National v. Bodine

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

NATIONAL BANK OF ARIZONA, N.A., Plaintiff/Appellee,

v.

GREGORY R. BODINE, Defendant/Appellant.

No. 1 CA-CV 13-0042
FILED 4-1-2014

Appeal from the Superior Court in Yavapai County
No. P1300CV20091144
The Honorable Kenton D. Jones, Judge

AFFIRMED

COUNSEL

Shapiro, Van Ess & Sherman, LLP, Phoenix
By Jason P. Sherman

Counsel for Plaintiff/Appellee

Gregory R. Bodine, Prescott

Defendant/Appellant in Propria Persona
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Decision of the Court

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

T H O M P S O N, Judge:

¶1 Gregory R. Bodine (Bodine) appeals from the trial court’s
decision denying his motion for a new trial and striking his cross-claim
against his co-defendant and ex-wife, Melody Thomas-Morgan (Thomas-
Morgan). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2005, appellee National Bank of Arizona (National)
loaned Bodine and Morgan-Thomas money to purchase real property in
Dewey, Arizona. Bodine and Morgan-Thomas signed a promissory note
and the loan was secured by a deed of trust encumbering the property.
Bodine and Morgan-Thomas were divorced in 2008. Bodine and Morgan-
Thomas defaulted on the loan, and National noticed a trustee’s sale. At
the trustee’s sale in May 2009, National purchased the property for its
credit bid of $48,000. At the time of the foreclosure sale, the amount owed
on the note and deed of trust was $165,212.09.

¶3 In July 2009, National Bank filed a complaint in the trial
court seeking a deficiency judgment against Bodine and Morgan-Thomas.
National filed a motion for summary judgment, which the trial court
granted in part in February 2011, finding that Bodine and Morgan-
Thomas were liable for a deficiency judgment. The court set a valuation
hearing and, after considering the parties’ evidence and closing
arguments, ruled that the fair market value of the property was $85,000 at
the date of the foreclosure sale. 1 Bodine filed a cross-claim against
Thomas-Morgan in August 2012, after the trial court’s ruling. In
September 2012, the trial court entered a deficiency judgment against

1 National’s expert testified that the value of the property as of the date of
the foreclosure sale was $58,000. Bodine & Morgan-Thomas’s expert
testified that the value of the property was between $177,260.00 and
$220,030.00.

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Bodine and Thomas-Morgan in the amount of $80,212.09 ($165,212.09 loan
amount due minus $85,000 fair market value), plus attorneys’ fees and
costs. Bodine filed a motion for new trial pursuant to Arizona Rule of
Civil Procedure 59(a)(1),(2),(3),(5),(6), and (8) in October 2012.

¶4 In an unsigned minute entry, the trial court denied the
motion for new trial and dismissed Bodine’s cross-claim as untimely.
Bodine appealed. We suspended the appeal to allow Bodine to obtain a
signed order from the trial court, and he did so. We have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) § 12-2101(A)(1) and (5)(a)
(Supp. 2013).

DISCUSSION

¶5 At the outset, we note that Bodine’s opening brief fails to
comply with the Arizona Rules of Civil Appellate Procedure. Arizona
Rule of Civil Appellate Procedure (ARCAP) 13(a)(4) requires “[a]
statement of facts relevant to the issues presented for review, with
appropriate references to the record.” Rule 13(a)(6) requires an argument
section “contain[ing] the contentions of the appellant with respect to the
issues presented, and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on.”

¶6 The opening brief fails to provide a statement of facts.
Instead, in a section entitled “Statement of Facts” Bodine directs us to
“transcripts of trial and hearings below, as well as the Index of Record,”
without actually citing the record. This does not comply with ARCAP
13(a)(4). The argument section also lacks citations to the record and to
relevant authority to support Bodine’s arguments. 2

¶7 The opening brief fails to even minimally comply with
ARCAP 13. We may dismiss the appeal for this reason. See Adams v.
Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342-43, 678 P.2d 525, 527-28 (App.
1984). However, even overlooking the defects in the opening brief, we
find no error in the trial court’s decision.

¶8 Summary judgment is appropriate when “the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.

2For example, Bodine repeatedly asserts that the family court ordered
Thomas-Morgan to obtain a new loan on the property in her name only
but provides no citation to the record for his assertion.

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56(a). We review the grant of summary judgment de novo, viewing the
evidence in the light most favorable to the party opposing summary
judgment. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).
Because the trial court has heard the evidence and observed the demeanor
of witnesses, the trial court has broad discretion in granting or denying a
motion for new trial. Mammo v. State, 138 Ariz. 528, 533-34, 675 P.2d 1347,
1352-53 (App. 1983).

¶9 First, the trial court granted Thomas-Morgan’s motion to
strike Bodine’s cross-claim because it was filed three and one- half months
after the trial in this matter, after the court had ruled on the matter, and
was therefore untimely. We find no abuse of discretion. See Lake v.
Stewart, 117 Ariz. 520, 523, 573 P.2d 920, 923 (App. 1977) (trial court’s
discretion to allow amendment to include a counterclaim ends once trial
begins); Drumwright v. Lynn Eng’g & Mfg., 14 Ariz. App. 282, 285, 482 P.2d
891, 894 (1971) (power to allow counterclaim is discretionary with the trial
court).

¶10 To the extent that Bodine argues that the trial court erred by
entering the deficiency judgment against him, we disagree. Even if
Bodine and Thomas-Morgan’s divorce decree ordered Thomas-Morgan to
refinance the note and deed of trust to remove Bodine’s name 3, Bodine
was still liable under the note and deed of trust. Creditors are not bound
by the family court’s allocation of community obligations. Community
Guardian Bank v. Hamlin, 182 Ariz. 627, 631, 898 P.2d 1005, 1009 (App.
1995).

¶11 Bodine further argues, without supporting his argument,
that the court should have “monitor[ed] and ensure[d]” that Thomas-
Morgan obtained a new loan and transferred the property into her own
name, and that the family court should have included an “indemnification
provision” in the divorce decree. An action to enforce Bodine’s divorce
decree was not within the purview of the trial court here, however. To the
extent that Bodine argues that the divorce decree was unjust and that the
family court violated his constitutional rights, we do not consider these
arguments in this appeal.

¶12 Bodine argues that the trial court’s ruling is a violation of the
ex post facto provisions of the Arizona and U.S. Constitutions. We do not

3 As noted above, Bodine provides no citation to the record for this
assertion.

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consider this argument because it was not raised in the trial court. Bodine
also argues that the trial court in this matter violated his due process
rights by refusing to consider his cross-claim, by denying his motion for
referral to the Arizona Supreme Court, and by depriving him of
knowledge about court proceedings. As noted above, the trial court did
not abuse its discretion in denying the cross-claim. Further, the record
does not reflect that Bodine was denied due process in this matter.
Instead, the trial court delayed the valuation hearing and ordered the
parties to provide Bodine with documents.

¶13 With regard to Bodine’s motion for referral to the supreme
court, the trial court did not lose jurisdiction to rule in this case for an
asserted violation of Article 6, Section 21 of the Arizona Constitution, as
Bodine argued below. That provision was not implicated in this case.

¶14 Bodine further argues that National withheld documents
and pleadings from him, but does not specify which documents or
pleadings National allegedly withheld. We find no error.

¶15 Finally, Bodine argues that the trial court abused its
discretion when it determined the fair market value of the property
because 1) he did not have the opportunity to make his case about the fair
market value of the property, 2) because National delayed the sale of the
property, 3) because the property was more valuable than found by the
trial court, and 4) because National sold the property at auction instead of
listing it. The record reflects that Bodine participated in the valuation
hearing, examined the witnesses, and made arguments to the trial court
regarding the fair market value of the property. We find no abuse of
discretion on this issue. Bodine cites no authority to support his
arguments about the sale being delayed or about the propriety of sale by
auction, and we do not consider these arguments. The trial court did not
abuse its discretion in valuing the property at $85,000 in light of the
evidence in the record.

¶16 National requests its attorneys’ fees on appeal pursuant to
A.R.S. § 12-341.01 and pursuant to the note and deed of trust. We award
National its attorneys’ fees subject to its compliance with ARCAP 21.

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CONCLUSION

¶17 For the foregoing reasons, we affirm the decision of the trial
court.

:MJT

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