Melbye v. Dennis, No. 2 CA-CV 2023-0209 (App. Div. II, September 9, 2024) (J. Eckerstrom) https://www.appeals2.az.gov/decisions/CV20230209Opinion.pdf

FAILURE TO TIMELY ANSWER AMENDED COMPLAINT IN FACE OF ENTRY OF DEFAULT SUPPORTS ENTRY OF DEFAULT JUDGMENT/DEFENDANT MAY APPEAL FROM DEFAULT JUDGMENT EVEN IF NOT PRECEDED BY A MOTION FOR RELIEF FROM THE JUDGMENT

Plaintiff sued defendant alleging exploitation of a vulnerable adult under A.R.S. § 46-456(A) stating that defendant enabled plaintiff's gambling addiction and induced plaintiff to quitclaim deed her home to defendant.

Defendant filed a pro se “Motion to Dismiss” plaintiff's amended complaint, which stated defendant was “denying all proceeding allegations.” The trial court found this motion to be a Rule 12(b)(6) motion to dismiss for failure to state a claim.  The trial court denied the motion to dismiss. Defendant did not file a timely answer to the amended complaint thereafter. Plaintiff then filed an application and declaration for entry of default which became effective 10 days later when defendant failed to respond to the application. Plaintiff then requested a default hearing. 

Defendant then filed an answer to the amended complaint and moved to set aside the default. The trial court denied defendant's motion to set aside finding it was not brought timely, failed to allege the failure to answer the amended complaint was due to mistake, inadvertence, surprise or excusable neglect and failed to set forth a meritorious defense.  Rules 55(c), 60(b), Ariz. R. Civ. P. Defendant then filed a motion for reconsideration which argued the “Motion to Dismiss” should be treated as an answer.  This motion was also denied. The court expressly found the initial “Motion to Dismiss” filed by defendant was not an answer to the complaint and that the 7-month delay in attempting to remedy the failure to timely answer was unjustified.  The trial court conducted a default hearing and awarded plaintiff $65,000 in damages and ruled the quitclaim deed void granting a permanent injunction against defendant from asserting any right to plaintiff's property. Defendant appealed and the Arizona Court of Appeals affirmed the trial court.

The “general rule” that there is no appeal from a default judgment and that the defaulting party's “primary remedy” is a motion for relief from judgment, is a prudential doctrine, not a jurisdictional bar. The court of appeals has jurisdiction to hear defendant's appeal. 

 [Defendant's] December 2021 filing was not an answer.

As an initial matter, it was not designated an answer, but rather a “motion

to dismiss case.” See Ariz. R. Civ. P. 7, 10(a). Further, the filing was not—

as Dennis contends—merely a miscaptioned “Answer” whose body reflects

its true nature. The filing did not state Dennis's “defenses to each claim

asserted against [her]” or “fairly respond to the substance” of any of

[plaintiff's] eighty-four allegations. Ariz. R. Civ. P. 8(c)(1)(A), (2). Instead, in

terms of substantive response, it stated only that this case was “a repeat” of

another case that had already been litigated. Thus, by its own terms,

[defendant's] December 2021 filing was a “motion to dismiss” for failure to state

a claim on res judicata grounds. By rule, a motion asserting that defense was

required in this case to be “made before pleading.” Ariz. R. Civ. P. 12(b)(6).

That is precisely what [defendant] did by filing her properly titled motion to

dismiss in December 2021, within twenty days after being served with the

amended complaint. See Ariz. R. Civ. P. 12(a)(1)(A)(i). However, she then

failed to timely file an answer after the trial court denied her motion or after

[plaintiff] filed his application for entry of default. See Ariz. R. Civ. P. 12(a)(2)(A), 55(a)(5)