Opinion
No. 1 CA-CV 11-0310
03-20-2012
ROBERT FREED, a single man; and ROBERT FREED, Trustee of the Robert Freed revocable Trust u/a 9/18/02, an Arizona revocable trust, Plaintiff/Appellant, v. JOSE G. and MARIA LUNA, husband and wife, Defendants/Appellees.
Robert Freed Plaintiff/Appellant in propria persona Palomino Law Firm, P.C. By Debra L. Palomino Attorneys for Defendants/Appellees
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County
Cause No. CV2008-091731
The Honorable John R. Ditsworth, Judge
AFFIRMED
Robert Freed
Plaintiff/Appellant in propria persona
Chandler
Palomino Law Firm, P.C.
By Debra L. Palomino
Attorneys for Defendants/Appellees
Phoenix TIMMER, Judge
¶1 Robert Freed, acting individually and in his capacity as trustee of the Robert Freed Revocable Trust, appeals the trial court's judgment and its order denying his motion for relief from an order enforcing a settlement agreement based on newly discovered evidence and filed pursuant to Arizona Rules of Civil Procedure ("Rule") 60(c)(2) and (c)(6). For the reasons that follow, we affirm.
The motion as captioned asks for relief pursuant to Rules 60(a)(6) and (c)(2). Rule "60(a)(6)" does not exist. The body of the motion clarifies that Freed sought relief pursuant to Rules 60(c)(2) and (c)(6).
BACKGROUND
¶2 Freed owns real property along West Olney Avenue in Phoenix adjacent to three lots owned by Jose G. and Maria Luna. In September 2007, Freed and Mr. Luna executed a written agreement (the "Initial Agreement") in which Freed agreed to dedicate a 33-foot-by-267-foot strip of his property on the north side of Olney Avenue (the "Strip") to the City of Phoenix as a right-of-way in order to assist the Lunas with obtaining a sewer line for their lots as well as providing Freed a sewer tap connection. The Initial Agreement required the Lunas to pave the Strip prior to closing escrow on their three lots or within six months from the date of the agreement, whichever occurred first. The parties agreed that if the Lunas failed to comply with the agreement, Freed could record a lien against their lots.
¶3 In compliance with the Initial Agreement, Freed quitclaimed the Strip to the City in December 2007. But, according to Freed, the Lunas made no attempt to provide a sewer tap for Freed, did not use the Strip to connect to the sewer, and made no street improvements. After the Lunas refused Freed's demand for a sewer tap and paving, Freed filed suit for damages and specific performance in June 2008.
¶4 In August 2009, the parties settled their dispute pursuant to Rule 80(d) and then executed a letter memorializing the agreement (the "Rule 80(d) Agreement"). The Rule 80(d) Agreement required the Lunas to pay Freed $13,000, pay for an appraisal of the Strip's value as of December 2007, and then pay Freed that amount if the City refuses to return the Strip. The Lunas agreed to secure this obligation by recording deeds of trust on each of their lots in the amount of the appraised value of the Strip. The Agreement further required the Lunas to adjust the slope of two of their driveways to increase water flow into their drainage structure. Freed, in turn, was obligated to retain a qualified attorney to attempt recovery of the Strip from the City. In accordance with the Rule 80(d) Agreement, the Lunas paid Freed $13,000 and adjusted the slope of one of their driveways; the other driveway has yet to be installed.
Rule 80(d) provides: "No agreement or consent between parties or attorneys in any matter is binding if disputed, unless it is in writing, or made orally in open court, and entered in the minutes."
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¶5 Freed obtained an appraisal of the Strip as of September 2007, but the Lunas refused to pay him the $2,000 appraisal fee because no value was given as of December 2007, as required by the Rule 80(d) Agreement. The Lunas also refused to record deeds of trust in favor of Freed because he had not obtained the Strip's appraised value as of December 2007.
¶6 In January 2010, Freed moved to enforce the Rule 80(d) Agreement. In May, after briefing and oral argument, the court ordered Freed to obtain qualified counsel to apply to the City for abandonment of the Strip. The court also ordered the Lunas' counsel to draft a proposed judgment conforming to the Rule 80(d) Agreement.
¶7 In June, Freed, without the aid of an attorney, asked the City whether it would abandon its interest in the Strip. The City responded one month later that an unspecified City ordinance prevented it from abandoning all but three feet of the width of the Strip. The City advised Freed how to pursue abandonment of that three-foot portion, but he took no action.
¶8 Freed retained an attorney in August. But instead of pursuing abandonment with the City, counsel filed a motion for relief from the court's May order pursuant to Rules 60(c)(2) and (c)(6). The Lunas responded in opposition and also submitted a form of judgment memorializing the Rule 80(d) Agreement. The court denied Freed's motion and signed the Lunas' form of judgment. This timely appeal followed.
DISCUSSION
I. Failure to award relief
¶9 Freed initially argues the trial court erred by failing to award him any relief pursuant to his Rule 60 motion in light of evidence the Lunas failed to perform the terms of the Rule 80(d) Agreement. We review the court's ruling for an abuse of discretion. Aileen H. Char Life Interest v. Maricopa County, 208 Ariz. 286, 298, ¶ 39, 93 P.3d 486, 498 (2004).
¶10 Freed argues he was entitled to restitution necessitated by either (1) rescission of the Rule 80(d) Agreement due to the parties' mutually mistaken belief the City would return the Strip, or (2) the Lunas' breach of the Agreement by failing to perform. According to Freed, the court left him with no remedy when it refused to enforce the Rule 80(d) Agreement and then later refused to grant him relief via the Rule 60 motion when it was informed of the City's refusal to abandon the Strip.
¶11 We reject Freed's argument for two reasons. First, neither his motion to enforce the Rule 80(d) Agreement nor his Rule 60 motion asked the court to award restitution. Freed has therefore waived that contention, and we do not address it further. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503, 733 P.2d 1073, 1086 (1987).
¶12 Second, to the extent Freed argues the court erred by failing to enforce the Rule 80(d) Agreement by ordering the Lunas to record the deeds of trust and pay him the value of the Strip, he is mistaken. Under the terms of the Agreement, the Lunas are required to record the deeds of trust for the amount of the appraised value of the Strip as of December 2007. The appraisal with a valuation date of September 2007 is not sufficient to trigger the Lunas' obligation. And the Lunas are only required to pay the appraised value to Freed if the City declines to relinquish the Strip upon application by Freed's attorney. At the time Freed filed the Rule 60 motion, his attorney had not applied for abandonment of the Strip by the City as required by the Rule 80(d) Agreement and ordered by the court. Consequently, Freed is not yet entitled to recordation of the deeds or payment by the Lunas, and the court did not err by refusing to grant Freed relief on the Rule 80(d) Agreement.
II. Need for evidentiary hearing
¶13 Freed argues the trial court erred by ruling as a matter of law that he had made inadequate efforts to secure the City's abandonment of the Strip. He contends an evidentiary hearing was required before the court could rule on this issue. Freed's challenge, however, is based on the mistaken premise the court ruled on the adequacy of his individual efforts to secure a return of the Strip. It did not. The court merely enforced the terms of the Rule 80(d) Agreement by ordering Freed to retain an attorney to make application to the City. An evidentiary hearing was neither requested nor required to make this ruling. We therefore reject Freed's argument.
CONCLUSION
¶14 For the foregoing reasons, we affirm. We deny the Lunas' request for attorneys' fees on appeal as they fail to set forth a basis for the award as required by Arizona Rule of Civil Appellate Procedure 21(c). The Lunas are entitled to their costs, however, upon compliance with that rule.
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Ann A. Scott Timmer, Judge
CONCURRING:
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Maurice Portley, Presiding Judge
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Andrew W. Gould, Judge