Opinion
1 CA-CV 11-0398
07-17-2012
TPC HOLDINGS, L.L.C., an Arizona limited liability company, Plaintiff/Appellant, v. ARIZONA COMMONS, INC., an Arizona corporation, Defendant/Appellee.
Rowley Chapman Barney & Buntrock, LTD By Shane D. Buntrock Nathaniel H. Wadsworth Attorneys for Appellant Berens, Kozub, Kloberdanz & Blonstein, PLC By Daniel L. Kloberdanz Attorney for Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules
of Civil Appellate
Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2007-002108
The Honorable Eileen S. Willett, Judge
AFFIRMED
Rowley Chapman Barney & Buntrock, LTD
By Shane D. Buntrock
Nathaniel H. Wadsworth
Attorneys for Appellant
Mesa
Berens, Kozub, Kloberdanz & Blonstein, PLC
By Daniel L. Kloberdanz
Attorney for Appellee
Scottsdale
THOMPSON, Judge ¶1 Appellant TPC Holdings (TPC) appeals the superior court's denial of its motion for relief from judgment pursuant to Arizona Rule of Civil Procedure 60(c). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 TPC filed its complaint in this action against Demko Development Co. Inc. on February 5, 2007, alleging breach of contract and tortious interference with contract. TPC filed a motion to amend the complaint to add Arizona Commons as a defendant on October 23, 2009. The amended complaint asserted breach of contract and breach of duty of good faith and fair dealing against Arizona Commons, and stated as follows:
13. On or about May 25, 2005, TPC and Demko entered into a contract . . . whereby TPC would sell the Property it was purchasing from Evolution to Demko for approximately $5,914,687 in a "triple escrow transaction" which would have yielded TPC a profit of approximately $2.1 million. . . .¶3 Arizona Commons filed a motion to dismiss arguing that the statute of limitations had expired and that the amended complaint failed to state a viable legal claim against Arizona Commons. Following TPC's response, the trial court ruled that the amended complaint was sufficient to state a cause of action, but found that the claims failed for lack of a written contract and privity of contract between TPC and Arizona Commons and because they were time barred by the statute of limitations. The court awarded Arizona Commons its reasonable attorneys' fees. TPC filed a motion for reconsideration arguing that Arizona Commons was not entitled to a recovery of attorneys' fees. The trial court denied the motion for reconsideration and entered a final judgment pursuant to Arizona Rule of Civil Procedure 54(b) in favor of Arizona Commons on September 7, 2010. Arizona Commons did not appeal from this judgment. ¶4 On February 3, 2011, TPC filed a motion to set aside ruling and judgment in favor of Arizona Commons pursuant to Arizona Rule of Civil Procedure 60(c). In the motion, TPC argued that (1) Arizona Commons made misrepresentations to the court, and (2) the court erroneously treated Arizona Commons' motion to dismiss as a motion for summary judgment. The trial court denied TPC's motion to set aside, finding that TPC had presented no new information, and that its procedural argument was waived. ¶5 TPC timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (Supp. 2011).
14. On or about July 7, 2005, Demko nominated [Arizona Commons] as its nominee under the TPC Contract.
15. On information and belief, Demko and/or [Arizona Commons] acting independently or in concert with or through their agents West USA Realty, Inc. and/or R. Tony Valentine, then tried to make an "end run" around the contractual positions of TPC and Evolution by negotiating directly with Blue in an effort to buy the Property directly from Blue and/or from Evolution without the participation and intervening profits of TPC and/or Evolution.
TPC proceeded to trial against Demko on October 4, 2010. The trial court ruled in favor of TPC on all claims and entered final judgment on May 5, 2011.
DISCUSSION
¶6 TPC asserts that the trial court erred in denying it Rule 60(c) relief. We review a court order denying relief from judgment under Rule 60(c) for an abuse of discretion. Tovrea v. Nolan, 178 Ariz. 485, 490-91, 875 P.2d 144, 149-50 (App. 1993). Under an abuse of discretion standard, we will "affirm where any reasonable view of the facts and law might support the judgment of the trial court." City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985). The party seeking to have a judgment vacated bears "the burden of proving the grounds relied upon for relief," and the superior court cannot set aside a judgment "without some evidence to support the claim on which [the Rule 60(c) motion] depended." Lawwill v. Lawwill, 21 Ariz. App. 75, 78, 515 P.2d 900, 903 (1973).
Misrepresentation by Arizona Commons
¶7 TPC first argues that Arizona Commons misrepresented in its motion to dismiss that it was not party to the written contract with TPC. Pursuant to Rule 60(c)(3), a court may relieve a party from a final judgment for "fraud . . . misrepresentation or other misconduct of an adverse party." Ariz. R. Civ. P. 60(c)(3). However, a movant may only obtain relief under Rule 60(c)(3) upon a showing of a meritorious defense he was prevented from fully presenting before judgment because of the other party's misconduct. Estate of Page v. Litzenburg, 177 Ariz. 84, 93, 865 P.2d 128, 137 (App. 1993). To prevail, "the movant must show the opponent's misconduct by clear and convincing evidence." Anderson v. Cryovac, Inc. , 862 F.2d 910, 926 (1st Cir. 1988); see Estate of Page, 177 Ariz. at 93, 865 P.2d at 137 ("Ariz. R. Civ. P. 60(c)(3) is identical to Rule 60(b)(3), Federal Rules of Civil Procedure. Arizona courts give great weight to federal court interpretations of the rules of procedure."). Upon review of the record, we conclude that TPC has not proven by clear and convincing evidence that it was prevented from defending its complaint because of misrepresentations made by Arizona Commons. ¶8 TPC's amended complaint stated that "Demko nominated [Arizona Commons] as its nominee under the TPC Contract." Arizona Commons' motion to dismiss consisted of the following relevant passages:
Arizona Commons is a corporation which was not a party to the purchase contract with [TPC], but which received an assignment of Demko Development's rights to close the purchase of the subject property.TPC asserts that these sentences were misrepresentations because (1) Arizona Commons maintained in a prior lawsuit that it was a party to the contract, and (2) Arizona Commons' principal, Donald Demko, reaffirmed at trial that Arizona Commons was a party to the contract. ¶9 First, TPC contends that Arizona Commons is judicially estopped from taking a contrary position from an earlier lawsuit. Under the doctrine of judicial estoppel, "a party who successfully asserts a particular position in one judicial proceeding will not be allowed to assert an inconsistent position in a subsequent proceeding." Hrudka v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App. 1995). However, if a party is unsuccessful with its first position, it may take an alternative position in a latter proceeding. Id. TPC does not assert that Arizona Commons was the successful party in the prior lawsuit, and this court has been unable to decipher from the record the exact outcome of those proceedings. Regardless, without deciding that the positions in the two lawsuits are inconsistent, this was information that TPC had well in advance of Arizona Commons' motion to dismiss and could have been raised in the response, in the motion for reconsideration, or in an appeal to this court. However, TPC did not allege any inconsistency or misrepresentation until its motion to set aside. TPC has given us no indication that the decision not to appeal was not a conscious and deliberate choice. "There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from." Ackermann v. United States, 340 U.S. 193, 198 (1950). ¶10 We next examine the trial testimony of Donald Demko. Demko testified that Arizona Commons was the nominee under the contract. When asked if he "believed that Arizona Commons stepped into the shoes of Demko Development Company, Inc. pursuant to your contract you had with TPC," Mr. Demko responded that "[i]t was assigned to Arizona Commons." None of this testimony provides information to TPC that was not available prior to filing its motion for reconsideration or even its response to Arizona Commons' motion to dismiss. Indeed, TPC stated in its response to Arizona Commons' motion to dismiss that "Demko nominated [Arizona Commons] as its nominee under the contract," and that "[t]he contract between TPC and Demko/[Arizona Commons] was written." In TPC's motion for reconsideration, it confirmed that "[i]t is undisputed that Demko made [Arizona Commons] its nominee under the TPC Contract." Consequently, there is no showing of any special circumstances justifying relief, nor is there any indication but that TPC simply chose not to appeal from the final judgment. See Anderson v. Hawkins, 129 Ariz. 83, 85, 628 P.2d 966, 968 (App. 1981).
. . . .
Arizona Commons merely received an assignment of Demko Development's rights under the purchase contract. [TPC] does not allege any acts in its Amended Complaint by which Arizona Commons can be held liable for the alleged acts of Demko Development or Demko Development's real estate agent.
Court Error
¶11 TPC also argues that the trial court erroneously treated Arizona Commons' motion to dismiss as a motion for summary judgment and seeks relief under Rule 60(c)(6). Rule 60(c)(6) allows a court to grant relief from a final judgment for "any other reason justifying relief from the operation of the judgment." Ariz. R. Civ. P. 60(c)(6). "Our case law permits the use of Rule 60(c)(6) in 'extraordinary circumstances of hardship or injustice,' other than or in addition to those circumstances set out in clauses (1) through (5)." State v. Jackson, 210 Ariz. 466, 469 n.4, ¶ 11, 113 P.3d 112, 115 n.4 (App. 2005) (citations omitted). It "has been read not to encompass a claim of error for which appeal is a proper remedy." Anderson, 129 Ariz. at 85, 628 P.2d at 968. The failure to prosecute an appeal bars relief under Rule 60(c)(6) in all but exceptional circumstances. Id. ; see also Craig v. Superior Court, 141 Ariz. 387, 388, 687 P.2d 395, 396 (App. 1984) ("It is established that Rule 60(c) is not an alternative to filing an appeal . . . or to other procedures for obtaining review of erroneous legal rulings."); Budreau v. Budreau, 134 Ariz. 539, 541, 658 P.2d 192, 194 (App. 1982) ("Rule 60(c) cannot be used as a substitute for appeal to relitigate issues which have already been finally determined."). "[A] motion under Rule 60(c) is not a device for reviewing or correcting legal errors that do not render the judgment void." Tippit v. Lahr, 132 Ariz. 406, 408, 646 P.2d 291, 293 (App. 1982). ¶12 If TPC is correct in its assertion that the trial court improperly treated Arizona Commons' motion to dismiss as a motion for summary judgment, its proper course of action was to raise the issue in its motion for reconsideration and appeal from the final judgment. Having failed to do so, TPC may not now challenge the judgment under Rule 60(c)(6) as other grounds justifying relief.
CONCLUSION
¶13 Based on the foregoing, we affirm the judgment of the trial court.
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JON W. THOMPSON, Judge
CONCURRING: _______________
PATRICIA A. OROZCO, Presiding Judge
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JOHN C. GEMMILL, Judge