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Solcom Enterprises, Inc. v. Gendler

Court of Appeals of Arizona, First Division

November 26, 2013

SOLCOM ENTERPRISES, INC. a Canadian corporation, Plaintiff/Appellee/ Cross-Appellant,
v.
ROBERT L. GENDLER and YORKYS RAMIREZ, husband and wife, Defendants/Appellants/Cross-Appellees.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Pima County No. C20102797 The Honorable Jan E Kearney, Judge

Rusing, Lopez & Lizardi, PLLC, Tucson By Edward Moomjian, II Counsel for Plaintiff/Appellee/Cross-Appellant

Robert L. Gendler, Benson In Propria Persona

Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Acting Presiding Judge Patricia K. Norris and Judge Kenton D. Jones joined.

MEMORANDUM DECISION

JOHNSEN, CHIEF JUDGE:

¶1 Robert Gendler appeals from judgment entered against him after a bench trial. For the reasons stated below, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶2 Solcom Enterprises, Inc. contracted with Top Stone, Inc. to buy decorative stone items, and gave a deposit of $40, 350. The written contract stated an estimated shipping date of eight to ten weeks. Top Stone had a few of the items in stock and delivered them to Solcom. Most of the items, however, had to be ordered from China. Solcom filed suit against Top Stone and its principals, Gendler and his spouse, Yorkys Ramirez, ten months after entering the contract because Top Stone had not delivered the remaining items and refused to refund the remainder of the deposit.

¶3 Default judgment was entered against Ramirez and Top Stone. After a three-day bench trial, the superior court found Gendler liable for the acts of Top Stone on Solcom's alter-ego claim and entered judgment against Gendler personally on Solcom's claims for consumer fraud, negligent misrepresentation and punitive damages.

¶4 Gendler, Ramirez and Top Stone appealed. We have jurisdiction over Gendler's timely appeal pursuant to Arizona Revised Statutes ("A.R.S.") § 12-2101(A)(1) (2013).[1] This court earlier dismissed Top Stone's appeal because it was unrepresented by counsel. We now dismiss Ramirez's appeal for lack of jurisdiction. Except under circumstances not present here, a defaulted party may not appeal the entry of default. Such a party must move to set aside the judgment or move for a new trial under Arizona Rules of Civil Procedure 55(c), 59 or 60(c); the party then may appeal the denial of that motion. See Hirsch v. Nat'l Van Lines, Inc., 136 Ariz. 304, 311, 666 P.2d 49, 56 (1983). Because Ramirez did not move for relief from the default judgment, we lack jurisdiction to hear her appeal. See Soltes v. Jarzynka, 127 Ariz. 427, 430-31, 621 P.2d 933, 936-37 (App. 1980).

DISCUSSION

¶5 Solcom asks us to affirm the judgment against Gendler based upon the default judgment entered against Top Stone and the superior court's finding (which Gendler does not dispute on appeal) that Gendler is liable for the acts of Top Stone under the alter-ego doctrine. We agree that the judgment piercing the corporate veil rendered Gendler personally liable for the judgment against Top Stone; thus, regardless of the outcome of his appeal of the judgment entered against him personally, Gendler remains liable for the judgment entered against Top Stone. On appeal, Gendler does not dispute the amount of damages, costs and attorney's fees the court imposed on Top Stone and for which he is liable pursuant to the alter-ego doctrine.

¶6 In any event, we affirm the judgment entered against Gendler personally. On appeal from a judgment rendered after a bench trial, we review the record in a light most favorable to upholding the superior court's judgment and resolve all inferences against the appellant. In re Estate of ...


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