McDaniel v. Banes

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

SIRIPORN MCDANIEL aka PON MCDANIEL, Plaintiff/Appellee,

v.

NELSON BANES, Defendant/Appellant.

No. 1 CA-CV 19-0687
FILED 07-23-2020

Appeal from the Superior Court in Coconino County
No. S0300CV201900277
The Honorable Ted Stuart Reed, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Law Office of Tevis Reich, PLLC, Flagstaff
By Tevis Reich
Counsel for Plaintiff/Appellee

Nelson Banes, Sedona
Defendant/Appellant

OPINION

Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
in which Judge Maria Elena Cruz and Judge David B. Gass joined.
 MCDANIEL v. BANES
Opinion of the Court

W I N T H R O P, Judge:

¶1 In this opinion, we consider the application of the four-year
statute of limitations in Arizona Revised Statutes (“A.R.S.”) section 12-
544(3) to a foreign judgment originally issued in 2010, but amended in 2019.
We hold the amended judgment is entitled to full faith and credit as a final
judgment and that the Arizona limitations period on domesticating and
enforcing that judgment did not begin to run until 2019. Accordingly, we
affirm the superior court’s order denying a motion to vacate the recorded
foreign judgment and denying a related motion to quash a writ of
garnishment for monies owed on that judgment. We also affirm the
superior court’s award of court costs in favor of the judgment creditor, but
vacate its award of attorneys’ fees.

FACTS AND PROCEDURAL HISTORY

¶2 In 2010, Siriporn McDaniel (“McDaniel”) and Nelson Banes
(“Banes”) stipulated to a settlement in a matter brought in the district court
of Larimer County, Colorado. They agreed to entry of a $20,000 judgment
against Banes, a payment plan, and a specific default interest rate. Later
that year, a court order approved the settlement but erroneously entered
judgment against Banes for $12,000, and specified that “[i]nterest shall not
run, as provided for in the Stipulation.”1 Banes apparently made three
required payments “and then disappeared.”

¶3 After learning Banes worked for a resort in Sedona, Arizona,
McDaniel’s attorney sent a letter to Banes in May 2018 demanding the
unpaid balance of the judgment. Banes responded by citing A.R.S. § 12-
544(3), Arizona’s four-year statute of limitations for registering a foreign
judgment, and he made no additional payments.

¶4 McDaniel then filed a motion in the Colorado court to amend
the 2010 judgment, identifying the error in the judgment amount and the
omission of the default interest rate as bases for relief to amend the
judgment under Colorado Rule of Civil Procedure (“C.R.C.P.”) 60(a). The
Colorado court granted the motion and entered an amended judgment in
March 2019, which specified the judgment amount of $20,000 and the
proper default interest rate.

1 The record does not reflect the reason for the discrepancies between
the stipulated agreement and the form of judgment originally entered by
the Colorado court. Nor does the record reflect when the discrepancies
were first noticed.

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 MCDANIEL v. BANES
Opinion of the Court

¶5 McDaniel domesticated and recorded the 2019 amended
Colorado judgment in Coconino County in May 2019, pursuant to
Arizona’s version of the Uniform Enforcement of Foreign Judgments Act
(“UEFJA”). See A.R.S. § 12-1702. In July 2019, McDaniel filed an application
for and obtained a writ of garnishment of Banes’ earnings. Banes objected
to the garnishment and requested a hearing. See A.R.S. § 12-1598.07. He
also moved to vacate the recorded judgment and quash the writ of
garnishment. Banes argued A.R.S. § 12-544(3) barred enforcement of the
2019 amended judgment because the amended judgment “relates back” to
the 2010 judgment and, given that relation back, he argued McDaniel’s
claims were time barred.

¶6 The superior court denied Banes’ motion and granted a
continuing lien against his non-exempt earnings. The court also awarded
McDaniel her attorneys’ fees and costs incurred in the garnishment
proceedings.

¶7 Banes timely appealed, and we have jurisdiction pursuant to
A.R.S. § 12-2101(A)(5)(c).

ANALYSIS

I. Colorado Judgment

¶8 Banes relies on In re Marriage of Buck, 60 P.3d 788, 790 (Colo.
App. 2002), to argue that, because the 2019 amended judgment “relates back
to the time of the filing of the initial judgment,” an Arizona court cannot
enforce it pursuant to the four-year statute of limitations for enforcing a
judgment “rendered without the state.” See A.R.S. § 12-544(3). His
argument, however, fails to distinguish between recognizing a foreign
judgment and enforcing a foreign judgment. See Nat’l Union Fire Ins. Co. v.
Greene, 195 Ariz. 105, 108, ¶ 12 (App. 1999).

¶9 The Full Faith and Credit Clause of the United States
Constitution “requires that a judgment validly rendered in one state’s court
be accorded the same validity and effect in every other court in the country
as it had in the state rendering it.” Lofts v. Superior Court (Perry), 140 Ariz.
407, 410 (1984). Thus, as a threshold matter, we must determine whether
the 2019 amended judgment should be afforded full faith and credit as a
final valid judgment. Only then can we reach Banes’ argument that
Arizona’s four-year statute of limitations precludes enforcement in
Arizona.

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 MCDANIEL v. BANES
Opinion of the Court

¶10 Whether a foreign judgment is entitled to full faith and credit
is a question of law we review de novo. Grynberg v. Shaffer, 216 Ariz. 256,
257, ¶ 5 (App. 2007). As the judgment debtor, Banes “has the burden to
prove the foreign judgment should not be given full faith and credit.”
Cristall v. Cristall, 225 Ariz. 591, 594, ¶ 16 (App. 2010).

¶11 The UEFJA defines a foreign judgment as “any judgment,
decree, or order of a court . . . which is entitled to full faith and credit in this
state.” A.R.S. § 12-1701. Although the validity of a foreign judgment may
be challenged on certain grounds, Oyakawa v. Gillett, 175 Ariz. 226, 228
(App. 1993), Banes concedes the 2019 amended judgment is valid.

¶12 Separately, a judgment is due full faith and credit only if the
judgment is considered final under the law of the state in which it was
issued. Jones v. Roach, 118 Ariz. 146, 149-50 (App. 1977). Thus, we look to
Colorado legal authorities to determine whether the 2019 amended
judgment is a final judgment subject to full faith and credit. In determining
finality, Colorado courts “look to the legal effect of the order rather than to
its form.” Suthers v. CB Servs. Corp., 252 P.3d 7, 10 (Colo. App. 2010). A
final judgment “is one that ends the particular action in which it is entered.”
Luster v. Brinkman, 250 P.3d 664, 667 (Colo. App. 2010).

¶13 The Colorado court issued the 2019 amended judgment in
response to McDaniel’s motion under C.R.C.P. 60(a), which permits the
court to correct “[c]lerical mistakes in judgments, orders, or other parts of
the record and errors therein arising from oversight or omission.”2 A party
may move for relief from an error pursuant to C.R.C.P. 60(a) at any time.
Diamond Back Servs., Inc. v. Willowbrook Water & Sanitation Dist., 961 P.2d
1134, 1137 (Colo. App. 1997). “No time requirement is imposed . . . because
the purpose of such a motion is limited to making the judgment speak the
truth as originally intended and the correction does not entail a relitigation
of matters” already decided. Id.; see also Kelley v. Bank Bldg. & Equip. Corp.
of Am., 453 F.2d 774, 778 (10th Cir. 1972) (“The change in judgment did little

2 Colorado law allows amendment even where attorney error caused
or contributed to the “clerical error.” See Town of De Beque v. Enewold, 606
P.2d 48, 54 (Colo. 1980) (defining “clerical error” to include “not only errors
made by the clerk in entering the judgment, but also those mistakes
apparent on the face of the record, whether made by the court or counsel
during the progress of the case, which cannot reasonably be attributed to
the exercise of judicial consideration or discretion” (quoting Bessemer
Irrigating Co. v. West Pueblo Ditch & Reservoir Co., 176 P. 302, 303 (Colo.
1918))).

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 MCDANIEL v. BANES
Opinion of the Court

more than accommodate the terms of . . . a prior agreement between the
plaintiffs and defendants . . . .”) (cited with approval by Reasoner v. Dist. Court,
594 P.2d 1060, 1061-62 (Colo. 1979)).

¶14 We find no reported Colorado case—and Banes cites none—
indicating that an amended judgment under C.R.C.P. 60(a) is not
considered a final judgment entitled to full faith and credit. Further,
Arizona authorities indicate that an amended judgment may be enforced as
a final judgment. See A.R.S. § 12-1701 (“‘Foreign judgment’ means any
judgment, decree, or order . . . which is entitled to full faith and credit in
this state.” (emphasis added)); Oyakawa, 175 Ariz. at 229, 231 (finding a
valid amended foreign judgment “entitled to full faith and credit in the
Arizona courts”). Accordingly, we conclude the 2019 amended judgment
is a final valid judgment for the purposes of the UEFJA and therefore is
entitled to full faith and credit.

¶15 Next, we turn to whether the four-year limitations period in
A.R.S. § 12-544(3) bars enforcement of the 2019 amended judgment. In
enforcing a foreign judgment, we look to Arizona law to determine whether
an enforcement action is timely. Nat’l Union Fire Ins. Co., 195 Ariz. at 108,
¶ 12. In Arizona, a foreign judgment becomes subject to full faith and credit
when it is final and enforceable in the state in which the judgment was
rendered. Grynberg, 216 Ariz. at 258, ¶ 12. Accordingly, the Arizona statute
of limitations on filing a foreign judgment is triggered when the foreign
judgment becomes enforceable. Id. at 258-59, ¶¶ 7, 14.

¶16 In arguing the statute of limitations was triggered by the 2010
judgment, Banes suggests that the 2019 amended judgment is
unenforceable in Colorado. Again, we turn to Colorado law to determine
whether the 2019 amended judgment would be enforceable in that state.

¶17 Banes cites no reported Colorado case, however, supporting
the premise that the 2019 amended judgment is unenforceable, and we find
none. Rather, the Colorado courts have signaled that a judgment amended
under C.R.C.P. 60(a) is indeed enforceable. In Brooks v. Jackson, the
defendants moved for entry of satisfaction of a judgment; the plaintiff then
moved to correct the judgment under C.R.C.P. 60(a), arguing the court
failed to include pretrial interest in the judgment as mandated by statute.
813 P.2d 847, 848 (Colo. App. 1991). On appeal, the court held that the
district court correctly amended the judgment to include the pretrial
interest because the rule allowed an amendment “at any time.” Id. at 849.
Although the court did not directly address whether the amended
judgment was enforceable, we find it unlikely that the court would approve

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 MCDANIEL v. BANES
Opinion of the Court

the amendment if the resulting amended judgment would be
unenforceable. Cf. Reasoner, 594 P.2d at 1061 (“[C.R.C.P. 60(a)] provides a
safety valve by which courts can avoid the stubborn enforcement of an
honestly mistaken judgment.”). We therefore conclude the 2019 amended
judgment is enforceable under Colorado law.

¶18 As for In re Marriage of Buck, that court held that a C.R.C.P.
60(a) order amending a judgment did not extend the time to appeal the
initial judgment. See 60 P.3d at 790. Banes argues that because the 2019
amended judgment here did not extend the time to appeal the 2010
judgment, the 2019 amended judgment cannot be enforced as timely. But
the Buck court also held the appellant’s “notice of appeal was timely filed
from the [amended order], and he may appeal from those orders.” Id.
Under the same logic, even though the four-year Arizona limitation period
on enforcing the 2010 judgment expired in 2014, it has not yet expired on
the 2019 amended judgment.

¶19 We hold that a valid and enforceable amended foreign
judgment issued pursuant to a rule permitting correction of clerical errors
or omissions may be considered a final judgment entitled to full faith and
credit, and, as such, may be domesticated and enforced under the UEFJA.
Having held the 2019 amended judgment is valid and enforceable under
Colorado law, we conclude the limitations period for registering and
enforcing that judgment in Arizona began to run in March 2019, not 2010.
The superior court therefore did not err in denying Banes’ motions to vacate
the recorded judgment and to quash the writ of garnishment.

¶20 Banes nevertheless argues that upholding the writ of
garnishment “open[s] a door for others with older foreign judgments
against Arizonans to find any trivial reason to correct and then try to
enforce the amended judgments here.” His apprehension of such dangers
is misplaced. As numerous courts have noted, procedural rules permitting
such corrections through amended judgments have limits. See, e.g.,
Garamendi v. Henin, 683 F.3d 1069, 1079-80 (9th Cir. 2012) (noting
application of Fed. R. Civ. P. 60(a) limited to instances “necessary for
enforcement”); M-11 Ltd. P’ship v. Gommard, 235 Ariz. 166, 170,
¶ 12 (App. 2014) (“[T]he superior court has jurisdiction to determine if a
clerical error exists [and] to correct any such error . . . .”); Drost v. Prof’l Bldg.
Serv. Corp., 375 N.E.2d 241, 244 (Ind. App. 1978) (“The reason for the rule is
that in the case of clearly demonstrable mechanical errors the interests of
fairness outweigh the interests of finality which attend the prior
adjudication.”); Erickson v. Olsen, 875 N.W.2d 535, 539 (N.D. 2016) (finding
“substantive changes granting additional relief” was beyond the scope of

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 MCDANIEL v. BANES
Opinion of the Court

similar rule). Contrary to Banes’ argument, our holding here will instead
further encourage all parties in litigation matters to act diligently to timely
ensure that court judgments and orders reflect the “expectations and
understanding of the court and the parties.” See Buck, 60 P.3d at 789.

II. Attorneys’ Fees and Costs

¶21 Banes argues the superior court erred in granting McDaniel
her attorneys’ fees and costs incurred in defending against his motions. The
court awarded fees under A.R.S. § 12-1598.07(E), which states that “[a]n
award of attorney fees shall not be assessed against nor is it chargeable to
the judgment debtor unless the judgment debtor is found to have objected
solely for the purpose of delay or to harass the judgment creditor.”

¶22 Garnishment proceedings are “purely statutory,” meaning
the governing statutes, including A.R.S. § 12-1598.07 “must be strictly
complied with.” Patrick v. Associated Drygoods Corp., 20 Ariz. App. 6, 8
(1973). Thus, we review the superior court’s award of attorneys’ fees in this
case de novo. McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, 74, ¶ 6
(App. 2009). Although Banes argues the court erred by awarding fees
without making express findings, A.R.S. § 12-1598.07(E) does not require
the superior court to make explicit findings on the record before assessing
attorneys’ fees. Cf. A.R.S. § 25-403(B) (requiring “specific findings on the
record” in issuing decision regarding best interests of a child).

¶23 Nevertheless, on this record, we find no evidence that Banes
objected to the writ of garnishment solely to delay the proceedings or to
harass McDaniel. Because A.R.S. § 12-1598.07(E) is the exclusive basis for a
fee award in a garnishment proceeding, the award of fees to McDaniel was
in error. See Ironwood Commons Cmty. Homeowners Ass’n v. Randall, 246 Ariz.
412, 417-18, ¶¶ 23-24 (App. 2019). Therefore, we vacate the award of
attorneys’ fees. The award of costs, however, is not similarly precluded
under A.R.S. § 12-1598.07(E), and we affirm the superior court’s order
awarding McDaniel’s costs in the garnishment proceedings.

¶24 McDaniel requests an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. §§ 12-1580(E) and -349. Although we are not
persuaded by Banes’ arguments on appeal regarding the foreign judgment,
he nevertheless presented a colorable position, and he prevails on the issue
of the superior court’s attorneys’ fee award. In our discretion we decline to
award McDaniel fees under either statute. And, because neither Banes nor
McDaniel is entirely successful on appeal, we decline to award costs to
either party.

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 MCDANIEL v. BANES
Opinion of the Court

CONCLUSION

¶25 For the foregoing reasons, we affirm the superior court’s
order denying Banes’ motion to vacate the recorded amended foreign
judgment and to quash a writ of garnishment, affirm the order awarding
McDaniel’s costs, and vacate the superior court’s fee award in favor of
McDaniel.

AMY M. WOOD • Clerk of the Court
FILED: JT

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