Parks v. Rawson

657 P.2d 908, 134 Ariz. 495, 1982 Ariz. App. LEXIS 608
CourtCourt of Appeals of Arizona
DecidedOctober 20, 1982
DocketNo. 2 CA-CIV 4237
StatusPublished

This text of 657 P.2d 908 (Parks v. Rawson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parks v. Rawson, 657 P.2d 908, 134 Ariz. 495, 1982 Ariz. App. LEXIS 608 (Ark. Ct. App. 1982).

Opinion

OPINION

BIRDSALL, Judge.

This is an appeal from an order denying the appellant’s motion, under Rule 60(c), Arizona Rules of Civil Procedure, 16 A.R.S., for relief from a default judgment obtained by the appellee in June of 1979. The trial court ruled that the motion was untimely and that no excusable neglect was shown. We affirm.

The events underlying this lawsuit began in 1976, when the appellee became a victim of an advance loan fee scheme1 operated by [497]*497a Utah corporation, Macro-Dynamics, Inc. The appellant was an officer, director and incorporator of Macro-Dynamics.

Proceedings began with the appellee’s complaint against Macro-Dynamics, alleging, inter alia, statutory consumer fraud and breach of contract. An amended complaint added the appellant and others as individual defendants. A Tucson attorney acting on behalf of all defendants filed a motion pursuant to Rule 12(b), Arizona Rules of Civil Procedure, 16 A.R.S., alleging lack of personal jurisdiction over the appellant and failure to state a claim. The resulting judgment of dismissal was reversed by this court in Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 591 P.2d 1005 (App.1979). In that opinion we held that the corporation’s fraudulent activity in this state, as shown by the complaint and supplemental facts, was contact sufficient to permit Arizona courts to exercise jurisdiction over it and its directors, and that the trial court had erred in denying leave to file a second amended complaint.

Acting in accordance with our mandate, the trial court permitted filing of the second amended complaint on remand. The default judgment, including $30,000 punitive damages, was entered against the appellant, and the appellee began enforcement proceedings in the United States District Court for the District of Utah. In those proceedings the appellant disputed the validity of the Arizona judgment, claiming that the Arizona court had lacked personal jurisdiction over him because he had not been properly served with process in the action. In a four-page order denying the appellant’s motion to dismiss, the federal court ruled that the defense of insufficient service of process had been waived by its absence from the original Rule 12(b) motion mentioned above. See Rules 12(h) and 12(i)(l), Arizona Rules of Civil Procedure, 16 A.R.S. As to the appellant, the jurisdictional claim in that motion was based entirely upon “insufficient contacts.” Sufficiency of service was disputed only as to the corporation.

Failing in this collateral attack upon the judgment, the appellant filed a motion for relief in the trial court. In support of that motion he filed an affidavit alleging that he had never had any dealings with the appellee or directed or controlled any person or entity that did have such dealings; that he had “ceased all involvement” with Macro-Dynamics about two months after its incorporation; 2 and that default had resulted from his mistaken belief that the appellee’s claim was being settled. The motion was denied in an unsigned minute entry. Eighteen months later, the appellant renewed the motion in what he designated a “supplementary motion” accompanied by another affidavit by him, amplifying his non-involvement in Macro-Dynamics and its fraudulent activities, and his alleged ignorance of his personal stake in the outcome of the case. The same affidavit alleged that the attorney who had filed the Rule 12(b) motion had acted without the appellant’s knowledge or authority, and that the appellant had signed various documents in the case (including an affidavit submitted with the Rule 12 motion and a pro se brief defending the dismissal judgment in this court) without knowledge of their significance. The motion was again denied, and a final order entered.

In related arguments the appellant asserts that the default judgment was void, or alternatively, that the trial court abused its discretion by refusing to vacate the judgment, because the appellant was never served with process and because the Tucson attorney who appeared on his behalf and filed the Rule 12 motion did so without his knowledge or authorization. He also contends, despite our earlier holding in this case, that the judgment was entered without in personam jurisdiction because “the record shows incontrovertably” that he had no contacts with the state and did not use [498]*498the corporation to perpetrate fraud in Arizona.

Since these arguments were addressed, at least in part, in the federal court proceeding, the appellee contends that their consideration is foreclosed by the doctrine of res judicata. In a similar case, however, Division One of this court has stated:

“In Arizona, however, neither the doctrine of res judicata nor full faith and credit flowing from recognition of a judgment by a sister state is available to bar the court which originally issued the judgment from subsequently modifying or reversing that judgment in accordance with the established laws and procedure of that original jurisdiction.” Tarnoff v. Jones, 17 Ariz.App. 240, 244, 497 P.2d 60, 64 (1972).

See Also Porter v. Porter, 101 Ariz. 131, 416 P.2d 564 (1966); Rule 60(d), Arizona Rules of Civil Procedure, 16 A.R.S. (recognizing that judgments of Arizona courts on foreign judgments will not be conclusive in the jurisdiction of origin). We therefore reject the appellee’s res judicata argument and turn to a consideration of the individual arguments.

The appellant first argues that the judgment is void because the attorney who filed the Rule 12(b) motion on his behalf appeared without his knowledge or authorization. He contends, therefore, that he is not bound by that attorney’s failure to include the defense of insufficient service in the motion to dismiss.

This entire argument assumes the truth of the allegation that the attorney appeared without authorization. Despite the appellee’s failure to refute that allegation with direct evidence of an express contract and personal authorization by the appellant, the trial court was not bound to believe this unlikely factual claim. There is no indication that this allegation of unauthorized appearance was ever made before the federal court, nor has the appellant explained why it was not presented to the trial court until he filed his final “supplemental” motion. The attorney in question had sworn by affidavit that he did represent the appellant, and had submitted the appellant’s own affidavit in support of the Rule 12(b) motion. Even though the latter affidavit began with the words “COMES NOW J. MURRAY RAWSON, one of the defendants in the above entitled matter,” (emphasis supplied) the appellant now contends that he was duped into signing without knowledge or appreciation of his status as a defendant. He offers a similar “explanation” for the appearance of his signature on the pro se brief submitted in defense of the judgment obtained by his “unauthorized” attorney. The trial court must certainly have wondered, as we do, at the appellant’s disturbing tendency to “remember” new and significant facts after every legal setback.

The judgment was presumptively valid, and the appellant’s burden was to prove facts that would show it to be invalid. See Sloan v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anthony F. McDonald v. Frank A. Hall
579 F.2d 120 (First Circuit, 1978)
Sloan v. Florida-Vanderbilt Development Corp.
529 P.2d 726 (Court of Appeals of Arizona, 1974)
Parks v. MacRo-dynamics, Inc.
591 P.2d 1005 (Court of Appeals of Arizona, 1979)
Porter v. Porter
416 P.2d 564 (Arizona Supreme Court, 1966)
Tarnoff v. Jones
497 P.2d 60 (Court of Appeals of Arizona, 1972)
Nolen v. Fitzharris
450 F.2d 958 (Ninth Circuit, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
657 P.2d 908, 134 Ariz. 495, 1982 Ariz. App. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parks-v-rawson-arizctapp-1982.