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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROUNDTABLE VENTURES, LLC, Plaintiff/Appellee,

v.

KATIE SCHMEDDING, Defendant/Appellant.

No. 1 CA-CV 16-0614

Appeal from the Superior Court in Maricopa County

No. CV 2015-091753

The Honorable Margaret Benny, Commissioner

The Honorable David K. Udall, Judge

VACATED AND REMANDED

COUNSEL

Ivan & Kilmark, PLC, Glendale

By Florin V. Ivan, Justin M. Clark

Counsel for Defendant/Appellant

Lawyer For Less, PLLC, Phoenix

By Gil Hacohen

Counsel for Plaintiff/Appellee

FILED 1-30-2018
ROUNDTABLE v. SCHMEDDING

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in 

which Judge Maria Elena Cruz and Judge John C. Gemmill1 joined.

B R O W N, Judge:

¶1 This case arises out of Katie Schmedding’s alleged refusal to 

honor a real estate purchase agreement between her and Roundtable 

Ventures, LLC (“Roundtable”). Because the superior court’s entry of 

default was ineffective, thus rendering the default judgment void, we 

vacate the judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On December 9, 2015, Roundtable filed an amended 

complaint alleging breach of contract, breach of the implied covenant of 

good faith and fair dealing, and fraudulent misrepresentation.2 When 

Schmedding failed to answer, Roundtable submitted an application for 

default pursuant to Arizona Rule of Civil Procedure (“Rule”) 55(a). Six 

days later, Schmedding filed a pro per motion to dismiss the application for 

default, arguing in part the complaint was defective; Roundtable

misrepresented its identity; she cancelled the purchase agreement; service 

and venue were improper; the contractual terms were unconscionable, 

ambiguous, and vague; she never received a “title report”; and she did not 

breach the agreement. Schmedding also denied “each and every other 

allegation not answered herewithin [sic],” and requested dismissal of the 

amended complaint with prejudice. 

 

1 The Honorable John C. Gemmill, Retired Judge of the Arizona Court 

of Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article VI, Section 3 of the Arizona Constitution.

2 Justin Fromstein was the named plaintiff in the original complaint. 

After the superior court informed the parties that the real estate purchase 

agreement was entered between Roundtable and Schmedding, Roundtable 

became the sole plaintiff in the amended complaint. 
ROUNDTABLE v. SCHMEDDING

Decision of the Court

3

¶3 Notwithstanding Schmedding’s filing, Roundtable moved for 

default judgment under Rule 55(b), seeking specific performance under the 

real estate purchase agreement, or in the alternative, “a sum certain plus 

attorney’s fees.” Schmedding then filed two additional motions to dismiss 

and an answer to Roundtable’s motion for default judgment. Roundtable 

moved to strike the pending motions to dismiss and contended in part that 

Schmedding’s motions to dismiss did not meet the “otherwise defends”

requirement under Rule 55(a). The motion to strike and motions to dismiss

were ultimately denied.3

¶4 The superior court then set an evidentiary hearing for

Roundtable’s motion for default judgment, allowing Schmedding to 

dispute the “amount of damages and costs requested.” When Schmedding 

did not appear “[a]fter a significant wait time,” the court proceeded with 

the hearing, finding in part that entry of default was properly entered, the 

real estate purchase agreement was a “valid, enforceable contract,” and 

Roundtable “fulfilled its obligations under the contract.” The court entered 

a default judgment on May 19, 2016, ordering Schmedding to comply with

the purchase agreement’s terms for the sale of the property and awarding 

Roundtable attorneys’ fees and costs. Schmedding’s counsel then filed a 

notice of appearance. 

¶5 Because Schmedding failed to comply with the default 

judgment, the superior court set a hearing to address her lack of 

compliance. Schmedding filed a memorandum of points and authorities in 

preparation for the hearing, arguing in part that entry of default was 

ineffective and that the default judgment was entered in violation of the 

automatic stay arising from her filing of a bankruptcy petition on May 17, 

2016. At the hearing, the court found that Schmedding failed to comply 

with the default judgment and ordered her to “take immediate steps to 

complete her performance and complete the sale.” 

¶6 After Schmedding again failed to comply with the superior 

court’s orders, Roundtable moved for relief under Rule 70, which gives the 

 

3 At a hearing held on April 6, 2016, Commissioner Benny referred the

pending motions to Judge Udall (the “assigned” judge) for consideration. 

Judge Udall subsequently denied Roundtable’s motion to strike, but 

seemingly denied only two of Schmedding’s three motions to dismiss. 

Commissioner Benny, however, clarified that two of the motions to dismiss 

were duplicate filings. Thus, when Judge Udall denied one of the duplicate 

motions, he necessarily denied the other duplicate motion, thereby

resolving all three motions to dismiss. 
ROUNDTABLE v. SCHMEDDING

Decision of the Court

4

court authority to enforce a court order requiring a specific act to be 

performed. In response, Schmedding requested that the superior court set 

aside the entry of default and default judgment under Rules 55(c) and 60(b). 

Among other things, Schmedding argued the default judgment should be 

vacated because the entry of default never became effective. In a judgment 

filed September 14, 2016, the court granted Roundtable’s motion for Rule 

70 relief and denied Schmedding’s motion to set aside entry of default and 

default judgment, finding in part that the filing of “bankruptcy was a delay 

tactic to avoid the entry of default judgment or to make the default 

judgment void,” and that “Schmedding’s own misleading facts cannot be a 

basis to support a Rule 55(c) or Rule 60(c) [sic] request.” Schmedding then 

filed a notice of appeal. 

JURISDICTION

¶7 Roundtable argues this court lacks jurisdiction over the 

September 14 judgment because it does not include Rule 54(c) language and 

is therefore not a final appealable order. Appeals are generally only 

allowed from final judgments, Ghadimi v. Soraya, 230 Ariz. 621, 622, ¶ 7 

(App. 2012), but may be pursued from other rulings as authorized in 

Arizona Revised Statutes (“A.R.S.”) section 12-2101(A), Brumett v. MGA 

Home Healthcare, L.L.C., 240 Ariz. 420, 425, ¶ 2 (App. 2016). 

¶8 In the September 14 judgment, the superior court denied

Schmedding’s request to set aside the entry of default and default 

judgment, and, in combination with its September 13, 2016 judgment, 

granted Roundtable Rule 70 relief. Under A.R.S. § 12-2101(A)(2), an appeal 

may be taken “[f]rom any special order made after final judgment.” The 

denial of a motion to set aside default judgment is appealable as a special 

order made after final judgment, which requires neither Rule 54(b) nor 54(c) 

language. See Brumett, 240 Ariz. at 428-29, ¶¶ 14-15. We therefore have 

jurisdiction to consider whether the superior court properly denied 

Schmedding’s request to set aside default judgment. Because we conclude 

the default judgment is void based on an ineffective entry of default, we 

need not address whether the court properly granted Rule 70 relief or 

whether there was “good cause” under Rule 55(c) to set aside entry of 

default. 

DISCUSSION

¶9 Under Rules 55(c) and 60(b)(4), a final default judgment may 

be set aside when it is void. We generally review orders refusing to vacate 

a default judgment for an abuse of discretion, but review de novo the 
ROUNDTABLE v. SCHMEDDING

Decision of the Court

5

specific question as to whether a judgment is void. BYS Inc. v. Smoudi, 228 

Ariz. 573, 577-78, ¶¶ 14, 18 (App. 2012). A court commits reversible error

when it does not set aside a void judgment, which may be challenged at 

any time. Master Fin., Inc. v. Woodburn, 208 Ariz. 70, 74, ¶ 19 (App. 2004). 

The issues on appeal are limited to those raised in the motion to set aside. 

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

¶10 Schmedding argues, as she did in her request to set aside, the 

default judgment should be vacated because the entry of default is 

ineffective. Under Rule 55(a)(2), entry of default must be requested by

filing a written application for default. This filing “constitutes entry of 

default,” which becomes “effective 10 days after the application for entry of 

default is filed” unless the “party claimed to be in default pleads or 

otherwise defends” within those 10 days. Rule 55(a)(4)-(5). If entry of 

default is entered even though the party in default pled or otherwise 

defended, the entry of default is ineffective, making any subsequent default 

judgment void. See Corbet v. Superior Court In & For Cty. of Maricopa, 165 

Ariz. 245, 247-48 (App. 1990); see also Ruiz v. Lopez, 225 Ariz. 217, 223, ¶¶ 21, 

23 (App. 2010) (affirming superior court’s order vacating entry of default

and default judgment because entry of default was ineffective, resulting in 

a void judgment). 

¶11 Roundtable’s application for default was filed on December 

29, 2015.

4 Schmedding filed a motion to dismiss on January 4, 2016, six 

calendar days later, which is well within the 10-day grace period for 

ensuring entry of default does not become effective. Although Roundtable 

argues that Schmedding did not plead or otherwise defend in this action, 

Roundtable does not explain why the January 4 motion to dismiss does not 

satisfy the “otherwise defends” requirement of Rule 55(a)(5).

¶12 The only possible explanation Roundtable gives is that the 

motion to dismiss is “void” because the superior court denied the motion. 

Simply because the court denied the motion, however, does not mean the 

motion to dismiss was “void” or Schmedding failed to defend. The law is 

clear that motions to dismiss satisfy the “otherwise defends” requirement

of Rule 55(a)(5), especially when, as here, the motion to dismiss presents 

defenses under Rule 12(b) and merits-based arguments. See Coulas v. Smith, 

96 Ariz. 325, 329 (1964) (“The words ‘otherwise defend’ refer to attacks on 

 

4 Justin Fromstein filed an application for default on November 4, 

2015. But during the hearing on that date, at which Schmedding appeared, 

the superior court directed that another application for default be filed, 

which led to the December 29 application. 
ROUNDTABLE v. SCHMEDDING

Decision of the Court

6

the service, or motions to dismiss, or for better particulars, and the like, 

which may prevent default without presently pleading to the merits.”); 

Prutch v. Town of Quartzsite, 231 Ariz. 431, 436, ¶¶ 17-18 (App. 2013) (finding 

no abuse of discretion in denying a motion for entry of default because the 

claimed party in default otherwise defended by filing a motion to dismiss 

for improper venue under Rule 12(b)(3)). Thus, the fact that a motion to 

dismiss is ultimately denied does not mean the motion did not constitute 

the assertion of a substantive defense under Rule 55. 

¶13 Nor are we persuaded by Roundtable’s alternative argument 

that the improper entry of default constitutes harmless error. See Rule 61 

(directing court to “disregard all errors and defects that do not affect any 

party’s substantial rights”). A void default judgment due to an ineffective 

entry of default is not a harmless defect because the “defaulted party loses

all rights to litigate the merits of the cause of action.” Tarr v. Superior Court 

In & For Pima Cty., 142 Ariz. 349, 351 (1984).

¶14 In sum, Roundtable’s December 29 application for default 

never became effective because it was void as soon as Schmedding 

otherwise defended her position by filing a motion to dismiss within the 

10-day grace period. See Rule 55(a)(4) (stating that the “filing of the 

application for default constitutes the entry of default,” but is not 

“effective” until 10 days after the application filed); Corbet, 165 Ariz. at 248 

(finding that because an answer was timely filed, “the entry of default was 

void”). To obtain a valid default judgment, Roundtable would have needed 

to file a new application for default, and if Schmedding failed to timely 

defend, then entry of default could have become effective. Accordingly, the 

superior court erred in denying Schmedding’s request to set aside the 

ineffective entry of default and the resulting void default judgment.5

CONCLUSION

¶15 Because the entry of default never became effective, the 

resulting default judgment is void. We therefore vacate the entry of default 

and default judgment, and remand for further proceedings. We deny 

Roundtable’s request for attorneys’ fees incurred on appeal, but award 

 

5 Given this conclusion, we need not address Schmedding’s argument 

that the default judgment is void because it was entered while an automatic 

bankruptcy stay was in effect or any of the other arguments she raises on 

appeal. Additionally, we deny as moot Roundtable’s motion to strike 

portions of Schmedding’s reply brief because the matters complained of do 

not affect our analysis. 
ROUNDTABLE v. SCHMEDDING

Decision of the Court

7

taxable costs to Schmedding upon her compliance with Arizona Rule of 

Civil Appellate Procedure 21.