Opinion
No. 2 CA-CV 2018-0143 No. 2 CA-CV 2019-0055 (Consolidated)
05-01-2019
RICHARD EDWARD MEYER, Plaintiff/Appellee, v. STEPHEN M. BAQUET AND MARLENE C. BAQUET, Defendants/Appellants.
Richard Edward Meyer, Tucson In Propria Persona Stephen M. Baquet and Marlene C. Baquet, Tucson In Propria Personae
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NOT FOR PUBLICATION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 Pima County
Nos. C20173648 and C20175662
The Honorable Richard E. Gordon, Judge
APPEALS DISMISSED
Richard Edward Meyer, Tucson
In Propria Persona Stephen M. Baquet and Marlene C. Baquet, Tucson
In Propria Personae
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Stephen and Marlene Baquet have filed appeals related to two Pima County Superior Court cases—numbered C20173648 and C20175662—that were consolidated for a hearing in the trial court. For the following reasons, we dismiss the appeals.
Factual and Procedural Background
When, as here, an appellant's opening brief does not contain appropriate citations to the record as required by Rule 13(a)(5), Ariz. R. Civ. App. P., we generally disregard any factual assertions contained therein and rely on the appellee's brief. See Sholes v. Fernando, 228 Ariz. 455, n.2 (App. 2011). However, because Meyer's brief similarly lacks such citations, we instead rely on our own review of the record. See Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, ¶ 2 (App. 2011). We relate only the facts pertinent to our disposition.
C20173648
¶2 In July 2017, appellee Richard Meyer filed a complaint in Pima County against appellants Stephen and Marlene Baquet. Meyer alleged the false recording of an affidavit of a foreign judgment, the false filing of an affidavit of foreign judgment with the superior court, the false filing of a UCC financing statement with the Arizona Secretary of State, breach of contract, and he sought to quiet title in two parcels of real property in Pima County. The Baquets moved to dismiss the complaint, but that motion was denied.
Although Meyer's wife, Soon Ok Jung, was also listed as a plaintiff below, she is not a party to this appeal.
¶3 In November 2017, after the Baquets did not file responsive pleadings, Meyer applied for default judgment, which the trial court granted in January 2018. The judgment awarded $38,427.13 in compensatory damages, $10,000 in punitive damages, and $6,697.72 in attorney fees and costs, and was entered as a final order pursuant to Rule 54(c), Ariz. R. Civ. P. Later that month, the court reiterated that "[n]othing remain[ed] pending in the Superior Court" despite the Baquets having "filed numerous documents before and following the entry of default judgment." The Baquets nevertheless continued to file various motions and documents with the trial court. By August 2018, the entire balance of the judgment remained outstanding. Meyer applied for a charging order relating to the Baquets' interest in several limited liability companies pursuant to A.R.S. § 29-655 and an order to show cause why the court should not enter the charging order.
The motions the Baquets filed appear to have been rambling and irrelevant to the entered judgment. They included, among others, a "Notice of Refusal for Cause without Dishonor," a "Mandatory Judicial Notice for Demand of International Order in Law for Certification of the Right for Subrogation and Order for Settlement and Closure," and a "Notice of Void Judgment."
Section 29-655, A.R.S., provides a statutory remedy permitting a judgment creditor to satisfy a judgment out of the debtor's interest in a limited liability company.
C20175662
¶4 In August 2017, a judgment and order awarding more than $5,000 in attorney fees was entered by the United States Bankruptcy Court for the District of Arizona in favor of Meyer. In November, that judgment was domesticated in the Pima County Superior Court under case number C20175662. As he did in C20173648, Meyer moved for the issuance of a charging order and order to show cause why the charging order should not be entered. The Baquets were then ordered to appear at a hearing on the matter.
Consolidation of Cases
¶5 At a hearing on August 10, 2018, the two causes, C20173648 and C20175662, were consolidated for scheduling purposes only. The motion for the charging order in C20175662 was withdrawn, and Meyer's application for fees and costs was denied without prejudice. The trial court allowed ten days for the refiling of the motion, to include any additional fees and costs. As to C20173648, the court granted the application for the charging order and directed an accounting, noting its jurisdiction over the accounting as "appropriate in [the] case as a collateral matter" connected to the charging order.
¶6 Following the hearing, the Baquets filed three notices of appeal in each of the two cases. Meyer responded in opposition to the notices of appeal and moved for attorney fees within the allotted time. The trial court then ordered "all pending matters, including all applications, motions and requests, shall be heard and addressed" at an October 2018 hearing.
The record on appeal contains nothing pertaining to any October 2018 hearing, including any indication that it was held. It is "the appellant's burden to ensure that 'the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised.'" Blair v. Burgener, 226 Ariz. 213, ¶ 9 (App. 2010) (quoting Baker v. Baker, 183 Ariz. 70, 73 (App. 1995)). Any missing evidence and argument is generally presumed to support the trial court's ruling, id., but because we dismiss the appeals, such a presumption is unnecessary in this case.
Discussion
¶7 The Baquets' appeals are both facially and substantively defective for several reasons. First, a notice of appeal must "[d]esignate the judgment or portion of the judgment from which the party is appealing." Ariz. R. Civ. App. P. 8(c)(3). Although failing "to perform an act other than the timely filing a notice of appeal . . . does not affect [our] jurisdiction," a deficient notice of appeal is subject to dismissal. Ariz. R. Civ. App. P. 8(d). Even a close reading of the Baquets' notices does not reveal the orders from which they appeal. Moreover, a notice of appeal should be "neither misleading nor prejudicial to the appellee." Boydston v. Strole Dev. Co., 193 Ariz. 47, ¶ 12 (1998). Here, Meyer opposed the notices of appeal in each case below, stating they were "generally unintelligible" and noting he was unable to "decipher what, if any, claims are being raised . . . , or what exactly is being appealed." We agree with Meyer that the notices of appeal not only fail to comport with Rule 8(c), but the order(s) being appealed from cannot be discerned. Accordingly, the appeals as to both cases are dismissed.
We note that while the Baquets are not represented by counsel, a party who conducts a case without an attorney is not entitled to special consideration and is held to the same rules of procedure and standards required of a lawyer. See Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, ¶ 16 (App. 2000).
¶8 Moreover, to the extent the Baquets may have intended to challenge the underlying default judgment in C20173648, the notices of appeal were filed well beyond the thirty-day time limit that controls this court's jurisdiction. See Ariz. R. Civ. App. P. 9(a); Baker v. Bradley, 231 Ariz. 475, ¶ 8 (App. 2013) ("Our jurisdiction is defined by statute, and we must dismiss an appeal over which we lack jurisdiction."). The default judgment in C20173648 was entered on January 22, 2018, but the notices of appeal were not filed until August 13, 2018. Although this deadline does not apply where one of a limited number of time-extending motions has been filed, Ariz. R. Civ. App. P. (9)(e), none of the motions the Baquets filed after the judgment fall within the rule's time-extending provisions. We accordingly lack jurisdiction over any appeal of that judgment. See Baker, 231 Ariz. 475, ¶ 8.
This exception applies to motions: 1) for judgment as a matter of law; 2) to amend or make additional factual findings; 3) to alter or amend the judgment; 4) for new trial; or 5) for relief under Rule 60, Ariz. R. Civ. P. Ariz. R. Civ. App. P. 9(e)(1). --------
¶9 Meyer has also requested dismissal of the appeals and an award of his attorney fees as sanctions pursuant to Rule 25, Ariz. R. Civ. App. P. That rule allows for dismissal if this court "determines that an appeal or a motion is frivolous," and "sanctions that are appropriate in the circumstances of the case" in order to "discourage similar conduct in the future." Ariz. R. Civ. App. P. 25. Because we dismiss both appeals pursuant to Rules 8(c) and 8(d), we need not determine whether the appeals are frivolous. And because Meyer is self-represented on appeal, he is not entitled to attorney fees in any event. Connor v. Cal-Az Props., Inc., 137 Ariz. 53, 56 (App. 1983) ("[A] party who represents himself in litigation has no right to be compensated by the payment of attorney[] fees because of the absence of an attorney-client relationship.").
Disposition
¶10 For the foregoing reasons, the appeals related to C20173648 and C20175662 are dismissed.