Opinion
2 CA-CV 2023-0232
09-24-2024
In re the Estate of Jill Marie Fleming, deceased v. Nikole Haumont, as personal representative of the Estate of Jill Marie Fleming; Nikole Haumont and Simon L. Haumont, wife and husband; and Lumikey Innovations, LLC, a Wyoming limited liability company, Defendants/Appellants. Dana Taylor, a single woman, and Tarna Technologies, LLC, a South Dakota limited liability company, Plaintiffs/Appellees,
Davis Miles PLLC, Tempe By Robert N. Sewell and Marshall R. Hunt Counsel for Plaintiffs/Appellees Lancer Law, Tucson By Gerald F. Giordano, Jr. Counsel for Defendants/Appellants
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. PB20211549 The Honorable Kyle A. Bryson, Judge
Davis Miles PLLC, Tempe By Robert N. Sewell and Marshall R. Hunt Counsel for Plaintiffs/Appellees
Lancer Law, Tucson By Gerald F. Giordano, Jr. Counsel for Defendants/Appellants
Chief Judge Staring authored the decision of the Court, in which Presiding Judge Gard and Judge Eckerstrom concurred.
MEMORANDUM DECISION
STARING, CHIEF JUDGE
¶1 Nikole Haumont, Simon Haumont, and Lumikey Innovations, LLC (collectively, "Haumont") appeal from the trial court's entry of default in favor of Dana Taylor and Tarna Technologies, LLC (collectively, "Taylor") as a sanction for discovery violations. Because we lack jurisdiction, we dismiss the appeal.
Factual and Procedural Background
¶2 In March 2022, Taylor filed a civil complaint against Haumont in decedent Jill Fleming's probate proceeding, alleging Fleming and her personal representative Nikole Haumont had misused and appropriated intellectual property and other assets belonging to Taylor. The complaint asserted claims of breach of contract, breach of the covenant of good faith and fair dealing, conversion, breach of fiduciary duty, fraud, negligent misrepresentation, interference with business expectancy, and unjust enrichment. Taylor sought compensatory and punitive damages.
¶3 In August 2022, Taylor submitted a statement of discovery dispute under Rule 26(d), Ariz. R. Civ. P., asserting Haumont had failed to timely and adequately respond to Taylor's March 2022 discovery requests despite Taylor's repeated efforts to obtain the requested information. The trial court ordered Haumont to provide complete discovery responses by mid-September. It also sanctioned Haumont by awarding Taylor attorney fees incurred litigating the discovery dispute.
¶4 Haumont failed to provide the discovery materials as ordered, and Taylor subsequently moved for additional sanctions- including striking Haumont's answer and entering default against Haumont-three times between October 2022 and July 2023. Although the trial court noted Haumont's discovery responses were "untimely and incomplete," it denied Taylor's first two requests for case-terminating sanctions, instead sanctioning Haumont by awarding Taylor attorney fees and ordering Haumont to cure the defective discovery responses. Upon Taylor's third motion, however, the court struck Haumont's answer, stating "default in this case is hereby entered pursuant to" Rule 37, Ariz. R. Civ. P. The court again awarded Taylor attorney fees. The court certified its order as final under Rule 54(b), Ariz. R. Civ. P. This appeal followed.
Discussion
¶5 As a threshold matter, Taylor asserts the trial court's order striking Haumont's answer and entering default did not finally determine any of Taylor's claims, and, as such, we lack jurisdiction. Specifically, Taylor contends that, although the court's order is certified as final under Rule 54(b), "there has been no damages determination, and no subsequent default judgment has been entered." We review de novo whether a court has appropriately certified a judgment as final, in keeping with our "independent obligation to determine whether we have appellate jurisdiction." Dabrowski v. Bartlett, 246 Ariz. 504, ¶ 13 (App. 2019).
¶6 Our appellate jurisdiction is generally "limited to final judgments which dispose of all claims and all parties." Robinson v. Kay, 225 Ariz. 191, ¶ 4 (App. 2010) (quoting Musa v. Adrian, 130 Ariz. 311, 312 (1981)). Rule 54(b) creates an exception under which the trial court may "direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines there is no just reason for delay and recites that the judgment is entered under Rule 54(b)." See Sullivan &Brugnatelli Advert. Co. v. Century Cap. Corp., 153 Ariz. 78, 80 (App. 1986) (Rule 54(b) applies to default judgments); Kinnear v. Finegan, 138 Ariz. 34, 35 (App. 1983) (Rule 54(b) applies to proceedings and judgments in probate court); Ariz. R. Probate P. 4(a)(1) ("The Civil Rules [of Procedure] apply to probate proceedings unless they are inconsistent with [the] probate rules or A.R.S. Title 14."). But a trial court's finding of no just reason for delay and its entry of judgment under Rule 54(b) "does not confer jurisdiction if the judgment did not in fact dispose of 'one or more' of the claims." Musa, 130 Ariz. at 313 (quoting Ariz. R. Civ. P. 54(b)).
¶7 Entry of default is "'simply . . . an official recognition of the fact that one party is in default' and is no more than an 'interlocutory step' in a process that may lead to a final judgment." Harper v. Canyon Land Dev., LLC, 219 Ariz. 535, ¶ 10 (App. 2008) (time limits in Rule 60, Ariz. R. Civ. P., apply only to final judgments, orders, or proceedings). "An entry of default is clearly not a final judgment" in and of itself. Id. Thus, because the trial court's entry of default against Haumont in this case did not settle Taylor's claims with finality, certification under Rule 54(b) was improper, and such entry is not an issue appropriate for review on appeal. See Borg-Warner Acceptance Corp. v. Globe Elec., Inc., 20 Ariz.App. 147, 147 (1973) (absent final judgment, court's entry of default is not appealable); Sears Roebuck &Co. v. Walker, 127 Ariz. 432, 435 (App. 1980) (sanction of default judgment appealable).
Disposition
¶8 For the foregoing reasons, we dismiss the appeal for lack of jurisdiction. Both parties request their attorney fees on appeal. In our discretion, we decline to award fees to either party. However, as the successful party on appeal, Taylor is entitled to costs upon compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-341.