Urban Endeavors v. Friedman
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE URBAN ENDEAVORS, INC., an Arizona corporation, ) ) ) Plaintiff/Appellee, ) ) v. ) ) STEPHEN FRIEDMAN, as trustee of ) the Stephen L. Friedman Sole & ) Separate Trust dated March 13, ) 1996, ) ) Defendant/Appellant. ) __________________________________) DIVISION ONE FILED: 06-01-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CV 09-0359 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2008-053990 The Honorable Jerry Porter, Commissioner AFFIRMED The Lynch By And Attorneys Law Firm, L.L.C. Andrew D. Lynch John C. Shorb for Plaintiff/Appellee Tidmore Law Offices, L.L.P. By Mick Levin Attorneys for Defendant/Appellant S W A N N, Judge Scottsdale Phoenix ¶1 Stephen Friedman appeals from the superior court s denial of his motion to set aside a default judgment in favor of Urban Endeavors, Inc. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 On October 23, 2008, Urban Endeavors filed a complaint against Stephen Friedman and Charlie Sivak, alleging that the defendants refused to remove permanent obstructions located within an easement that allowed Urban Endeavors to access its property by automobile. The complaint alleged the following facts. ¶3 with The easement was established in a 1976 deed and ran the multiple land. During letters to 2007 and Friedman, 2008, who at Urban that Endeavors time owned sent the property on which the easement was located and also owned a neighboring property benefited by the easement. In the letters, Urban Endeavors asked that Friedman remove two light poles and a monument sign from the area covered by the easement. Friedman refused, and in early 2008 built a dumpster enclosure, located partially on the property burdened by the easement and partially on Friedman s neighboring property, that further obstructed the easement. In September 2008, Friedman burdened by the easement to Sivak. 2 sold the property Urban Endeavors thereafter sent a letter to Friedman and Sivak asking for the removal of all obstructions, but the defendants did not comply. ¶4 The complaint asserted that Friedman and Sivak committed breach of contract by placing the obstructions within the easement and by refusing to remove them. sought damages and attorney s fees. Urban Endeavors Urban Endeavors also sought declaratory relief establishing that the easement is enforceable and must be free of obstructions, as well as injunctive relief requiring that the defendants remove the existing obstructions and not construct additional obstructions. ¶5 The court set an order to show cause return hearing. Before the service hearing on Sivak date, and Urban filed a Endeavors motion effected for personal alternative or substituted service of Friedman because attempts to personally serve him had been unsuccessful. At the November 18, 2008 return hearing, Friedman and Sivak both appeared, representing themselves. The transcript of the hearing is not included in the record on appeal, but the court s minute entry reflects that both defendants verified that they have received service of Plaintiff s complaint. Accordingly, the court denied as moot Urban Endeavors motion for alternative or substituted service of Friedman. easement at The parties then stipulated to the location of the issue and discussed the obstructions. Friedman agreed to remove the dumpster enclosure from the easement, and 3 the court set a February 6, 2009 evidentiary hearing regarding Urban Endeavors request for preliminary injunctive relief. Both defendants provided the court with their mailing addresses. Friedman s address was in Palm Beach, Florida. ¶6 On applications because December for neither otherwise 17, 2008, of default entry Friedman responded to Urban Endeavors against nor Sivak had the complaint. both timely filed defendants answered Copies of or the applications and related affidavits were mailed to Friedman and Sivak at the addresses they had provided to the court. ¶7 The court set a default hearing for January 20, 2009. Urban Endeavors mailed notice of the hearing to Friedman and Sivak, again using the addresses that they had provided to the court. At the hearing, the court entered default judgment against the defendants, awarding Urban Endeavors the injunctive relief it had requested together with its attorney s fees and costs. ¶8 On February 3, 2009, Friedman, through counsel, filed a motion to set aside the default judgment. default was attributable to excusable He argued that his neglect as well as misconduct by Urban Endeavors counsel, and contended that he had substantial and meritorious defenses to the action.1 1 Urban Sivak did not file a similar motion, and Friedman s attorney did not represent Sivak. Counsel nevertheless asked 4 Endeavors entered opposed a signed the motion. judgment On April denying the 8, 2009, motion and the court awarding attorney s fees to Urban Endeavors. ¶9 Friedman timely appeals. We pursuant to A.R.S. § 12-2101(C) (2003). have jurisdiction See M & M Auto Storage Pool v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App. 1990) ( An order denying or granting a motion to set aside a judgment under Rule 60(c), Arizona Rules of Civil Procedure, is appealable as a special order made after final judgment. ). DISCUSSION I. Appellate Jurisdiction ¶10 Urban Endeavors contends that we lack jurisdiction over this appeal because of a defect in Friedman s notice of appeal. We also have an independent duty to determine whether we have jurisdiction. Sorensen v. Farmers Ins. Co., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). ¶11 The formal written, signed judgment denying Friedman s motion to set aside the default judgment was entered and filed in April 2009, and the notice of appeal was filed in May 2009. But instead of indicating that appeal is taken from the April 2009 judgment, Friedman s notice of appeal indicates that appeal the court to vacate the default judgment with respect to both defendants. Sivak is not a party on appeal. 5 is taken from a March 2009 order denying his motion to set aside the default judgment. The March 2009 order minute entry and as such is not appealable. is an unsigned See Eaton Fruit Co. v. California Spray-Chemical Corp., 102 Ariz. 129, 130, 426 P.2d 397, 398 (1967). ¶12 The notice s failure to specify the proper judgment does not render it insufficient. [I]f a valid judgment has been entered in the case, a notice of appeal timely filed in relation to such judgment will not be found insufficient merely because the date given as that of the order or judgment appealed from is the date of an earlier rendering of the same judgment by minute entry order . . . . 423 P.2d 95, 99 (1967). filed in relation to Hanen v. Willis, 102 Ariz. 6, 10, Friedman s notice of appeal was timely the April 2009 judgment. We have jurisdiction over the appeal. II. ¶13 Denial of Motion to Set Aside Default Judgment Ariz. R. Civ. P. 55(c) provides that for good cause shown, a court may set aside a default judgment in accordance with Rule 60(c). judgment must show: The party moving to set aside the default (1) his failure to file a timely answer was excused by one of the reasons listed in Rule 60(c); (2) he acted promptly in seeking relief from the default judgment; and (3) he had a substantial and meritorious defense to the action. E.g., Daou v. Harris, 139 Ariz. 353, 358-59, 678 P.2d 934, 939-40 6 (1984). We review a trial court s refusal to set default judgment for a clear abuse of discretion. aside a Id. at 359, 678 P.2d at 940. A. Rule 60(c) ¶14 Rule 60(c) provides various reasons for which a party may be relieved from a final judgment. based on excusable neglect, Friedman sought relief described in Rule 60(c)(1), and misconduct of an adverse party, described in Rule 60(c)(3). 1. Excusable Neglect ¶15 For purposes of Rule 60(c), excusable neglect is neglect such as might be the act of a reasonably prudent person under similar circumstances. at 940 (citation omitted). procedure is not carelessness. the assurances Id. of excusable Daou, 139 Ariz. at 359, 678 P.2d Ignorance of the rules of civil neglect. Id. Neither is mere A failure to act arising from reliance on an opposing however, may be excusable neglect. party or opposing counsel, Evans v. C & B Dev. Corp., 4 Ariz. App. 1, 2, 417 P.2d 372, 373 (1966). ¶16 According to Friedman, he acted as a reasonably prudent person in failing to file a timely answer because he tried diligently to meet the demands of the system as best he knew how. First, he alleges that he never received a copy of the complaint. On this record, the particulars of the service of process on Friedman are unclear. 7 The return hearing minute entry, however, reveals that Friedman was either served by an alternative method or waived service and had actual notice of the proceedings. Friedman has not contested the accuracy of the minute entry s summary of his statements. ¶17 Friedman next contends that his failure to file a timely answer was reasonable because at the return hearing, he informed the court and opposing counsel that in several weeks he would be traveling out of the country. We have no difficulty concluding that Friedman s decision to forgo filing an answer because of an upcoming trip was not the act of a reasonably prudent person. There is nothing in the record to suggest that Urban Endeavors or its counsel assured Friedman that default proceedings would not be initiated should he fail to file a timely answer, or that the filing of an application for entry of default would be delayed until Friedman returned from his trip. Urban Endeavors properly mailed a copy of the application and the related affidavit to the domestic mailing address that Friedman had provided.2 ¶18 We conclude that Friedman s failure to file a timely answer was not attributable to excusable neglect. 2 Notably, Friedman provided the Florida address immediately after the conclusion of the hearing at which he imparted the information about his upcoming foreign travel. Under the circumstances, Urban Endeavors had no reason to suspect that Friedman would not receive notice of mail sent to his Florida address while he was out of the country. 8 2. Misconduct of an Adverse Party ¶19 Friedman contends that opposing counsel s misconduct prevented him from attending the default hearing. According to Friedman s declaration, he did not receive notice of the default hearing from Urban Endeavors but learned of it by chance when he spoke to Sivak, and on the date of the hearing went with Sivak to the designated courtroom before the scheduled time.3 He saw opposing counsel and informed counsel that he was present and ready to appear but would wait with Sivak in the hall outside of the courtroom until their case was called.4 When counsel later exited the courtroom, he informed the defendants that he had already obtained a default judgment. ¶20 In an affidavit, Urban Endeavors counsel presented a different version of events. According to counsel, Friedman approached him approximately ten minutes before the hearing was scheduled to begin and asked the reason for the hearing. informed that a default hearing was about to take Friedman became visibly upset and left the courtroom. When place, Friedman did not ask counsel to notify him when the case was called and did not indicate that he would be waiting in the hallway. 3 The record on appeal reflects that Urban Endeavors mailed a notice of the default hearing to Friedman at his Florida address on January 8, 2009. 4 For the first time on appeal, Friedman contends that he expressly asked counsel to get him from the hallway at the appropriate time and counsel agreed. 9 Counsel assumed that Friedman had left the courthouse. Counsel acknowledged that when the case was called approximately forty minutes later, he did not volunteer to the court that he had seen Friedman and Sivak at the courthouse. Counsel stated that had the court inquired about the defendants whereabouts, he would have given a truthful account of his encounter whether in these with Friedman. ¶21 We need not decide circumstances counsel s failure to provide information about the defendants recent whereabouts 60(c)(3). Even demonstrated a amounted assuming substantial to misconduct did, pursuant to Rule Friedman has not to the that it and meritorious defense action. B. ¶22 Substantial and Meritorious Defense A showing of a meritorious defense requires a showing by affidavit, deposition or testimony of some facts which, if proved at the trial, would constitute a defense. United Imps. & Exps., Inc. v. Superior Court (Mullins), 134 Ariz. 43, 46, 653 P.2d 691, 694 (1982). ¶23 Friedman contends that he has a meritorious defense to Urban Endeavors complaint because the complaint was based on a lack of access, and access is now assured. He explains that by removing or reorienting parking spaces, he has created a new access way. Therefore, he contends, removal of the monument 10 sign from the area covered by the easement is unnecessary.5 He further explains that he has obtained a permit for the sign from the City of Phoenix. ¶24 Urban specific easement. amount to an Endeavors sought Friedman s assertion that to enforce proffered he is its rights in a does not compliance in defense with the easement it suggests merely that he has crafted an alternative to compliance. defense accepted. is We agree with Urban Endeavors that Friedman s akin to a settlement offer that has not been An unaccepted settlement offer does not constitute a meritorious defense. See Prell v. Amado, 2 Ariz. App. 35, 36, 406 P.2d 237, 238 (1965). ¶25 Because Friedman has not demonstrated a meritorious defense, the superior court did not abuse its discretion by refusing to set aside the default judgment against him. ATTORNEY S FEES AND COSTS ON APPEAL ¶26 appeal Urban Endeavors requests attorney s fees and costs on pursuant ARCAP 21. to A.R.S. § 12-341.01, A.R.S. § 12-342, and In our discretion, we decline to award fees and costs on appeal. 5 Friedman does not specifically obstructions located within the easement. 11 address the other CONCLUSION ¶27 For the reasons set forth above, we conclude that the superior court Friedman s did motion not to abuse set its aside discretion the default by denying judgment. Accordingly, we affirm. /S/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /S/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /S/ ____________________________________ DANIEL A. BARKER, Judge 12
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