Ruby v. Ball

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICHARD W. RUBY, Plaintiff/Appellee,

v.

JOEL D. BALL, Defendant/Appellant.

No. 1 CA-CV 18-0571
FILED 4-28-2020

Appeal from the Superior Court in Maricopa County
No. CV2018-054684
The Honorable Steven K. Holding, Judge Pro Tempore (Retired)

AFFIRMED

APPEARANCES

Richard W. Ruby, Bloomfield Hills, Missouri
Plaintiff/Appellee

Joel D. Ball, Phoenix
Defendant/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Kenton D. Jones joined.

W I L L I A M S, Judge:

¶1 Tenant Joel Dean (J.D.) Ball (“Ball”) appeals the superior
court’s judgment finding him guilty of special detainer, evicting him from
a residential rental property, and awarding damages, fees and costs to
landlord Richard W. Ruby (“Ruby”). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY 1

¶2 Ball entered into a residential lease agreement with Ruby in
January 2018. Ball used his father’s name and identity on the lease
agreement without his father’s permission. 2 Ball fell delinquent in rent
payments due each month. In addition, police were called to the residence
on more than two dozen occasions primarily for large gatherings, noise and
other disturbance related issues. On two occasions, police responded to an
assault at the property.

¶3 In August 2018, Ruby filed a complaint against Ball in the
superior court seeking Ball’s removal from the property through a special
detainer action, as well as an award for damages and related costs and fees.

¶4 On August 3, 2018, Ball was served a copy of the complaint
and summons. The summons listed the address of the superior court, the
date and time of the hearing, as well as a phone number for legal assistance.

1 Appellant’s opening brief contains a statement of facts without
appropriate citations to the record as required under Ariz. R. Civ. App. P.
13. Therefore, we disregard the factual assertions in the brief and rely upon
our review of the record. See State Farm Mut. Auto. Ins. Co. v. Arrington, 192
Ariz. 255, 257 n.1 (App. 1998).
2 Both the complaint and judgment included Ball’s father, Edward Ball, as

a party to the action. Following a Rule 60 Motion for Relief, the court
removed Edward Ball from the judgment after determining Ball used his
father’s name and identity on the lease agreement without permission.

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Additional summonses were issued on August 7th and August 13th
changing the date and time of the scheduled hearing. The subsequent
summonses did not list the address or phone number to the superior court.3

¶5 On August 17, 2018, Ruby appeared at the hearing with
counsel. Ball failed to appear in person but appeared telephonically. Ball
claimed he went to the wrong courthouse and requested the hearing be
delayed to allow him time to travel to the courthouse in person. The court
denied the request to delay the hearing but allowed Ball to appear
telephonically. At the conclusion of the hearing, the court entered judgment
in favor of Ruby, finding Ball guilty of special detainer and that Ball
“material[ly] and irreparabl[y] breach[ed]” the agreement under A.R.S.
§ 33-1368(A). The superior court ordered the residential property be
returned to Ruby’s possession within five calendar days and awarded Ruby
damages, costs and fees.

¶6 Ball has timely appealed, and we have jurisdiction pursuant
to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 Residential eviction actions are governed by the Arizona
Residential Landlord and Tenant Act, A.R.S. §§ 33-1361 to -1378, and by the
Arizona Rules of Procedure for Eviction Actions. “We defer to a superior
court’s findings of fact unless clearly erroneous, but we review its
conclusions of law de novo . . . view[ing] the evidence and all reasonable
inferences in the light most favorable to sustaining the superior court’s
ruling.” Town of Marana v. Pima Cty., 230 Ariz. 142, 152, ¶ 46 (App. 2012).

¶8 Ball’s primary contention on appeal is that the summons
contained insufficient information to adequately notify him of the court’s
location, resulting in his telephonic rather than personal appearance
thereby limiting his ability to present an adequate defense at the hearing.
In a motion filed in this court after submittal of his opening brief, Ball
suggests he is entitled to prevail in this appeal based on Ruby’s failure to
file an answering brief. In our discretion, however, we decline to treat that
failure as a concession of reversible error. See Nydam v. Crawford, 181 Ariz.
101, 101 (App. 1994). Instead, we consider the merits of the issues Ball has

3 The record shows the summons issued August 13th, the final summons

issued, was served on August 14th. It is unclear from the record whether the
summons issued August 7th was ever served.

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raised on appeal and therefore deny his motion. See Bugh v. Bugh, 125 Ariz.
190, 191 (App. 1980).

¶9 Arizona Rule of Procedure for Eviction Actions 5(a) requires
a summons in an eviction action to include, among other things, the
“[n]ame of the court and its street address, city, and telephone number.”

¶10 The first summons served on Ball contained the superior
court’s address. In addition, there was a telephone number listed for legal
assistance. However, although the subsequent summons served on Ball
contained the name of the court near the top of the summons, it did not
provide an address or telephone number. Rather, the subsequent summons,
with the same case number and caption as the first summons, merely set
forth a new date and time for the special detainer hearing.

¶11 “It has long been recognized, as a principle of law, that the
purpose of process is to give the party to whom it is addressed actual notice
of the proceedings against him, and that he is answerable to the claim of the
plaintiff.” Scott v. G. A. C. Fin. Corp., 107 Ariz. 304, 305 (1971). Here, Ball
challenges process only to the extent that the summons contained
insufficient information to put him on notice of where the special detainer
hearing was to take place.

¶12 It is unclear what court location Ball claims to have
mistakenly appeared at for the hearing. Indeed, a review of the record
identifies no other court location than the court address provided in the
initial summons. Thus, although the subsequent summons lacked an
address or telephone number for the court, we cannot say the superior court
erred by allowing the hearing to proceed as scheduled when Ball was
provided the court’s address in the first summons.

¶13 Ball further contends that the superior court erred by
allowing Ruby to “argue for” a special detainer eviction under A.R.S. § 33-
1368 and by awarding damages. However, Ball points to nothing in the
record to support his argument, nor does he cite to any supporting legal
authority. See ARCAP 13(a)(7)(A) (“An ‘argument’ . . . must contain
Appellant’s contentions concerning each issued presented for review, with
supporting reasons for each contention, and with citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies . . . .”); see also Brown v. U.S. Fid. & Guar. Co., 194
Ariz. 85, 93, ¶ 50 (App. 1998) (declining to address a claim made without
supporting authority or argument). Further, Ball has provided no transcript
of the proceeding. See ARCAP 11(c)(1)(B). In the absence of a transcript, we

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presume the missing record supports the superior court’s rulings. Kohler v.
Kohler, 211 Ariz. 106, 108, ¶ 8 n.1 (App. 2005). Based upon this limited
record, we find no error by the superior court.

CONCLUSION

¶14 For the foregoing reasons, we affirm the superior court’s
judgment.

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

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