Opinion
No. 2 CA-CV 2013-0147
07-09-2014
DONALD RAY PALMER, Plaintiff/Appellant, v. BANK OF AMERICA, N.A.; COUNTRYWIDE HOME LOANS SERVICING, LP; and BAC HOME LOANS SERVICING, LP, Defendants/Appellees.
Donald Ray Palmer, Florence In Propria Persona Miles, Bauer, Bergstrom & Winters, LLP, Henderson, Nevada By Steven E. Stern and Jeremy T. Bergstrom Counsel for Defendant/Appellee Bank of America, N.A.
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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. C20112634
The Honorable Jan E. Kearney, Judge
The Honorable Leslie Miller, Judge
AFFIRMED
COUNSEL
Donald Ray Palmer, Florence
In Propria Persona
Miles, Bauer, Bergstrom & Winters, LLP, Henderson, Nevada
By Steven E. Stern and Jeremy T. Bergstrom
Counsel for Defendant/Appellee Bank of America, N.A.
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 Plaintiff/appellant Donald Palmer appeals the judgment entered in favor of defendant/appellee Bank of America, N.A., in an action concerning his former property. Count one of Palmer's amended pro se complaint alleged "fraudulent conveyance," which later was construed as a claim for wrongful foreclosure; count two asserted a claim of "fraudulent practices" related to a mortgage loan on the property. After Palmer unsuccessfully sought a default judgment, the bank filed a motion for summary judgment on count one and a motion for dismissal or summary judgment on count two. The trial court granted the motions on several grounds.
Bank of America is the successor by merger to defendant BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing, LP. We collectively refer to the defendants named in Palmer's complaint as "the bank," unless otherwise noted.
¶2 As to count one, Palmer conceded he had conveyed the property to his mother before the initiation of the foreclosure action. The trial court therefore found "Palmer had no interest in the property at the time of the foreclosure and is unable to bring an action for wrongful foreclosure." Palmer claims this ruling misunderstands the nature and effect of his conveyance. But he has not provided "proper citations to the record as it is numbered pursuant to Rule 11(a)(2), Ariz. R. Civ. App. P.," to establish any facts supporting his argument. Stant v. City of Maricopa Emp. Merit Bd., 234 Ariz. 196, n.1, 319 P.3d 1002, 1003 n.1 (App. 2014). In the relevant portion of his opening brief, Palmer cites only another civil cause of action and a purported "ex. 11" of his response to the summary judgment motion—a document that includes but five exhibits. Moreover, Palmer's brief refers only to a newspaper website to support his assertions about the legal effect of his conveyance.
¶3 On appeal, we consider only those materials that were properly before the trial court, see GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990), and included in the record on appeal. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); Swansea Props., Inc. v. Hedrick, 3 Ariz. App. 594, 595, 416 P.2d 1015, 1016 (1966). We also hold pro se parties to the same standard as attorneys in terms of complying with procedural rules. See In re Marriage of Williams, 219 Ariz. 546, ¶ 13, 200 P.3d 1043, 1046 (App. 2008). Because Palmer has failed to support his appellate argument with "citations to . . . authorities . . . and parts of the record relied on," as required by Rule 13(a)(6), Ariz. R. Civ. App. P., we have no basis to conclude the trial court erred in granting summary judgment on count one due to Palmer's lack of standing. See Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 191, 193, 836 P.2d 404, 406 (App. 1992) (burden on appellant to overcome "initial presumption that a judgment is correct"); Guard v. Maricopa County, 14 Ariz. App. 187, 188-89, 481 P.2d 873, 874-75 (1971) (appellant carries burden of showing error below); cf. In re $26,980.00 U.S. Currency, 199 Ariz. 291, ¶ 28, 18 P.3d 85, 93 (App. 2000) (declining to address argument based on assertion without legal support).
¶4 As to count two, the trial court granted the bank relief based on its contention that Palmer's action was barred by applicable statutes of limitation. That action, which commenced in 2013, related to a loan that originated in 2001 and was refinanced in 2004. The court found Palmer had failed to identify a reason why, "in the exercise of reasonable diligence," he would not have known of the facts underlying his cause of action within the limitation period. Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588, 898 P.2d 964, 966 (1995); see Anson v. Am. Motors Corp., 155 Ariz. 420, 421, 747 P.2d 581, 582 (App. 1987) (noting plaintiff carries burden when motion to dismiss establishes claim is facially barred); see also State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 26, 725 P.2d 727, 733 (App. 1986) ("[c]onclusory statements are . . . insufficient to raise any genuine issues of material fact" and avoid summary judgment).
¶5 In his opening brief, Palmer does not specify the nature of his legal claim, and he neither identifies nor discusses any applicable statute of limitation. He similarly fails to articulate the nature and relevance of the bank malfeasance he alleges has occurred or the reason he could not have discovered it earlier. Instead, he generally asserts the bank engaged in "underhanded dealing" that was widely unknown "until the financial meltdown in 2008."
¶6 An appellant carries the burden of showing the trial court erred, Guirey, Srnka & Arnold, Architects v. City of Phoenix, 9 Ariz. App. 70, 71, 449 P.2d 306, 307 (1969), and it is not incumbent upon this court to develop a party's legal argument. See Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143, 750 P.2d 898, 901 (App. 1987). Given that Palmer has failed to present a meaningfully developed and legally supported appellate argument on this issue, we find he has waived any challenge to the trial court's determination that his action was barred by applicable statutes of limitation. See Ritchie v. Krasner, 221 Ariz. 288, ¶¶ 61-62, 211 P.3d 1272, 1289 (App. 2009). We likewise do not address his conclusory assertion that he is entitled to relief under the Fourteenth Amendment. See In re $26,980.00, 199 Ariz. 291, ¶ 28, 18 P.3d at 93.
¶7 Last, Palmer contends the trial court erred by setting aside the entry of default and denying his demand for default judgment. But Palmer incorrectly made his demand for judgment pursuant to Rule 54(d), Ariz. R. Civ. P., rather than Rule 55(b), Ariz. R. Civ. P. He thus did not comply with the requirements for motions for default judgment under Rule 55(b)(1), nor did he request a hearing pursuant to Rule 55(b)(2). Accordingly, Palmer's irregular demand was properly denied. See Ariz. R. Civ. P. 7.1(a), (b) (requiring pretrial motion to state "precise legal points, statutes and authorities relied on" and permitting summary disposition for lack of substantial compliance with rules).
¶8 Furthermore, although Palmer does not squarely acknowledge the point, an entry of default may be set aside for good cause. Ariz. R. Civ. P. 55(c). Because default is a disfavored means of resolving cases, any doubt on the issue will be resolved in favor of the party seeking relief from the default. See Richas v. Superior Court, 133 Ariz. 512, 514, 652 P.2d 1035, 1037 (1982). We will not disturb a trial court's ruling setting aside the entry of default unless the court clearly has abused its discretion. Id. Relief from default is warranted when the defaulting party (1) acted promptly in seeking relief, (2) failed to file an answer due to "mistake, inadvertence, surprise or excusable neglect"; and (3) had a meritorious defense. Id.
¶9 Here, the bank asserted it had meritorious defenses and its delay in appearing was due to Palmer "incorrectly su[ing] two corporations which have been merged into Bank of America." The bank further noted that "it does not appear that any default was entered against Countrywide [Home Loans Servicing]," the only named defendant Palmer had served. Palmer has failed to present an argument showing the bank's delay was unreasonable or its proffered excuses did not amount to mistake, inadvertence, surprise, or excusable neglect. He instead contends the bank was in fact in default and the court "went outside of the rules" in granting relief. In the absence of a developed legal argument showing the trial court abused its discretion in setting aside the default, Palmer again has waived the issue on appeal. See Ritchie, 221 Ariz. 288, ¶¶ 61-62, 211 P.3d at 1289; In re $26,980.00, 199 Ariz. 291, ¶ 28, 18 P.3d at 93.
¶10 For the foregoing reasons, the judgment is affirmed.