Opinion
No. 1 CA-CV 13-0271
06-10-2014
GREGORY BEST, a single man, Plaintiff/Appellant, v. MANNY GARCIA and LETICIA MIRANDA GARCIA, husband and wife, Defendants/Appellees.
Gregory Best, Phoenix Plaintiff/Appellant In Propria Persona
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CV2005-093565
The Honorable Mark F. Aceto, Judge
VACATED AND REMANDED
COUNSEL
Gregory Best, Phoenix
Plaintiff/Appellant In Propria Persona
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined. CATTANI, Judge:
¶1 Gregory Best appeals from the superior court's denial of his motion for relief from judgment based on newly discovered evidence pursuant to Arizona Rule of Civil Procedure 60(c). For reasons that follow, we vacate and remand for further proceedings consistent with this decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 In late 2005, Best sued Manny and Leticia Garcia, alleging breach of a contract for sale of real estate. The complaint alleged the Garcias had entered a contract to sell specified property to Best, but breached the contract when they refused to close the sale or transfer the property even though Best was "ready, willing and able" to pay the purchase price of $200,000 and complete the transaction. Best sought specific performance of the contract as well as consequential damages, costs, and attorney's fees.
¶3 After the Garcias answered the complaint, the court stayed the case pending resolution of other litigation against Best. See State v. Best, CV2006-016293 (Maricopa Cnty. Super. Ct.). The stay was lifted in June 2010, after settlement in State v. Best.
¶4 At Best's request, the superior court set a pretrial conference, requiring all parties and attorneys to personally appear, and warned of sanctions should a party fail to appear. The court explicitly stated that "if [the Garcias] fail to appear, the Court may strike [the Garcias'] answer and enter default judgment against [the Garcias]." When the Garcias failed to appear at a September 2012 pretrial conference, the court sanctioned the Garcias by striking their answer and allowing Best to proceed by default. See Ariz. R. Civ. P. 16(i) (authorizing imposition of Rule 37 sanctions for failure to appear at a pretrial conference); Ariz. R. Civ. P. 37(b)(2)(C) (authorizing sanction by striking pleading).
Absent material revisions after the relevant date, we cite the current version of applicable statutes and rules.
The civil rule governing pretrial, nondiscovery sanctions has been renumbered since the superior court's sanctions order. Compare Ariz. R. Civ. P. 16(f) (2012), with Ariz. R. Civ. P. 16(i) (2014). We cite the current version, Rule 16(i), because no changes material to this decision were made when renumbering the rule.
¶5 After a damages hearing in November 2012, at which the Garcias again failed to appear, the court entered a default judgment ordering specific performance by the Garcias (conveying the property) upon Best's payment of $199,900 (the balance of the contract price). The court awarded Best attorney's fees and costs as the prevailing party, but denied Best's requests for (1) monetary damages of approximately $300,000, (2) attorney's fees he expended in State v. Best, and (3) punitive damages.
¶6 In February 2013, Best moved to set aside the judgment under Rule 60(c) of the Arizona Rules of Civil Procedure, arguing that newly discovered evidence warranted a new trial on damages. Best stated that, when attempting to execute on the judgment, he learned that the Garcias had sold the property in June 2012 to a third party for $25,000 and recorded the sale in September 2012. He claimed the sale indicated "fraud, extrinsic fraud, fraudulent conveyance, malicious tortious conduct, breach of good faith and fair dealing, and was an intentional material breach to the party's original contract being litigated." Best sought to "[s]tay the judgment with respect to the purchase price," invalidate the sale, and set a new hearing on damages caused by the sale. The superior court denied the motion, explaining that although Best's allegations "may provide a basis for a new lawsuit," the Rule 60 motion was attempting to assert new claims, based on different conduct, outside of the breach of contract described in Best's complaint.
¶7 Best timely appealed. We have jurisdiction over the appeal from the order denying Best's Rule 60(c) motion under Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2).
Although we could consider the Garcias' failure to file an answering brief a confession of error, in our discretion we decline to do so. See Nydam v. Crawford, 181 Ariz. 101, 887 P.2d 631 (App. 1994).
--------
DISCUSSION
¶8 Rule 60(c)(2) authorizes the superior court to relieve a party from a final judgment on the basis of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(d) [15 days]." In addition to being newly discovered, the evidence must have existed at the time of trial. Birt v. Birt, 208 Ariz. 546, 549, ¶ 11, 96 P.3d 544, 547 (App. 2004). Newly discovered evidence does not justify relief from judgment if simply cumulative and not susceptible of changing the result of trial. Ruesga v. Kindred Nursing Ctrs. W., L.L.C., 215 Ariz. 589, 595, ¶ 17, 161 P.3d 1253, 1259 (App. 2007). We review the court's denial of a Rule 60(c) motion for an abuse of discretion. Birt, 208 Ariz. at 549, ¶ 9, 96 P.3d at 547.
¶9 Best argues the superior court applied an incorrect legal standard when denying his Rule 60(c) motion as outside the bounds of the original complaint. Although a motion under Rule 60(c)(2) contemplates newly discovered evidence, that evidence must relate to the judgment—and thus the particular claims supporting the judgment—to warrant relief. See Ruesga, 215 Ariz. at 595, ¶ 17, 161 P.3d at 1259 (stating that relief is only available if newly discovered evidence could have changed previous result). Accordingly, the superior court did not err by addressing whether the newly discovered evidence presented by Best related to the breach of contract claim asserted in his complaint.
¶10 Best next argues the court erred by concluding that the Rule 60(c) motion asserted claims and sought relief beyond the scope of Best's complaint. Best's complaint alleged a single claim for breach of contract by the Garcias' failure to complete the sale and transfer title to the property by the closing date of September 24, 2004. To the extent Best's Rule 60(c) motion seeks damages, including punitive damages, for "fraud, extrinsic fraud, fraudulent conveyance, malicious tortious conduct, breach of good faith and fair dealing," it attempts to assert causes of action based on a separate transaction, outside the scope of the complaint's contract claim and thus outside the scope of the judgment. The superior court did not err by denying relief to the extent that Best's motion attempts to assert new claims not encompassed by his original complaint and not decided in the judgment.
¶11 Best's motion also requested, however, that damages be awarded based on the Garcias' inability to perform their contractual obligation to conclude the sale as required by the judgment. The motion can thus be read to request damages in lieu of specific performance in light of the fact that, at the time court ordered specific performance, the Garcias did not hold title to the land at issue. See Canton v. Monaco P'ship, 156 Ariz. 468, 470, 753 P.2d 158, 160 (App. 1987) ("Because equity will not undertake to do a vain and useless thing, specific performance will not be awarded against a seller in a land contract when the seller has no title to the land he contracted to convey."); see also, e.g., County of La Paz v. Yakima Compost Co., 224 Ariz. 590, 610, ¶ 62, 233 P.3d 1169, 1189 (App. 2010) (citing, inter alia, Woliansky v. Miller, 146 Ariz. 170, 172, 704 P.2d 811, 813 (App. 1985)) (describing the interplay of specific performance and compensatory damages as remedies for breach of contract). We therefore vacate that portion of the superior court's denial of Best's Rule 60(c) motion directed to the Garcias' inability to perform their contractual obligation to conclude the sale as required by the judgment. We remand for further consideration only of whether the motion presents newly discovered evidence consistent with the constraints of Rule 60(c)(2) sufficient to warrant setting aside the judgment to allow Best to attempt to prove alternative contract damages against the Garcias in lieu of specific performance.
CONCLUSION
¶12 The order denying relief from judgment is vacated, and the cause remanded for reconsideration consistent with this decision.