Mladick v. Berry

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JENNIFER MLADICK, Plaintiff/Appellee,

v.

JAVAN BERRY, Defendant/Appellant.

No. 1 CA-CV 23-0324
FILED 12-17-2024

Appeal from the Superior Court in Maricopa County
No. CV 2022-006033
The Honorable Richard F. Albrecht, Judge Pro Tempore

VACATED AND REMANDED

APPEARANCES

Rudolph & Hammond, LLC, Scottsdale
By Kurt E. Hammond
Counsel for Plaintiff/Appellee

Javan Berry, Eloy
Defendant/Appellant
 MLADICK v. BERRY
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Michael J. Brown and Judge Daniel J. Kiley joined.

W I L L I A M S, Judge:

¶1 After the superior court entered a civil default judgment
against Javan Berry, he moved to set it aside. The court denied his motion
and Berry appealed. For the following reasons, we vacate the default
judgment and remand.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2021, Berry was convicted of manslaughter and sentenced
to 10.5 years imprisonment. The following year, the victim’s surviving
spouse, Jennifer Mladick, sued Berry in the superior court for the wrongful
death of her husband. A process server filed a certificate of service with the
clerk of the court avowing he personally served Berry the summons and
complaint at the correctional facility where Berry is imprisoned.

¶3 When Berry failed to timely answer the complaint, Mladick
applied for a default judgment against him. Mladick filed her application
on October 14, 2022. Seven days later, on October 21, 2022, Berry filed a
response objecting to Mladick’s application for default. In it, Berry alleged
he was never served the summons or complaint and that Mladick’s
application for entry of default was the first Berry learned of the lawsuit.
The court scheduled a default hearing for December 8th.

¶4 It is not clear from the record who participated in the default
hearing, what evidence, if any, was presented, or what findings the court
expressly made at the hearing. And nothing in the record confirms the court
was aware of Berry’s written objection to Mladick’s application for default
since the court never acknowledged or referenced it. In any event, Mladick
provided the court with a form of judgment, which the court endorsed.
Included in the court’s judgment were findings that Berry (1) “was duly
served with a copy of the Summons and Complaint,” and (2) had “failed to
answer or to otherwise appear” in the matter. The court awarded Mladick
five million dollars in damages.

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 MLADICK v. BERRY
Decision of the Court

¶5 Berry moved the court to set aside the default judgment under
Arizona Rule of Civil Procedure (“Rule”) 60. Berry maintained, among
other things, that he was never served the summons or complaint. In
response, Mladick argued the process server’s certificate of service was
evidence Berry had been served.

¶6 In an unsigned order, the superior court denied Berry’s
motion. Berry appealed. Because the court’s order (1) was unsigned and (2)
did not contain the necessary Rule 54(c) finality language, this court stayed
the appeal and remanded the matter to the superior court to correct its
order.

¶7 In December 2023, the superior court added its signature to
the order, but again failed to include Rule 54(c) finality language. Berry
continued his efforts to obtain Rule 54(c) finality language so that the stay
in this court could be lifted. In May 2024, the court added the requisite Rule
54(c) language to its order. This court then lifted the stay. We now have
jurisdiction to decide the appeal under Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶8 Berry raises several arguments on appeal, but one is
dispositive. We review for an abuse of discretion the superior court’s
decision to affirm or set aside a default judgment. Daou v. Harris, 139 Ariz.
353, 359 (1984). We review de novo whether a judgment is void. BYS Inc. v.
Smoudi, 228 Ariz. 573, 578, ¶ 18 (App. 2012). A court abuses its discretion
when it fails to set aside a void judgment. Master Fin., Inc. v. Woodburn, 208
Ariz. 70, 74, ¶ 19 (App. 2004) (explaining a court “must vacate” a void
judgment).

¶9 Rule 55(a)(1) allows an entry of default where a “party against
whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend.” A “default [does] not become effective if the party
claimed to be in default pleads or otherwise defends . . . within 10 days after
the application for entry of default is filed.” Ariz. R. Civ. P. Rule 55(a)(5)
(emphasis added). To “otherwise defend” under Rule 55 includes
challenging whether service of process was completed. Coulas v. Smith, 96
Ariz. 325, 329 (1964) (quoting Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir.
1949) (explaining that “[t]he words ‘otherwise defend’ refer to attacks on []
service [of process] . . . and the like, which may prevent default without
presently pleading to the merits.”) (emphasis added)).

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 MLADICK v. BERRY
Decision of the Court

¶10 In other words, once a defendant timely raises a claim that he
was not properly served, a plaintiff’s application for entry of a default
judgment becomes ineffective and no default judgment should be entered.
If the court nevertheless enters a default judgment, that judgment is void.
See Corbet v. Superior Court, 165 Ariz. 245, 247 (App. 1990) (“Because the
entry of default in this case was improper, [] any resulting default judgment
would be void.”); see also Ruiz v. Lopez, 225 Ariz. 217, 223, ¶¶ 21, 23 (App.
2010) (affirming superior court’s order vacating a default judgment because
the entry of default was ineffective, rendering the default judgment void).

¶11 After Mladick filed her application for entry of default and
mailed Berry a copy, Berry timely defended the application by filing his
objection and response within ten days, attacking service of process. Ariz.
R. Civ. P. 55(a)(5); see Coulas, 96 Ariz. at 329. Berry’s actions ensured the
“default [would] not [] become effective.” Ariz. R. Civ. P. 55(a)(5). Because
the superior court nonetheless entered a default judgment after Berry
timely defended Mladick’s application for entry of default, that judgment
is void. The superior court erred by denying Berry’s motion to set aside the
void judgment.

CONCLUSION

¶12 We vacate the superior court’s default judgment and remand
for further proceedings.

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

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