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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CANYON STATE CREDIT UNION, a federally insured state chartered 

credit union, Plaintiff/Appellee,

v.

ROBERT LINDSAY EARLE, JR., Defendant/Appellant.

No. 1 CA-CV 16-0116

Appeal from the Superior Court in Yavapai County

No. P1300CV201500314

The Honorable David L. Mackey, Judge

AFFIRMED

COUNSEL

Mark A. Kirkorsky PC, Tempe

By Mark A. Kirkorsky, Joseph L. Whipple and Tara K. Miller

Counsel for Plaintiff/Appellee

Law Offices of Earle & Associates, Sedona

By Robert L. Earle

Defendant/Appellant
CANYON v. EARLE

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in 

which Judge Peter B. Swann and Judge Patricia A. Orozco joined.

G O U L D, Judge:

¶1 Appellant Robert Lindsay Earle, Jr. (“Earle”) appeals the 

superior court’s denial of his motion to set aside a default judgment. For 

the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY1

¶2 On April 7, 2015, Appellee Canyon State Credit Union 

(“Canyon State”) filed a complaint against Earle for breach of contract

arising from a credit card account. After filing the complaint, Canyon State 

made repeated efforts to serve Earle. On May 1, 2015, a process server filed 

a certificate of non-service after twice being turned away by an occupant at 

Earle’s residence. The process server confirmed that Earle was the property 

owner of the residence with the county assessor, 411 Info, and DexOnline; 

in addition, a vehicle parked at the residence was registered to Earle, and a 

neighbor confirmed that Earle lived at the residence. On May 14, 2015, 

another process server filed a certificate of non-service after attempting to 

serve Earle at his place of employment; in the first attempt, the occupant 

would not answer the door and in the second attempt, the occupant told 

the process server that Earle would be unavailable indefinitely. 

¶3 Consequently, Canyon State filed a Motion for Leave to Use 

Alternative Means of Service pursuant to Arizona Rule of Civil Procedure

4.1(k). In its motion, Canyon State sought to serve Earle by means of 

“Certified, First Class Mail, return receipt requested, and by posting of the 

Summons and Complaint upon the entrance of [his] residence.” The 

superior court granted the motion. On June 25, 2015, a process server filed 

a certificate of service stating that he had posted a copy of the summons, 

complaint, and the court’s order approving alternative service on the front 

 

1 “We view the facts in the light most favorable to upholding the trial 

court’s ruling on a motion to set aside a default judgment.” Ezell v. Quon, 

224 Ariz. 532, 534, ¶ 2 (App. 2010) (citation omitted). 
CANYON v. EARLE

Decision of the Court

3

door of Earle’s residence; in addition, the process server mailed copies of 

the documents to Earle’s home address by both certified and first class mail. 

¶4 On August 4, 2015, after Earle had failed to answer or 

otherwise defend, Canyon State filed an application and affidavit for entry 

of default. Ariz. R. Civ. P. 55(a). Canyon State mailed a copy of the 

application to Earle’s home address. On October 1, 2015, Canyon State filed 

a motion for entry of a default judgment without hearing. Ariz. R. Civ. P. 

55(b). The superior court entered a default judgment in favor of Canyon 

State on November 5, 2015. 

¶5 Earle filed a motion to set aside the judgment on November 

25, 2015. After considering Earle’s motion and his reply, the court denied 

the motion. Earle timely appeals. 

DISCUSSION

¶6 Earle argues the superior court should have set aside the 

judgment pursuant to Ariz. R. Civ. P. 60(c)(1). We review the court’s denial 

of Earle’s motion for an abuse of discretion. City of Phoenix v. Geyler, 144 

Ariz. 323, 328, 330 (1985); French v. Angelic, 137 Ariz. 244, 246 (App. 1983).

¶7 To obtain relief under Rule 60(c)(1), a party must show (1) 

mistake, inadvertence, surprise or excusable neglect; (2) that relief was 

sought promptly; and (3) that a meritorious defense to the claim existed. 

BYS Inc. v. Smoudi, 228 Ariz. 573, 577, ¶ 14 (App. 2012), as amended (Mar. 13, 

2012) (citation omitted); Maher v. Urman, 211 Ariz. 543, 550, ¶ 21 (App. 2005) 

(citation omitted). Under Rule 60(c)(1), conduct is “excusable” if the neglect 

or inadvertence is such “as might be the act of a reasonably prudent person 

under the same circumstances.” Geyler, 144 Ariz. at 331. However, “[m]ere 

carelessness is not a sufficient reason to set aside a default judgment.” 

Searchtoppers.com, L.L.C. v. TrustCash LLC, 231 Ariz. 236, 241-42, ¶ 22 (App. 

2012) (citation omitted). Additionally, “whether or not an illness or 

disability merits the setting aside of a default judgment must be evaluated 

in an ad hoc manner, and is a question directed to the sound discretion of 

the trial court.” Daou v. Harris, 139 Ariz. 353, 360 (1984) (citation omitted). 

¶8 Here, Earle argues that he failed to answer the complaint 

because his wife’s death in 2014 left him “distraught, depressed, and 

consequently inattentive to his affairs.”2 Given this basis, we are unable to 

 

2 With respect to the other requirements for relief under Rule 60(c)(1), 

the record shows that Earle promptly sought relief by filing his motion 
CANYON v. EARLE

Decision of the Court

4

conclude the superior court abused its discretion in denying his motion. 

Earle’s inattentiveness does not constitute excusable neglect, and the court 

could have reasonably concluded that Earle’s distraught, depressed 

condition did not qualify as an illness or disability justifying setting aside 

the judgment. See Geyler, 144 Ariz. at 331.

¶9 Earle next contends that the superior court should have set 

aside the judgment pursuant to Ariz. R. Civ. P. 60(c)(6), which provides that

a court may relieve a party from final judgment for “any other reason 

justifying relief from the operation of the judgment.” Specifically, Earle 

argues the superior court should have granted his motion to give him an

opportunity to “formulate and present” an answer to the complaint and 

pursue compulsory arbitration. 

¶10 To set aside a judgment under Rule 60(c)(6), a movant must 

show (1) extraordinary circumstances of hardship or injustice justifying 

relief, and (2) reasons for setting aside judgment other than one of the 

reasons set forth in the preceding five clauses of Rule 60(c). Hilgeman v. Am. 

Mortg. Sec., Inc., 196 Ariz. 215, 220, ¶ 15 (App. 2000) (citing Davis v. Davis, 

143 Ariz. 54, 57 (1984)).

¶11 Earle’s claim that he needed time to prepare an answer does 

not qualify as an extraordinary circumstance of hardship or injustice 

justifying relief under Rule 60(c)(6). We find no error.

¶12 Earle also asserts the superior court erred in denying his 

motion to set aside the judgment because he did not receive a copy of 

Canyon State’s motion for alternative service. However, contrary to Earle’s

contention, Canyon State was not required to provide him with a copy of 

its motion. Under Arizona Rule of Civil Procedure 4.1(k), “[i]f service by 

one of the means set forth in the preceding paragraphs of this Rule 4.1 

proves impracticable, then service may be accomplished in such manner . . 

 

twenty days after judgment was entered. See Ariz. R. Civ. P. 60(c) (for 

reasons under 60(c)(1), “[t]he motion shall be filed . . . not more than six 

months after the judgment or order was entered”). Based on our decision,

we do not reach the issue of whether Earle’s defense that the credit card 

application did not form a contract was a meritorious defense. 
CANYON v. EARLE

Decision of the Court

5

. as the court, upon motion and without notice, may direct.” (emphasis 

added.)3 

¶13 Finally, Earle argues the superior court erred in denying his 

motion because he did not receive a copy of the court’s order granting leave

for alternative service. See Ariz. R. Civ. P. 4.1(k) (stating that “any order of 

the court authorizing an alternative method of service, shall be mailed to 

the last known business or residence address of the person to be served”).

The record does not support Earle’s claim; rather, it shows that a process 

server posted a copy of the court’s order on the front door of Earle’s 

residence and mailed two separate copies to his residence. 

CONCLUSION

¶14 For the reasons discussed above, we affirm. Further, in our 

discretion, we deny Canyon State’s request for attorneys’ fees pursuant to 

A.R.S. § 12-341.01. Canyon State is entitled to its costs upon compliance 

with ARCAP 21. 

 

3 Additionally, Earle’s reliance on Ariz. R. Civ. P. 5(a), which provides 

that written motions must be served upon each of the parties, is misplaced. 

Rule 4.1(k), not Rule 5(a), applies in this case. See Ariz. P. Civ. P 5(a) 

(“Except as otherwise provided in these rules . . . every written motion other 

than one which may be heard ex parte . . . shall be served upon each of the 

parties.”) (emphasis added).