Soltes v. Jarzynka

• Decision Date: 18 December 1980
• Docket Number: CA-CIV
• Citation: Soltes v. Jarzynka, 621 P.2d 933, 127 Ariz. 427 (Ariz. App. 1980)
• Parties: Richard SOLTES and Oltha Soltes, his wife, Plaintiffs-Appellees, v. John JARZYNKA and Patricia Jarzynka, Defendants-Appellants. 14618.
• Court: Arizona Court of Appeals

Page 933

621 P.2d 933

127 Ariz. 427

Richard SOLTES and Oltha Soltes, his wife, Plaintiffs-Appellees, v.John JARZYNKA and Patricia Jarzynka, Defendants-Appellants.

1 CA-CIV 4618.

Court of Appeals of Arizona, Division 1, Department A.

Dec. 18, 1980.

John G. Thomas, Scottsdale, for plaintiffs-appellees.

Tempe Legal Clinic of Levine & Jarvi by Richard T. Fuller, Tempe, for defendants-appellants.

OPINION

CONTRERAS, Judge.

Appellants have presented for review the issue of whether the trial court abused its discretion in refusing to set aside a default and default judgment.Because of the present procedural posture of this case, we are of the opinion that we do not have jurisdiction to entertain the appeal and that the appeal must be dismissed and the case remanded.

Appellants and appellees are neighbors in a residential subdivision of Maricopa County known as Sundown Ranch Estates.In early March, 1978, appellants commenced construction of an addition to their home.A significant portion of the construction, and that of which appellees complain, is a vertical extension of the existing residence containing an area of approximately 138 square feet which appellants refer to as a "loft or mezzanine."

On May 24, 1978, appellees filed a complaint in superior court alleging that the construction was in violation of subdivision restrictions.Appellees sought injunctive relief enjoining further construction of the addition and the removal of that which had been constructed.Appellants were personally served on May 26, 1978, with a copy of the summons and complaint, together with a copy of an order to show cause directing them to appear before the superior court on June 22, 1978, to show cause why preliminary injunctive relief should not be granted.Neither of the appellants filed a responsive pleading within 20 days after service and, on June 19, appellees caused their default to be entered.The next day, purported answers were filed by one of the appellees in propria persona.

Appellants subsequently obtained counsel who, on July 6, 1978, pursuant to Rule 55(c) of the Rules of Civil Procedure, 16 A.R.S., filed a motion to set aside the entry of default.The reason set forth in support of the motion was that appellants, in calculating the time within which to file an answer, mistakenly counted only business days and not weekends and therefore believed that June 23 was the twentieth and last day for filing their answer to the complaint.Appellants' motion to set aside the default was supplemented a few days later by a memorandum of points and authorities, along with their joint affidavit in support of their motion.On July 7, 1978, appellants also filed a motion for leave to file an amended answer and counterclaim.Appellees filed a written response to appellants' motions and on July 14, 1978, the trial court entered a formal order denying appellants' motion to set aside the default.Appellees then applied for a judgment on default and, following a hearing, judgment was entered on July 21, 1978, ordering appellants to remove the addition which they had caused to be constructed at their residence.

Appellants filed their notice of appeal on August 15, 1978.On August 21, 1978, appellants filed a cost bond for the appeal and a motion to set aside default judgment pursuant to Rule 60(c) of the Rules of Civil Procedure.The trial court declined to rule on the motion since a notice of appeal had been filed.The record on appeal was transmitted to this court and briefs were filed by both parties.

At the time of oral argument before this court, we raised sua sponte the question of whether this court had jurisdiction to entertain the appeal since appellants filed their notice of appeal prior to the time they filed their motion to set aside the default judgment and the record disclosed that the trial court had not ruled on the motion.¹Our inquiry was predicated on the case of Byrer v. A. B. Robbs Trust Co., 105 Ariz. 457, 466 P.2d 751(1970), in which our supreme court held that no appeal lies challenging the entry of a judgment on default unless the appealing party has first moved before the trial court to set aside the default judgment.We indicated to counsel that in view of an apparent lack of jurisdiction by this court to consider the appeal, that we would have no alternative other than to dismiss the appeal.Counsel for both parties were then afforded an opportunity to submit memoranda to this court regarding this jurisdictional inquiry.Written memoranda were filed by counsel for each of the parties.

This court is under a duty to inquire into its own jurisdiction.The parties, no matter how desirous of disposing of the appeal on the merits, cannot, by consent, confer jurisdiction upon the court.Rueda v. Galvez, 94 Ariz. 131, 382 P.2d 239(1963);Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 365 P.2d 208(1961);Pulaski v. Perkins, 619 P.2d 488(Oct. 2, 1980).Our inquiry regarding this court's jurisdiction is occasioned by our supreme court's decision in Byrer v. A. B. Robbs Trust Co.In Byrer, the defendants-appellants did not answer the complaint within the 20 days required by law.Default was entered and appellants subsequently moved to set aside the entry of default under Rule 55(c),Rules of Civil Procedure, 16 A.R.S.²The trial court denied the motion, entered judgment in appellees' favor, and included attorney's fees in the judgment.On appeal, only that part of the judgment awarding attorney's fees was challenged.The supreme court initially noted:

No action whatsoever was taken by defendants after entrance of the default judgment except to perfect this appeal.They did not move to set aside the default judgment under Rule 55(c), or for mistake, inadvertence, surprise or excusable neglect under Rule 60(c), or to vacate the judgment and be granted a new trial under Rule 59(a) and (i) on the grounds of excessive damages, or to alter or amend the judgment under Rule 59(l ).

105 Ariz. at 458, 466 P.2d at 752.The supreme court then reiterated the long standing rule in this jurisdiction that no appeal can be taken from a default judgment until the defaulting party has moved to set aside the existing default judgment:

The Robbs Trust Company urges that there is no appeal from a default judgment unless the party appealing first moves the trial court under Rule 55(c) to set aside the judgment.This has been the uniform holding of this Court from Territorial days.In Horne v. Superior Court, in and for Pima County, 89 Ariz. 289, 361 P.2d 547, we said:

'Respondent contends that it is the settled rule in this jurisdiction that no appeal can be taken from a judgment until the defaulting party has first moved to set aside the default judgment.Insofar as appeals from judgments of the superior court are concerned, this is correct.Big Chief Mining Company v. Kohlburner, 63 Ariz. 317, 162 P.2d 132;Moody v. Lloyd's of London, 61 Ariz. 534, 152 P.2d 951;Martin v. Sears, 45 Ariz. 414, 44 P.2d 526;McLean v. Territory, 8 Ariz. 195, 71 P. 926.'89 Ariz. at 291, 361 P.2d at 548.

It is clear under the settled decisions of this Court that no appeal lies challenging the entry of a judgment on default unless the appealing party first moves under Rule 55(c)(or 60(c)) to set aside the judgment.

Id.105 Ariz. at 458, 466 P.2d at 752.The defendants-appellants in Byrer argued that the reason for the rule that an appeal may not be taken from a default judgment without first having moved to set aside the judgment is to allow the court to correct any errors it may have committed and since they had advised the lower court of their position before judgment, they should not be required to move after judgment before filing an appeal.This argument was answered by our supreme court:

(W)e think that the trial court should be given the opportunity for further reflection and to exercise a more mature judgment lest litigation be unduly prolonged and unnecessarily expensive.The court should have been afforded the opportunity to reconsider the matter on its merits by presentation of an appropriate motion attacking that portion of the judgment which defendants believe erroneous.

Id. at 458, 466 P.2d at 752.

Byrer is so explicit in its articulation of both the necessity and reason for a motion following entry of default judgment that we believe it would be in violation of the letter and spirit of McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757(1968), for us to entertain the present appeal.This court reached the same conclusion eight years ago in United States Fidelity and Guaranty Co. v. Heflin Steel Supply Co., 17 Ariz.App. 336, 497 P.2d 843(1972).

The appellants, while recognizing the rulings in Byrer and Heflin Steel, argue that their case falls within the exception as set forth by Division Two of this court in Industrial Commission v. Parise, 13 Ariz.App. 522, 478 P.2d 137(1970).In Parise, it was held that where a party seeks relief from a default prior to judgment and has set forth a challenge to the jurisdiction of the lower court, an appeal may be entertained notwithstanding the lack of a post-judgment motion.Appellants contend that the Parise exception applies because they asserted in their motion to set aside entry of default that the complaint failed to state a cause of action.We are not persuaded that the exception expressed in Parise should be applied to the instant case.Parise was not reviewed by our supreme court and some of the statements contained in Parise appear to be at odds with Big Chief Mining Co. v. Kohlburner, 63 Ariz. 317, 162 P.2d 132(1945), which was one of the principal decisions relied upon by our supreme court in Byrer.In addition, the jurisdictional issue in Parise was clear, whereas in the case sub judice, the appellees' complaint states a cause of action over which the trial court has jurisdiction when the allegations of the complaint are taken at face value.

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