Cuen v. Cuen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TERESA CUEN, Plaintiff/Appellee,

v.

PEDRO S. CUEN, Defendant/Appellant.

No. 1 CA-CV 20-0308
FILED 12-29-2020

Appeal from the Superior Court in Maricopa County
No. CV2018-052199
The Honorable Gary L. Popham Jr., Commissioner

VACATED AND REMANDED

COUNSEL

Hymson Goldstein & Pantiliat PLLC, Scottsdale
By John L. Lohr, Jr.
Counsel for Plaintiff/Appellee

Pedro S. Cuen, Phoenix
Defendant/Appellant

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.
 CUEN v. CUEN
Decision of the Court

B A I L E Y, Judge:

¶1 Pedro Cuen appeals the superior court’s entry of a default
judgment in favor of Teresa Cuen. 1 Because this court had not yet issued
its mandate in Pedro’s prior appeal, however, the superior court lacked
jurisdiction to act, and the default judgment is void.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2018, Teresa filed a complaint against Pedro seeking
to quiet title to real property formerly owned by her brother (Pedro’s
father), who is now deceased. Pedro initially answered the complaint, but
his answer was stricken as a discovery sanction and default entered against
him. The superior court later entered a default judgment against Pedro,
quieting title in favor of Teresa, and denied Pedro’s post-judgment motion
to set aside. Pedro appealed, and this court upheld the sanction but
vacated the default judgment because Pedro did not receive adequate
notice of the default judgment hearing. See Cuen v. Cuen (“Cuen I”), No. 1
CA-CV 19-0105, 2020 WL 1488748, at *2–3, 6, ¶¶ 6, 10–11, 21 (Ariz. App.
Mar. 25, 2020) (mem. decision).

¶3 A few days after our memorandum decision was filed, Teresa
moved for a default hearing in superior court. The court apparently held
the default hearing and again issued a default judgment against Pedro on
April 28, 2020. This court’s mandate issued three days later on May 1, 2020.

DISCUSSION

¶4 “An appellate court retains jurisdiction of an appeal until it
issues the mandate.” ARCAP 24(a); see also Borrow v. El Dorado Lodge, Inc.,
75 Ariz. 218, 220 (1953) (“[T]he appellate court’s judgment or order becomes
effective . . . the date of issuance of the mandate.”). And while an appeal is
pending, the superior court loses jurisdiction except as to orders in
furtherance of the appeal or matters unrelated to the appeal. In re Marriage
of Flores, 231 Ariz. 18, 21, ¶ 10 (App. 2012). Thus, until the mandate issues,
the superior court may act only in a way that “cannot negate the decision
in a pending appeal or frustrate the appeal process,” and it “may not render
any decision that would defeat or usurp an appellate court’s jurisdiction of
a case on appeal.” State v. O’Connor, 171 Ariz. 19, 21–22 (App. 1992).

1For clarity and brevity, we hereinafter refer to the parties by their first
name.

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 CUEN v. CUEN
Decision of the Court

¶5 Here, the superior court went forward prematurely and in
fact rendered judgment before this court’s mandate remanded the case and
revested jurisdiction in that court. Doing so risked fragmented and
conflicting proceedings in the trial and appellate courts given the possibility
of a motion for reconsideration, petition for review, or other amendment
before the Cuen I decision became final. And although the superior court’s
actions appear designed to comply with our decision in Cuen I, those
actions in fact negated the appellate ruling by addressing the error
corrected in Cuen I (in effect mooting that portion of the decision) before
Cuen I became final.

¶6 Accordingly, we vacate the April 28, 2020 default judgment
as void for want of jurisdiction and remand for proceedings consistent with
Cuen I as well as this decision. The superior court may consider any
previously filed substantive motions and any newly submitted motions
regarding the default hearing or the validity of the judgment.

¶7 Teresa seeks her attorneys’ fees and costs pursuant to A.R.S.
§§ 12–341.01(C) and –349, arguing Pedro’s appeal was frivolous, filed solely
for the purpose of delay, and without substantial justification. Because we
vacate the default judgment, we do not award fees or costs.

CONCLUSION

¶8 We vacate the trial court’s entry of a default judgment and
remand for proceedings consistent with this decision.

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

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