent’s determinations were arbitrary, capricious and an abuse of discretion. Ariz. R. P. Spec. Actions 3(c).

a. Determinations were arbitrary: The system for handling Ariz R.C.P. 60(c)(4) motions is well established. Ignoring that system, without valid reason is arbitrary. A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment [Rule 54(b)], or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. Martin v. Martin 182 Ariz. at 15, 893 P.2d at 15. Petitioners have properly been before the trial court at all times. A superior court abuses its discretion when there is “no evidence to support [its] conclusion or the reasons given by the court [are] ‘clearly untenable, legally incorrect, or amount to a denial of justice.’” Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App. 2006) (quoting State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983)). See Darnell v. Denton, 137 Ariz. 204, 206, 669 P.2d 981, 983 (App. 1983); Walls v. Stewart Bldg. & Roofing Supply, Inc., 23 Ariz.App. 123, 531 P.2d 168 (1975); Brooks v. Consol. Freightways, 173 Ariz. 66, 71, 839 P.2d 1111, 1116 (App. 1992).

The Motion to Vacate attacked two (2) judgments as void ab initio issued on May 3, 2012 (See Exhibits L, M and N) and the reasons given by the Court in the Notice of August 22, 2013 are legally incorrect, the dismissal of the Motion to Vacate is based upon a clear abuse of discretion that is clearly untenable, legally incorrect, amounts to a denial of justice and is in a manner inconsistent with due process of law. “…the reasonable time requirement of Rule 60(c) does not apply when a judgment is attacked as void.” National Inv. Co.,Inc. v. Estate of Bronner , 146 Ariz. 138, 140, 704 P.2d 268,270 (App. 1985)(citing Springfield Credit Union v. Johnson, 123Ariz. 319, 599 P.2d 772 (1979)).

b. Determinations were capricious: The sudden and totally unpredictable instigation of collection of initial filing fees, without an order upon which an appeal could be brought, resulting in collection proceedings against Petitioners by the Clerk’s Collection Department are text book examples of capricious behavior “governed or characterized by caprice : impulsive, unpredictable.” Interpreting Ariz. R.C.P. 60(c)(4) as if it was 60(c)(1) or (2) or (3) after admitting in the denial notice minute entry that the motion was filed exclusively under 60(c)(4) is likewise capricious. Then to entertain the Motion for Reconsideration without regard for its contents and denying it, is further capriciousness.

c. Determinations were an abuse of discretion: See Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App. 2006) (quoting State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983)); The trial Court has neither discretion nor jurisdiction to make a void order valid. Taking judicial notice of its own record, the trial Court is well aware that no defendants are represented by counsel in this case other than Defendant James Bourne. Defendant James Bourne is not part of the void judgment shown on the docket for May 3, 2012, neither is Defendant Peggy Caffall, both of whom were properly served summonses for appearance in the action (See Exhibits G and O). It is an abuse of discretion beyond measure for the trial court to award judgment, taxable costs and declare Petitioners’ civil action to be dismissed with prejudice in favor of defendants who are not properly before the court, according to the court’s own records. Therefore it is obviously an abuse of discretion to entertain a motion for vacation of such orders and deny that motion through an incorrect reading of Rule 60(c).

Judgment orders of February 14, 2012 (See Exhibit L) directing the entry of a judgment and the judgment of May 3, 2012 (docketed See Exhibit M) are on their face: complete nullities and without legal effect. Both judgments and order directing entry of judgment are void, ab initio. “in exercising its discretion, the trial court is not authorized to act arbitrarily or inequitably, nor to make decisions unsupported by facts or sound legal policy.” City of Phoenix v. Geyler, 144 Ariz. at 328-29, 697 P.2d at 1078-79. A judgment is void if it was “rendered by a court which lacked jurisdiction, either of the subject matter or the parties,” Cockerham v. Zikratch, 127 Ariz. 230, 234, 619 P.2d 739, 743 (1980), or “to render the particular judgment or order entered.” State v. Cramer, 192 Ariz. 150, ¶ 16, 962 P.2d 224, 227 (App. 1998). See Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App. 2006). See City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985) quoting Geyler, 144 Ariz. at 328-29, 697 P.2d at 1078-79.

ARGUMENT

This matter came before the Trial Court (See Exhibit P line 21-23) on Petitioners’ “Motion for Ruling & Immediate Judgment or in the Alternative, Motion for Reconsideration in Part, Stay and Sanctions, Affidavit” dated December 30, 2011,” (See Exhibit P) directly related to the declaration by a deputy clerk that no defendant had appeared in this action, 10 days after their time to appear had expired and having declared what was mailed to the Petitioners by defendants to be ‘trash’. That motion moved the Court to determine what the cause was of defendants’ failure to appear and to act according to law.

A determination that the deputy clerk was correct in declaring no defendant had appeared in the case is paramount. The court has not shown representation for nine of the ten defendants since the moment initial documents were placed on the docket for any defendant. The question as to why counsel is not properly before the court can only be answered with the Court’s ruling on Plaintiff’s motion for the cause of default (Rule 54(d)), but both judgments of May 3, 2012, based on judgment orders dated February 14th 2012 directing the entry of a judgment, summarily dismissed Plaintiffs’ motion for default judgment without addressing the divestitive issue of the cause of the default by all defendants (which is not a fair chance for Plaintiffs to present their case) United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010).

Had the Trial Court acted according to law on the Motion for Ruling & Immediate Judgment, the Ruling on Motions and Orders of Dismissal filed on February 14, 2012 (See Exhibit L but shown on the docket as February 16, 2011) could not have even raised the findings of the Court. The Motion for Ruling & Immediate Judgment was based on the potential of seriously bad faith and abuse of process. The court was asked to determine whether defendants were responsible.

Petitioners’ Motion to Vacate (See Exhibit A) sought recognition by the court that “the entry of a judgment, and granting judgment to defendants dated February 14, 2012 and May 3, 2012 and subsequent orders” are void, ab initio. “This motion is based on Rule 60(C)(4).” “Neither the February 14, 2012 order directing the entry of a judgment nor the May 3, 2012 judgments include all parties resulting in a lack of subject matter jurisdiction. Multiple parties are involved in this case. The court acted in a manner inconsistent with the due process of law, in both judgments and the order directing the entry of a judgment; as none state an “express determination that there is no just reason for delay”; [Rule 54(b) of the Arizona Rules of Civil Procedure] resulting in a lack of subject matter jurisdiction and a lack of jurisdiction to render the particular judgment or order entered.” Cockerham v. Zikratch, 127 Ariz. 230, 234-35, 619 P.2d 739, 743-44 (1980).

As of August 13, 2013 a deputy clerk confirmed that this case is defended by one defendant counsel, for one defendant. Counsel for defendant Bourne is recognized by the court (but is not included in the docketed May 3, 2012 Judgment Order, and may not be properly before the court, one of many issues the Trial Court failed to address by dismissing the Motion for Ruling & Immediate Judgment). No other defendant counsel in this case is recognized by the Court as being properly before the court. Petitioners have always been properly before the trial court.

Besides an order of Judgment issued in favor of defendants not properly before the court (a gross miscarriage of justice), the order of May 3, 2012 (See Exhibit M) does not contain all defendants and does not contain an express determination that there is no just reason for delay (Rule 54(b)). The docketed Judgment is for CVDC Holdings LLC, CVD Care LLC, WPF Holdings LLC, Wynn Caffall DDS PC, Canyon Vista Dental Care LLC, Wynn C. Caffall DDS, John A Bigler DDS and Trevor Caffall DDS. Defendant James Bourne and Defendant Peggy Caffall, were properly served summonses to appear (See Exhibit G and O), are named in the original complaint as defendants on the last page as required (or the clerk would never have issued summonses ARCP Rule 4(a), Rule 4(b)); and are not included in the order of May 3, 2012 (See Exhibit M). The Court has referred to the case by the case caption: “HEMPFLING vs CVDC HOLDINGS.” The Order (See Exhibit N) is not on the docket.

Black’s Law Dictionary defines ‘defendant’ as: “the party put upon his defense, or summoned to answer a charge or complaint, in any species of action, civil or criminal, at law or in equity.”

CONCLUSION

Petitioners request that the Court:

1. Declare that Respondent Judge Soos erred in dismissing Petitioners’ Motion to Vacate and Motion for Reconsideration.

2. Declare the docketed Judgment of May 3, 2012 and the order dated February 14, 2012, as void ab initio.

3. Declare that the Trial Court should not attempt to collect fees without due process of law.

4. Remand for further action, nunc pro tunc, to answer the purposes of justice; to address the utmost importance of the Motion for Ruling & Immediate Judgment or in the Alternative, Motion for Reconsideration in Part, Stay and Sanctions, Affidavit dated December 30, 2011.

DATED this 10th day of September, 2013.

SUESIE HEMPFLING.

LEE HEMPFLING, Pro Se

By: ______________________

By: ______________________

Suesie Hempfling,

                                                                                        Lee Hempfling, Pro Se

                                                                                        Apache Junction, AZ 85120

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 7(e) of the Arizona Rules of Special Actions, We certify that

the body of the attached Petition appears in proportionally spaced type of 14

points, is double-spaced using Times New Roman font, and contains 3,339 words from the Introduction to the Conclusion.

___________________________

Suesie Hempfling

___________________________

Lee Hempfling

CERTIFICATE OF FILINGS AND SERVICE

We hereby certify that the original Petition for Special Action was filed with six copies by mail on September 10, 2013 to the Court of Appeals Division Two, and on the same day copies were mailed to:

HONORABLE BRADLEY M. SOOS,

JUDGE PRO TEMPORE

P.O. BOX 968

FLORENCE, AZ 85132

SUSAN I. MCLELLAN, ESQ              

RENAE A. NACHMAN, ESQ.              

SCHNEIDER & ONOFRY, P.C.

3101 N. CENTRAL AVENUE, SUITE 600

PHOENIX, AZ 85012

FREDERICK M. CUMMINGS

MATTHEW L.CATES

JENNINGS, STROUSS & SALMON, P.L.C.

ONE WASHINGTON ST. SUITE 1900

PHOENIX, AZ 85004

By: __________________________

Suesie Hempfling

By: __________________________

Lee Hempfling