Opinion
No. 1 CA-CV 14-0198
01-08-2015
JAMES H. FISHER and PATRICIA L. FISHER, husband and wife, Plain tiffs/Appellees, v. JASON WAYNE PAMETICKY, Defendant/Appellant.
COUNSEL The Adams Law Firm PLLC, Prescott By Jeffrey R. Adams Counsel for Plaintiffs/Appellees Jason Wayne Pameticky, Congress Defendant/Appellant in Propia Persona
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. P1300CV201300936
The Honorable Patricia A. Trebesch, Judge
AFFIRMED
COUNSEL The Adams Law Firm PLLC, Prescott
By Jeffrey R. Adams
Counsel for Plaintiffs/Appellees
Jason Wayne Pameticky, Congress
Defendant/Appellant in Propia Persona
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Randall M. Howe joined. NORRIS, Judge:
¶1 Defendant/Appellant Jason Pameticky appeals from summary judgment entered in favor of Plaintiffs/Appellees James and Patricia Fisher in a judicial foreclosure action. On appeal Pameticky argues the court should not have granted summary judgment because it failed to consider his answer and because he did not receive notice of various procedural matters. On the record before us, the superior court properly entered summary judgment, and we therefore affirm the judgment in favor of the Fishers. I. Summary Judgment Ruling
Pameticky also argues summary judgment cannot be applied to this case based on the mistaken assumption that the only support for the application of summary judgment was 41 year-old case law. This is not the case. See, e.g., Ariz. R. Civ. P. 56; Guerra v. State, 234 Ariz. 482, 489, ¶ 29, 323 P.3d 765, 772 (App. 2014).
¶2 In granting summary judgment, the superior court found the Fishers had "made a prima facie showing that no material disputed facts exist[ed]" and were entitled to judgment as a matter of law. See, e.g., Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 114-15, ¶ 12, 180 P.3d 977, 979-80 (App. 2008). Exercising de novo review, we agree with the superior court. See, e.g., Bonito Partners, LLC v. City of Flagstaff, 229 Ariz. 75, 78, ¶ 8, 270 P.3d 902, 905 (App. 2012). The Fishers produced admissible evidence showing Pameticky had executed a note for the purchase price of certain real property and a deed of trust on the property securing his obligations under the note, and then, beginning in June 2013, failed to make payments under the note and defaulted. See Ariz. Rev. Stat. ("A.R.S.") § 33-807(A) (2014). In his response, Pameticky did not raise any dispute of material fact or cognizable legal defense and, instead, simply asserted he was entitled to a trial.
Although the Arizona Legislature amended certain statutes cited in this decision after the date of the events giving rise to this dispute, the revisions are immaterial to the resolution of this appeal. Thus, we cite to the current version of these statutes.
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¶3 Nevertheless, on appeal, Pameticky argues the superior court should not have granted summary judgment in favor of the Fishers because it did not consider his answer to their complaint. Pameticky contends his answer essentially constituted a "sworn statement of facts" and, therefore, admissible evidence for the purpose of defeating the Fishers' motion for summary judgment. See, e.g., Prairie State Bank v. IRS, 155 Ariz. 219, 221 n.1A, 745 P.2d 966, 968 n.1A (App. 1987) ("Generally, the 'facts' which the trial court will consider as 'admissible in evidence' in ruling on a motion for summary judgment are those which are set forth in an affidavit or a deposition; an unsworn and unproven assertion in a memorandum is not such a fact."); see also Ariz. R. Civ. P. 56(e). An answer, however, is a pleading subject to the good faith standard of Arizona Rule of Civil Procedure 11, not a "sworn statement" or written declaration under penalty of perjury which would constitute competent evidence in opposition to a motion for summary judgment. See Ariz. R. Civ. P. 56(e), 80(i).
¶4 Further, notwithstanding the requirements of Rule 56(c)(3), Pameticky's answer did not raise any factual allegations which would call into question the superior court's summary judgment. In his answer, Pameticky alleged the Fishers had breached an agreement which required them to make certain repairs to a mobile home on the property. Even assuming such an agreement existed, the Fishers' alleged breach would not have excused Pameticky's performance of his obligations under the note as secured by the deed of trust unless their obligation to make the repairs constituted a condition precedent to their enforcement of the note and deed of trust. See Watson Const. Co. v. Reppel Steel & Supply Co., Inc., 123 Ariz. 138, 140, 598 P.2d 116, 118 (App. 1979) ("[C]onditions precedent are not favored and the courts are not inclined to construe a contractual provision as a condition precedent unless such construction is plainly and unambiguously required by the language of the contract."). Pameticky, however, presented no admissible evidence of any such condition and neither the note nor the deed of trust mentioned one. II. Lack of Notice
¶5 Pameticky also alleges he was not notified of the Fishers' (i) motion for an award of attorneys' fees, (ii) statement of costs, (iii) notice of lodging final judgment, (iv) expedited application for writ of special execution, and (v) the superior court's order granting the writ of special execution. Pameticky raised this issue to the superior court, which then held a hearing and found "no defect in the manner of the notice of proceedings." On this record, the superior court did not abuse its discretion in finding "no defect" in the notice for filings (i)-(iii) because each bore a certificate of service. See, e.g., Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5, 323 P.3d 1193, 1195 (App. 2014) (superior court abuses discretion "when the record, viewed in the light most favorable to upholding the [superior] court's decision, is devoid of competent evidence to support the decision") (citation omitted).
¶6 And even if Pameticky did not receive notice of filings (iv) and (v), he suffered no prejudice. Pameticky moved to abate the writ of special execution, and the superior court held a hearing on his motion before the Yavapai County Sheriff executed the writ. Further, the Sheriff only acted on a subsequent writ the Fishers obtained after the hearing on Pameticky's motion to abate. III. Superior Court's Refusal to Grant a Stay
¶7 Finally, Pameticky appears to argue the superior court improperly refused stay the sheriff's sale pending appeal. Because the superior court properly entered summary judgment against him, this issue is moot.
CONCLUSION
¶8 For the foregoing reasons, we affirm the superior court's judgment in favor of the Fishers. Pursuant to A.R.S. § 12-341.01 (Supp. 2014), we award the Fishers reasonable attorneys' fees, as well as statutory taxable costs on appeal, pursuant to A.R.S. § 12-341 (2003), contingent upon their compliance with Rule 21, Arizona Rules of Appellate Procedure.