Opinion
No. 2 CA-CV 2017-0128
05-03-2018
GREGORY BEST, Plaintiff/Appellant, v. RESIDENTIAL PROPERTY INVESTMENT AND MANAGEMENT LLC, CHRISTOPHER HUGHES AND RUSTY CATANIA, Defendants/Appellees.
COUNSEL Gregory Best, Phoenix In Propria Persona Lake & Cobb, P.L.C., Tempe By Richard L. Cobb and Hank E. Pearson Counsel for Defendant/Appellee Residential Property Investement and Management, LLC Williams, Zinman & Parham, P.C., Scottsdale By Mark B. Zinman Counsel for Defendants/Appellees Christopher Hughes and Rusty Catania
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Maricopa County
No. CV2014013394
The Honorable Daniel G. Martin, Judge
AFFIRMED
COUNSEL Gregory Best, Phoenix
In Propria Persona Lake & Cobb, P.L.C., Tempe
By Richard L. Cobb and Hank E. Pearson
Counsel for Defendant/Appellee Residential Property Investement and Management, LLC Williams, Zinman & Parham, P.C., Scottsdale
By Mark B. Zinman
Counsel for Defendants/Appellees Christopher Hughes and Rusty Catania
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Gregory Best appeals from the trial court's order granting summary judgment for the appellees. We granted Best's motion to dismiss the appeal against Maria Ceja and Driggs Title Agency, Inc. (Driggs); Best's appeal proceeds against Residential Property Investment and Management LLC (RPIM) and its owners, Christopher Hughes and Rusty Catania, individually. Best argues that the court erred by prematurely awarding summary judgment, by failing to correct that error in denying his motion to set aside the judgment, and by failing to invalidate title transfers. We affirm.
Factual and Procedural History
¶2 We view facts and all reasonable inferences drawn from them "in the light most favorable to" Best as the party "against whom summary judgment was entered." Hahn v. Pima County, 200 Ariz. 167, ¶ 2 (App. 2001). The background of this case involves several lawsuits and two earlier appeals.
¶3 On June 24, 2004, Best and Manuel and Leticia Garcia entered into a sales contract where the Garcias agreed to sell Best a property on S. 9th Street in Phoenix. In 2005, Best sued the Garcias, in case CV2005-093565, alleging breach of contract for sale. In 2012, the trial court entered default judgment, ordering specific performance by the Garcias upon Best's payment of the balance of the contract price but denied Best's request for damages. In 2013, Best moved to set aside the judgment, arguing that newly discovered evidence—that the Garcias had sold the S. 9th Street property in 2012 to a third party—warranted a new trial on damages. The court denied the motion, and Best appealed.
Best had previously sued the Garcias, in case CV2005-092538, but that suit was dismissed for lack of service. Best had recorded a notice of lis pendens as to the dismissed case, but did not record one as to the second, underlying lawsuit.
¶4 On appeal, Division One of this court vacated the order in part and remanded the matter to the trial court "for further consideration only of whether the motion presents newly discovered evidence consistent with the constraints of Rule 60(c)(2) sufficient to warrant setting aside the judgment to allow Best to attempt to prove alternative contract damages against the Garcias in lieu of specific performance." Best v. Garcia, No. 1 CA-CV 13-0271, ¶ 11 (Ariz. App. June 10, 2014) (mem. decision). On remand, the trial court again denied Best's Rule 60 motion. Best thereafter filed a "Motion for New Damage Trial," which the court summarily dismissed; this court affirmed that dismissal on appeal. See Best v. Garcia, No. 2 CA-CV 2016-0106, ¶¶ 5, 9 (Ariz. App. Mar. 10, 2017) (mem. decision).
¶5 In 2012, the Garcias sold the S. 9th Street property by warranty deed to RPIM, which, in 2013, sold it to Ceja. In 2014, Best filed this suit against the Garcias (and their company Prensa Hispana), RPIM, Hughes and Catania, Driggs, the title agency, which had prepared the warranty deed, and Ceja for various contract and tort claims.
¶6 In July 2015, Best filed various motions to compel discovery against Driggs, Ceja, and the Garcias, which the trial court denied due to lack of certification of "good faith consultation" between the parties. Also in July 2015, Driggs filed a motion for summary judgment, which it amended the following month. In September 2015, RPIM filed its motion for summary judgment, in which Hughes and Catania joined, and Ceja filed a separate motion for summary judgment. That same month, Best filed an additional motion to compel discovery against Driggs.
¶7 In October 2015, Best filed two motions under then-Rule 56(f), Ariz. R. Civ. P., for an extension of time to conduct discovery in order to respond to two of the motions for summary judgment. Best claimed he needed the additional time because he had a pending motion to compel, he wished to depose various witnesses, and he needed to retain a handwriting expert to examine various documents for forgery. Driggs and RPIM opposed the Rule 56(f) motion. The trial court granted Best forty-five additional days for discovery and ordered Best to file his responses to the motions for summary judgment by December 4, 2015. Shortly thereafter, the court denied Best's motion to compel against Driggs as "moot"; Best then supplemented his motion to compel, and the court affirmed its previous denial.
The rule for motioning the trial court for an extension of time to conduct discovery is now contained in Rule 56(d), Ariz. R. Civ. P. The current rule went into effect January 1, 2017. See Ariz. Sup. Ct. Order R-16-0010 (Sept. 2, 2016).
¶8 On December 4, 2015, Best filed another Rule 56(f) motion for extension of time due to computer problems at his counsel's office, but he did not ask for additional time for discovery, or assert that he still needed documents covered by the denied motion to compel. The trial court summarily denied Best's motion to extend time for failing to comply with Rule 56(f) and local rules. Best then filed his responses to the motions for summary judgment. In February 2016, the court heard oral arguments on the summary judgment motions, and, in March 2016, granted them.
It appears from the record that during the forty-five-day extension period, Best deposed no witnesses, and, beyond supplementing his motion to compel, sought no other discovery. He did, however, obtain a handwriting expert.
¶9 In January 2017, Best filed a motion to strike "the property transfer documents as sham documents," alleging that various documents transferring title to the S. 9th Street property were invalid because of "inconsistencies" in Ceja's signatures and because the documents were notarized by notaries public who had been later sanctioned by the Secretary of State. The trial court denied the motion, treating it as a "collateral attack" on the court's granting of summary judgment and noting that the only new evidence offered were the notices of notary discipline, which did not alter the parties' rights to the property.
The sanctions were for not providing a complete notary journal copy to the investigators, for failing to record required information, for failing to take satisfactory evidence of identity, and for failing to comply with a public records request.
¶10 In February 2017, the trial court entered a default judgment in favor of Best against the Garcias. In March 2017, Best filed a motion to set aside the summary judgments, under Rule 60(c), Ariz. R. Civ. P., alleging that, because of new evidence—the default judgment against the Garcias— summary judgment was premature. On April 20, 2017, the court entered final judgment in accord with the summary judgment rulings for RPIM, Hughes, Catania, Ceja, and Driggs and awarded them attorney fees. On April 21, 2017, the court denied Best's motion to set aside the summary judgments, finding the motion procedurally defective and that Best was not otherwise entitled to relief under Rule 60. Best filed his notice of appeal, appealing "the Final Judgment, filed April 20, 2017 . . . in its entirety." We have jurisdiction under A.R.S. § 12-2101(A)(1).
Summary Judgment
¶11 Best argues that the trial court erred because it prematurely decided summary judgment by denying his Rule 56(f) motion and motion to compel. Although, on appeal from a summary judgment, we review de novo whether there are any genuine issues of material fact, Hahn, 200 Ariz. 167, ¶ 4, "[w]e review a trial court's ruling on a Rule 56(f) motion for an abuse of discretion," Simon v. Safeway, Inc., 217 Ariz. 330, ¶ 4 (App. 2007). In matters of discovery, including the denial of motions to compel, the court has broad discretion, which we will not disturb without a showing of abuse. See Braillard v. Maricopa County, 224 Ariz. 481, ¶¶ 52-53 (App. 2010).
On appeal, Best seems to concede that there were no genuine issues of material fact at the time the trial court decided summary judgment.
¶12 As to the Rule 56(f) motions, the trial court granted Best's first motion, giving him forty-five days to depose witnesses and retain a handwriting expert. Although Best did retain a handwriting expert, he did not depose any witnesses in that time. In Best's second Rule 56(f) motion, he did not allege that he needed more time for discovery, only that his counsel's computer problems prevented his timely responses to appellees' motions for summary judgment. "Where parties have had an ample opportunity to request a continuance until discovery is completed but fail to make such a request, summary judgment will not be reversed on the grounds that it was granted prematurely." Wells Fargo Credit Corp. v. Smith, 166 Ariz. 489, 493 (App. 1990). Here, Best had the opportunity to seek additional time for discovery but failed to; thus, we cannot say that the court's granting of the motions for summary judgment was premature due to the Rule 56(f) motions.
¶13 As to his motion to compel against Driggs, Best alleges that the appellees were actively concealing evidence he later discovered, namely the statutory violations and administrative discipline of Driggs' notaries. To the extent that the appellees had evidence that showed the notary acknowledgments on the transfer documents were defective, Best makes no argument how such defects would create a genuine issue of material fact or otherwise support his contract or tort claims; we therefore consider the argument waived. See Ariz. R. Civ. App. P. 13(a)(7); see also Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (finding issue waived where opening brief did not "present and address significant arguments, supported by authority that set forth the appellant's position on the issue in question").
¶14 Even if the trial court should have earlier compelled relevant documents from Driggs, Best was still obligated to demonstrate how those documents created an issue of material fact to forestall summary judgment. As stated in then-Rule 56(f), if "a party opposing summary judgment" "cannot present evidence essential to justify its opposition" it must file a "request for relief and expedited hearing" supported by an "affidavit showing" "specified reasons" why it cannot. Had Best done so with a meritorious motion, the court could have granted relief under the rule to address the matter. Rule 56(f)(1)(A)-(C). As discussed above, Best did not file a substantive Rule 56(f) motion beyond that which he filed in October 2015, after which he received a forty-five-day extension to conduct discovery. Best was given until December 4, 2015, to conduct discovery, hire an expert, and file his responses. If by December 4, 2015, Best still believed that the documents he sought from Driggs were needed to contest the motions for summary judgment he was required to comply with then-Rule 56(f). See Wells Fargo Credit Corp. at 493. He did not comply. Here, Best had the opportunity to seek additional time for discovery as to the documents sought from Driggs but failed to. Thus, we cannot say that the court's granting of the motions for summary judgment was premature due to the motion to compel.
Rule 60
¶15 Best argues that the trial court erred by denying his motion to set aside judgment under Rule 60(c), Ariz. R. Civ. P. This ruling was not designated in Best's notice of appeal. Rule 8(c), Ariz. R. Civ. App. P., requires that a notice of appeal "designate the judgment or portion of the judgment from which the party is appealing." We do not acquire jurisdiction to review matters not identified in the notice. Lee v. Lee, 133 Ariz. 118, 124 (App. 1982). Although we may construe a notice liberally, Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 30 (App. 1998), and technical defects such as incorrect dates are not fatal, Hanen v. Willis, 102 Ariz. 6, 9-10 (1967), we cannot "disregard the plain requirements of Rule 8(c) and read into the notice something that is not there," Baker v. Emmerson, 153 Ariz. 4, 8 (App. 1986). Because Best did not raise this issue in his notice of appeal, we lack jurisdiction to decide it. See Navajo Nation v. MacDonald, 180 Ariz. 539, 547 (App. 1994) (no jurisdiction to decide Rule 60 on merits when issue not included in notice of appeal).
Motion to Strike
¶16 Best argues that the trial court erred by denying his motion to strike property transfer documents as "sham documents." The court denied the motion, treating it as an improper collateral attack on its earlier order granting the motions for summary judgment, noting that the only new evidence presented since the summary judgment motions were granted was the notary discipline notices. We review a denial of a motion to strike for an abuse of discretion. Birth Hope Adoption Agency, Inc. v. Doe, 190 Ariz. 285, 287 (App. 1997). Likewise, to the extent his motion may be construed as a motion for reconsideration, we review a denial of a motion for reconsideration for an abuse of discretion. Tilley v. Delci, 220 Ariz. 233, ¶ 16 (App. 2009).
¶17 Best argues that because of "discrepancies" in signatures on transfer documents and the issues that resulted in the discipline against the notaries, the trial court should have invalidated the title transfers. We agree with the court, however, that the rights of the parties were unaffected by any technical notary defects. See Pioneer Annuity Life Ins. Co. by Childers v. Nat'l Equity Life Ins. Co., 159 Ariz. 148, 156 (App. 1988) (insufficient acknowledgment may affect validity of record notice to third parties, but does not affect rights between parties to transaction). Best cites to no legal authority that the court otherwise committed reversible error. We find no abuse of discretion in the court's denial of Best's motion to strike.
Indeed, Best's motion to strike seemed to ask the trial court to quiet title, which is properly an action brought under A.R.S. § 12-1101. Moreover, we note, even in a quiet title action, "the plaintiff must ordinarily prove his own title and cannot rely on defects in the defendant's title." Rogers v. Bd. of Regents of Univ. of Arizona, 233 Ariz. 262, ¶ 30 (App. 2013), quoting Mounce v. Coleman, 133 Ariz. 251, 253 (App. 1982). --------
Disposition
¶18 For the above reasons, we affirm the trial court's judgment. We also award costs incurred on appeal under A.R.S. § 12-342 and attorney fees under A.R.S. § 12-341.01(A) to RPIM, Hughes, and Catania upon compliance with Rule 21, Ariz. R. Civ. App. P.