Lozano v. Pacco

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL M. LOZANO, as Trustee of THE DANIEL M. LOZANO LIVING
TRUST, DATED FEBRUARY 12, 2002, Plaintiff/Appellee,

v.

PACCO PROPERTIES, LP, et al., Defendants/Appellants.

No. 1 CA-CV 19-0560
FILED 10-15-2020

Appeal from the Superior Court in Maricopa County
No. CV2016-016509
The Honorable Joseph C. Welty, Judge
The Honorable Michael W. Kemp, Judge

AFFIRMED

COUNSEL

Fennemore Craig, P.C., Phoenix
By Joseph A. Schenk and Heather A. Macre
Counsel for Plaintiff/Appellee

Snell & Wilmer L.L.P., Phoenix
By Kevin J. Parker and Benjamin W. Reeves
Counsel for Defendants/Appellants
 LOZANO, et al. v. PACCO, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Pacco Properties, LP and Daniel Matthew Horwits and
Jacqueline Robin Horwits, as Trustees of The 2002 Horwits Family Trust
Dated October 7, 2002, (collectively, “Appellants”) appeal the superior
court’s order denying their combined motion to clarify or set aside a
judgment entered according to an offer of judgment accepted by Daniel M.
Lozano, as Trustee of The Daniel M. Lozano Living Trust dated February
12, 2002 (collectively, “Lozano”). For the following reasons, we conclude
we lack jurisdiction to address the issues raised by Appellants concerning
the motion to clarify the judgment and affirm the court’s order denying
Appellants’ motion to set aside.

FACTS AND PROCEDURAL BACKGROUND

¶2 Before the events underlying this case, Richard Thurman, the
general partner of Pacco Properties, LP, Daniel Horwits, Lozano, and
non-party Jeffrey Borris were equal shareholders in Beverly Hills Sports
Council, Inc. (“Beverly Hills”). They worked together as sports agents
representing professional baseball players. In 2002, the parties and Borris
as Trustee of the Borris Family Trust, dated June 2, 1999 (collectively,
“Borris”) formed RJ&2D LLC (the “Company”), a member-managed
Arizona limited liability company with its principal place of business in
Maricopa County. Each member owned a 25% membership interest in the
Company. Through the Company, the parties and Borris purchased
properties in Arizona and Florida.

¶3 In February 2016, Borris sent an email to the other members
of the Company requesting to dissolve it. In the email, Borris asserted that
it would be “impracticable for the 4 members to co-exist” because he now
worked for a competing sports agency and Lozano had left Beverly Hills to
form a competing agency in 2010. After several meetings, the members of
the Company were unable to reach an agreement concerning its dissolution.
Borris and Lozano agreed that the Company should be dissolved, while

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Thurman and Horwits contended there was no basis for dissolving the
Company.

¶4 As attempts to negotiate the Company’s dissolution broke
down, Lozano filed this action in the superior court. In his complaint,
Lozano alleged that the Company’s other members denied him access to
the Arizona and Florida properties and other personal property owned by
the Company since his departure in 2010. He further alleged that the
members were deadlocked concerning the Company’s management.
Lozano asserted five causes of action: (1) judicial dissolution of the
Company; (2) breach of contract; (3) breach of the covenant of good faith
and fair dealing; (4) unjust enrichment; and (5) accounting and constructive
trust. While this action was pending, Borris sold his interest in the
Company to Appellants, and Lozano amended his complaint to remove
Borris as a named party.

¶5 In January 2019, Appellants sent Lozano an offer of judgment
according to Arizona Rule of Civil Procedure (“Rule”) 68. Appellants
proposed that judgment be entered in favor of Lozano and against them for
the total amount of $320,000, “inclusive of all damages, taxable court costs,
interest, and attorneys’ fees.” Approximately two weeks later, Lozano
accepted the offer of judgment and submitted a proposed form of judgment
to the superior court. The proposed judgment contained the following
language:

IT IS HEREBY ORDERED, ADJUDGED, and DECREED
awarding Plaintiff Lozano Judgment against Defendants RJ &
2D, L.L.C., Pacco Properties, LP, and Daniel Matthew Horwits
and Jacqueline Robin Horwits, as Trustees of the 2002
Horwits Family Trust, dated October 7, 2002, jointly and
severally, in the amount of Three Hundred Twenty Thousand
Dollars ($320,000).

* * *
IT IS FURTHER ORDERED that no further matters remain
pending before this court and that this Judgment is entered
pursuant to Rule 54(c), Arizona Rules of Civil Procedure.

On March 19, 2019, without objection from Appellants, the court approved,
signed, and entered the proposed form of judgment verbatim.

¶6 On May 24, 2019, 66 days after the court issued the judgment,
Appellants moved to clarify the March 2019 judgment, stay its enforcement

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under Rule 62, and, in the alternative, set it aside under Rule 60. Appellants
alleged that when they attempted to tender a check for the full value of the
judgment, a dispute arose over whether the judgment extinguished
Lozano’s 25% membership interest in the Company. Appellants requested
the court stay the judgment’s enforcement until the dispute was resolved.
Appellants asked the court to confirm that by resolving all claims made in
the action—including Lozano’s claim for dissolution of the Company—the
judgment had extinguished Lozano’s membership interest.

¶7 Assuming their interpretation concerning the scope of the
offer of judgment was incorrect, Appellants argued in the alternative that
they were entitled to relief from the judgment under Rule 60(b)(1) or (b)(6)
based upon the “lack of a meeting of the minds and/or mutual mistake.”
Appellants also requested a hearing on the motion. In response, Lozano
argued the judgment did not cover his membership interest in the
Company, and that Appellants’ alleged mistake in misunderstanding the
scope of the offer of judgment was, at best, a unilateral mistake which did
not justify setting the judgment aside.

¶8 On June 19, 2019, the superior court issued an order denying
Appellants’ combined motion. The court explained:

The Judgment rendered in this matter was the result of an
accepted offer of judgment from [Appellants]. A proposed
form of Judgment was submitted to the Court by [Lozano].
There was no objection filed to the submitted form of
Judgment. The Judgment was signed by the Court.

The executed Judgment speaks for itself.

Appellants filed a notice of appeal 28 days later. In the notice, Appellants
specified that they intended to appeal the court’s June 2019 order denying
the combined motion and “all orders and rulings of the Court necessary to
or supportive of the [order].”

¶9 Meanwhile, Lozano filed a new action against Appellants in
the superior court alleging the Company had sold the Arizona and Florida
properties, and that he was entitled to 25% of the proceeds of the sales per

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his membership interest and the Company’s operating agreement.1
Appellants moved to dismiss the action, arguing the doctrine of claim
preclusion barred Lozano’s new action due to the March 2019 judgment.
After a hearing, the court denied Appellants’ motion to dismiss. Appellants
filed a petition for special action in this court, arguing the superior court
erred by failing to apply claim preclusion and dismiss Lozano’s new action.
This court declined to accept jurisdiction over the special action and
dismissed the petition in a summary order.

¶10 The parties then filed cross-motions for summary judgment.
Within both their motion for summary judgment and response, Appellants
again argued that the March 2019 judgment barred Lozano’s action under
the claim-preclusion doctrine. On July 23, 2020, the superior court held a
hearing on the respective motions and took the matter under advisement.
In an order filed on September 23, 2020, the court granted Appellants’
summary judgment motion, ruling that (1) the offer of judgment dissolved
Lozano’s 25% membership interest in the Company and (2) the doctrine of
claim preclusion barred Lozano’s action. A final judgment based upon that
ruling remains pending.2

DISCUSSION

¶11 On appeal, Appellants argue the superior court erred by
failing to confirm that the March 2019 judgment extinguished Lozano’s 25%
membership interest in the Company. Appellants contend the accepted
Rule 68 offer of judgment constitutes a judgment for all claims raised in
Lozano’s lawsuit, including those claims predicated on his membership
interest, and the doctrine of claim preclusion now bars any claim that has
arisen or could arise from that interest. Appellants urge this court to
endorse this position and, by doing so, to declare that “Lozano can make

1 We have taken judicial notice of the related case located in the
records of the superior court. See Vera v. Rogers, 246 Ariz. 30, 32, ¶ 6, n.1
(App. 2018) (court may take judicial notice of related superior court
records); State v. Valenzuela, 109 Ariz. 109, 110 (1973).

2 Shortly after the superior court issued its ruling in the second action,
Appellants filed a motion requesting that this court stay any further
consideration of this appeal pending entry of a final judgment in the second
action. Appellants indicated they would seek dismissal of this appeal “[i]f
and when judgment is entered in the [s]econd [l]awsuit and not appealed.”
After consideration, we deny Appellants’ motion for a stay of this appeal.

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no further claim for any additional funds due and owing to him under the
[Company’s] operating agreement.” Should we conclude otherwise,
Appellants argue in the alternative that the superior court abused its
discretion by not finding that contract-avoidance principles justified setting
aside the March 2019 judgment under Rule 60(b)(1). We address each
argument in turn.

A. This Court Lacks Jurisdiction to Address the Superior Court’s
Order Denying Appellants’ Motion to Clarify the March 2019
Judgment.

1. The Order Denying Appellant’s Motion to Clarify the
March 2019 Judgment Is Not Appealable.

¶12 At the outset, Appellants do not dispute that their notice of
appeal was untimely regarding the March 2019 judgment but assert their
arguments concerning the scope and effect of that judgment stem instead
from the court’s June 2019 order denying their motion to clarify. Appellants
cite to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2), which
permits an appeal “[f]rom any special order made after final judgment,”
and A.R.S. § 12-2101(A)(4), which allows an appeal “[f]rom a final order
affecting a substantial right made in a special proceeding or on a summary
application in an action after judgment,” as grounds for our jurisdiction.
We disagree.

¶13 “The court of appeals, as a court of limited jurisdiction, has
only the jurisdiction conferred on it by statute.” McDougall v. Superior Court,
170 Ariz. 474, 475 (App. 1991). Absent statutory authority, we “do not have
jurisdiction to consider the merits of the question raised on appeal.” Musa
v. Adrian, 130 Ariz. 311, 312 (1981). To determine if an order is appealable
under A.R.S. § 12-2101(A)(2), we must consider whether: (1) “the issues
raised by the appeal from the order are different from those that would
arise from an appeal” of the underlying judgment; and (2) “the order affects
the judgment or relates to its execution.” Sotomayor v. Sotomayor-Munoz, 239
Ariz. 288, 291, ¶ 11 (App. 2016). Regarding A.R.S. § 12-2101(A)(4), we must
determine whether the order is “a final order affecting a substantial right
made” either: (1) in “a special proceeding”; or (2) “on a summary

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application in an action after judgment.” See MCA Fin. Gr., Ltd. v. Enter.
Bank & Trust, 236 Ariz. 490, 495, ¶ 11 (App. 2014).3

¶14 Applying these considerations here, we are unconvinced that
the order denying the motion to clarify the March 2019 judgment falls
within either A.R.S. § 12-2101(A)(2) or (A)(4). Nor have we identified any
other relevant provision from which we might acquire jurisdiction. Because
the court denied the motion and, therefore, left the March 2019 judgment
precisely as entered, the order neither raised questions different from those
that would have arisen from an appeal from the judgment itself nor affected
a substantial right of the Appellants. The ruling maintained the status quo
established by the March 2019 judgment. Thus, we lack appellate
jurisdiction to review and address the merits of the questions raised by
Appellants’ putative appeal of the order denying the motion to clarify—
namely, any arguments concerning the nature and scope of the judgment
outside the confines of Appellants’ request for Rule 60 relief. Musa, 130
Ariz. at 312; see also Hirsch v. Nat. Van Lines, Inc., 136 Ariz. 304, 311 (1983)
(“The scope of an appeal from a denial of a Rule 60 motion is restricted to
the questions raised by the motion to set aside and does not extend to
review of whether the trial court was substantively correct in entering the
judgment from which relief was sought.”).

2. We Decline to Exercise Special-Action Jurisdiction to
Review the Order.

¶15 Appellants nevertheless urge us to exercise special-action
jurisdiction to review their arguments concerning the March 2019
judgment. “When we lack appellate jurisdiction, ‘it is within our discretion
to consider the matter as a special action.’” AEA Fed. Credit Union v. Yuma
Funding, Inc., 237 Ariz. 105, 111, ¶ 21 (App. 2015) (quoting State v. Perez, 172
Ariz. 290, 292 (App. 1992)). Generally, this court accepts special-action

3 Appellants cite MCA Financial Group for the proposition that the
“substantial right” portion of A.R.S. § 12-2101(A)(4) only applies to the first
proceeding described in the subsection, and not the second. While we agree
the court’s description of A.R.S. § 12-2101(A)(4) in MCA Financial Group
could be read that way, we do not believe that is what the court intended in
that case. See MCA Fin. Grp., Ltd., 236 Ariz. at 495, ¶ 11. Indeed, the court
cited with approval two out-of-state opinions whose interpretations of
nearly identical provisions in their respective codes mirror our conclusion.
Id. (citing State v. Jacques, 570 N.W.2d 331, 335 (Neb. 1997), and Ross v. Ross,
640 N.E.2d 265, 268 (Ohio App. 1994)).

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jurisdiction “in cases that raise issues of statewide importance, issues of first
impression, pure legal questions, or issues that are likely to arise again,”
Frimmel v. Sanders, 236 Ariz. 232, 238, ¶ 22 (App. 2014), or “when the party
has no plain, adequate or speedy remedy by appeal, and justice cannot be
obtained by other means,” Luis A. v. Bayham-Lesselyong ex rel. County of
Maricopa, 197 Ariz. 451, 453, ¶ 2 (App. 2000). See also Ariz. R. P. Spec. Act.
1(a). (“[T]he special action shall not be available where there is an equally
plain, speedy, and adequate remedy by appeal . . . .”).

¶16 However, we decline to treat Appellants’ arguments
concerning the judgment and order as a special action for two reasons. First,
special-action review of the issues raised by the Appellants’ motion to
clarify would not be appropriate because the issues were not ripe for
adjudication when presented to the superior court. In Arizona, prudential
doctrines such as ripeness exist, not by constitutional mandate, but “as a
matter of sound judicial policy.” Brush & Nib Studio, LC v. City of Phoenix,
247 Ariz. 269, 279, ¶ 35 (2019) (quotation omitted). This judicial restraint is
imposed “to insure . . . courts do not issue mere advisory opinions, that the
case is not moot and that the issues will be fully developed by true
adversaries.” Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs. in
Ariz., 148 Ariz. 1, 6 (1985).

¶17 Here, by requesting the court to opine on the nature and scope
of the claims resolved in the March 2019 judgment, Appellants essentially
desired a prospective ruling that any claim Lozano had or could assert
concerning his 25% membership interest in the Company was now barred
by claim preclusion, formerly known as res judicata. In re Gen. Adjudication
of All Rights to Use Water in Gila River Sys. & Source, 212 Ariz. 64, 69, ¶ 14
(2006). Appellants sought the court’s endorsement of their understanding
of the March 2019 judgment to prevent Lozano from raising a claim in
future litigation.

¶18 But claim preclusion cannot be addressed by a court
prospectively. Claim preclusion is a defense to an action that requires a
court to determine, among other things, whether the party asserting it can
establish “an identity of claims in the suit in which a judgment was entered
and the current litigation.” In re Gen. Adjudication of All Rights to Use Water in
Gila River Sys. & Source, 212 Ariz. at 69–70, ¶ 14 (emphasis added); see also
Ariz. R. Civ. P. 8(d)(1) (listing “res judicata” as an affirmative defense that
must be asserted in a responsive pleading). In other words, the preclusive
effect of a judgment cannot be put into operation without comparing it to a
new claim. Thus, confirming a party’s interpretation of the claims resolved
in a judgment before a new action is filed would amount to an advisory

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opinion, or an “opinion[] anticipative of troubles which do not exist; may
never exist and the precise form of which, should they ever arise, [the court]
cannot predict.” Young v. Rose, 230 Ariz. 433, 439, ¶ 32 (App. 2012) (quoting
Citibank v. Miller & Schroeder Fin., Inc., 168 Ariz. 178, 182 (App. 1990)).
Accordingly, we decline to exercise special-action jurisdiction to review an
issue the superior court was judicially restrained from addressing.

¶19 Second, declining to exercise special-action jurisdiction to
address the March 2019 judgment’s scope will not deprive Appellants of an
adequate or speedy remedy by appeal. Appellants have received a
favorable ruling in Lozano’s new action and will have an adequate
opportunity to defend that decision should Lozano appeal.

B. The Superior Court Did Not Abuse Its Discretion by Denying
Appellants’ Rule 60(b) Motion.

¶20 We do have jurisdiction to review the aspect of the court’s
order denying Appellant’s motion to set aside under Rule 60(b)(1). See
M&M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141
(App. 1990) (grant or denial of a motion to set aside judgment appealable
as a special order made after final judgment, A.R.S. § 12-2101(A)(2)).
Appellants argue that the superior court abused its discretion by failing to
find that a lack of mutual assent or the doctrine of mutual mistake justified
setting aside the judgment under Rule 60(b)(1).

¶21 “A trial court enjoys broad discretion in deciding whether to
set aside judgments under Rule 60([b]).” Skydive Ariz., Inc. v. Hogue, 238
Ariz. 357, 364, ¶ 24 (App. 2015). “Absent a clear showing of abuse of the
court’s discretion[,] . . . or arbitrariness or unreasonableness, the decision of
the trial court must stand.” Indus. Park Corp. v. U.S.I.F. Palo Verde Corp., 19
Ariz. App. 342, 346 (1973). To determine whether the superior court abused
its discretion by denying Appellants’ motion to set aside the judgment, we
must first address a procedural question raised by the substance of
Appellants’ Rule 60 arguments.

¶22 Although couched as a claim for relief under Rule 60(b)(1),
Appellants’ arguments are focused on avoiding the contract formed by
Lozano’s acceptance of the offer of judgment—namely, lack of mutual
assent and mutual mistake. See Hill-Shafer P’Ship v. Chilson Fam. Tr., 165
Ariz. 469, 473 (1990) (describing mutual mistake and lack of mutual assent).
In Lamb v. Arizona Country Club, 124 Ariz. 239, 240, n.2 (App. 1978), this
court addressed the complexities and potential pitfalls surrounding a
substantive challenge to the enforceability of a settlement agreement raised

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within a Rule 60(b) motion. In that case, the plaintiffs moved to set aside a
stipulated judgment under Rule 60(b)(1) (then Rule 60(c)(1)), arguing they
mistakenly did not receive the full benefit they thought they bargained for
in the settlement agreement underlying the judgment. Id. at 239–40. In a
detailed footnote, the court outlined the “procedural dilemma” created by
the arguments raised in the motion: “Whether the settlement agreement is
enforceable depends upon the application of contract principles. Yet before
contract principles can be applied, the judgment must be vacated.
Nevertheless, the judgment cannot be vacated unless the infirmity in the
contract is shown.” Id. at 240, n. 2.

¶23 The court then outlined two paths for resolving this dilemma.
Lamb, 124 Ariz. at 240, n.2. First, the superior court could avoid the issue
altogether by allowing or requiring the party raising the contract-avoidance
argument to bring an independent action to invalidate the judgment. Id.
The Lamb court acknowledged the potential inefficiency of litigating a
separate action instead of resolving the matter on a motion but noted that:

the difficulty with invalidating a settlement agreement on
motion pursuant to Rule 60([b]) is that the procedural steps
are short-circuited: there are no pleadings joining the issue
and as a consequence there may be an incomplete exposition
of the facts and a misguided application of the law and
burden of proof.

Id.

¶24 Second, the superior court could use the memoranda and
evidence submitted with the Rule 60(b) motion as a litmus test to determine
whether the judgment should be re-opened “on condition that the issue
relating to the avoidance of the settlement agreement be alleged by way of
supplemental pleadings and adjudicated before it in the normal course of
trial procedure.” Id. Turning to the situation before it, the Lamb court found
no error in the superior court’s decision to address both the settlement and
vacation-of-judgment while reviewing the Rule 60(b) motion because the
court actions had accomplished the same result as the second path. Id. The
court then examined the merits of the contract-law arguments raised by the
plaintiffs. Id. at 241–42. Finding no reason to invalidate the settlement
agreement, it upheld the superior court’s decision to deny the Rule 60(b)
motion. Id.

¶25 In the years following Lamb, this court has continued to
address whether a ground for contract avoidance justifies the superior

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court’s decision to grant or deny relief from a judgment when the court
itself engages—either explicitly or implicitly—in that analysis. See, e.g.,
Brietbart-Napp v. Napp, 216 Ariz. 74, 81–83, ¶¶ 22–31 (App. 2007); Emmons v.
Superior Court, 192 Ariz. 509, 511–14, ¶¶ 9–23 (App. 1998); Republic Nat. Life
Ins. v. Rudine, 137 Ariz. 62, 64–67 (App. 1983). But assuming the same
standards govern a challenge to the enforceability of an accepted offer of
judgment within a Rule 60(b) motion, we are presented with a situation
directly opposite to those faced by Lamb and its progeny. Here, the superior
court chose to let the March 2019 judgment “speak[] for itself” and to
summarily deny the Rule 60(b) motion without addressing the
contract-avoidance issues raised by Appellants. We construe the court’s
action as choosing the first procedure contemplated by Lamb. As a result,
the relevant question here is whether the superior court can, in the exercise
of its discretion, decline to address an issue or argument raised in a Rule
60(b) motion when the issue is better suited for adjudication by other
means, such as by an independent action.

¶26 We conclude it can. Rule 60(d) provides explicitly that the rule
“does not limit the court’s power to . . . entertain an independent action to
relieve a party from a judgment, order, or proceeding . . . .” In Lamb, this
court held the superior court was within its discretion to entertain
settlement and vacation-of-judgment issues within Rule 60 proceedings in
the interests of judicial efficiency despite the potential for error. But a
necessary corollary of this conclusion is that the superior court could also
determine that the procedural and substantive difficulties presented by a
party’s attempt to invalidate a settlement agreement through Rule 60
proceedings outweigh those judicial-efficiency interests.

¶27 This authority is also reflected in the Restatement (Second) of
Judgments, which provides: “Relief from a judgment must be obtained by
means of a motion for that purpose in the court that rendered the judgment
unless relief may be obtained more fully, conveniently, or appropriately by
some other procedure.” Restatement (Second) of Judgments
(“Restatement”), § 78 (Am. Law Inst. 1982). And the principles outlined in
Rule 60(d), Lamb, and the Restatement together embody “the power
inherent in every court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for litigants.”
Powers Reinforcing Fabricators, LLC v. Superior Court, 1 CA-SA 20-0083, 2020
WL 4979399, at *4, ¶ 17 (App. 2020) (quoting Landis v. N. Am. Co., 299 U.S.
248, 254–55 (1936)). Accordingly, it is within the superior court’s sound
discretion to determine whether a Rule 60(b) proceeding or an independent
action is an appropriate forum to address these procedural and substantive
issues.

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¶28 All that remains is determining whether the superior court
abused that discretion here by declining to address the arguments raised in
Appellants’ Rule 60 motion. We conclude it did not. Critically, Appellants’
request to set aside the March 2019 judgment was framed as an alternative
remedy should the court conclude the judgment would not have the
preclusive effect Appellants allegedly intended. Thus, Appellants placed
the court in precisely the type of procedurally and substantively murky
situation contemplated by Lamb. In one breath, Appellants argued the
judgment formalizing the offer of judgment was valid and enforceable. Yet,
in the next, asserted that the agreement underlying the judgment should be
rescinded on contract-avoidance grounds. And the situation was
complicated further because, as we stated above, discussion of the claims
resolved in the March 2019 judgment would have been premature. Under
these circumstances, we cannot say the court erred by allowing the
judgment to speak for itself and declining to set it aside. By doing so, the
court left the parties to resolve the claim-preclusion and contract-law issues
surrounding the March 2019 judgment at a more appropriate time and
setting, where they could be fully raised, argued, and adjudicated.

ATTORNEY’S FEES AND COSTS

¶29 Appellants and Lozano both request an award of attorney’s
fees and costs under A.R.S. § 12-341.01. We decline to award either party
attorney’s fees. However, as the successful party on appeal, Lozano is
entitled to recover his costs subject to compliance with Arizona Rule of Civil
Appellate Procedure 21.

CONCLUSION

¶30 We affirm the denial of the Rule 60(b) motion.

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

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