Anderson v. Dial

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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 DIVISION ONE FILED: 05-25-2010 PHILIP G. URRY,CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE PHYLLIS JEAN ANDERSON, ) ) Plaintiff/Appellee, ) ) v. ) ) HARLIN LEVIOD DIAL, ) ) Defendant/Appellant. ) __________________________________) 1 CA-CV 09-0563 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Mohave County Cause No. CV2008-0983 The Honorable Charles W. Gurtler, Judge AFFIRMED Law Offices of E.C. Sears PLLC By Elana C. Sears Attorneys for Plaintiff/Appellee Kingman Law Offices of Paul Lenkowsky By Paul Lenkowsky And Lindsay J. Popovich Attorneys for Defendant/Appellant Bullhead City O R O Z C O, Judge ¶1 court s Appellant, Harlin Leviod Dial (Dial), appeals the trial order denying his motion for relief from judgment pursuant to Arizona Rule of Civil Procedure 60(c). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On (Anderson), June filed 11, a 2008, complaint Appellee, for Phyllis partition parties thirteen-year cohabitation.1 Jean Anderson relating to the On June 24, 2008, attorney William L. filed a notice of appearance indicating he would be representing Dial. On October 1, 2008, Anderson filed an application for entry of default against Dial for failure to defend. A default hearing was held on December 3, 2008, at which the trial court confirmed its earlier entry of default.2 ¶3 During the pendency of the action, Dial attempted to contact his counsel, William L., on numerous occasions. Despite these efforts, William L. failed to keep Dial informed of the status of his case. As a result, Dial independently contacted the court s clerk s office and on February 2, 2009, he learned that a default judgment had been entered against him. successfully contacting William L. regarding the After default judgment, William L. told Dial that he would file a motion to set aside the default judgment. However, William L. failed to do so 1 Anderson subsequently amended her original complaint and filed a complaint for dissolution of domestic partnership by partition. 2 The clerk of the court originally entered a default against Dial on October 1, 2008. 2 and on May 6, 2009, William L. informed Dial that he should obtain new counsel. On May 18, 2009, Dial retained new counsel. On May 29, 2009, Dial filed a Rule 60(c) motion for relief from judgment. ¶4 Dial argued that he was entitled to relief from the default judgment due to excusable neglect under Rule 60(c)(1) of the Arizona Rules of Civil Procedure or alternatively, under Rule 60(c)(6). On August 20, 2009, the trial court denied Dial s Rule 60(c) Motion. establish excusable reasonably The trial court found that Dial failed to neglect prudent person because would he did under the not act as a circumstances. Additionally, the trial court found Dial failed to promptly seek Rule 60(c) relief because of an inexcusable delay in filing his Rule 60(c) Motion.3 Dial filed a timely notice of appeal and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 and -2101.B (2003). DISCUSSION ¶5 Dial raises one issue on appeal: whether the trial court abused its discretion in denying Dial s Rule 60(c) Motion. We review a trial court s denial of a motion for relief from judgment under Rule 60(c) for an abuse of discretion. Aileen H. Char Life Interest v. Maricopa County, 208 Ariz. 286, 298, ¶ 39, 3 Dial initially learned of the default judgment on February 2, 2009. His Rule 60(c) Motion was not filed until nearly four months later on May 29, 2009. 3 93 P.3d 486, 498 (2004). enjoy broad discretion Moreover, [a]lthough our trial courts when deciding whether to set aside judgments under Rule 60(c), that discretion is circumscribed by public policy favoring finality of judgments and termination of litigation. Panzino v. City of Phoenix, 196 Ariz. 442, 448, ¶ 19, 999 P.2d 198, 204 (2000) (citation omitted). ¶6 by Dial argues that the trial court abused its discretion not considering Dial s Rule specifically to Rule 60(c)(6). 60(c) argument relating Dial contends that the trial court only analyzed Dial s Rule 60(c) Motion under the terms of Rule 60(c)(1). However, a review of the record below, particularly Dial s Rule 60(c) Motion, indicates Dial failed to develop his Rule 60(c)(6) argument below and has therefore waived it. See Stulce v. Salt River Project Agric. Improvement and Power Dist., 197 Ariz. 87, 94, ¶ 27, 3 P.3d 1007, 1014 (App. 1999); Ariz. R. Civ. P. 7.1(a) ( All motions made before or after trial shall minimum, the be accompanied precise legal by a memorandum points, statutes indicating, and as a authorities relied on. ) ¶7 Although Dial asserted that he was entitled to relief under Rule 60(c)(6), his Rule 60(c) Motion lacked any support for this contention. Rule 60(c) states in pertinent part: On motion and upon such terms as are just the court may relieve a party or a party s legal representative from a final judgment, order or proceeding for the 4 following reasons: (1) mistake, inadvertence, surprise or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment. However, it is well established that to obtain relief under Rule 60(c)(6), [the circumstances moving of party] hardship or must show injustice, extraordinary other than or in addition to those circumstances set out in clauses (1) through (5). Gorman v. City of Phoenix, 152 Ariz. 179, 182, 731 P.2d 74, 77 (1987) (citation omitted). In this case, Dial s Rule 60(c) Motion suggested only that the facts established excusable neglect, as required by Rule 60(c)(1). indicated that extraordinary excusable neglect existed. exclusively argument to relief relating to circumstances other than Because excusable neglect relates under Rule His motion in no way Rule 60(c)(6) 60(c)(1), was we find inadequate, Dial s devoid authority or reasoning, and thus not preserved on appeal. of See Stulce, 197 Ariz. at 94, ¶ 28, 3 P.3d at 1014. ¶8 Nevertheless, assuming Dial adequately developed a Rule 60(c)(6) argument, the trial court appropriately found that Dial failed to timely seek relief. Rule 60(c) also requires that the motion be filed within a reasonable time. In other words, a defaulted defendant must show that it acted promptly in seeking relief from the entry of default. Hilgeman v. Am. Mortgage Sec., Inc., 196 Ariz. 215, 220, ¶ 15, 994 P.2d 1030, 1035 (App. 2000). Further, [t]he trial court has discretion to determine 5 whether the reasonable. delay Id. in filing the motion to set aside was In this case, we cannot say the trial court abused its discretion. ¶9 The trial court found the delay in filing the Rule 60(c) Motion to be inexcusable. The trial court stated, [d]espite [Dial s] knowledge the attorney had not acted timely or properly in the past, [Dial] relied on the attorney s representation that a [Rule 60(c) motion] would be timely filed. [Dial] then sat on his hands for several weeks only to go through the same process with the attorney again. Moreover, it took Dial nearly four months to file his Rule 60(c) Motion after receiving notice of the entry of default. We cannot say the trial court abused its discretion in light of the nearly fourmonth delay and the fact that Dial relied on counsel he knew had previously abandoned his case.4 4 Dial also argues the trial court should have held an evidentiary hearing to determine whether Dial had a meritorious defense in the matter. Almarez v. Super. Ct., 146 Ariz. 189, 190, 704 P.2d 830, 831 (App. 1985) ( A party seeking relief from a default judgment . . . must demonstrate . . . that it had a substantial and meritorious defense to the action.). Because the trial court appropriately found Dial failed to promptly seek relief, we need not consider this issue. Similarly, we need not consider Dial s argument that he in fact did have a meritorious defense to the action. 6 CONCLUSION ¶10 For the reasons previously stated, we affirm the trial court s order denying Dial s Rule 60(c) Motion. /S/ ___________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ____________________________________ PATRICK IRVINE, Presiding Judge /S/ ____________________________________ PHILIP HALL, Judge 7

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