Bowyer v. Bowyer

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DENICE BOWYER, Plaintiff/Appellee,

v.

CHRISTIAN BOWYER, Defendant/Appellant.

No. 1 CA-CV 23-0603
FILED 07-25-2024

Appeal from the Superior Court in Maricopa County
No. CV2019-096868
The Honorable Brian Kaiser, Judge Pro Tempore

AFFIRMED

COUNSEL

Platt & Westby, P.C., Phoenix
By Andrew Rahtz, Amber M. Falk
Counsel for Defendant/Appellant

Harper Law PLC, Gilbert
By Kevin Harper
Counsel for Plaintiff/Appellee
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MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Andrew M. Jacobs joined.

C R U Z, Judge:

¶1 Defendant Christian Bowyer appeals the superior court’s
denial of his motion to set aside a default judgment. For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 While married, Christian and Denise Bowyer purchased a
house in Gilbert, Arizona.1 In 2012, Christian and Denise divorced.
Pursuant to the divorce decree and subsequent orders, the house was to be
sold but the sale of the property never took place and the parties held it as
joint tenants.

¶3 In 2019, Denise filed a claim to quiet title of the house,
asserting any interest Christian had in the property had been exhausted by
his failure to meet his ownership obligations, including paying the
mortgage, taxes, and other expenses. A process server attempted service
on Christian multiple times at two known addresses. When service was
unsuccessful, the process server completed a skip trace and found a post
office box had recently been opened under Christian’s name in Duncan,
Arizona. The process server then attempted to serve Christian at the
Duncan address associated with the post office box. Given those efforts,
Denise requested, and the superior court issued, an order allowing
alternative service via mail and posting at the Duncan address.

¶4 In early 2020, Denise moved for entry of default judgment. In
May 2020, the superior court then entered a default judgment quieting title
of the property to Denise. Three years later, in May 2023, Christian moved
for relief from the default judgment. After a hearing, the superior court
denied the motion.

1 Both parties share the same last name. For ease of reference we
respectfully refer to each of them by their first names.

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¶5 Christian timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

¶6 “[W]e review the trial court’s refusal to set aside a default
judgment only for a clear abuse of discretion.” Hilgeman v. American Mortg.
Sec., Inc., 196 Ariz. 215, 218, ¶ 7 (App. 2000) (citation and internal quotation
marks omitted).

¶7 Christian argues the superior court abused its discretion
when denying his motion for relief from the default judgment under
Arizona Rule of Civil Procedure (“Rule”) 60(b)(6). Under Rule 60(b), the
court may relieve a party from a default judgment for one or more of the
following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move
for a new trial under Rule 59(b)(1);

(3) fraud . . . misrepresentation, or other misconduct of an
opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it
is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer
equitable; or

(6) any other reason justifying relief.

Rule 60(c) provides that motions under Rule 60(b)(1)-(3) must be made
within six months of the judgment, while motions under Rule 60(b)(4)-(6)
must be made within a reasonable time.

¶8 Christian argues he should be afforded relief from the
judgment under Rule 60(b)(6). To prevail under Rule 60(b)(6), the motion
must adhere to Rule 60(c)’s timeliness requirement, the “other ground for
relief . . . cannot be one of the reasons set forth” in Rule 60(b)(1)-(5), and the
moving party must assert a meritorious defense. Gonzalez v. Nguyen, 243
Ariz. 531, 534, ¶ 12 (2018) (citations and quotation marks omitted).

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I. Timeliness Requirement

¶9 Christian argues his motion is timely under Rule 60(c)
because he did not know about the judgment until three years after it was
entered. “To establish that its failure to timely file an answer is excusable,
a party seeking relief must demonstrate that its actions were those of a
reasonably prudent person under the circumstances.” Searchtoppers.com,
L.L.C v. TrustCash LLC, 231 Ariz. 236, 241, ¶ 22 (App. 2012). “[M]ere
carelessness is not sufficient reason to set aside a default judgment.” Daou
v. Harris, 139 Ariz. 353, 359 (1984).

¶10 The superior court found that Christian’s three-year delay in
seeking relief from the judgment was unreasonable. Christian asserts he
“believed that [Denise] was actively renting the subject property to tenants
and did not decide to seek any contributions at the time” and that he was
not required by law to “check on the property.” Aside from stating his view
that the law did not require him to do anything, Christian presents no viable
argument justifying his delay in seeking relief. Christian has not shown the
superior court erred when it determined three years was an unreasonable
period of delay before seeking relief from the judgment.

II. Other Ground for Relief

¶11 Christian argues he was unaware of the quiet title
proceedings “due to excusable neglect and misrepresentations made by”
Denise, which he argues constitute extraordinary circumstances of injustice
under Rule 60(b)(6). Rule 60(b)(6) is a catchall provision that affords courts
the discretion to vacate judgments when a party demonstrates
“extraordinary circumstances of hardship or injustice.” Webb v. Erickson, 134 Ariz. 182, 186, 187 (1982); Amanti Elec. v. Engineered Structures, Inc., 229
Ariz. 430, 432, ¶ 6 (App. 2012). The superior court must consider the totality
of the circumstances but is afforded extensive discretion in determining a
movant clears the high bar necessary for Rule 60(b)(6) relief. Gonzalez, 243
Ariz. at 534, ¶ 11; Amanti, 229 Ariz. at 432, ¶¶ 7-8. Rule 60(b)(6) “cannot be
used to avoid the six-month limitation which applies to the first three
clauses.” Webb, 134 Ariz. at 186.

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¶12 And while Christian presents his arguments for relief from
the default judgment as arising under Rule 60(b)(6), they fail because they
seek relief authorized by Rule 60(b)(1) (excusable neglect), or Rule 60(b)(3)
(misrepresentation). Christian confirms the correctness of this analysis by
omitting to assert any independent basis for relief under Rule 60(b)(6). The
record thus supports the superior court’s finding that Christian’s Rule
60(b)(6) arguments are made to avoid the six-month limitation, which
dooms his Rule 60(b)(1)-(3) pleas for relief. See id.; Ariz. R. Civ. P. 60(c)(1).
The superior court did not err when it determined Christian did not assert
a valid ground for relief under Rule 60(b)(6).

III. Meritorious Defense

¶13 Christian argues the superior court erred when it found he
did not offer a meritorious defense. “Although the showing of a
meritorious defense need not be strong, . . . it must be greater than mere
speculation.” Gonzalez, 243 Ariz at 535, ¶ 16. Christian presented three
purported meritorious defenses: res judicata, improper service, and
improper granting of quiet title based on contribution.

¶14 Christian first argues res judicata is a meritorious defense
because Denise’s claims were already resolved by the family court. “The
doctrine of res judicata will preclude a claim when a former judgment on
the merits was rendered by a court of competent jurisdiction and the matter
now in issue between the same parties or their privities was, or might have
been, determined in the former action.” Hall v. Lalli, 195 Ariz. 54, 57, ¶ 7
(1999). While the divorce decree addressed the matter of the property’s
ownership, Denise’s claims are based on Christian’s subsequent failure to
pay his share of the mortgage payments, the maintenance costs, and failure
to cooperate in completing the sale of the Property. By their very nature,
the claims in this quiet title action arose from the joint ownership of the
property after the entry of the divorce decree. Consequently, they could
not have been litigated in the divorce proceeding. Therefore, the superior
court did not err when it determined res judicata did not apply.

¶15 Christian next argues lack of service is a meritorious defense
because Denise served him by posting and mailing the complaint and
summons to the Duncan address. But the superior court approved
alternative service at the Duncan address after the process server tried
multiple times to serve Christian at two known addresses, performed a skip
trace finding a post office box associated with Christian’s name in Duncan,
and attempted service at the Duncan address. Christian further asserts the
service was related to an act of fraud by someone else opening up that post

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office box. But Christian does not develop this argument past mere
speculation. The superior court did not err when it did not find improper
service, as alleged by Christian, a meritorious defense.

¶16 Christian also argues that a claim for reimbursement of
contribution is not grounds for a quiet title remedy, which he asserts
presents a meritorious defense. “In a quiet title action the plaintiff must
ordinarily prove his own title and cannot rely on defects in the defendant’s
title.” Rogers v. Bd. of Regents of Univ. of Ariz., 233 Ariz. 262, 270, ¶ 30 (App.
2013) (citation and internal quotation marks omitted). But “a suit to quiet
title is one of equitable cognizance.” Kennedy v. Morrow, 77 Ariz. 152, 155
(1954). “[E]very interest in the title to real property, whether legal or
equitable, may be determined in the action.” Chantler v. Wood, 6 Ariz. App.
134, 138 (App. 1967). The superior court can consider equities between the
parties when determining a quiet title claim. In this quiet title action, Denise
contended that any interest Christian had in the property had been
exhausted by his failure to meet his ownership obligations, including
failing to pay his share of the mortgage, taxes, and other expenses, which
Denise argued totaled almost $200,000. The superior court did not err when
it did not consider this argument to be a meritorious defense.

¶17 The superior court did not abuse its discretion when it denied
Christian’s motion to set aside the default judgment.

¶18 Additionally, Christian argues “[t]his case shocks the
conscience” and justice requires the default judgment to be set aside. “[I]t
is a highly desirable legal objective that cases be decided on their
merits . . . . These matters, however, rest entirely within the trial court’s
discretion and will not be overturned on appeal unless a clear abuse of
discretion has been shown.” Hirsch v. Nat’l Van Lines, Inc., 136 Ariz. 304,
308 (1983). Christian has not shown that the superior court abused its
discretion when it denied Christian’s motion to set aside the default
judgment.

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CONCLUSION

¶19 For the foregoing reasons, we affirm. We deny Christian’s
request for attorneys’ fees and costs on appeal under A.R.S. §§ 12-349(A)
and 12-342. Denise requests her reasonable attorneys’ fees and costs under
A.R.S. §§ 12-341 and -341.01. We award her costs upon her compliance with
Arizona Rules of Civil Appellate Procedure 21, but in the exercise of our
discretion, we deny her request for attorneys’ fees.

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

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