Young v. Orange

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TRACY YOUNG, Plaintiff/Appellant,

v.

ORANGE COAST TITLE COMPANY; INTEGRATED LENDER
SERVICES, a Delaware corporation; CAPITAL ONE FSB,
Defendants/Appellees.

No. 1 CA-CV 15-0539
FILED 5-31-2016

Appeal from the Superior Court in Maricopa County
No. CV 2014-055008
The Honorable John R. Hannah Jr., Judge

AFFIRMED

COUNSEL

Tracy Young, Scottsdale
Plaintiff/Appellant

Coppersmith Brockelman, PLC, Phoenix
By John E. DeWulf, D. Andrew Gaona
Counsel for Defendants/Appellees Orange Coast Title Company and Integrated
Lender Services
 YOUNG v. ORANGE et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Donn Kessler joined.

D O W N I E, Judge:

¶1 Tracy Young appeals the dismissal of his complaint against
Orange Coast Title Company and Integrated Lender Services (collectively,
“Defendants”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Young sued Defendants after Orange Coast recorded a
substitution of trustee and notice of trustee sale for Young’s Scottsdale
residence.1 Young alleged Orange Coast was not the trustee and was not
authorized to record the documents. Count one of the complaint alleged
that Defendants were asserting an interest in the property and had
recorded false documents in violation of Arizona Revised Statutes
(“A.R.S.”) section 33-420. Count two alleged “breach of trustee[’]s
obligation.”

¶3 Defendants moved to dismiss for failure to state a claim
upon which relief could be granted under Arizona Rule of Civil Procedure
(“Rule”) 12(b)(6). Young did not file a response, and Defendants moved
for summary disposition. See Ariz. R. Civ. P. 7.1(b) (Failure to respond
“may be deemed a consent to the denial or granting of the motion, and the
court may dispose of the motion summarily.”). The trial court granted the
motion to dismiss and awarded Defendants attorneys’ fees.

¶4 Young filed a “motion to vacate judgment [for] lack of
proper service” and/or “objection to dismissal,” citing Rule 60(c). Young
claimed he was “unaware of ANY filings including the Motion to Dismiss,
Summary Disposition, and Attorney’s fees . . . .” The trial court denied
his motion. Young timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and –2101(A)(1).

1 Young also sued Capital One, but it is not a party on appeal, and
the judgment at issue included a certification under Rule 54(b).

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 YOUNG v. ORANGE et al.
Decision of the Court

DISCUSSION

¶5 Young contends the trial court erred by denying his Rule
60(c) motion because he had no notice of the motion to dismiss until after
it was granted. He asserts that any neglect in failing to file a timely
response was excusable, entitling him to relief under Rule 60(c).

¶6 We review a trial court’s ruling on a Rule 60(c) motion for an
abuse of discretion and will reverse only if there is “no evidence to
support its conclusion or the reasons given by the court are clearly
untenable, legally incorrect, or amount to a denial of justice.”
Searchtoppers.com, L.L.C. v. TrustCash LLC, 231 Ariz. 236, 241, ¶ 20 (App.
2012). To obtain relief under Rule 60(c)(1), a party must establish: (1)
mistake, inadvertence, surprise or excusable neglect; (2) relief was
promptly sought; and (3) a meritorious claim. See Copeland v. Ariz.
Veterans Mem’l Coliseum & Exposition Ctr., 176 Ariz. 86, 89 (App. 1993).

¶7 Even accepting at face value Young’s assertion that he had
no notice of the motion to dismiss until after it was granted, he
nevertheless failed to establish entitlement to relief. Neither in the trial
court nor on appeal has Young made any effort to demonstrate the
substantive viability of his claims. See Cal X-Tra v. W.V.S.V. Holdings,
L.L.C., 229 Ariz. 377, 393, ¶ 53 (App. 2012) (To obtain relief from
judgment, movant “must demonstrate the existence of a prima facie
defense to the entry of that judgment.”). Although Defendants pointed
out Young’s failure to substantively challenge the bases for their motion to
dismiss when they responded to the motion to vacate, Young failed to
even mention the merits of his claims in his reply. Under these
circumstances, the trial court did not err in denying the motion to vacate.2

2 For this same reason, Young is not entitled to relief under Rule
60(c)(6). Moreover, under Rule 60(c)(6), the reason offered for setting
aside the judgment cannot be one of the reasons listed in the five
preceding clauses. Young’s arguments under both provisions of Rule
60(c) are the same.

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 YOUNG v. ORANGE et al.
Decision of the Court

CONCLUSION

¶8 We affirm the judgment of the superior court. We award
Defendants a reasonable sum of attorneys’ fees incurred on appeal
pursuant to A.R.S. § 33-807(E), as well as taxable costs, contingent on
compliance with Arizona Rule of Civil Appellate Procedure 21.

:AA

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