R & a Smart v. Frank

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

R & A SMART INVESTMENTS, LLC, Plaintiff/Appellee,

v.

DAVID GODWIN FRANK, Defendant/Appellant.

No. 1 CA-CV 23-0471
FILED 3-26-2024

Appeal from the Superior Court in Maricopa County
No. CV2023-008344
The Honorable Richard F. Albrecht, Commissioner Judge Pro Tempore

AFFIRMED

COUNSEL

Zona Law Group P.C., Scottsdale
By Scott E. Williams, Amy N. Toppel
Counsel for Plaintiff/Appellee

By David Godwin Frank, Phoenix
Defendant/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Anni Hill Foster delivered the decision of the Court, in
which Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe
joined.

F O S T E R, Judge:

¶1 David Frank appeals the superior court’s eviction ruling in
favor of R & A Smart Investments, LLC (“Smart Investments”). For the
following reasons, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 The contested property in this case was previously owned by
Ekpeno Enyie, Frank’s mother, who encumbered the property with a deed
of trust in 2015. Enyie died in 2019, and Frank inherited the property.
Nothing in the record indicates whether payments were made toward the
mortgage after her death. But in May 2023, the property was sold at a
trustee’s sale to AK 2010 LLC, who subsequently sold the property to Smart
Investments. Smart Investments sent a notice by certified mail to the
occupants of the property stating the property had been sold at a trustee’s
sale and that all occupants must vacate. The next month, because the
property remained occupied, Smart Investments filed its eviction action.
After appearing at the initial hearing, Frank1 also filed an answer. After
trial, on July 3, the court issued a judgment in the eviction action in Smart
Investments’ favor.

¶3 Frank appealed the judgment that same day. Frank also
moved to vacate or modify the judgment, and Smart Investments filed its
first application for a writ of restitution. After the court denied his motion
to vacate or modify, Frank then requested the court to stay or quash the writ
of restitution, which the court also denied. Finally, Frank sought a
supersedeas bond to stay the writ. The court granted Frank’s request but
conditioned it on Frank’s payment of the bond by the end of the next day.
That same day, Frank filed a document with an international bill of
exchange attached, attempting to post the bond. A few days later, Smart

1 Frank also filed a quiet title action in Maricopa County Superior Court,

which is still pending.

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Investments filed its second application for a writ of restitution, which the
court issued that same day.

DISCUSSION

I. Frank’s Opening Brief Did Not Comply with Arizona Rule of Civil
Appellate Procedure 13.

¶4 This Court begins by addressing Smart Investments’
argument that Frank has waived his arguments on appeal by failing to
follow Arizona Rule of Civil Appellate Procedure 13 (“Rule 13”). Frank’s
opening brief does not include a statement of issues for this Court to review.
Ariz. R. Civ. App. P. 13(a)(6). He also failed to provide any citation to the
record for his factual assertions or arguments. Ariz. R. Civ. App. P. 13(a)(5),
(7)(A). The only cases cited within his brief are memorandum decisions,
which generally may only serve as persuasive authority rather than binding
authority. Ariz. R. Civ. App. P. 13(a)(7) (requiring citations to legal
authorities); Ariz. R. Sup. Ct. 111(c)(1) (limiting when memorandum
decisions may be cited to three scenarios).

¶5 Violations of Rule 13 can constitute waiver of a party’s
argument. See Ramos v. Nichols, 252 Ariz. 519, 522-23, ¶¶ 8–11 (App. 2022).
Self-represented litigants are held to the same standards that attorneys
must follow. Id. at 522, ¶ 8. However, this Court “prefers to decide each case
upon its merits” instead of dismissing for procedural violations. Adam v.
Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (citing Clemens v.
Clark, 101 Ariz. 413, 414 (1966)). Therefore, this Court exercises its discretion
to address the merits of Frank’s brief. See Azore, LLC v. Bassett, 236 Ariz. 424,
427, ¶ 7 (App. 2014) (“[W]aiver is a procedural concept that we do not
rigidly employ in a mechanical fashion, and we may use our discretion in
determining whether to address waived issues.”).

II. Arizona Rule of Civil Appellate Procedure 11 Does Not Require
Frank to File a Transcript of the Superior Court Proceeding.

¶6 Smart Investments next argues that this Court should dismiss
Frank’s appeal because he failed to file the superior court’s transcripts with
this Court on appeal, alleging that Frank violated Arizona Rule of Civil
Appellate Procedure 11 (“Rule 11”). This Court “review[s] the
interpretation of court rules de novo,” beginning with the rule’s text. Kelly v.
Blanchard in and for Cnty. of Maricopa, 255 Ariz. 197, 200, ¶ 11 (App. 2023).
Read in its entirety, Rule 11 does not require an appellant to order and file a
transcript; it allows an appellant to do so. As Smart Investments points out,
the rule incorporates “[t]ranscripts of oral proceedings in the superior

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court,” into the record but Smart Investments fails to recognize an
important modifying phrase in the rule—“[t]ranscripts of oral proceedings
in the superior court that the parties ordered, or other narratives prepared
under this Rule, and that are not otherwise contained within the official
record.” Ariz. R. Civ. App. P. 11(a)(2) (emphasis added). This portion of the
rule merely states what this Court can review as part of the record, and it is
appropriate for the rule to limit this Court’s review to those transcripts that
the parties have ordered; nothing here mandates a transcript’s inclusion.
Though this language is clear on whether a transcript is required, Rule 11(b)
provides support for this reading. Specifically, it states, how “[a] party that
wants the record on appeal to include a transcript of an oral proceeding”
must order the desired transcript. Ariz. R. Civ. App. P. 11(b) (emphasis
added). The lack of a transcript does not justify dismissal of Frank’s appeal.2

III. Frank’s Arguments Fail.

¶7 The superior court has discretion when deciding whether to
grant a stay. State v. Ott, 167 Ariz. 420, 428 (1990) (stating that the trial court
had discretion in whether to grant a stay in a civil proceeding parallel to a
criminal proceeding). This Court will “view the evidence in a light most
favorable to supporting the trial court’s judgment” and will uphold the
judgment unless no evidence supports it. Premier Fin. Servs. v. Citibank
(Ariz.), 185 Ariz. 80, 85 (App. 1995). This Court has attempted to discern
Frank’s arguments as best it can but considers only adequately supported
arguments. See In re Aubuchon, 233 Ariz. 62, 64–65, ¶ 6 (2013).

¶8 Frank contends that Smart Investments applied for its writ of
restitution too late after the eviction judgment and did not justify its delay.
When a plaintiff in an eviction, or forcible detainer, action receives a
judgment in its favor, the court will issue a writ of restitution. A.R.S. § 12-
1178(A). Once a defendant has been served with a writ of restitution, if he
remains in, or returns to, the property he will commit criminal trespass.
A.R.S. § 12-1178(D)–(E). Generally, a prevailing party has “45 days to apply
for a writ of restitution,” and if the party applies after that deadline, it must
“explain the reasons for the delay.” Ariz. R.P. Eviction Act. 14(b). Here, the
court issued its judgment on July 3, 2023, and Smart Investments filed its
initial application for a writ of restitution on July 14, well within the 45 days

2 This is not to say that failure to provide this Court with transcripts has no

consequences. If any transcript is missing from the record on appeal this
Court must “presume that the record supports the trial court’s decision.”
Old Republic Nat’l Title Ins. Co. v. New Falls Corp., 224 Ariz. 526, 531, ¶ 23 n.4
(App. 2010).

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allotted. Although the court did not issue the writ until Smart Investments’
subsequent September 21 application, the delay resulted from Frank’s post-
trial motions, which allowed him to seek to vacate or modify the judgment,
to stay the writ, and to request a supersedeas bond. The explanations for
Smart Investments’ delay were already before the court.

¶9 Frank also points to an apparent ambiguity about whether he
has been a tenant. This complication arises in cases such as eviction actions,
which involve tenancies at sufferance. These “tenancies” begin when
someone had a legal right to possess property, lost that right, and yet
unlawfully continued to possess the property. That period of unlawful
continued possession is a tenancy at sufferance. See Grady v. Barth ex rel.
Cnty. of Maricopa, 233 Ariz. 318, 321, ¶ 12 (App. 2013) (“Use of the word
‘tenant’ in this phrase is unfortunate as a tenancy at sufferance is not a true
landlord-tenant relationship, but rather an interest in property. It exists
when a party who had a lawful possessory interest in property wrongfully
continues in possession of the property after its interest terminated.”).
Frank argues that this apparent contradictory use by Smart Investments
“substantially erodes [its] credibility,” but the law uses the term “tenant”
in different ways, and so can Smart Investments. Even if the terminology
used by Smart Investments eroded its credibility, as Frank claims, it is the
trial court’s role, not this Court’s, to weigh evidence, including witness
credibility. Carey v. Soucy, 245 Ariz. 547, 552, ¶ 19 (App. 2018).

¶10 To the extent Frank argues that he has posted the requested
supersedeas bond with the international bill of exchange attached to a filed
document, the superior court has discretion to determine whether his bond
satisfied the requirements of the court order. See Grady, 233 Ariz. at 323,
¶ 23. In its order, the court specifically cautioned that “[i]t is [Frank’s]
responsibility to contact the Clerk’s [O]ffice such that there are no issues in
when, how, and where [Frank] makes the payments required hereunder.”
This Court finds no abuse of discretion in the superior court’s
determination that Frank failed to satisfactorily post the required bond.

¶11 Lastly, Frank’s remaining arguments contend that he has
superior title to Smart Investments. But “[t]he only issue to be decided in an
[eviction] action is the right to possession.” Iverson v. Nava, 248 Ariz. 443,
448, ¶ 11 (App. 2020). Other issues such as the validity of title must be
decided in other civil actions, such as a quiet title action. Curtis v. Morris, 184 Ariz. 393, 398 (App. 1995). Frank argues that his unfamiliarity with
these nuances justify leniency, but again, self-represented litigants are held
to the same standards as attorneys. Ramos, 252 Ariz. at 522, ¶ 8.

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¶12 The record before this Court indicates that at the time of the
eviction action, Smart Investments had lawful title to the property and that
Frank was afforded due process of law. Nothing in the record supports
Frank’s argument that he held superior title. Instead, the record supports
Smart Investments’ ability to sell the property. A.R.S. § 33-807(A)
(conferring the power to sell property after a breach or default on the trustee
of a deed of trust). Frank was afforded full due process; he was provided
notice to vacate the premises after the sale, was given notice of the action,
and appeared at the hearing and trial. See In re Walker, 200 Ariz. 155, 159,
¶ 16 (2001) (stating that what due process requires is notice and a fair
opportunity to appear and present evidence). Smart Investments even
waited a few days before filing the first writ of restitution, which provided
Frank additional time to vacate the premises. Even if Frank claims further
evidence would bolster his case, this court “must assume any evidence not
available on appeal supported the trial court’s action” Bliss v. Treece, 134
Ariz. 516, 519 (1983).

CONCLUSION

¶13 For the reasons above, the superior court’s judgment is
affirmed. Smart Investments requests its attorneys’ fees but fails to cite any
authority authorizing the award; therefore, its request for fees is denied.
Ariz. R. Civ. App. P. 21(a)(2) (“A claim for fees under this Rule must
specifically state the statute, rule, decisional law, contract, or other
authority for an award of attorneys’ fees.”); accord Cavallo v. Phx. Health
Plans, Inc., 254 Ariz. 99, 108, ¶ 38 (2022). Citing Arizona Rule of Civil
Appellate Procedure 21 (“Rule 21”) is insufficient. Assyia v. State Farm Mut.
Auto. Ins. Co., 229 Ariz. 216, 224, ¶ 34 (App. 2012) (denying a party’s request
for attorneys’ fees because the party “cit[ed] only ARCAP 21, which does
not provide a substantive basis for a fee award”). But as the prevailing
party, its request for costs is granted upon compliance with Rule 21. Ferneau
v. Wilder, 256 Ariz. 68, 76, ¶ 27 (App. 2023).

AMY M. WOOD • Clerk of the Court
FILED: AA

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