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Broemmer v. Otto5/9/1991
trial court made an error of law. Her argument should have been raised within fifteen days from entry of judgment in a motion for reconsideration under Rule 59, Arizona Rules of Civil Procedure. See Anderson v. Hawkins, 129 Ariz. 83, 628 P.2d 966 (App.1981).
Even if we could consider the motion under Rule 60(a), Broemmer has failed to present any evidence that the judgment was the result of a clerical mistake or that it arose from oversight, omission or error. Failure to assert a substantive legal argument is not synonymous with clerical mistake or error. See Fernandez v. Garza, 88 Ariz. 214, 221-22, 354 P.2d 260, 265 (1960); Ace Automotive Products, Inc. v. Van Duyne, 156 Ariz. 140, 750 P.2d 898 (App.1987). Further, we find no merit to the argument that the judgment violates A.R.S. § 12-1502(D), which provides:
Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefore has been made under the section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.
The statute requires a stay order only if the court has ordered arbitration or an application has been made for arbitration. Broemmer did not request arbitration. ASP and Otto requested arbitration only as an alternative to dismissal. The judgment granted dismissal and did not order arbitration. Broemmer stipulated to the form of that judgment. The court's refusal to set aside the judgment did not violate A.R.S. § 12-1502(D). This result does not preclude Broemmer from pursuing arbitration as provided in the agreement.
Conclusion
Although the agreement to arbitrate was part of an adhesion contract, we find that it does not fall outside Broemmer's reasonable expectations nor is it unconscionable. The trial court did not abuse its discretion in refusing to set aside the judgment. We affirm the judgment of the trial court. Each party is to bear its own fees.
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