STEWART v. ARIZONA BANK

Opinion

NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of the Estate of:

LYNDA L. STEWART, Deceased.

No. 1 CA-CV 25-0748 PB

FILED 09-15-2026

Appeal from the Superior Court in Maricopa County No. PB2010-001031

The Honorable Dean M. Fink, Judge Retired

AFFIRMED

COUNSEL

Jones Skelton & Hochuli, PLC, Phoenix By Eileen Dennis GilBride Co-Counsel for Respondent/Appellee

McNemar Law Offices, PC, Phoenix By T. Troy McNemar Co-Counsel for Respondent/Appellee

Aaron Stewart, Tacoma, WA Petitioner/Appellant

Slade A. Stewart, Scottsdale Respondent/Appellee

Sean Stewart, Bellevue, WA Respondent/Appellee Trustee

STEWART v. ARIZONA BANK, et al.

Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge D. Steven Williams and Judge Anni Hill Foster joined.

W E I N Z W E I G, Vice Chief Judge:

¶1 Aaron Stewart appeals the denial of his motion to set aside a final judgment. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Stewart is a beneficiary of the Lynda Stewart Trust (“Trust”), which his mother created in 2004. Arizona Bank & Trust (“Bank”) serves as its co-trustee.

¶3 In October 2024, the Bank petitioned the superior court to approve a final accounting and distribute what remained in the Trust. Before serving the interested parties, the Bank emailed Stewart’s last known attorney of record to confirm he still represented Stewart. That attorney never answered, so the Bank mailed a copy of the petition and notice of hearing to Stewart’s last known address by certified mail on November 5, 2024.

¶4 The superior court held a hearing in December 2024. It found that all parties had notice. Stewart did not appear at the hearing. Without objection, the court approved the accounting, authorized final distributions, discharged the Bank of liability and closed the Trust.

¶5 Five months later, Stewart moved to set aside the order. He argued the judgment was void, that his default was the result of excusable neglect and that extraordinary circumstances justified relief. See Ariz. R. Civ. P. 60(b)(1), (4), (6). His arguments hinged on three things: late notice of the hearing, defective service and an inaccurate accounting.

¶6 Following oral argument, the superior court denied the motion. It found that Stewart had actual notice of the proceeding and that his former counsel no longer represented him.

¶7 Stewart timely appealed. We have jurisdiction. A.R.S. § 12- 2101(A)(2).

3

STEWART v. ARIZONA BANK, et al.

Decision of the Court

DISCUSSION

¶8 Stewart argues the superior court should have set aside the judgment on three grounds: the judgment was void, his default was excusable neglect and extraordinary circumstances justified relief. See Ariz. R. Civ. P. 60(b)(1), (4), (6).1

¶9 We review the excusable-neglect and extraordinarycircumstances arguments for an abuse of discretion, Gonzalez v. Nguyen, 243 Ariz. 531, 533, ¶ 8 (2018), and we affirm unless undisputed facts require a different result, City of Phx. v. Geyler, 144 Ariz. 323, 330 (1985). We review the void-judgment argument de novo. Sycamore Hills Ests. Homeowners Ass’n v. Zablotny, 250 Ariz. 479, 482, ¶ 6 (App. 2021).

I. Void Judgment.

¶10 Stewart argues the judgment is void and should be set aside because the Bank did not serve his former attorney George Paul (“Paul”) and gave him untimely notice, which meant the superior court lacked jurisdiction. Ariz. R. Civ. P. 60(b)(4). Service of process is required for a court to obtain jurisdiction over a party, and a judgment entered without jurisdiction is void. Ruffino v. Lokosky, 245 Ariz. 165, 168, ¶ 10 (App. 2018).

¶11 We are not persuaded. The superior court acquired personal jurisdiction over Stewart the moment he accepted his first distribution from the Trust. A.R.S. § 14-10202(B) (“By accepting a distribution from [the] trust, the recipient submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust.”).

¶12 Besides that, Stewart’s former attorney no longer represented him. Paul appeared for Stewart in 2011, left his firm in 2013 and never represented Stewart again. Nobody ever filed a substitution or a withdrawal. That gap in representation does not revive a relationship that ended over a decade earlier. Given that, Arizona law required only that the Bank mail the petition and hearing notice to Stewart’s last known address

1 Stewart also argues the accounting was inaccurate and the Bank should not have been relieved of its trustee duties. He never appealed that order, so those arguments are not before us. Laveen Meadows Homeowners Ass’n v. Mejia, 249 Ariz. 81, 83, ¶ 6 (App. 2020) (“The scope of an appeal from a denial of a Rule 60 motion is restricted to the questions raised by the motion to set aside and does not extend to a review of whether the trial court was substantively correct in entering the judgment from which relief was sought.” (citation omitted)).

4

STEWART v. ARIZONA BANK, et al.

Decision of the Court

more than fourteen days before the hearing. See A.R.S. §§ 14-1401(A)(1), -10109(A). The Bank did so. Service was proper. See Ariz. R. Civ. P. 5(c)(2)(C).

¶13 Stewart separately argues the same notice failures violate due process. Due process requires notice “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). He argues notice should have gone to his former attorney instead of him, he personally received the papers only after the hearing and the letter he received listed the wrong date.

¶14 We are not persuaded. First, former attorney Paul had not represented Stewart since 2013. Supra ¶ 12. The Bank emailed Paul and got no answer. And in 2023, Stewart himself asked the Bank to send his statements directly to him instead of to Paul. Stewart never explains how notice to a lawyer who no longer represented him would have reached him more reliably than notice sent to the address he provided. The Bank provided reasonable notice. Second, due process does not require receipt of actual notice, only notice reasonably calculated to reach the interested party—the same standard that made service proper. Supra ¶¶ 12–13. Third, although one letter misstated the hearing date, the notice the Bank sent with the petition stated the correct date.

II. Excusable Neglect.

¶15 Stewart argues in the alternative that his default was the result of excusable neglect. To set aside a judgment on that ground, a movant must show mistake, inadvertence, surprise or excusable neglect; prompt action in seeking relief; and a meritorious defense. Ariz. R. Civ. P. 60(b)(1); Addison v. Cienega, Ltd., 146 Ariz. 322, 323 (App. 1985); Daou v. Harris, 139 Ariz. 353, 358–59 (1984). Neglect is excusable when it is the kind of mistake a reasonably prudent person might make under the same circumstances. Geyler, 144 Ariz. at 331.

¶16 This argument fails because Stewart cannot show he promptly sought relief. He received the petition two weeks after the hearing but waited five more months to seek relief. He does not explain that delay. We do not presume an unexplained delay is prompt action, and the superior court properly denied relief on that basis alone. United Imps. & Exps., Inc. v. Superior Court, 134 Ariz. 43, 46 (1982), abrogated on other grounds by Gonzalez, 243 Ariz. at 534, ¶ 13.

5

STEWART v. ARIZONA BANK, et al.

Decision of the Court

¶17 Even if Stewart had acted promptly, his neglect was not excusable. He only restates his notice argument: that the Bank failed to make sure he received the petition before the hearing. As explained above, however, the Bank had no such duty. Supra ¶ 14; see also A.R.S. §§ 14- 1401(A)(1), -10109(A); Columbia Grp., Inc. v. Jackson, 151 Ariz. 76, 78–79 (1986). That leaves only Stewart’s own inaction, and it was not excusable. A beneficiary who fails to check mail sent to the address he provided has shown only “mere carelessness” or “unexplained neglect,” neither of which qualifies as excusable neglect. Daou, 139 Ariz. at 359; Richas v. Superior Court, 133 Ariz. 512, 515 (1982). We find no abuse of discretion.

III. Extraordinary Hardship or Injustice.

¶18 Stewart likewise argues that improper notice and service justify relief as extraordinary circumstances. Rule 60(b)(6) authorizes a court to set aside a judgment for “any other reason justifying relief.” Ariz. R. Civ. P. 60(b)(6). A movant seeking that relief must show extraordinary circumstances of hardship or injustice and a reason distinct from the grounds covered by the rule’s other five clauses. Hilgeman v. Am. Mortg. Sec., Inc., 196 Ariz. 215, 220, ¶ 15 (App. 2000). Stewart’s argument fails because he only parrots the arguments rejected above. We find no abuse of discretion.

CONCLUSION

¶19 We affirm. The Bank seeks its attorney fees under A.R.S. § 14-11004. We grant that request in our discretion. As the prevailing party, the Bank is also entitled to its taxable costs upon compliance with ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court FILED: JR