HALL, Judge.
¶ 1 Is a party who has been defaulted in a liquidated damages case for failure to appear nonetheless entitled to notice and an opportunity to be heard pursuant to Arizona Rules of Civil Procedure (Rule) 55(b)(2) before default judgment may be entered against it? Another panel of this court recently answered "yes" to this question. See BYS Inc. v. Smoudi, 228 Ariz. 573, 578, ¶ 20, 269 P.3d 1197, 1202 (App.2012). In this factually analogous case, we answer "no" because we conclude that Rule 55(b)(1) authorized the superior court's entry of default judgment by motion against TrustCash, LLC (TrustCash) and that the additional requirements of Rule 55(b)(2) do not apply in a liquidated damages case. We further conclude that the superior court did not abuse its discretion in denying TrustCash's motion to vacate the default judgment. Accordingly, we affirm.
¶ 2 Searchtoppers.com, LLC (Searchtoppers) filed a complaint against TrustCash alleging that it contracted with TrustCash to provide TrustCash internet marketing services for a monthly fee of $2500. The contract provided for an initial term of one year, but contained a provision allowing the contract to continue "automatically [] absent [a] 60 day advance written cancellation by either party." Searchtoppers claimed it provided the contracted services from 2006 through 2009 and TrustCash breached the contract by failing to make thirty-eight payments. Accordingly, Searchtoppers sought damages of $95,000 plus interest and an unspecified amount of attorneys' fees and costs.
¶ 3 TrustCash did not file a timely written notice of appearance. When TrustCash failed to file an answer within twenty days after service of the summons and complaint on TrustCash's statutory agent, Searchtoppers filed an application for entry of default against TrustCash pursuant to Rule 55(a) and served a copy of the application on TrustCash's statutory agent. Because TrustCash failed to answer the complaint within ten days of the filing of the application, the entry of default became effective as provided in Rule 55(a)(2), (3) (providing that default shall be effective ten days after the filing of the application for entry of default unless the "party claimed to be in default pleads or otherwise defends ... prior to the expiration" of the ten-day period). TrustCash filed an untimely answer (later struck by the court) and notice of appearance six days after the default became effective.
¶ 5 TrustCash timely appeals the court's denial of the motion to vacate default judgment. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(2) (Supp. 2011).
¶ 6 TrustCash asserts the superior court erred by denying its Rule 60(c) motion to vacate the default judgment. First, TrustCash broadly contends that it was entitled to an evidentiary hearing before the court entered default judgment. Second, TrustCash argues that it demonstrated good cause to vacate the judgment pursuant to Rule 60(c). We address each issue in turn.
¶ 7 TrustCash asserts that the superior court erred by entering default judgment pursuant to Rule 55(b)(1) without providing TrustCash an opportunity to contest the amount of damages at an evidentiary hearing. In response, Searchtoppers initially counters that TrustCash waived this issue by failing to request a hearing or otherwise raise the issue in the superior court.
¶ 8 Generally, we do not consider issues that were not raised in the superior court. Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 482, 724 P.2d 562, 568 (1986). "However, this rule is procedural, not substantive, and may be suspended in our discretion." Id. Because we conclude that the issue presented here, involving the interpretation of Rule 55(b), is an issue of law and a matter of statewide importance, we exercise our discretion to address the merits of TrustCash's claim. See id.
¶ 9 On appeal, TrustCash does not challenge the entry of default pursuant to Rule 55(a) or dispute that the default became effective ten days from the filing of the application for default. Therefore, the narrow issue before us is whether Searchtoppers was permitted to seek default judgment by motion, pursuant to Rule 55(b)(1), rather than by hearing, pursuant to Rule 55(b)(2).
¶ 10 We interpret court rules by applying the principles of statutory construction. Preston v. Kindred Hospitals West, L.L.C.,
¶ 11 Pursuant to Rule 55(b), judgment by default may be entered by one of two methods, depending on the circumstances:
(Emphasis added.)
¶ 12 Thus, as set forth in Rule 55(b)(1), a plaintiff may obtain a default judgment by motion when: (1) the claim is "for a sum certain or for a sum which can by computation be made certain," i.e., liquidated,
¶ 13 Notwithstanding the language in Rule 55(b) establishing a bifurcated procedure depending on whether damages are liquidated or unliquidated, another panel of this court recently held that "Rule 55(b)(2) requires a noticed hearing on an application for judgment when a party has [] appeared, regardless of whether the damages are liquidated or unliquidated." BYS, 228 Ariz. at 578, ¶ 20, 269 P.3d at 1202. Before amendments in 1975, Rule 55(b) did require "in all cases" that a three-day written notice be served on a party "against whom judgment by default is sought [who] appeared in the action."
¶ 14 Because the 1975 amendment substantially changed existing procedure by permitting a plaintiff seeking liquidated damages to obtain a default judgment by motion without hearing, Arizona cases construing previous versions of Rule 55(b), e.g., Rogers v. Tapo, 72 Ariz. 53, 230 P.2d 522 (1951), are inapposite, and do not support the holding in BYS.
¶ 15 As did the court in BYS, our dissenting colleague also misinterprets the following language in Tarr as entitling a defaulted litigant against whom liquidated damages are sought pursuant to Rule 55(b)(1) to the three-day notice afforded by Rule 55(b)(2):
142 Ariz. at 351, 690 P.2d at 70. The plaintiff in Tarr filed a complaint seeking damages for breach of contract and misrepresentation. Id. at 350, 690 P.2d at 69. She was granted a default judgment after the defendants failed to file an answer until after default had been entered against them. The issue on appeal was whether defendants' untimely answer was nonetheless an appearance for purposes of the three-day notice requirement in Rule 55(b)(2). The court held that defendants by their late filing of an answer "submitted themselves to the jurisdiction of the court and their actions constituted an appearance sufficient to entitle them to notice pursuant to Rule 55(b)(2)." Id. at 352, 690 P.2d at 71.
¶ 16 Although Tarr repeatedly refers to Rule 55(b)(2), the opinion makes no reference to Rule 55(b)(1) nor mention that the case was one in which the plaintiff sought liquidated damages. Indeed, the only issue before the court was the proper scope to be given the concept of an appearance for purposes of Rule 55(b)(2)'s notice requirement, an issue on which the court of appeals had issued conflicting opinions. Id. at 350-52, 690 P.2d at 69-71. Given the grammatical construction of the two subsections of Rule 55(b) setting forth separate and distinct procedures for obtaining a default judgment depending
¶ 17 The nature of the claim is what distinguishes Rule 55(b)(1) (which does not require notice) from Rule 55(b)(2) (which does require notice). Rule 55(b)(1) is limited to claims "for a sum certain or for a sum which can by computation be made certain." Ariz. R. Civ. P. 55(b)(1). For such a liquidated claim, there is no discretion in calculating the amount owed. Such a claim does not require a hearing for calculation and, accordingly, no notice for a hearing is required. As explained by the highest court of West Virginia in describing its analogous default judgment rule:
Cales v. Wills, 212 W.Va. 232, 569 S.E.2d 479, 484-85 (2002).
¶ 18 In summary, TrustCash was not entitled to the three-day notice and an opportunity for an evidentiary hearing provided by Rule 55(b)(2) to a defaulted party who appears in the action.
¶ 19 TrustCash argues the superior court erred by denying its request for Rule 60(c) relief following the default judgment. According to TrustCash, the amount of Searchtoppers' requested damages was "misrepresentative" because Searchtoppers had a duty to mitigate its damages, and therefore the default judgment should have been set aside pursuant to Rule 60(c)(3) and (6).
¶ 20 A party seeking relief from a default judgment pursuant to Rule 60(c) must establish each of the following: (1) the failure to file a timely answer was excusable under one of the six subdivisions of Rule 60(c), (2) the party had a meritorious defense to the action, and (3) the party acted promptly in seeking relief from the default judgment. United Imps. & Exps., Inc. v. Superior Court, 134 Ariz. 43, 45, 653 P.2d 691, 693 (1982). We review a superior court's denial of a motion to vacate a default judgment only for "a clear abuse of discretion." Hirsch v. Nat'l Van Lines, Inc., 136 Ariz. 304, 308, 666 P.2d 49, 53 (1983). A superior court abuses its discretion when there is "no evidence to support [its] conclusion or the reasons given by the court [are] `clearly untenable, legally incorrect, or amount to a denial of justice.'" Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App.2006) (quoting State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983)).
¶ 21 The record reflects that Searchtoppers served its complaint on TrustCash's statutory agent on December 14, 2009. The following day, the statutory agent mailed the complaint to the president and director of TrustCash, Kent Carasquero. At the time, Carasquero was traveling. After he returned home on January 4, 2010 and received his mail, Carasquero believed he forwarded the complaint to counsel, but failed to do so. On January 29, 2010, Searchtoppers served its application for entry of default on TrustCash's statutory agent. The statutory agent mailed Carasquero the application for entry of default on February 1, 2010. Carasquero forwarded the application for entry of default to counsel on February 8, 2010. Ultimately, TrustCash filed an untimely answer on February 16, 2010, after the application for default became effective.
¶ 22 To establish that its failure to timely file an answer is excusable, a party seeking relief must demonstrate that its actions were those of a reasonably prudent person under the circumstances. Daou v. Harris, 139 Ariz. 353, 359, 678 P.2d 934, 940 (1984). "[M]ere carelessness is not a sufficient
¶ 23 Here, Carasquero intended to forward the complaint to counsel, but he failed to do so. In his affidavit, Carasquero did not claim that he ever attempted to confirm that counsel received the complaint or discussed the matter with him. Nor did Carasquero assert that he took any measures to respond to the application for default other than forwarding it to counsel a week after the application was mailed to him. On this record, we conclude TrustCash did not demonstrate that its failure to file an answer either in a timely manner or within the grace period provided by Rule 55(a)(3) was excusable. Therefore, the superior court did not clearly abuse its discretion in denying TrustCash's motion to vacate the default judgment.
¶ 24 For the foregoing reasons, we affirm the superior court's denial of the motion to vacate the default judgment. Searchtoppers has requested an award of its attorneys' fees pursuant to A.R.S. § 12-341.01 (2003). In the exercise of our discretion, we grant Searchtoppers its reasonable attorneys' fees upon its compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCURRING: JOHN C. GEMMILL, Judge.
OROZCO, Judge, dissenting.
¶ 25 Because I agree with BYS Inc. v. Smoudi, 228 Ariz. 573, 578, ¶ 20, 269 P.3d 1197, 1202 (App.2012) and believe a party who has appeared when damages are liquidated is entitled to notice and an opportunity to be heard pursuant to Arizona Rule of Civil Procedure 55(b)2, I respectfully dissent.
¶ 26 A defendant in a civil action must respond within twenty days after service of the summons and complaint. Ariz. R. Civ. P. 12(a)(1)(A). If the defendant "has failed to plead or otherwise defend" within twenty days, the plaintiff may file an application for entry of default. Ariz. R. Civ. P. 55(a). The entry of default becomes effective ten days after the filing of the application, unless, within that time, the defendant pleads or otherwise defends. Ariz. R. Civ. P. 55(a)(2), (3).
¶ 27 After entry of default becomes effective, a plaintiff may file a motion for default judgment. Ariz. R. Civ. P. 55(b)l. If the defendant has not appeared in the action and the damages sought in the complaint are liquidated,
¶ 29 The majority contends Rule 55(b)1 does not require notice if the damages are liquidated and default has been entered against defendant. In so arguing, the majority overlooks a key distinction drawn in Rule 55(b). While the rule does provide that when damages are liquidated "the Court. shall enter judgment for that amount and costs against the defendant," it specifically qualifies that the court shall do so "if the defendant has been defaulted for failure to appear." Ariz. R. Civ. P. 55(b)1 (emphasis added). "In all other cases," which I take to mean cases in which the defendant has been defaulted for failing to plead or otherwise defend as set forth in Rule 55(a), the applicable procedure for obtaining a default judgment is found in Rule 55(b)2. Indeed, Rule 55(b)2 explicitly contemplates the situation, as is the case here, in which "the party against whom judgment by default is sought has appeared in the action" and requires "that [the] party ... be served with written notice of the application for judgment at least three days prior to the hearing on such application." (Emphasis added). If we were to interpret Rule 55(b)1 as the majority suggests, we would be holding that "appearance" and "plead and otherwise defend" have the same meaning. I reject such an interpretation.
¶ 30 Accordingly, I believe that if a defendant has failed to appear and the damages are liquidated, a three-day written notice is not required. But, when a defendant has appeared and has been defaulted only for failing to plead or defend, then Rule 55(b)2 applies and a three-day written notice is required. "`An appearance does not prevent a party from being in default for failure to plead or otherwise defend,' Rogers v. Tapo, 72 Ariz. 53, 57, 230 P.2d 522, 525 (1951), but it does require the entry of default judgment to occur by hearing as provided in Rule 55(b)(2)." Estate of Lewis v. Lewis, 229 Ariz. 316, 327, ¶ 34, 275 P.3d 615, 626 (App.2012).
¶ 31 In this case, according to the Affidavit of Default, TrustCash was defaulted for failing to "plead or otherwise defend." When TrustCash filed a notice of appearance, the notice was an appearance for purposes of Rule 55(b)2 because it demonstrated TrustCash's
¶ 32 The majority argues that Tarr is inapplicable because it dealt with unliquidated damages. However, Tarr does not indicate whether the damages were liquidated or unliquidated. Furthermore, the issue in Tarr was outlined as follows: "Does a purported answer, filed after an entry of default but before application for a default judgment, constitute an appearance entitling the defaulting party to notice of default judgment under Arizona Rules of Civil Procedure, Rule 55(b)(2)?" Tarr, 142 Ariz. at 350, 690 P.2d at 69 (emphasis added). This is precisely the issue in this case. Had our supreme court wanted to limit Tarr only to cases involving unliquidated damages, it would have done so.
¶ 33 Furthermore, in this case, Searchtoppers did not specify the amount of attorney fees requested. Rule 55(b)1 states
The comment to this rule also states
See Committee Comment to Ariz. R. Civ. P. 55(b) 1984 Amendment. Therefore, at a minimum, Searchtoppers was required to give TrustCash notice of the hearing pursuant to Rule 55(b)2 for the attorney fees.
¶ 34 Because I believe the matter should be remanded for a determination of damages and attorney fees, I would not reach the issue of whether the superior court abused its discretion in denying TrustCash's motion to vacate the default judgment. Also, I would not award Searchtoppers attorney fees or costs.
See also State Bar Committee Note to 1984 Amendment (explaining that a party "may plead entitlement to an unspecified reasonable amount of attorneys' fees with knowledge that he must proceed by hearing pursuant to 55(b)(2) upon default").
Ariz. R. Civ. P. 55(b) (1956).
Ariz. R. Civ. P. 55(b) (1975) (effective January 1, 1976).
Rule 55(b) has been amended several times since 1975. None of the amendments impact the application of Rule 55(b)(1) under the circumstances of this case.