Opinion
No. 1 CA-CV 19-0593
05-23-2020
HELENA PEREZ, Defendant/Appellant, v. PAUL V. PEREZ, Plaintiff/Appellee.
COUNSEL Law Office of Gerald D. Sherrill, Scottsdale By Gerald D. Sherrill Counsel for Plaintiff/Appellee Helena Perez, Flagstaff Defendant/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2016-054905
The Honorable Lisa Daniel Flores, Judge, Retired
AFFIRMED IN PART; REVERSED IN PART; REMANDED
COUNSEL Law Office of Gerald D. Sherrill, Scottsdale
By Gerald D. Sherrill
Counsel for Plaintiff/Appellee Helena Perez, Flagstaff
Defendant/Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined. PERKINS, Judge:
¶1 Helena Perez ("Helena") appeals from the superior court's entry of partial summary judgment in favor of her brother, Paul Perez ("Paul"); a jury verdict against her for recording a groundless lis pendens; various pre- and post-trial rulings against her; and the trial court's award of attorney's fees to Paul. We affirm in part, reverse in part, and remand for a redetermination of the trial court's fee award.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 This appeal stems from a dispute among family members over real property. In November 2016, Paul filed a complaint against Helena to quiet title to real property located at 1631 N. 11th Ave., Phoenix, AZ 85007. He also alleged Helena recorded a groundless lis pendens and sought statutory damages under A.R.S. § 33-420. On that same day, Paul filed an application for preliminary injunction requesting exclusive possession of the property. Helena filed her answer in December 2016, and the trial court granted the preliminary injunction via a detailed under-advisement ruling in January 2017.
¶3 In May, Paul filed a motion for summary judgment. Helena then responded to the motion for summary judgment in August. In September, Paul filed a reply in support of his motion for summary judgment and a response to Helena's controverting statement of facts.
¶4 Helena filed a slew of motions after Paul moved for summary judgment. First, she filed a motion to compel and for Arizona Rule of Civil Procedure 65 sanctions, which the trial court granted in part and denied in part. Second, Helena filed a motion requesting to take depositions and a request for leave of court to file second supplemental authorities in support of her response to the motion for summary judgment, which the trial court denied. Third, after the trial court held oral argument on the motion for summary judgment, Helena filed a "rebuttal response" to the motion for summary judgment along with several documents. Paul moved to strike the rebuttal response, which the trial court granted. Lastly, Helena filed a motion for leave to file newly discovered documentation related to the motion for summary judgment, which the trial court denied.
¶5 In December 2017, the trial court granted partial summary judgment for quiet title to the property via minute entry. The court reasoned that Paul had shown good title through both valid quitclaim deed and adverse possession, and that Helena had raised no genuine issue of material fact on either theory. The trial court left for a jury the issue of whether Helena had recorded a groundless lis pendens in violation of A.R.S. § 33-420.
¶6 In March 2018, Helena filed a motion to dismiss for insufficiency of process and service and lack of personal jurisdiction, which the trial court denied.
¶7 That same month, after a two-day trial, a unanimous jury found that Helena had recorded a groundless lis pendens under A.R.S. § 33-420 and awarded $5,000.00 in damages. Paul then lodged a proposed form of judgment and filed an application for attorney's fees. Before judgment was signed and while the application for attorney's fees was still pending, the trial court placed the case on a dismissal calendar until December 2018, noting that Helena had filed for bankruptcy the previous May. Both parties filed motions while the stay was still in effect, but the trial court continued the stay until February 2019. In May 2019, the bankruptcy court remanded the case to the trial court to conclude it.
¶8 Helena filed numerous post-trial motions after the stay was lifted, including various objections to the application for attorney's fees. Helena also filed motions under Rules 12, 50, 59, and 60 on the basis of alleged newly discovered evidence. The trial court denied all of Helena's post-trial motions; granted fees and costs as requested totaling $59,117.50 and $2,633.72, respectively, and entered judgment in favor of Paul. Helena then filed a motion for relief from judgment on attorney's fees under Rule 60. Paul responded, and Helena replied. The trial court denied the motion, and Helena's motion for reconsideration which followed. Helena timely appealed.
DISCUSSION
¶9 Helena raises numerous issues for review, which we address chronologically in relation to the procedural history of the case.
I. Personal Jurisdiction
¶10 Helena contends the trial court lacked personal jurisdiction over her because she was not properly served, which we review de novo. Davis v. Davis, 230 Ariz. 333, 335, ¶ 13 (App. 2012).
¶11 In support of this argument (and others), Helena untimely filed a motion to include a transcript of the preliminary injunction hearing with this court, which we denied. Helena then moved for reconsideration on whether the transcript should be included in the record on appeal, and Paul responded—that motion is still pending. Nevertheless, Helena referred to portions of the transcript for the first time in her reply brief, which Paul moved to strike for referencing the transcript and for arguing issues not previously raised—that motion is also still pending. While we deny the motion to strike, we will only address the issues raised in the opening brief. See Romero v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 7 n.3 (App. 2005). We further deny the motion for reconsideration because the transcript was untimely filed. ARCAP 11(c)(2).
¶12 The transcript would not alter the result, however, because the record reflects that the trial court authorized alternative service, and Paul served Helena with both the summons and complaint pursuant to the trial court's authorization. Helena also appeared at the preliminary injunction hearing and failed to challenge personal jurisdiction in her responsive pleadings. See Ariz. R. Civ. P. 12(b); see also Davis, 230 Ariz. at 336, ¶ 17. Finally, we find no evidence in the record to support Helena's claim that Paul misled the court in requesting alternative service. The trial court did not err by exercising personal jurisdiction over Helena.
II. Preliminary Injunction
¶13 Helena argues the trial court erred in granting Paul's motion for preliminary injunction, which we review for an abuse of discretion. TP Racing, L.L.L.P. v. Simms, 232 Ariz. 489, 492, ¶ 8 (App. 2013).
¶14 A party moving for preliminary injunction must show the following elements: (1) a strong likelihood that the movant will succeed at trial on the merits; (2) the possibility of irreparable harm to the movant that cannot be remedied by damages if the relief is not granted; (3) the balance of hardships weighs in the movant's favor; and (4) public policy favors the injunction. IB Prop. Holdings, LLC v. Rancho Del Mar Apartments Ltd. P'ship, 228 Ariz. 61, 64, ¶ 9 (App. 2011).
¶15 Helena does not specifically challenge the court's findings on any of these elements; she simply contends the trial court granted the injunction against the status quo. As the trial court rightly noted in its ruling, one of the primary purposes of a preliminary injunction is to preserve the status quo. See Cracchiolo v. State, 135 Ariz. 243, 247 (App. 1983). In this case, the trial court found that Paul "had exclusive use and possession of the property" for fifteen years, and that he "paid all bills related to the property, paid all homeowner's insurance, renovated the house, paid all taxes on the house, and rented it out." The record supports these findings, and the trial court did not abuse its discretion in finding the preliminary injunction would preserve the status quo.
III. Summary Judgment
¶16 Helena raises both procedural and substantive arguments related to the summary judgment proceedings.
a. Procedural Rulings
¶17 Helena argues the trial court erred in various procedural rulings prior to summary judgment, mostly concerning discovery and disclosure, which we will not disturb absent an abuse of the trial court's broad discretion. See Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013).
¶18 First, we reject Helena's argument that the trial court abused its discretion in denying her request to depose a witness. Helena cites no legal authority or facts in the record to support this argument, nor does she state how this ruling prejudiced her. We similarly reject Helena's claim regarding her motion to compel. While Helena states in her brief that the trial court denied the motion, the trial court's detailed minute entry reflects the court granted her motion for specific documents and denied it for others. Helena does not refer to any of these documents specifically on appeal, and again fails to explain how this ruling prejudiced her. The trial court's minute entry provides a reasonable basis for its ruling, and we find no abuse of discretion.
¶19 Second, we reject Helena's contention that the trial court erred in granting Paul's motion to strike her "rebuttal response" to the motion for summary judgment. The minute entry for oral argument on the motion for summary judgment provides that the trial court only authorized Helena to file three specific documents after the oral argument. Helena's filing went far beyond these three documents. See Ariz. R. Civ. P. 7.1(f)(1) (stating that a motion to strike may be filed if it seeks to strike any part of a filing or submission on the ground that it is not authorized by a specific court order). The trial court did not abuse its discretion in granting Paul's motion to strike.
¶20 Finally, Helena argues the trial court erred in denying her motion requesting leave to include "newly discovered" bank records to support her theory that one of the relevant quitclaim deeds was forged. Helena claims these bank records showed that Paul "habitually forged [Helena's] signature on checks." In response to Paul's motion for summary judgment, Helena had "the burden of showing available, competent evidence that would justify a trial." Ulibarri v. Gerstenberger, 178 Ariz. 151, 156 (App. 1993). While Helena claims this evidence was "crucial" to her forgery argument, it is premised on self-serving allegations and could only be relevant for a purpose inadmissible at trial. See Ariz. R. Evid. 404(a) ("Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion . . . ."). We find no abuse of discretion.
b. Merits
¶21 Helena argues the trial court erred in granting summary judgment because there were issues of fact surrounding the relevant quitclaim deeds. We review de novo whether there were genuine issues of material fact and whether the trial court correctly applied the law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4 (App. 2000).
¶22 There are two quitclaim deeds in the record relevant to Paul's claim to title. First, Helena granted title to Elizabeth Theresa Perez, the parties' mother ("Mother") in a quitclaim deed dated September 10, 1987. Mother then granted title to Paul in a quitclaim deed dated August 30, 2001.
¶23 Helena claims on appeal that the trial court ignored evidence that the 1987 deed was forged. The record reveals no evidence of this beyond Helena's self-supporting affidavits submitted with her response to the motion for summary judgment. This is insufficient to establish an issue of material fact. See Feuchter v. Bazurto, 22 Ariz. App. 427, 429 (1974) ("[A]n opponent to a motion for summary judgment does not raise an issue of fact by merely stating in [her] affidavit that an issue of fact exists, but rather [s]he must show that evidence is available which would justify a trial on that issue."). We find no genuine issue of material fact and affirm the trial court's grant of partial summary judgment regarding the relevant quitclaim deeds.
¶24 Because we affirm the trial court's grant of partial summary judgment on the merits of the relevant quitclaim deeds, we need not address Helena's arguments regarding title by adverse possession.
IV. Jury Trial
¶25 Helena claims the jury erred "in law and fact" in finding that she recorded a groundless lis pendens in violation of A.R.S. § 33-420. While Helena appears to argue the jury lacked sufficient evidence to support its verdict, she failed to order a copy of the trial transcript. Without the transcript, we must assume the evidence was sufficient to support the jury's findings. Baker v. Baker, 183 Ariz. 70, 73 (App. 1995). Moreover, Helena does not dispute several documents Paul offered at trial, nor does she challenge their admission into evidence. These documents provide substantial evidence to support the jury verdict.
¶26 Helena also argues the jury's verdict was contrary to the law. In support of this argument, Helena cites statutes for the proposition that recording a lis pendens is generally permissible. But these statutes have no bearing on whether the lis pendens was groundless under A.R.S. § 33-420, as the jury found here. "[A] groundless lis pendens is included within the proscription of A.R.S. § 33-420." Richey v. W. Pac. Dev. Corp., 140 Ariz. 597, 601 (App. 1984). We find no error.
V. New Trial Motion
¶27 Helena argues the trial court erred in denying her motion for new trial under Rule 59, which we review for an abuse of discretion. See Jaynes v. McConnell, 238 Ariz. 211, 215-16, ¶ 13 (App. 2015).
¶28 Helena's new trial motion hinges on alleged "newly discovered" evidence in the form of Mother's tax records. She claims these tax records indicate Mother did not believe she owned the property in 1988 or 1989. For a trial court to grant a new trial due to newly discovered evidence, "the evidence must be material and incapable of discovery or production at the trial." Ghyselinck v. Buchanan, 13 Ariz. App. 125, 127 (1970). Helena does not meet this burden. The tax records do not shed light on Mother's belief as to whether she owned the property, nor does Helena address why such a belief would have materially changed the outcome of the trial. Helena also fails to show how the tax records were "incapable of discovery or production at the trial." Id. The trial court did not abuse its discretion.
VI. Attorney's Fees
¶29 Helena contends the trial court erred in granting Paul's application for attorney's fees as filed. She also argues the trial court should have considered her objections to the application. We review a trial court's award of attorney's fees for an abuse of discretion, but review issues of statutory interpretation de novo. See Democratic Party of Pima Cty. v. Ford, 228 Ariz. 545, 547, ¶ 6 (App. 2012).
¶30 The trial court did not abuse its discretion in rejecting Helena's untimely objections to the fee application. Paul timely filed his fee application and served Helena on April 12, 2018. Helena was thus required to file her response on or about May 2, 2018, which she did not do. See Ariz. R. Civ. P. 7.1(3), 6(a), (c). The fact that the trial court stayed the proceedings pending Helena's bankruptcy is of no consequence because Helena filed her bankruptcy petition on May 11, 2018—which was past the deadline for filing a response to the application for attorney's fees.
¶31 Helena nevertheless contends on appeal that the trial court erred in granting Paul's application for attorney's fees as filed because he requested fees solely under A.R.S. § 33-420. Our Supreme Court has held that, "[b]ecause a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects before error may be raised on appeal, absent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal." Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994). However, the issue in Trantor was whether a party can waive an argument that the court improperly failed to provide findings of fact and conclusions of law on a fee award despite a party's request for them, when the fee statute at issue did not require findings and conclusions. Id. at 300-01. In contrast, the issue in this case is whether the trial court was authorized to grant the fee award as requested under A.R.S. § 33-420. Either the trial court was authorized to grant the fee application as filed under this statute, or it was not. We thus decline to apply waiver.
¶32 Turning to the merits, A.R.S. § 33-420(B) entitles the prevailing party in his action against another for groundless recording to recover reasonable attorney's fees and costs. Paul's fee application indicated that he was requesting fees only pursuant to this statute, but his request included time entries concerning the entire case, including the quiet title action and preliminary injunction proceedings.
¶33 "Where claims could have been litigated separately, fees should not be awarded for those unsuccessful separate and distinct claims which are unrelated to the claim upon which the [requesting party] prevailed." Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 189 (App. 1983). This court has also held that a determination of whether a recorded lis pendens is groundless "should not involve a decision on the merits of the underlying action." Evergreen W., Inc. v. Boyd, 167 Ariz. 614, 621 (App. 1991); see also Santa Fe Ridge Homeowners' Ass'n v. Bartschi, 219 Ariz. 391, 399, ¶ 27 (App. 2008). The trial court apparently recognized the distinction between the quiet title action and the lis pendens action, as it granted partial summary judgment for Paul on the quiet title issue but left for a jury the question of whether Helena's lis pendens was groundless within the meaning of A.R.S. § 33-420.
¶34 Moreover, "[i]n order to recover attorney['s] fees in a quiet title action, a party must meet all requirements set forth in A.R.S. § 12-1103(B)." Long v. Clark, 226 Ariz. 95, 96, ¶ 5 (App. 2010); see also Lange v. Lotzer, 151 Ariz. 260, 262 (App. 1986) (holding that A.R.S. § 12-1103(B) is the exclusive statute for recovery of attorney's fees in a quiet title action). Paul did not cite this statute in his fee application, nor does the record contain any evidence that he complied with its requirements. See A.R.S. § 12-1103(B) (requiring a party bringing a quiet title action to tender a quitclaim deed and $5.00 to the other party twenty days before filing the action in order to recover attorney's fees).
¶35 Thus, because Paul only requested attorney's fees pursuant to A.R.S. § 33-420 and did not comply with the requirements under A.R.S. § 12-1103(B) for his quiet title action, we reverse the award of attorney's fees and remand for a redetermination of the fee award.
CONCLUSION
¶36 We affirm the trial court's entry of partial summary judgment, the jury verdict against Helena, and all pre- and post-trial rulings other than the fee award. We reverse the trial court's award of attorney's fees and remand for further proceedings consistent with this decision. Paul requests attorney's fees on appeal pursuant to A.R.S. § 33-420. Because we affirm the jury verdict in favor of Paul pursuant to A.R.S. § 33-420, he is entitled to reasonable attorney's fees and costs limited to that portion of the appeal upon compliance with ARCAP 21.