Martinez v. Barba

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

RAFAEL BARBA MARTINEZ, Plaintiff/Appellee,

v.

CELIA DENISE BARBA, Defendant/Appellant.

No. 1 CA-CV 19-0116
FILED 12-12-2019

Appeal from the Superior Court in Yuma County
No. S1400CV201800006
The Honorable Lawrence C. Kenworthy, Judge

AFFIRMED

COUNSEL

Celia Denise Barba, Phoenix
Defendant/Appellant

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.
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W I N T H R O P, Judge:

¶1 Celia Denise Barba (“Appellant”) appeals an arbitration
judgment entered against her. Appellant argues the court lacked personal
jurisdiction over the plaintiff, the court erred in allowing the arbitrator to
submit the form of judgment of the award for the court to enter, and the
amount of the award was incorrect. For the following reasons, we affirm
the judgment.

FACTS AND PROCEDURAL HISTORY

¶2 Appellant assisted her father, Rafael Barba Martinez
(“Appellee” or “Father”) in pursuing an insurance claim after he was
involved in a motor vehicle accident. After obtaining a settlement check
related to the accident, Appellant added Father to her bank account and
deposited Father’s settlement check in that shared account. Appellant then
took $16,000 from the settlement money in the account. Father claims
Appellant took the money without his permission. Appellant argues Father
gifted her $8,000 for assisting him with his insurance claim and loaned her
an additional $8,000 with the understanding that she would repay the
loaned portion when she was able.

¶3 Father filed a civil complaint against Appellant in superior
court in Yuma County on January 2, 2018. The court appointed an
arbitrator to hear the case, and the parties met for compulsory arbitration
on October 24, 2018. The arbitrator entered an award for Father that same
day in the amount of $15,581.1 On December 12, 2018, the court held a
status conference regarding the arbitration. At the status conference, Father
expressed his confusion with the process for reducing his arbitration award
to a judgment and explained that he had not yet submitted a proposed
judgment for signature. With leave of the court, the arbitrator offered to
submit a form of judgment for the court’s review and signature. The
arbitrator submitted such a document, and the court approved and signed

1 This amount was $16,781 minus $1,200 that Appellant had already
repaid to Father. The award also included post-judgment interest accruing
at 6.25% annually. Although the award did not specify how this interest
rate was calculated, we note it comports with the applicable prime rate at
the time of the award and Arizona Revised Statutes (“A.R.S.”) section 44-
1201(B) (The interest rate is the “rate per annum that is equal to one per cent
plus the prime rate as published by the board of governors of the federal
reserve system in statistical release H.15” as of the date of entry of the
award.).

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the judgment on January 2, 2019. On January 16, 2019, Appellant filed an
appeal of the award and judgment to this court. That same day, Appellant
also filed a “Motion to Dismiss and/or Motion for Reconsideration”
(hereinafter, the “Motion”) with the superior court, arguing the amount of
the award was incorrect and that the judgment was not properly filed
because the arbitrator, not Father, had submitted the award to be reduced
to a judgment.

¶4 This court stayed Appellant’s appeal to allow the superior
court to consider Appellant’s Motion. The superior court held a hearing on
the Motion on March 14, 2019. After giving Appellant time to explain the
arguments raised in her Motion, the court denied the Motion, reasoning
Appellant had not shown that she was unfairly prejudiced by the
arbitrator—rather than Father—submitting the form of judgment for the
court’s signature.

¶5 Appellant’s appeal to this court was automatically reinstated
on April 26, 2019, after the superior court signed its minute entry denying
Appellant’s Motion. We have jurisdiction over this appeal under A.R.S.
§§ 12-2101(A)(1), -2101.01(A)(6).

ANALYSIS2

I. Personal Jurisdiction

¶6 First, Appellant asserts that the superior court erred by failing
to dismiss the action for lack of personal jurisdiction, arguing the court
lacked jurisdiction over her Father (plaintiff to the original action) because
he lives in Mexico. Assuming, arguendo, that this issue was properly raised
before us, we address it briefly. A court’s ruling on personal jurisdiction is

2 Pursuant to Arizona Rule of Civil Appellate Procedure (“ARCAP”)
13(a)(7), an appellant’s opening brief must contain an argument section
“with supporting reasons for each contention, and with citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies.” Based on Appellant’s noncompliance with
ARCAP 13(a)(7)(A), this court could dismiss the action outright; however,
in our discretion, we address Appellant’s arguments as we understand
them. See ARCAP 25. In similar fashion, Father has not filed an answering
brief, which we may regard as a confession of error. See In re Marriage of
Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002); see also ARCAP 15(a)(2). On this
record, we decline to do so.

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subject to de novo review. Hoag v. French, 238 Ariz. 118, 122, ¶ 17 (App.
2015).

¶7 Appellant misunderstands what is required for a court to
have personal jurisdiction over a party. Personal jurisdiction is an
individual right arising from protections in the Due Process Clause, which
right may be waived by “submit[ting] to the jurisdiction of the court by
appearance.” Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702-03 (1982); see also 21 Corpus Juris Secundum, Courts, § 68
(2019) (“The court obtains personal jurisdiction over a plaintiff by the
plaintiff’s filing of a pleading with the court, which jurisdiction then
continues through all stages of the litigation.” (footnote omitted)). Thus,
personal jurisdiction over Father existed when he filed his civil complaint
with the superior court in Yuma County, regardless of whether Father lives
in Arizona or Mexico. Furthermore, although not specifically argued, we
note that personal jurisdiction was also proper as to Appellant because she
is domiciled in Arizona.3 See Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 924 (2011) (“For an individual, the paradigm forum for
the exercise of general jurisdiction is the individual’s domicile.”). The
superior court did not err by declining to dismiss the action for lack of
jurisdiction.

II. Entry of the Award by the Arbitrator

¶8 Appellant also argues that the court erred in entering
judgment on the award because the award was submitted to the court by
the arbitrator rather than by Father.4 Appellant bases her argument on

3 Additionally, Appellant seems to assert that jurisdiction was
improper because she lives in Maricopa County, but the complaint was
brought in Yuma County. We reject this argument. “If an action is not
brought in the proper county, the court shall nevertheless have jurisdiction
and may hear and determine the action” unless the defendant files an
affidavit with the court stating that the county is improper and specifically
requesting transfer to the proper county. A.R.S. § 12-404(A). Appellant did
not seek a change of venue and has waived such procedural defense.

4 Appellant also asserts the court should not have reduced the award
to a judgment because “the deadline to file a form of judgment had passed.”
This assertion is not true. After the arbitrator files notice of the award, a
party has 120 days total to file a motion with the superior court to enter
judgment on the award before the action will be dismissed without

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language contained in Arizona Rule of Civil Procedure (“Rule”) 76(d),
which states that “any party may file a motion to enter judgment on the
award.” We review de novo questions involving interpretation or
application of court rules. Haroutunian v. Valueoptions, Inc., 218 Ariz. 541,
549, ¶ 22 (App. 2008).

¶9 In support of her argument, Appellant relies on Phillips v.
Garcia, which states that an award signed by an arbitrator and titled
“Judgment” is not a true judgment by the court as described in Rule 76(d).
237 Ariz. 407, 411, ¶ 12 (App. 2015). The Garcia court clarified that “entry
of a true judgment requires an affirmative act by the court.” Id. at 412, ¶ 16.

¶10 We find the entry of judgment here complied with the
guidance in Garcia. In Garcia, there was no affirmative act by the court to
reduce the arbitrator’s award to a formal judgment. Id. While the arbitrator
in Garcia had signed a document entitled “Judgment,” it was never signed
by a judge or commissioner of the superior court. Id. at 409, ¶ 2. In contrast,
here the arbitrator filed both the written arbitration award and a form of
judgment that confirmed that award with the court. Appellant did not
timely object to the proposed form of judgment, which was signed by the
court on January 7, 2019.5

¶11 Appellant points to no authority prohibiting an arbitrator
from assisting a party or the court by submitting a form of judgment that
the court could then sign and enter. Appellant also makes no argument
that allowing the arbitrator to submit the form of judgment prejudiced her,
aside from claiming the submission made the arbitrator impartial or
allowed the arbitrator to act as Father’s counsel. Appellant’s argument
lacks merit; the rules of procedure clearly contemplate and authorize the

prejudice. Arizona Rule of Civil Procedure 76(d). Here, the arbitrator filed
the arbitration award with the court on October 24, 2018. The court entered
judgment on the award on January 2, 2019, which was within the prescribed
time limit.

5 Appellant was not present at the December 12, 2018, status
conference when the arbitrator offered to submit the form of judgment to
the court. Appellant claims she was not present because the court never
mailed her notice of the hearing; however, we note that Appellant was
present telephonically on September 10, 2018, when the court determined
it would continue the status conference to December 12. Accordingly,
Appellant cannot claim she had no notice of when the status conference
would be held.

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court and the arbitrator to confer and interact as it relates to the arbitration
procedure. See Rule 77(i). Further, the court had the power and discretion
to decline to enter judgment on the award if it believed the arbitrator was
acting impartially or exceeding his power. See A.R.S. § 12-1512(A)(2)-(3).
The court did not do so and was within its discretion to reduce the award
to a formal judgment.

III. Amount of the Award

¶12 Finally, Appellant argues the amount of the arbitration award
is incorrect because a portion of the money Father gave her was a gift and
not meant to be repaid.

¶13 We find Appellant’s argument regarding the amount of the
award is waived because it was not timely raised. “To appeal an award, a
party must file a notice of appeal no later than 20 days after . . . the award
is filed.” Rule 77(b). If timely filed, such an “appeal” results in a trial de
novo in the superior court. Rule 77(d).

¶14 As previously noted, the arbitrator filed the award on October
24, 2018. Appellant did not object to the form or content of the arbitration
award within 5 days, see Rule 76(b)(3), or file a notice of appeal until January
16, 2019, after the award was reduced to judgment and well after the
statutory period for an appeal. See Rule 77(b).

¶15 While Appellant’s failure to timely appeal the award to the
superior court does not deprive this Court of jurisdiction over an appeal of
the judgment, it does serve as an acceptance of the arbitrator’s resolution of
the issues raised therein. See Schwab Sales, Inc. v. GN Constr. Co., Inc., 196
Ariz. 33, 36, ¶ 7 (App. 1998). To the extent Appellant wished to challenge
the substance of the award (as opposed to the post-arbitration procedure
utilized below), that appeal had to be timely asserted before the superior
court. That did not occur here. Accordingly, we do not address the merits
of the argument regarding the amount of the award because that argument
was waived. Even were we to consider the merits of that argument, we are
not a fact-finding court and there is no record upon which we could
evaluate the issue.

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CONCLUSION

¶16 For the foregoing reasons, we affirm the arbitration judgment.

AMY M. WOOD • Clerk of the Court
FILED: AA

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