Haroutunian v. Valueoptions, Inc.

BRAMMER, Judge,

dissenting.

¶30 I respectfully dissent from my colleagues’ well-crafted opinion. By concluding the trial court applied the wrong legal standard in denying ValueOptions relief under ARCAP 9(a), they appear to misinterpret the trial court’s ruling. The majority has also effectively eliminated a trial court’s discretion to deny relief under that rule and, by determining it owes no deference to the trial court’s discretionary decision here, has substituted its judgment for the trial court’s. Further, I disagree with the majority’s interpretation of Rule 6(b).

Denial of ARCAP 9(a) Motion

¶ 31 I first address the trial court’s decision to deny relief under ARCAP 9(a). The rule states:

(a) Time; Personal Representatives; Cross-Appeal. A notice of appeal re*552quired by Rule 8 shall be filed with the clerk of the superior court not later than 30 days after the entry of the judgment from which the appeal is taken, unless a different time is provided by law. If the court finds that (1) a party entitled to notice of entry of judgment did not receive such notice from the clerk or any party within 21 days of its entry and (2) no party would be prejudiced, the court may upon motion filed not later than 30 days after the expiration of the time for appeal, or within 7 days of receipt of such notice, whichever is earlier, extend the time for appeal for a period not to exceed 14 days from the date of the order granting the motion. If a party dies during the time he is entitled to take an appeal, the appeal may be taken by his personal representative within 90 days after the death of the party. A notice of cross-appeal may be filed by an opposing party within 20 days from the date the notice of appeal is filed.

¶ 32 The trial court’s ruling denying ValueOptions’ motions stated:

Motion for Enlargement of Time to File Motions for Renewed Judgment as a Matter of Law and for New Trial

Defendant relies on Rule 6(b), Rules of Civil Procedure, to request an extension of time to file post-trial motions pursuant to Rule[s] 50(b) and 59(d). Rule 6(b) requires a showing of excusable neglect when the motion is made after the expiration of the specified period. Defendant’s attorney received an under advisement ruling dated February 20, 2007 stating, “the court will sign the form of judgment submitted by plaintiff after deleting the costs and attorney’s fees.” Defendant’s attorney had her secretary call the Pima County Clerk of Court two days after the date of the under advisement ruling to determine if a judgment had been entered. The secretary was told by an unknown person in the clerk’s office that it had not been entered. In fact, the judgment had been entered the day before. A reasonable attorney would have called the judge’s chambers or placed another call to the clerk or taken other appropriate steps before the time limits expired to make sure that a judgment had not been entered. Therefore,

IT IS ORDERED defendant’s motion for enlargement of time to file motions for renewed judgment as a matter [of] law and for new trial is DENIED.

Motion to Extend Time to Appeal

Defendant has moved for an enlargement of time to appeal pursuant to Rule 9(a), Arizona Rules of Civil Appellate Procedure. The Rule gives the trial court discretion to extend the time for appeal under certain circumstances. United Metro Materials, Inc. v. Pena Blanca Properties, L.L.C., 197 Ariz. 479, 482, 4 P.3d 1022, 1025 (App.2000). The court may extend the time to appeal if it finds “that (1) the party entitled to notice of entry of judgment did not receive such notice from the clerk or any parties within twenty-one days of its entry, and (2) no party would be prejudiced____” Id. It is undisputed that defendant did not receive notice of entry of judgment from the clerk or any party within twenty-one (21) days of entry. As to prejudice, the issue is “whether [plaintiff] [is] prejudiced by the appeal being delayed rather than timely.” Lennar Corp. v. Auto-Owners Ins. Co., 214 Ariz. 255, 151 P.3d 538, 552 (App.2007). Plaintiff has not shown prejudice. However, for the same reason the court refused to extend the time for filing post-trial motions, the court, in its discretion, declines to extend the time for appeal. Defendant has not shown good cause. Therefore,

IT IS ORDERED defendant’s motion to extend the time for appeal is DENIED.

¶ 33 The majority has concluded in ¶¶ 12 and 13 that the trial court used the wrong legal standard in denying relief under AR-CAP 9(a) because it stated ValueOptions had “not shown good cause” and, therefore, in the majority’s estimation, “essentially imposed an additional element for relief that the language of the rule does not require and its drafters did not intend.” I cannot agree with this characterization of the court’s ruling. Even if the two elements of ARCAP 9(a) are met, as they were here, it remains within a *553trial court’s discretion whether to grant relief in a particular case. See United Metro Materials, Inc. v. Pena Blanca Props., L.L.C., 197 Ariz. 479, ¶ 18, 4 P.3d 1022, 1025 (App. 2000). Inherent in that discretion is that the court may expect the party seeking relief to provide some reason — beyond the rule’s explicit elements — warranting the relief sought. Otherwise, the tidal court’s discretion is completely illusory.

¶ 34 Here, it is plain the trial court concluded ValueOptions’ failure to show some diligence in attempting to learn if a final judgment indeed had been entered justified its discretionary decision to deny relief. The court’s statement that ValueOptions had not shown “good cause” was nothing more than the court’s expression of its determination that ValueOptions had not provided a reason the court considered sufficient to warrant relief, not a reference to a legal standard the rule plainly does not contain. See Maher v. Urman, 211 Ariz. 543, ¶ 13, 124 P.3d 770, 775 (App.2005) (“‘[T]he trial court is presumed to know and follow the law.’ ”), quoting State v. Ramirez, 178 Ariz. 116, 128, 871 P.2d 237, 249 (1994).

¶ 35 The trial court cited no authority defining “good cause” in related contexts, nor did it explain, as it did for excusable neglect in its discussion of Rule 6(b), what “good cause” meant in this context. Nothing in the court’s ruling suggests it believed it could only grant relief upon a showing of good cause. The court instead stated it had denied the motion “in its discretion.” It referred to the “same reason [it] refused to extend the time for filing post-trial motions” and the only reason contained in the ruling, specifically: “A reasonable attorney would have called the judge’s chambers or placed another call to the clerk or taken other appropriate steps before the time limits expired to make sure that a judgment had not been entered.” Thus, the court referred to the factual basis for its ruling under Rule 6(b), not to the legal standard it applied there.12

¶ 36 The majority then decides in ¶ 15 that it owes no “particular deference” to the trial court’s conclusion that a reasonable attorney would have done something more than ValueOptions did here. It notes the trial court’s decision “was not based on any evidence presented below or any weighing of conflicting facts.” I fail to understand what additional evidence the trial court should have considered in assessing whether ValueOptions had acted reasonably. Nothing in the record contradicts the trial court’s statement that ValueOptions failed to inquire any further into the status of the entry of judgment before its time to appeal expired. The trial judge, as any judge should be, was permitted, indeed required, to draw on his knowledge and experience when determining whether ValueOptions’ conduct had been reasonable under the circumstances. See Walker v. Kendig, 107 Ariz. 510, 513, 489 P.2d 849, 852 (1971) (when making discretionary determination, trial court may rely on “ ‘personal wisdom and experience’”), quoting In re Welisch, 18 Ariz. 517, 521, 163 P. 264, 265-66 (1917); cf. Baum v. Baum, 120 Ariz. 140, 146, 584 P.2d 604, 610 (App.1978) (in determining reasonable attorney fees, “trial judge can draw upon his knowledge of the case and upon his own experience”).

¶ 37 Nor can I fathom how the discretion ARCAP 9(a) gives a trial court is eliminated merely because the underlying facts are undisputed. Our supreme court stated in State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983), that a decision ceases to be discretionary and may be decided as a “question ... of law or logic” when “the facts or inferences from them are not in dispute and where there are few or no conflicting procedural, factual or equitable considerations.” Although the facts here are undisputed, there are clearly competing procedural, equitable, and practical considerations accompanying them. The trial court had to balance Haroutunian’s interest in the finality of the judgment with the preference in our jurisprudence for resolving cases on their merits. See Daou v. Harris, 139 Ariz. *554353, 359, 678 P.2d 934, 940 (1984) (trial court must weigh these competing interests). And it had to determine whether ValueOptions’ conduct was reasonable under the unique facts and circumstances of the case.

¶ 38 This is precisely the kind of assessment by a trial court that demands a reviewing court’s deference. See id. (“trial judges are in a much better position than appellate judges” to determine whether party’s neglect excusable and to balance equitable principles); Chapple, 135 Ariz. at 297 n. 18, 660 P.2d at 1224 n. 18 (“conflicting procedural, factual, or equitable considerations” are “better determined or resolved by the trial [court], wh[ich] has a more immediate grasp of all the facts of the ease, an opportunity to see the parties, lawyers and witnesses, and ... can better assess the impact of what occurs before [it]”); see also Goglia v. Bodnar, 156 Ariz. 12, 20, 749 P.2d 921, 929 (App.1987) (citing Daou). Because the trial court’s determination that ValueOptions’ conduct was not reasonable under the circumstances is a decision to which we must defer, we may disturb it only when the undisputed facts and other factors cannot justify the court’s decision and instead compel a different result.13

¶39 To the extent the majority suggests the only proper conclusion to be drawn from these undisputed facts is that ValueOptions acted reasonably, I believe it overstates the case. In the same minute entry in which the court denied Haroutunian’s request for attorney fees, it stated it would “sign the form of judgment submitted by plaintiff after deleting the costs and attorney’s fees.” This, of course, is exactly what the court did do. There was no suggestion that it was awaiting additional information or motions from the parties or that it would delay signing the judgment.

¶ 40 At oral argument, ValueOptions asserted it had made its single phone call to the clerk of the court to check the status of the judgment before receiving notice of the court’s February 20 minute entry. Counsel reported that an employee in the clerk’s office had said there had been “no activity ... since February 14, 2007.” The February 20 minute entry, however, clearly stated the court would sign the judgment, and again nothing in that minute entry suggested the court would delay doing so. Upon receiving the minute entry, as the trial court concluded, a reasonably diligent party would have taken some action to further investigate if the judgment had, in fact, been signed and entered. Yet ValueOptions apparently made no inquiry after receiving the minute entry.

¶ 41 Although I recognize a party should not “be required to contact the [court] every day to ascertain if judgment has been entered,” DNB Constr., Inc. v. Superior Court, 125 Ariz. 61, 63, 607 P.2d 380, 382 (1980), a party must still be diligent in monitoring the status of its case, particularly when it has received a clear message from the trial court that the court intended to sign a judgment without further interaction with the parties and apparently without delay.14 Additional*555ly, as Haroutunian pointed out in his response to ValueOptions’ ARCAP 9(a) motion, ValueOptions could have reviewed the Pima County Superior Court’s electronic docket. Indeed, documents Haroutunian attached to that response show that the final judgment had appeared on the docket by at least February 27, one week after the trial court’s minute entry. See Kuhn v. Sulzer Orthopedics, Inc., 498 F.3d 365, 370-71 (6th Cir.2007) (denying relief under Federal Rule 4(a)(6) because party failed to monitor electronic docket).15 The existence of the court’s electronic docket, accessible to the parties, vitiates any concern that a party may unduly burden the trial court clerk or judge’s staff by making repeated inquiries in an effort to diligently monitor the status of its case.

¶ 42 The majority makes much in ¶¶ 17 and 18 of the fact that neither party knew the date the judgment had been entered.16 Nothing in the record suggests, however, that Haroutunian had attempted to ascertain if the judgment had been entered or that he had any specific reason to do so. Indeed, Haroutunian’s arguable lack of diligence in this respect in no way excuses ValueOptions’ failure to investigate. Further, any inaction on Haroutunian’s part hardly compels an inference that ValueOptions’ conduct was reasonable. The parties may have had disparate interests in the date judgment was entered.

¶ 43 In ¶ 17, although it disclaims doing so, the majority imposes a duty on the trial court to advise parties of mistakes in the papers they file. This cannot be the law. Arizona’s trial judges have no responsibility to proofread the papers parties file with them. I find here no obligation on the court’s part to correct the parties’ apparently shared misperception that no judgment had *556been entered. To do so would assume the court was aware of such a perception, and nothing in the record supports that assumption. That the court did not issue a corrective advisory in no way excuses ValueOptions from fulfilling its responsibility to remain abreast of its lawsuit.17 These facts support the trial court’s conclusion that ValueOptions failed to exercise diligence after receiving notice from the court that it would sign the judgment. Even were I to reach a different conclusion, as I may well have done here in the first instance, a trial court’s discretionary decision, where supported by the uncontroverted record, is entitled to deference on review.18

¶ 44 The majority then posits in note 7 that, even if the tidal court was correct that ValueOptions had acted unreasonably, that consideration is irrelevant to whether it could grant relief under ARCAP 9(a). Again, I disagree. I conclude that, when exercising its discretion in deciding whether to grant relief under ARCAP 9(a) to a party that had clear notice a judgment would be signed without delay, a trial court may consider what actions the party took or failed to take in attempting to learn whether judgment had been entered against it.

¶ 45 ARCAP 9(a) clearly does not require specifically that a party demonstrate good cause to excuse its failure to determine whether a final order had been filed in its case. See J.C. Penney v. Lane, 197 Ariz. 113, ¶ 20, 3 P.3d 1033, 1037 (App.1999). It does not necessarily follow, however, that a trial court may not consider whether the party had exercised some degree of diligence in attempting to determine if a final judgment indeed had been entered. And, as ValueOptions and the majority concede, a trial court’s decision to grant relief under ARCAP 9(a) is discretionary. See United Metro Materials, 197 Ariz. 479, ¶ 18, 4 P.3d at 1025.

¶46 A party’s diligence in protecting its appellate rights has long been deemed relevant to whether it should be permitted additional time to file its appeal. In Vital v. Johnson, 128 Ariz. 129, 132, 624 P.2d 326, 329 (App.1980), Division One of this court determined that Rule 60(c), Ariz. R. Civ. P., did not permit a trial court “to vacate and reenter the same judgment in order to begin again the time for filing a notice of appeal when no notice of entry of the judgment had been sent to the party by the clerk.” J.C. Penney, 197 Ariz. 113, ¶ 12, 3 P.3d at 1035. Our supreme court, however, rejected that interpretation in Park v. Strick, 137 Ariz. 100, 104, 669 P.2d 78, 82 (1983), holding that a trial court may grant relief under Rule 60(c) by vacating and reentering a judgment when “an aggrieved party establishes lack of knowledge that judgment has been entered, and asserts additional reasons that are so extraordinary as to justify relief.” The court also stated that, “where the complaint is only that the party did not have or get the formal notice to which a party is entitled ..., the relief [under Rule 60(c) ] is not available.” Id. In City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985), the court then added to the requirements it had described in Park, holding in Geyler that, besides the compelling circumstances required by Rule 60(c), a party must also demonstrate: (1) lack of proper notice of the judgment; (2) lack of prejudice to the respondent; (3) prompt filing of a motion after actual notice is received; and (4) due diligence, or a reason for lack thereof, in attempting to determine the date of the decision.

¶ 47 In 1994, as the majority notes in ¶ 8, our supreme court modified ARCAP 9(a) and other procedural rules to “ ‘address a problem experienced by practitioners, whereby they were not receiving notice of entry of judgment in some eases and their clients’ rights to appeal were jeopardized.’ ” J.C. *557Penney, 197 Ariz. 113, ¶ 18, 3 P.3d at 1037, quoting ARCAP 9(a) court emt. to 1994 amend. Nothing in the amendments to AR-CAP 9(a) or other rules, however, eliminates Geyler’s requirement, or that dictated by common sense, that a party must exercise some diligence in attempting to ascertain whether a final judgment has been entered. Instead, ARCAP 9(a) gives a trial court the discretion whether to grant relief, and I see no principled reason to prevent a court from considering a party’s diligence when exercising that discretion. Indeed, Division One of this court has suggested assessing a party’s diligence is proper when considering a request for relief under ARCAP 9(a). In Deco-la v. Freyer, 198 Ariz. 28, ¶ 24, 6 P.3d 333, 339 (App.2000), Division One determined a superior court had discretion to extend a party’s time to appeal from an arbitration award “under the rationale of [ARCAP] 9(a).” The court stated that a party might be entitled to relief in such circumstances if it “failed to receive notice of the filing of the arbitration award, ... acted diligently, and no prejudice to plaintiff was shown.” Id. ¶ 19.

¶ 48 Moreover, the requirement that a party take steps to protect its right to appeal by determining the status of its case is reflected elsewhere in our rules. Rule 5.1(b), Ariz. R. Civ. P., describing the duties of counsel, requires attorneys to “keep[] advised of the status of cases in which [they have] appeared.” See also Panzino v. City of Phoenix, 196 Ariz. 442, ¶ 7, 999 P.2d 198, 201 (2000) (“ ‘[T]he client is charged with the actions and omissions of its attorney.’ ”), quoting Mission Ins. Co. v. Cash, Stullivan & Cross, 170 Ariz. 105, 108, 822 P.2d 1, 4 (1991). The mandate in Rule 58(e), Ariz. R. Civ. P., that the court clerk immediately distribute notice of the entry of judgment to the parties does not mean the parties are absolved of all responsibility to monitor their case when they are clearly aware that signing and entry of the judgment are imminent.

¶ 49 Nor do I agree with the majority’s reliance on Nunley v. City of Los Angeles, 52 F.3d 792 (9th Cir.1995), in which the Ninth Circuit held that a trial court erred by considering excusable neglect principles in denying relief under Rule 4(a)(6), Fed. R. Civ. App. P., the federal equivalent of ARCAP 9(a). The Nunley court reasoned that applying excusable neglect principles to Rule 4(a)(6) would “ ‘subvert [its] central purpose,’ ” which was to “ ‘permit district courts to ease strict sanctions now imposed on appellants whose notices of appeal are filed late because of their failure to receive notice of entry of a judgment.’ ” 52 F.3d at 798, quoting Avolio v. County of Suffolk, 29 F.3d 50, 53 (2d Cir.1994) (internal quotations omitted). The Nunley court also reasoned that “[t]o hold otherwise would negate the addition of Rule 4(a)(6), which provides an avenue of relief separate and apart from Rule 4(a)(5).” Id. Federal Rule 4(a)(5) allows a district court, upon a motion made “no later than 30 days after the time prescribed by this Rule 4(a) expires,” to “extend the time to file a notice of appeal” upon a showing of “excusable neglect or good cause.” I, however, find the federal rules distinguishable.

¶ 50 Although Arizona has no direct equivalent to Rule 4(a)(5), Fed. R.App. P., I recognize that Division One of this court held in J.C. Penney, 197 Ariz. 113, ¶ 20, 3 P.3d at 1037, that a trial court may, pursuant to Rule 60(c), Ariz. R. Civ. P., vacate and reenter a judgment to effectively extend the time for appeal, notwithstanding the language in former Rule 77(g), Ariz. R. Civ. P., now Rule 58(e), Ariz. R. Civ. P., which provides a trial court cannot “relieve a party for failure to appeal within the time allowed, except as provided in [ARCAP] 9(a).” Division One’s interpretation does not create an equivalent to Rule 4(a)(5), Fed. R.App. P., which requires the moving party to demonstrate only “excusable neglect or good cause.” In contrast to the federal rule, Rule 60(c) requires a party in such circumstances to demonstrate: (1) that it did not timely receive notice the judgment had been entered; (2) that it exercised due diligence, or had a reason for the lack thereof, in attempting to leam the date of the decision; and (3) that no party would be prejudiced — in addition to the other requirement of Rule 60(c) that a party show compelling circumstances favoring relief from the judgment. See J.C. Penney, 197 Ariz. 113, ¶¶ 15, 20, 3 P.3d at 1036, 1037; see also Geyler, 144 Ariz. at 328, 697 *558P.2d at 1078. Thus, under Rule 60(c), unlike Federal Rule 4(a)(5), a party is required to demonstrate diligence in addition to the other requirements of the rule. Consequently, there is no concern that utilizing good cause principles — such as a whether a party was reasonably diligent — in discretionary determinations under ARCAP 9(a) would either undercut or conflict with another rule that may afford relief from an untimely appeal.

¶ 51 Moreover, I am unpersuaded by the Ninth Circuit’s blanket statement in Nunley that denial of relief under Rule 4(a)(6) “cannot rest on a party’s failure to learn independently of the entry of judgment.” 52 F.3d at 798. Under the federal rule, the prevailing party is encouraged to notify the other party of the entry of judgment “ ‘in order to lessen the chance that a judge will accept a claim of non-receipt in the face of evidence that notices were sent by both the clerk and the winning party.’ ” Avolio v. County of Suffolk, 29 F.3d 50, 53 (2d Cir.1994), quoting Fed. RApp. P. 4(a)(6) advisory committee note. I cannot condone an unwise policy that permits a losing party to remain passively uniformed of the status of its case and fail to take reasonable steps to protect its rights, including the right to appeal. I note that other federal appellate courts have upheld the denial of relief requested under Rule 4(a)(6) when the moving party failed to act. See, e.g., Kuhn, 498 F.3d at 370-71 (party failed to monitor electronic docket); In re Jones, 970 F.2d 36, 39 (5th Cir.1992) (party failed to notify court of address change and misread docket sheet).

¶ 52 Although ARCAP 9(a) does not explicitly require a trial court to consider a party’s diligence in determining whether a final judgment has been entered, it most certainly does not preclude the court from doing so. And, as I have explained, the record supports the trial court’s conclusion here that ValueOptions was insufficiently diligent in these circumstances. Thus, I conclude the court did not abuse its discretion and would defer to its decision denying ValueOptions relief under ARCAP 9(a).

Denial of Rule 6(b) Motion

¶ 53 I now turn to the trial court’s denial of relief under Rule 6(b). The entirety of that rule has been set forth in ¶ 23 above. The majority concludes that Rule 6(b) is ambiguous, requiring an attempt to harmonize the rule with the majority’s interpretation of AR-CAP 9(a). Although I agree that Rule 6(b) may be inartfully worded, I cannot conclude it is ambiguous. Instead, the only reasonable interpretation of the rule’s language is that, in these circumstances, a party must show excusable neglect, irrespective of whether it timely received notice of the entry of judgment.19

¶ 54 Rule 6(b) is a single sentence, separated by a semicolon. A semicolon is used to separate two independent clauses that are nonetheless related. See Saxon v. Lloyd’s of London, 646 So.2d 631, 634 (Ala.1994); Webster’s Third New International Dictionary 2063 (1971) (a semicolon is “used to separate the independent clauses of a compound sentence”). But the presence of a semicolon separating the clauses does not mean we should read them as wholly independent. The text of the rule plainly states otherwise. The portion following the semicolon is phrased in the negative — stating the court “may not extend the time for taking any action” under the enumerated rules unless it finds the party did not receive timely notice from the clerk and that no party would be prejudiced if time were extended. The trial court’s power to extend time is defined in the first part of Rule 6(b) — section (2) of which requires a party to demonstrate excusable neglect if the Rule 6(b) motion is made after the time for the original motion has expired. The phrase following the semicolon does not give the trial court a separate power to extend the time for those motions, but instead further limits the power conferred by the first portion of the rule.20

*559¶ 55 Thus, the rule’s requirements that a trial court may not “extend the time for taking any action under Rules 50(b), 52(b), 59(d), (g), and (l), and 60(e),” without finding that the party did not receive timely notice of the judgment and that no party would be prejudiced, are in addition to — not instead of — a finding of excusable neglect under Rule 6(b)(2). Because the language of the rule is unambiguous, there is no need to attempt to “harmonize” Rule 6(b) with ARCAP 9(a).21 See Fragoso v. Fell 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030 (2005) (“We interpret statutes and rules in accordance with the intent of the drafters, and we look to the plain language of the statute or rule as the best indicator of that intent. If the language is clear and unambiguous, we give effect to that language and do not employ other methods of statutory construction.”) (citation omitted).

¶ 56 Even were Rule 6(b) ambiguous, we need not conclude a party must make the same showing under ARCAP 9(a) and Rule 6(b) in order to be granted relief. Rule 6(b) governs extensions of time for motions made before the same court that issued the ruling or judgment the motion seeks to challenge. A trial court’s decision to grant relief under those motions is discretionary, and a party typically must file its motion within only fifteen days of entry of judgment.22 In contrast, a notice of appeal is the first step in seeking a wholly new review of the trial court’s rulings, and a party must file its notice within thirty days — twice the time permitted for the motions enumerated in Rule

6(b). ARCAP 9(a). It is reasonable to conclude our supreme court intended to establish different criteria for extending the time to file in these different circumstances. A party that fails to file a timely motion enumerated in Rule 6(b) still has an available remedy by appeal for most errors made during trial. In contrast, if a party fails to file timely its notice of appeal, the failure is jurisdictional, and we must dismiss the appeal. See James v. State, 215 Ariz. 182, ¶ 11, 158 P.3d 905, 908 (App.2007). It is not surprising, then, that our supreme court would give a trial court more flexibility in deciding whether to grant relief under ARCAP 9(a) than under Rule 6(b); the consequences of failing to file a timely appeal are usually more serious.

¶ 57 As I have already discussed, the trial court did not abuse its discretion in finding ValueOptions insufficiently diligent in attempting to determine whether a final judgment had been entered in its case. For the same reasons, it did not abuse its discretion in finding ValueOptions had not shown excusable neglect and in therefore denying its Rule 6(b) motion.

Appellate Jurisdiction

¶ 58 That the trial court did not abuse its discretion in denying ValueOptions’ motion to extend its deadline for taking an appeal raises the question of the timeliness of ValueOptions’ appeal of the February 21 judgment. ValueOptions filed its notice of appeal more than ninety days after the judgment was *560entered in February, well past the thirty-day limit. See ARCAP 9(a). “‘It is settled in Arizona that the perfecting of an appeal within the time prescribed is jurisdictional; and, hence, where the appeal is not timely filed, the appellate court acquires no jurisdiction other than to dismiss the attempted appeal.’ ” James, 215 Ariz. 182, ¶ 11, 158 P.3d at 908, quoting Edwards v. Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971). ValueOptions argues, however, that we should treat Haroutunian’s motion to reconsider the trial court’s denial of attorney fees and costs as a motion extending the time to appeal pursuant to ARCAP 9(b).

¶ 59 A motion for reconsideration is not among the four motions listed in ARCAP 9(b) that extend the time for appeal: (1) a motion for judgment notwithstanding the verdict pursuant to Rule 50(b); (2) a motion to amend or make additional factual findings pursuant to Rule 52(b); (3) a motion to alter or amend the judgment pursuant to Rule 59(Z); and (4) a motion for new trial pursuant to Rule 59(a). A motion styled as something other than one of those four motions may, however, toll the time for an appeal if the motion “‘both refer[s] to [R]ule 59 as authority for the motion and describe[s] grounds set forth in that rule.’ ” James, 215 Ariz. 182, ¶ 15, 158 P.3d at 909, quoting Farmers Ins. Co. v. Vagnozzi, 132 Ariz. 219, 221, 644 P.2d 1305, 1307 (1982). The supreme court in Vagnozzi also stated that, when a trial court states on the record its intention to treat a motion as a Rule 59 motion, “the motion will also be treated by appellate courts as one under [R]ule 59[ ].” Vagnozzi, 132 Ariz. at 222, 644 P.2d at 1308.

¶ 60 Haroutunian’s motion neither cited Rule 59 nor referred to any of the grounds for relief the rule enumerates. Nor did the trial court treat the motion as one made pursuant to Rule 59, referring to it instead as a motion for reconsideration. Thus, it does not meet the requirements described by Vagnozzi, and we therefore may not treat it as a motion extending the time for appeal. See James, 215 Ariz. 182, ¶¶ 7, 18, 158 P.3d at 907, 909-10 (declining to treat “Objection to Defendant’s Final Judgment” as motion to amend judgment). Accordingly, ValueOptions’ notice of appeal from the February 21 judgment was untimely, and we do not have jurisdiction to consider its appeal.

¶ 61 Nor do we have jurisdiction to consider Haroutunian’s cross-appeal, which sought to contest the trial court’s refusal to award attorney fees in the February 21 judgment. A cross-appeal filed after an untimely notice of appeal is, necessarily, also untimely and must be dismissed. See Phillips Constr. Co. v. Cook, 34 Ark.App. 224, 808 S.W.2d 792, 794 (1991); Rolen v. Rhine, 117 Cal.App.3d 23, 172 Cal.Rptr. 456, 457 (1981); Peltz v. Dist. Court of Appeal, 3d Dist., 605 So.2d 865, 866 (Fla.1992); Jarrard v. Copeland, 205 Ga.App. 20, 421 S.E.2d 84, 85 (1992); Walton, Inc. v. Jensen, 132 Idaho 716, 979 P.2d 118, 123 (Ct.App.1999). Because there was no timely appeal of the February 21 judgment, there can be no timely cross-appeal from that judgment.

Conclusion

¶ 62 For all the reasons stated above, I respectfully dissent. I would affirm the trial court’s denial of ValueOptions’ motions to extend the time to appeal and to enlarge the time for filing post-judgment motions. Further, I would dismiss ValueOptions’ appeal of the final judgment entered on February 21 and Haroutunian’s cross-appeal.

. At most, one might conclude it is unclear whether the trial court applied the correct legal standard. In that event, the proper remedy would be to clarify the proper legal standard and remand the case for the trial court to reconsider its ruling. The majority here goes much further, concluding the trial court’s decision is incorrect under any legal standard.

. The cases cited by the majority in note 7 do not suggest otherwise. They instead emphasize that we should not disturb a trial court's discretionary ruling unless "the undisputed facts and circumstances ... require a contrary ruling as a matter of law.” Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 121, 317 P.2d 550, 552 (1957); see also Davis v. Davis, 143 Ariz. 54, 57-59, 691 P.2d 1082, 1085-87 (1984) (observing reversal proper only when discretion "exercised in clear violation of the [relevant] principles” and finding party diligent when party had visited court twice, inquiring twice with court clerk and court administrator and once “at the judge’s chambers,” and court clerk had misfiled case); Ulibarri v. Gerstenberger, 178 Ariz. 151, 163, 871 P.2d 698, 710 (App.1993) (reversing denial of relief under Rule 60(c), Ariz. R. Civ. P., when "there [was] little in the record to indicate that [the attorney] should have recognized the emergency [of the approaching deadline before] it was too late”).

. To the extent ValueOptions and the majority in note 7 rely on our supreme court’s statement in DNB Construction that "[a] party should be able to rely upon the mail for notice,” 125 Ariz. at 63, 607 P.2d at 382, that case is distinguishable. There, the court addressed an untimely notice of appeal from a justice court order, which had to be filed in the superior court within only ten days. See id. Although it denied relief to the party filing the late appeal, the court expressed concern that "mail might be delayed so that the party does not receive notice of judgment within 10 days.” Id. Here, of course, the time for filing an appeal is thirty days, see AR-CAP 9(a), making concerns about delayed mail delivery significantly less pronounced. And the supreme court stated that, even if “notice of *555judgment was received so late as to make appeal within the statutory time limit impossible,” the superior court "could relieve the appealing party from strict application of the 10 day rule.” DNB Constr., Inc., 125 Ariz. at 63, 607 P.2d at 382 (emphasis added). Thus, even under DNB Construction, a court is vested with discretion to grant or deny additional time for taking an appeal. Moreover, that case was decided before the development of the rule described in City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985), which explicitly requires a party to demonstrate, inter alia, due diligence in attempting to learn when judgment has been entered.

Additionally, the majority suggests several cases demonstrate that ValueOptions has arguably shown sufficient diligence. These cases are also distinguishable. In Lennar Corp. v. Auto-Owners Ins. Co., 214 Ariz. 255, ¶ 54, 151 P.3d 538, 552 (App.2007), counsel for the party had received notice of the judgment but an employee of the law firm "failed to follow the procedure” used to track judgments. Nothing in the record suggests ValueOptions routinely monitored the docket of its cases but failed to do so here because an internal procedure had not been followed. In J.C. Penney v. Lane, 197 Ariz. 113, ¶ 5, 3 P.3d 1033, 1035 (App.1999), the party had asked the court to sign the judgment after ruling on its motion for reconsideration. The trial court instead signed the judgment two-and-a-half months before ruling on the motion for reconsideration. Id. ¶ 6. Plainly, unlike here, the party in J.C. Penney had no reason to believe the trial court was about to sign the judgment. In Geyler, the moving party received the final order but relied on the partially illegible date stamp instead of on the date typed on the order. 144 Ariz. at 331, 697 P.2d at 1081. The stamped date, however, was not the date the order had been filed but the date it had been mailed. Id. at 330, 697 P.2d at 1080. Thus, the supreme court noted that "defense counsel and his secretary [had] overlooked the [typed] date line ... or misunderstood the form.” Id. at 327, 697 P.2d at 1077. The court stated defense counsel "had no doubt as to the date on which the judgment was entered” and suggested that, had counsel had such doubts, his failure to seek clarification of the date would have been inexcusable. Id. at 331, 697 P.2d at 1081. Thus, although the supreme court stated the facts of the case “strongly suggested]” relief was warranted, id. at 332, 697 P.2d at 1082, unlike ValueOptions, the party in Geyler had not failed to act in the face of information that would reasonably compel some action.

. At oral argument before this court, ValueOptions asserted Kuhn is distinguishable from this case because the local court rules in that jurisdiction required parties to register with the electronic docketing system in order to receive notices by electronic mail. The Sixth Circuit in Kuhn, however, stated that the local rule in question "did not compel [the moving party] to register with the court’s [electronic docketing] system.” 498 F.3d at 370.

. The majority's distinction between the trial court’s signing and the court clerk’s entry of judgment is of course correct, but it is irrelevant here. Nothing in the record suggests there is typically a delay between the signing and entry judgment, nor that any delay could reasonably be anticipated here. Indeed, there was no delay— the judgment was entered the day after the trial court signed it.

. The record does not suggest the trial court, when it apparently perfunctorily ordered a briefing schedule on the motion, had reviewed Haroutunian’s motion for reconsideration to note that he was operating on the erroneous belief a judgment had not yet been entered. Indeed, my perception of the common practice suggests it is more likely that a busy trial court would wait until all the papers on a motion have been filed before beginning to review any of them. That the court made no correction here is unavailing to ValueOptions.

. I would also defer to, and affirm, a trial court's decision under identical facts to grant ARCAP 9(a) relief.

. Of course, whether a party received notice is relevant to whether the party’s untimely filing was excusable.

. The majority states in ¶ 26 that "Haroutunian acknowledges that the portion of Rule 6(b) pertinent to ValueOptions’ motion has no excusable neglect or good cause elements.” Merely because a party has misinterpreted a rule in a way that does not favor its position, however, does *559not mean we may abdicate our responsibility to apply properly the rule's plain language.

. I note the majority is somewhat imprecise when it states in V24 that the amendments to ARCAP 9(a) and Rule 6(b) “prescrib[e] two, but only two, conditions for enlarging the time” to file either an appeal or certain post-judgment motions. Again, whether to grant relief under ARCAP 9(a) is within the court's discretion and, in my view, that discretion permits a trial court to require the moving party to provide some reason for the court to grant the relief sought. Furthermore, by its plain language. Rule 6(b) requires a moving party to demonstrate excusable neglect. Additionally, in ¶27, the majority suggests it is "somewhat confusing!]” that the language requiring a showing of excusable neglect was "retained, unchanged, in Rule 6(b) even after the 1994 amendment.” I see no reason for confusion. The language was retained because a party must now, just as before the amendment, make that showing to obtain relief under the rule.

. See Hutcherson v. City of Phoenix, 192 Ariz. 51, ¶ 12, 961 P.2d 449, 451 (1998) ("We review the trial judge’s decision to deny post-trial motions for an abuse of discretion, recognizing that he had substantial latitude in deciding whether to upset the verdict.”); Maher v. Urman, 211 Ariz. 543, ¶ 21, 124 P.3d 770, 777 (App.2005) ("We review a trial court's ruling on a motion for relief from judgment under Rule 60(c) for an abuse of discretion.”); see also Ariz. R. Civ. P. 50(b), 52(b), 59(d), (g), (l) (motions must be filed within fifteen days of entry of judgment); but see Ariz. R. Civ. P. 60(c) (motion must be filed "within a reasonable time”).