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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                BASELINE TREE CO, LLC, Plaintiff/Appellee,

                                         v.

            SUN VALLEY NURSERY, LLC, Defendant/Appellant.

                              No. 1 CA-CV 18-0520
                                 FILED 5-14-19


            Appeal from the Superior Court in Maricopa County
                            No. TJ2018-000267
             The Honorable Margaret Benny, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Marko Law, PLLC, Phoenix
By Edward J. Marko
Counsel for Plaintiff/Appellee

Ivan & Associates, P.C., Phoenix
By Florin V. Ivan
Counsel for Defendant/Appellant
                    BASELINE TREE v. SUN VALLEY
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.


W I N T H R O P, Judge:

¶1            Sun Valley Nursery, LLC (“Appellant”) challenges the
superior court’s judgment ordering a writ of garnishment (non-wages) in
favor of creditor Baseline Tree Co, LLC (“Appellee”). Appellant argues that
the superior court violated its procedural due process rights by granting
Appellee’s motion to enter judgment against Wells Fargo Bank
(“Garnishee”) before Appellant had a chance to respond to the motion. For
the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             Appellant did not include a statement of facts in its opening
brief that complies with Arizona Rule of Civil Appellate Procedure 13.
Although we may deny relief due to Appellant’s non-compliance, we
nevertheless exercise our discretion to decide this appeal on the merits. See
Clemens v. Clark, 101 Ariz. 413, 414 (1966). Our recitation of the operative
facts is gleaned from the record on appeal.

¶3             In late 2016, Appellant contractually created an open account
to facilitate purchasing various plants from Appellee’s nursery. Appellee
provided plants on two occasions and billed Appellant $8,675. Appellant
failed to make a payment on the account, and in September 2017, Appellee
filed a complaint alleging breach of contract to recover the money owed for
the plants.

¶4             Appellant failed to answer the complaint, and Appellee
obtained a default judgment. Appellee then obtained a writ of garnishment
against Garnishee, and Garnishee filed an answer. Appellant objected to
the writ of garnishment and requested a hearing to challenge the sufficiency
of the judgment pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-




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                     BASELINE TREE v. SUN VALLEY
                          Decision of the Court

1580 (2019).1 At that hearing on May 8, 2018, Appellant argued the default
judgment was void due to improper service of process and therefore the
writ of garnishment was ineffective. The court then set an evidentiary
hearing for May 18, 2018. Following that hearing, the court took the matter
of Appellant’s objection to the underlying judgment and Appellee’s
entitlement to judgment against Garnishee under advisement.

¶5            On June 28, 2018, Appellee filed a motion for judgment
against Garnishee, asserting that Appellant’s defense of improper service
failed as a matter of law. On July 10, 2018, the superior court entered a final
judgment in favor of Appellee against Garnishee.

¶6            Appellant timely filed this appeal in August 2018, and we
have jurisdiction pursuant to A.R.S. § 12-2101(A)(5)(c).

                                 ANALYSIS

       I.     Procedural Due Process

¶7             Appellant asserts the superior court erred by granting
Appellee’s motion before allowing the fifteen-day period for a response to
pass as required in Arizona Rules of Civil Procedure 6(c) and 7.1(a)(3). 2
Appellant contends this error violated its procedural due process rights
under the Fourteenth Amendment of the United States Constitution and
Article 2, Section 4 of the Arizona Constitution, by depriving it of property
without an adequate opportunity to be heard. “We review constitutional
issues de novo.” Fragoso v. Fell, 210 Ariz. 427, 432, ¶ 13 (App. 2005).

¶8             As a preliminary matter, we note that neither the United
States Constitution nor the Arizona Constitution entitles a person or entity
to a judicial proceeding free from error. Beck v. Washington, 369 U.S. 541,
554-55 (1962) (“We have said time and again that the Fourteenth
Amendment does not assure uniformity of judicial decisions or immunity
from judicial error.”) (internal quotation omitted); Crouch v. Justice of Peace
Ct. of Sixth Precinct, 7 Ariz. App. 460, 466 (App. 1968) (“The fact that a

1      Unless otherwise specified, we cite to the current version of the
applicable statutes because no revisions material to this decision have since
occurred.

2       Appellant does not argue on appeal that the service of process of the
underlying complaint was improper; accordingly, that issue is waived.
Childress Buick Co. v. O’Connell, 198 Ariz. 454, 459, ¶ 29 (App. 2000)
(“[I]ssues not clearly raised in appellate briefs are deemed waived.”).


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                    BASELINE TREE v. SUN VALLEY
                         Decision of the Court

judicial error may be made in a proceeding does not necessarily imply a
denial of due process of law.”). A judicial error amounts to a procedural
due process violation when the error prevents a party from being heard “at
a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (citation omitted).

¶9            Appellee argues in response that the court’s order of July 10,
2018, reflected the overruling of Appellant’s objection to the writ of
garnishment, resulting in judgment against the Garnishee. This ruling
rendered moot Appellee’s subsequent motion for judgment against
Garnishee. This is an entirely plausible interpretation; however, we cannot
determine with certainty from the record whether this is in fact what
occurred. That uncertainty, however, does not affect the ultimate outcome
on appeal. Even assuming the superior court procedurally erred in
granting Appellee’s pending motion by entering judgment against
Garnishee before the allotted fifteen-day period to respond to the motion
had passed, this error did not amount to a constitutional violation as alleged
by Appellant.

¶10           The record shows Appellant’s counsel appeared at both
hearings to challenge the writ of garnishment, and he substantively argued
on Appellant’s behalf. The superior court then took the matter under
advisement before issuing its judgment against Garnishee. Our review of
the subsequent “motion” filed by Appellee shows such pleading was in the
nature of a post-hearing memorandum, submitted to address Appellant’s
argument that service of process of the original complaint was invalid.
Assuming without deciding that the superior court erred by ruling prior to
the expiration of the fifteen days, Appellant offers no argument that its
response to this memorandum of law would have included arguments or
authorities different than those previously presented at the two hearings,
and Appellant does not assert on appeal that the superior court failed to
consider relevant evidence in making its judgment.           Additionally,
Appellant does not assert any reason to believe the superior court would
have reached a different result by waiting for Appellant’s response before
ruling on the merits. As such, Appellant has failed to show any prejudice
on appeal, and we find none in our independent review of the record.
Dykeman v. Ashton, 8 Ariz. App. 327, 329 (App. 1968) (“[I]t will not be
presumed that an error is prejudicial so as to require reversal, but the
prejudice must appear from the record.”).




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                     BASELINE TREE v. SUN VALLEY
                          Decision of the Court

       II.    Costs and Attorneys’ Fees

¶11          Appellee requests its attorneys’ fees and costs on appeal
pursuant to A.R.S. §§ 12-341.01, -1580(E), and -341.

¶12            Garnishment proceedings are purely statutory and are
treated as actions independent of the underlying lawsuit. Bennett Blum,
M.D., Inc. v. Cowan, 235 Ariz. 204, 207, ¶ 13 (App. 2014). This court has
previously held that § 12-341.01 does not apply to actions that are purely
statutory. Id.; see also Kennedy v. Linda Brock Auto. Plaza, Inc., 175 Ariz. 323,
325 (App. 1993). Therefore, we deny Appellee’s request for attorneys’ fees
based on § 12-341.01.

¶13            Section 12-1580(E) of the Arizona garnishment statutes
provides that “[t]he prevailing party may be awarded costs and attorney
fees in a reasonable amount determined by the court.” However, “[t]he
award shall not be assessed against nor is it chargeable to the judgment
debtor, unless the judgment debtor is found to have objected to the writ
solely for the purpose of delay or to harass the judgment creditor.” A.R.S.
§ 12–1580(E). Appellee does not assert that Appellant objected to the writ
of garnishment solely to “delay or to harass” it. Therefore, we deny
Appellant’s request for attorneys’ fees based on § 12-1580(E).

¶14         As the prevailing party, Appellee is entitled to its costs on
appeal pursuant to § 12-341, and we award those costs upon Appellee’s
compliance with ARCAP 21.

                               CONCLUSION

¶15           For the foregoing reasons, we affirm the superior court’s
judgment.




                            AMY M. WOOD • Clerk of the Court
                            FILED:    JT

                                         5
