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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

HONEYWELL INTERNATIONAL, INC., by its division ADI, 

Plaintiff/Appellant/Cross-Appellee, 

v.

JARED KILGORE, 

Defendant/Appellee/Cross-Appellant. 

No. 1 CA-CV 13-0759 

 

Appeal from the Superior Court in Maricopa County 

No. CV2012-000167 

The Honorable Lisa Daniel Flores, Judge 

AFFIRMED 

COUNSEL 

Hammerman & Hultgren, PC, Phoenix 

By Stanley M. Hammerman, Allan R. Draper 

Counsel for Plaintiff/Appellant/Cross-Appellee 

Wilenchik & Bartness, PC, Phoenix 

By Dennis I. Wilenchik, Tyler Q. Swenson, Brian J. Hembd 

Counsel for Defendant/Appellee/Cross-Appellant
HONEYWELL v. KILGORE 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Patricia A. Orozco delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined. 

O R O Z C O, Judge: 

¶1 Honeywell International Inc. appeals from the trial court’s 

decision dismissing its action to domesticate a New York default judgment 

and vacating that judgment against Jared Kilgore1 on the grounds that New 

York lacked personal jurisdiction over Kilgore. Kilgore cross-appeals the 

court’s denial of his request for attorney fees as untimely. For the following 

reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY 

¶2 In December 2010, Honeywell obtained a default judgment 

for more than $830,000 against Kilgore, American Alarm Company, Inc., 

and Danielle Paletz in the Supreme Court of the State of New York, County 

of Suffolk. As to Kilgore, the default judgment was based on Honeywell’s 

claim that Kilgore signed a guarantee to pay Honeywell by American 

Alarm Company. In January 2012, Honeywell filed a copy of the judgment 

in Maricopa County Superior Court, along with an Affidavit Substantiating 

a Foreign Judgment. 

¶3 Kilgore filed a Notice of Limited Appearance and Motion to 

Vacate Default Judgment and Motion to Dismiss. Kilgore argued the 

judgment was void based on lack of due process because he was never 

properly served and never had actual notice of the New York action and 

disputed Honeywell’s allegations of its attempts at service. Kilgore denied 

having signed the guarantee that was the basis of the judgment and argued 

that, New York never had personal jurisdiction over him. 

¶4 Honeywell disputed Kilgore’s claim that he did not sign the 

guarantee and argued that New York had personal jurisdiction based on a 

provision in the guarantee declaring that New York would have 

jurisdiction to adjudicate any disputes arising out of the guarantee. 

Honeywell further argued that Kilgore was properly served in Maricopa 

 

1 Kilgore legally changed his name to Babe Kilgore in 2008. 
HONEYWELL v. KILGORE 

Decision of the Court 

3 

County, Arizona with the summons and verified complaint in the New 

York action under New York law by “nail and mail” service effectuated by 

the end of August 2010. 

¶5 Without objection, the court held an evidentiary hearing to 

address the alleged forgery of Kilgore’s signature on the guarantee and the 

“nail and mail” service. At the hearing, Kilgore testified that Danielle Paletz 

owned two separate companies, American Alarm Company, Inc., and 

American Alarm Partners of Arizona, Inc. He acknowledged doing 

consulting work for American Alarm Partners, but testified that he had 

never worked for American Alarm Company and that he had never been 

an officer, director, or owner of either company. Kilgore denied signing the 

guarantee, alleging that the handwriting on the document was that of 

Plaetz’s colleague and then-fiancé, whom Kilgore knew to have forged 

other documents. He also noted that the guarantee did not identify any 

particular account number. For the New York action, Kilgore denied 

receiving personal service, service by mail, or service by attachment of the 

complaint to his residence. He argued that he would have been home and 

his wife was also at home when service was allegedly attempted and, 

accordingly, could not explain not having received the documents if service 

was in fact attempted as indicated on an affidavit of service. 

¶6 Joshua Foster, an attorney for Honeywell, testified that he was 

unaware that American Alarm Company and American Alarm Partners 

were two separate companies. He also acknowledged that no account 

number was listed on the guarantee where it should have been and could 

not state from personal knowledge that the guarantee was affiliated with 

any particular account. 

¶7 Based on the evidence and argument provided, the court 

found that Honeywell failed to prove that the guarantee was related to 

American Alarm Company, whose debt was the subject of the lawsuit. 

Because personal jurisdiction over Kilgore was based entirely on provisions 

in the guarantee and the guarantee was not found to be related to the debt, 

the court found that New York never acquired personal jurisdiction over 

Kilgore. The court vacated the default judgment as void. 

¶8 Kilgore then filed an application for an award of his costs and 

attorney fees. The court awarded costs to Kilgore as the prevailing party, 

but denied the request for fees as untimely, noting Kilgore failed to request 

fees in his motion challenging jurisdiction. 
HONEYWELL v. KILGORE 

Decision of the Court 

4 

¶9 Honeywell timely appealed the vacating of the New York 

judgment and Kilgore timely cross-appealed the court’s denial of his 

request for attorney fees. This court has jurisdiction pursuant to Article 6, 

Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) 

section 12-2101.A.1. (West 2015).2 

DISCUSSION 

I. Honeywell’s Appeal 

¶10 “The Full Faith and Credit Clause of [Article 2, Section 1] the 

United States Constitution requires that a judgment rendered in a state 

court be accorded the same validity and effect in every other court in the 

United States as it has in the state rendering it.” Springfield Credit Union v. 

Johnson, 123 Ariz. 319, 322-23 (1979). An authenticated foreign judgment is 

prima facie evidence of the rendering court’s jurisdiction to enter it. Id. at 

323. Such a judgment filed in Arizona is treated in the same manner, “has 

the same effect and is subject to the same procedures, defenses and 

proceedings for reopening, vacating, or staying as a judgment of a superior 

court of this state[.]” A.R.S. § 12-1702 (West 2015). 

¶11 A foreign judgment may be attacked on grounds of lack of 

personal or subject matter jurisdiction, lack of due process, incompetency 

of the foreign court, extrinsic fraud, and the invalidity or unenforceability 

of the judgment. Bebeau v. Berger, 22 Ariz. App. 522, 523 (App. 1974); Coffee 

v. Nat’l Equip. Rental, Ltd., 9 Ariz. App. 249, 251 (App. 1969). The party 

attacking the judgment has the burden of proving that the judgment is not 

entitled to full faith and credit. Cristall v. Cristall, 225 Ariz. 591, 594, ¶ 16 

(App. 2010). 

¶12 Whether a foreign judgment is entitled to full faith and credit 

is a question of law we review de novo. Grynberg v. Shaffer, 216 Ariz. 256, 

257, ¶ 5 (App. 2007). We are bound by the trial court’s findings of fact 

unless clearly erroneous. Sabino Town & Cnty Estates Ass’n v. Carr, 186 Ariz. 

146, 149 (App. 1996). We view the evidence and reasonable inferences from 

that evidence in the light most favorable to the prevailing party. Inch v. 

McPherson, 176 Ariz. 132, 136 (App. 1993). We do not reweigh conflicting 

evidence and defer to the trial court’s determination of witness credibility. 

 

2 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 
HONEYWELL v. KILGORE 

Decision of the Court 

5 

In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13 (1999); Gutierrez v. Gutierrez, 

193 Ariz. 343, 347-48, ¶ 13 (App. 1998). 

¶13 Honeywell argues that Kilgore’s testimony was self-serving 

and not credible and that the evidence presented did not support the court’s 

finding that Kilgore did not sign the guarantee. However, the court did not 

make such a finding. The court instead found that Honeywell failed to 

show that the guarantee was “related to American Alarm Company, Inc., 

the entity that apparently incurred the debt to” Honeywell. Because the 

provisions in the guarantee governing jurisdiction and choice of law were 

the only basis on which Honeywell claimed New York had jurisdiction over 

Kilgore, the court found that New York lacked personal jurisdiction. The 

court did not resolve Kilgore’s claims that he did not sign the guarantee and 

did not receive service. 

¶14 The record supports the court’s findings. As noted in the 

testimony of both Kilgore and Foster, the guarantee includes a blank for the 

applicable account number, but no account number appears in the 

document, and the guarantee does not otherwise identify the entity for 

whose debt the guarantee was given. When asked whether he had personal 

knowledge that the guarantee was associated with any particular account, 

Foster testified that he had personal knowledge that Honeywell had sought 

guarantees from three individuals to continue credit for the American 

Alarm Company account. He could not, however, connect the guarantee 

document to American Alarm Company. 

¶15 Honeywell has not challenged on appeal the court’s finding 

that Honeywell failed to prove that the guarantee was connected to the debt 

or the court’s legal reasoning that the failure to show such a connection 

meant that the New York court lacked personal jurisdiction over Kilgore.3 

Consequently, we affirm the trial court’s decision finding that New York 

lacked personal jurisdiction over Kilgore. 

¶16 Honeywell argues that the trial court lacked the authority to 

vacate the underlying New York judgment except for its application in 

 

3 In its reply brief, Honeywell asserts for the first time that the court 

had not ruled on whether Kilgore had signed the guarantee but decided 

New York lacked jurisdiction because the guarantee was not shown to be 

related to the debt. Honeywell argues that the court’s actions and decision 

constituted an unpermitted retrial of the merits of the case. Arguments first 

raised in a reply brief are waived. In re the Marriage of Pownall, 197 Ariz. 

577, 583 n.5 (App. 2000). We therefore do not consider it. 
HONEYWELL v. KILGORE 

Decision of the Court 

6 

Arizona. Honeywell cites three cases in support: Phares v. Nutter, 125 Ariz. 

291 (1980); Springfield Credit Union, 123 Ariz. at 319; Stephens v. Thomasson, 

63 Ariz. 187 (1945). None of these cases is on point. Each recognizes that a 

foreign judgment may be attacked and vacated for lack of personal 

jurisdiction, but does not distinguish between the judgment’s being vacated 

in the originating state versus the judgment’s being vacated only in 

Arizona. Phares, 125 Ariz. at 293-94; Springfield Credit Union, 123 Ariz. at 

323; Stephens, 63 Ariz. at 194. The Uniform Enforcement of Foreign 

Judgments Act, which both Arizona and New York have adopted, provides 

that a filed foreign judgment is subject to the same procedures, defenses 

and proceedings for vacating as a judgment of the court in which it is filed. 

A.R.S. § 12-1702; N.Y.C.P.L.R. § 5402 (McKinney 2015). Thus, New York 

has recognized that judgments by its courts are subject to certain 

procedures (including being vacated) in other states, including Arizona. 

This statutory directive is consistent with the common law concept that a 

foreign judgment entered by a court lacking personal jurisdiction is not 

entitled to full faith and credit because it is void. Restatement (Second) of 

Conflict of Laws § 104 cmt. a (1971). We are not persuaded that that the 

court erred in vacating the judgment. 

II. Kilgore’s Cross-Appeal 

¶17 Kilgore cross-appeals from the trial court’s denial of his 

request for attorney fees as untimely under Arizona Rules of Civil 

Procedure 54(g)(1). Kilgore first requested an award of attorney fees after 

the trial court granted his motions and vacated the New York judgment. 

Honeywell argued the request was untimely and, concluding Balestrieri v. 

Balestrieri, 232 Ariz. 25 (App. 2013) applied, the trial court denied the 

request. 

¶18 Kilgore correctly argues that Rule 54(g)(1) requires claims for 

attorney fees be made in the pleadings and that his motions were not 

pleadings. See Ariz. R. Civ. P. 7(a). In Balestrieri, this court noted that a 

purpose of fee-shifting statutes was to promote settlement by putting 

opposing parties on notice that fees would be requested so the parties could 

accurately assess the risks and benefits associated with litigating or settling. 

232 Ariz. at 27, ¶ 7. Balestrieri held that a party filing a Rule 12(b) motion to 

dismiss “forfeits his claim for [attorney] fees if he does not ask for fees at 

the time he moves to dismiss.” Id. at 26, ¶ 1. 

¶19 Kilgore argues he was not required to file any pleadings, his 

motion was different than the motion to dismiss in Balestrieri, and that 

therefore the court erred in denying his request for fees. Kilgore’s motion, 
HONEYWELL v. KILGORE 

Decision of the Court 

7 

however, was filed pursuant to Rule 12(b) (as well as Rule 60(c) and New 

York law) and, accordingly, falls within the holding of Balestrieri.

4 Because 

Kilgore did not present his request for fees until after the court had ruled, 

the superior court did not err in finding the request was untimely. 

 

 

4 Although noting King v. Titsworth, 221 Ariz. 597 (App. 2009), Kilgore 

claims King is “inapplicable” as it addressed a party’s request for fees made 

for the first time after the close of pleadings and after the completion of trial 

and a ruling on the merits. Id. at 598. Kilgore also argues that he did 

provide early notice because he anticipates further proceedings in New 

York. We reject this argument. Kilgore’s claim was for fees incurred in this 

Arizona proceeding and the request was made after the outcome of the 

proceeding had been determined. 
HONEYWELL v. KILGORE 

Decision of the Court 

8 

III. Attorney Fees And Costs 

¶20 Honeywell requests an award of attorney fees on appeal, but 

cites no substantive authority for such an award. We therefore deny the 

request. See Haynes v. Syntek Fin. Corp., 184 Ariz. 332, 341 (1995). Kilgore 

seeks an award of attorney fees on appeal pursuant to A.R.S. § 12-341.01.A. 

Under A.R.S. § 12-341.01.A., this court has discretion to determine the 

successful party. Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, 569, ¶ 9 

(App. 2007). Because both parties prevailed in part, we find that neither 

was successful for purposes of a fee award, and deny the requests. For these 

same reasons, we decline to award costs to either party. 

CONCLUSION 

¶21 We affirm the judgment of the trial court.