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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GRACE BRITT, Plaintiff/Appellee,

v.

ADVANCED BUSINESS SERVICES, et al., Defendants/Appellants.

________________________________

JEFFREY MATTHEWS, et al., Third-Party Defendants/Appellees.

No. 1 CA-CV 22-0535

Appeal from the Superior Court in Maricopa County

No. CV2022-090532

The Honorable Stephen M. Hopkins, Judge (Retired)

AFFIRMED

COUNSEL

Elley Law PLC, Gilbert

By Richard D. Elley

Counsel for Plaintiff/Appellee and Third-Party Defendants/Appellees

Schern Richardson Finter, PLC, Mesa

By Aaron M. Finter, Michael R. Somers

Counsel for Defendants/Appellants

FILED 5-11-2023
BRITT v. ADVANCED BUSINESS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

F O S T E R, Judge:

¶1 Defendant Advanced Business Services, LLC (“ABS”) appeals 

from the superior court’s denial of its motion to set aside a default judgment 

ordering specific performance of a real estate transaction with plaintiff 

Grace Britt. For the following reasons, the Court affirms.

FACTUAL AND PROCEDURAL HISTORY

¶2 Because this case comes after the entry of default, all well-pled 

facts in the complaint are viewed as true. Smith & Wesson Corp. v. The 

Wuster, 243 Ariz. 355, 360, ¶ 22 (App. 2017). ABS waived service of process 

through its member, Brian Loiselle, see Ariz. R. Civ. P. 4(f)(1), and therefore 

had notice of the action necessary to satisfy due process, cf. Nat’l Inv. Co., 

Inc. v. Est. of Bronner, 146 Ariz. 138, 140 (App. 1985).

¶3 Britt entered a purchase agreement with ABS for the home she 

lived in (“the property”). After Britt lost her job, the parties mutually 

disavowed that first purchase agreement and entered a second purchase 

agreement. The second agreement required Britt to pay a $300,000 down 

payment and ABS would provide carryback financing—loaning Britt the 

remaining funds at 2.99% interest. Britt paid ABS the $300,000 down 

payment. 

¶4 ABS delivered a special warranty deed to Britt, but no deed 

of trust or promissory note that reflected the carryback financing. ABS and 

Brian Loiselle later refused to perform according to the second agreement. 

¶5 After Britt recorded the special warranty deed, Loiselle then 

recorded a notice stating the deed was issued in error and inadvertently 

recorded. ABS then demanded that Britt execute a third purchase 

agreement with different terms than the second agreement—including the 

elimination of carryback financing at 2.99%—or be evicted. 

¶6 Britt sued ABS and Loiselle for breach of contract, consumer 

fraud, and unjust enrichment, seeking specific performance of the second 
BRITT v. ADVANCED BUSINESS, et al.

Decision of the Court

3

agreement. Simultaneously, Britt requested and received a temporary 

restraining order (later converted into a preliminary injunction) preventing 

ABS from filing an eviction action against her. 

¶7 After ABS and Loiselle failed to plead or otherwise defend the 

action, Britt filed an application for entry of default. See Ariz. R. Civ. P. 

55(a). After that default became effective given the passage of time, see Ariz. 

R. Civ. P. 55(a)(4), Loiselle answered the complaint on his own behalf and, 

ostensibly, for ABS. However, he could not properly answer on behalf of 

ABS because he is not an attorney and ABS is a business entity. See Ramada 

Inns, Inc. v. Lane & Bird Advert., Inc., 102 Ariz. 127, 128 (1967). 

¶8 Britt then filed a motion for entry of default judgment, with 

hearing, against ABS and Loiselle. The court held a default hearing where 

Britt and Loiselle (but no ABS representative) appeared. At that hearing, 

Britt introduced evidence of the second agreement and ABS’s breach. She 

testified that she believed the purchase and seller carryback agreement 

accurately reflected the specific performance due under the second 

agreement. She introduced text messages between herself and Loiselle as 

evidence of the parties’ agreement to specific terms. After considering the 

evidence received, the court entered a partial final judgment in favor of Britt 

and against ABS, requiring ABS to convey the property to Britt under the 

seller carryback financing terms pled in her complaint and testified to at the 

hearing.

¶9 ABS then hired counsel and belatedly filed an answer. ABS 

filed a motion for a new trial, seeking to set aside the default judgment 

under Ariz. R. Civ. P. 59 and 60. The superior court denied ABS’s motion, 

and ABS timely appealed. This Court has jurisdiction pursuant to Arizona 

Revised Statutes (“A.R.S.”) Sections 12-120.21 and 12-2101(A)(2).

DISCUSSION

¶10 A denial of a Rule 60 motion to set aside a default judgment

is reviewed for abuse of discretion. Laveen Meadows Homeowners Ass’n. v. 

Mejia, 249 Ariz. 81, 83, ¶ 6 (App. 2020). This Court does not inquire whether 

the superior court was substantively correct in entering the default 

judgment, Hirsch v. Nat’l Van Lines, Inc., 136 Ariz. 304, 311 (1983), but 

instead, “defer[s] to the superior court’s factual findings and will not set 

them aside unless they are clearly erroneous,” Ruffino v. Lokosky, 245 Ariz. 

165, 168, ¶ 9 (App. 2018).
BRITT v. ADVANCED BUSINESS, et al.

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I. ABS cannot raise the admissibility of evidence at the default hearing 

on appeal.

¶11 ABS argues that the superior court erred by admitting the text 

messages as evidence of terms of the second agreement at the default 

judgment hearing. This argument is improper on appeal. 

¶12 After the entry of default, “a defaulted party loses all rights to 

litigate the merits of the cause of action.” Tarr v. Superior Ct. In & For Pima 

Cnty., 142 Ariz. 349, 351 (1984). “A default is treated as an admission, by the 

defaulting party, of the truth of all well pleaded facts in the case.” Clugston 

v. Moore, 134 Ariz. 205, 206 (App. 1982). Thus, a party cannot directly appeal 

a default judgment, after entry of default, but must instead move under 

Rule 60 for the default to be set aside. Aloia v. Gore, 252 Ariz. 548, 553, ¶ 21 

(App. 2022). If the motion is denied, “[t]he scope of an appeal . . . is 

restricted to the questions raised by the motion to set aside. . . .” Hirsch, 136 

Ariz. at 311.

¶13 By arguing that the superior court admitted evidence at the 

default judgment hearing that was either insufficient or inadmissible parol 

evidence, ABS is not challenging the validity of the judgment or whether 

ABS was properly defaulted. Rather, these arguments go to the substance 

of the judgment and Britt’s entitlement to specific performance. This Court 

rejects this substantive argument as impermissible on appeal from denial of 

a motion to set aside a default judgment.

II. The superior court did not grant greater relief than that prayed for 

in the complaint.

¶14 ABS argues the superior court erred by granting relief greater 

than that Britt requested in her complaint. “A judgment by default must not 

be different in kind from, or exceed in amount, that prayed for in a 

pleading’s demand for judgment.” Ariz. R. Civ. P. 55(b)(3). Although this 

argument is permissible on appeal, ABS somewhat conflates this 

permissible argument with its impermissible argument discussed above. 

ABS’s challenge to the scope of relief is also barred as a substance-based 

attack on a default to the extent it presses an evidentiary argument.

¶15 The purpose of Rule 55(b)(3) is “to assure the defendant who 

consciously allows a default judgment . . . [to] rest secure in the knowledge 

that the judgment will not exceed the relief requested in the complaint.” 

Darnell v. Denton, 137 Ariz. 204, 206 (App. 1983). But “a complaint need not 

be technically sufficient to support a default judgment.” Ezell v. Quon, 224 

Ariz. 532, 537, ¶ 19 (App. 2010) (quoting Cockerham v. Zikratch, 127 Ariz. 230, 
BRITT v. ADVANCED BUSINESS, et al.

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5

234 (1980)). Rather, it must be sufficient to put a defendant on notice of the 

cause of action and allegations as a whole. See id. Further, while specific 

performance may not be ordered if “the parties have not agreed on one or 

more of the important, essential or material terms . . . absolute completeness 

in every detail is not a prerequisite of specific performance.” Daley v. Earven, 

131 Ariz. 182, 185 (App. 1981).

¶16 Britt’s complaint requested specific performance of the 

second agreement for the sale of the real estate. She pleaded that the terms 

included seller carryback financing with a loan at 2.99% interest and a 

$300,000 down payment. She also alleged in her complaint that ABS 

removed certain line-item terms from the purchase agreement as originally 

presented—implying that apart from the changed seller carryback, which 

was supported by text message evidence, the terms of the first contract 

otherwise supplied the terms of the second agreement. 

¶17 The superior court, consistent with the allegations in Britt’s 

complaint, ordered the relief of specific performance of the material terms 

of the contract in its judgment. To the extent that ABS complains that certain 

terms were not pleaded expressly in the complaint or text messages, they 

were incorporated by reference to the original purchase contract by the 

complaint. These terms include the choice of Arizona law and Britt’s 

purchase of fixtures. To the extent the second agreement—as a form of 

judgment—includes other terms, they are not material such that they 

preclude summary judgment. ABS points to no prejudice from having Britt, 

for instance, choose an escrow company or that each side pays its own 

customary fees for the sale. See Daley, 131 Ariz. at 185. Such changes do not 

vary the kind of relief requested in the complaint, and because a sum certain 

of damages was not demanded, the relief provided did not exceed the 

amount requested in the complaint. See Ariz. R. Civ. P. 55(b)(3). This Court 

finds no error.

III. The superior court did not err by denying relief based on fraud or 

misconduct.

¶18 Finally, ABS argues Britt failed to present “exculpatory 

evidence” and committed fraud upon the court. This argument, as it relates 

to Rule 60(b)(3) fraud, is waived because it was not presented to the 

superior court. Mejia, 249 Ariz. at 84, ¶ 9. ABS also alleges misconduct 

under Rule 60(b)(3), an issue it properly raised by pressing Rule 59(a)(1)(B) 

misconduct in its motion for a new trial. ABS, however, failed to include a 

transcript of the hearing on its motion for new trial, so it is assumed such a 
BRITT v. ADVANCED BUSINESS, et al.

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transcript would support the superior court’s ruling. See Kline v. Kline, 221 

Ariz. 564, 572, ¶ 33 (App. 2009).

¶19 ABS argues that Britt hid “exculpatory evidence” from the 

superior court, namely an email suggesting a deed of trust and promissory 

note were, in fact, transmitted to Britt in contradiction to her testimony at 

the default hearing. ABS’s non-standard use of the term “exculpatory 

evidence” is taken to mean that a defaulting party has a special duty to 

present not just the moving party’s case, but any evidence that does not 

support the judgment.

¶20 This argument fails. First, ABS cites no rule or caselaw for the 

proposition that a party moving for default judgment has a special duty to 

present “exculpatory evidence” at a default hearing on the defaulting 

party’s behalf. No authority has been found to support the proposition that 

anything other than the ordinary duty of candor applies to attorneys 

moving for a default judgment. 

¶21 Second, when a default becomes effective after a party fails to 

answer or otherwise defend, the defaulting party is deemed to admit “[a]ll 

well-pleaded facts,” in the complaint. S. Ariz. Sch. for Boys, Inc. v. Chery, 119 

Ariz. 277, 281 (App. 1978). By defaulting, ABS admitted it failed to provide 

a promissory note and deed of trust that conformed to the second 

agreement and admitted its terms. Thus, after entry of default, ABS was 

precluded from arguing the existence of a different contract—or no 

enforceable contract at all—to the extent the argument contests the 

sufficiency of the evidence or would limit Britt’s right to recover the relief 

properly demanded in the complaint. See id. at 282. The proposition that 

Britt, with ABS having admitted the facts alleged against it, has an 

obligation to negate those same admitted facts by presenting ABS’s case for 

it at a default hearing makes no sense. 

¶22 Third, even assuming Britt had some duty to present 

“exculpatory evidence” she knew existed, nothing in the record indicates 

this evidence was hidden rather than inadvertently omitted, forgotten, or 

simply construed differently than ABS would like. ABS had an opportunity 

to argue to the superior court that Britt’s reliance on text messages without 

presenting the email was misconduct. The superior court is in the best 

position to determine whether misconduct by a party occurred and 

“materially affected the rights of the aggrieved party.” See Leavy v. Parsell, 

188 Ariz. 69, 72 (1997). In the absence of a transcript, this Court presumes

the argument and evidence presented at the hearing on the motion to set 
BRITT v. ADVANCED BUSINESS, et al.

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aside supported the superior court’s rejection of that argument. This Court 

finds no abuse of discretion.

IV. Britt is entitled to Attorneys’ Fees. 

¶23 Both parties request fees and costs on appeal. Because this 

action arises out of contract, Britt is awarded her reasonable attorneys’ fees 

and costs upon compliance with ARCAP 21. See A.R.S. §§ 12-341, 12-341.01.

CONCLUSION

¶24 Affirmed.