Mays v. Mwm Vicsdale

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KENNETH MAYS, Plaintiff/Appellee,
v.
MWM VICSDALE MAGIC, LLC, Defendant/Appellant.
No. 1 CA-CV 22-0313
FILED 1-26-2023
Appeal from the Superior Court in Maricopa County
No. CV2021-052507
The Honorable Gary L. Popham, Judge Pro Tempore
AFFIRMED
COUNSEL
Jeffrey M. Proper PLLC, Scottsdale
By Jeffrey M. Proper
Co-Counsel for Plaintiff/Appellee
Barabara J. Forde PC, Scottsdale
By Barbara J. Forde
Co-Counsel for Plaintiff/Appellee
Greenbriar Law PLC, Phoenix
By Walid A. Zarifi
Counsel for Defendant/Appellant
MAYS v. MWM VICSDALE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 MWM Vicsdale Magic, LLC appeals the superior court’s
order denying its Arizona Rule of Civil Procedure 60(b)(6) motion. For the
following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In July 2021, Kenneth Mays sued MWM alleging a violation
of Arizona’s Residential Landlord Tenant Act, A.R.S. § 33-1301 et seq. Mays
claimed that MWM violated the Act when it did not return the $11,500.00
he paid MWM, consisting of $7,400.00 for two months’ rent; a $3,500.00
security deposit; a $300.00 cleaning fee; and a $300.00 pet cleaning fee. Mays
requested double damages, pre- and post-judgment interest, and attorney’s
fees and costs.
¶3 Mays tried to serve MWM at the statutory agent’s registered
address, but it turned out to be a post office box business. Mays then served
MWM through the Arizona Corporation Commission. MWM never
answered.
¶4 Fifty-two days after filing the complaint, Mays applied for
default judgment and mailed the application to three addresses connected
to MWM, including the statutory agent’s address and the Arizona
Corporation Commission. Twelve days later, Mays moved the superior
court to enter the default judgment. The superior court entered judgment,
but declined to award Mays double damages.
¶5 Sixty-one days after the court entered the default judgment,
MWM moved to set aside the default under Arizona Rule of Civil
Procedure 60(b)(1) and (6). The superior court held a one-hour hearing and
denied the motion, finding that MWM “failed to establish excusable
neglect” or prove it is “entitled to relief under Rule 60(b)(6).” In a separate
order, the superior court granted Mays the attorney’s fees incurred while
opposing the motion. MWM timely appealed, and we have jurisdiction. See
A.R.S. § 12-2101(A)(2); Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz.
2MAYS v. MWM VICSDALE
Decision of the Court
420, 429, ¶ 15 (“compliance with Rule 54(b) or 54(c) is not required for ‘any
special order made after final judgment’ to be appealable under A.R.S. § 12-
2101(A)(2)”).
DISCUSSION
¶6 We review the denial of Rule 60 relief for an abuse of
discretion and will affirm “unless undisputed facts and circumstances
require a contrary ruling.” City of Phoenix v. Geyler, 144 Ariz. 323, 330 (1985)
(cleaned up). The court may relieve a party from a final judgment for “any
other reason justifying relief.” Ariz. R. Civ. P. 60(b)(6). This subsection
“vests power … to vacate judgments whenever such action is appropriate
to accomplish justice,” Webb v. Erickson, 134 Ariz. 182, 186 (1982) (quoting
Klapprott v. United States, 335 U.S. 601, 615 (1949)), including providing relief
for “extraordinary circumstances of hardship or injustice,” id. at 187.
¶7 MWM argues that the superior court abused its discretion
under Rule 60(b)(6) by applying the wrong legal standard. The superior
court is “presumed to know the law and apply it in making [its] decisions.”
State v. Lee, 189 Ariz. 608, 616 (1997). But we cannot adequately address the
superior court’s application of the law because MWM did not file
transcripts in accordance with Arizona Rule of Civil Appellate Procedure
(“ARCAP”) 11. “When a party fails to include necessary items, we assume
they would support the court’s findings and conclusions.” Baker v. Baker,
183 Ariz. 70, 73 (App. 1995). The superior court stated its findings and
conclusions were based “on the discussion and for the reasons stated on the
record,” but MWM failed to provide us that record. Thus, we cannot say
the court applied the wrong legal standard.
¶8 MWM also argues that the superior court abused its
discretion by entering a default judgment for double the actual damages.
MWM is mistaken: the superior court rejected Mays’ request for double
damages and amended the proposed judgment to include only the amount
the parties agree Mays paid under the lease agreement. And, in any event,
Arizona law grants the superior court discretion to award “twice the
amount wrongfully withheld.” A.R.S. § 33-1321(E); see also Crum v. Maricopa
County, 190 Ariz. 512, 515 (App. 1997) (recovery of double damages is
discretionary and not mandatory). The superior court did not abuse its
discretion when it calculated damages under the default judgment.
¶9 Both parties seek attorney's fees and costs under A.R.S. §§ 12-
341, -341.01, -349, and ARCAP 25. MWM is not the prevailing party, thus
we deny its request for attorney’s fees. See A.R.S. § 12-341.01. We award
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MAYS v. MWM VICSDALE
Decision of the Court
Mays his attorney’s fees and costs as the prevailing party, pending
compliance with ARCAP 21. See A.R.S. § 12-341.01(A); Manicom v.
CitiMortgage, Inc., 236 Ariz. 153, 162, ¶ 38 (2014). But we deny Mays’ request
to impose sanctions under A.R.S. § 12-349.
CONCLUSION
¶10 For the above reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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