Lux Property v. Hughes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LUX PROPERTY GROUP LLC, Plaintiff/Appellee,

v.

WILLIAM HUGHES, Defendant/Appellant.

No. 1 CA-CV 19-0577
FILED 5-28-2020

Appeal from the Superior Court in Maricopa County
No. CV2019-053682
The Honorable Steven K. Holding, Judge Pro Tempore (Retired)

AFFIRMED AS MODIFIED

COUNSEL

Hull, Holliday, & Holliday, PLC, Phoenix
By Andrew M. Hull, Denise M. Holliday, Kevin W. Holliday,
Matthew Schlabach
Counsel for Plaintiff/Appellee

Davis Miles McGuire Gardner, PLLC, Tempe
By Gregory L. Miles, Brittney Kay Walsh
Counsel for Defendant/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge David B. Gass joined.

W I N T H R O P, Judge:

¶1 William Hughes (“Hughes”) appeals the superior court’s
entry of judgment granting possession of certain rental property in favor of
Lux Property Group LLC (“Lux”). Hughes argues the court erred in
denying his motion to dismiss and in granting a monetary award in an
amount not supported by the record. He also argues the court erred in
failing to stay this action until other, related proceedings could be resolved.
For the following reasons, we affirm the judgment as modified.

FACTS AND PROCEDURAL HISTORY

¶2 Lux purchased the subject property from Hughes in
September of 2018. On October 1, 2018, Hughes entered a written lease
agreement with Lux for a month-to-month tenancy of the property; either
party could non-renew and terminate the lease on thirty-day notice tied to
the periodic rental due date.

¶3 Around April or May 2019, Hughes learned the property had
gone into foreclosure1 and stopped making his rental payments. It appears
Lux served a notice of non-payment and demand to surrender the premises
on Hughes shortly after, although we do not have such notice in the record
before us. Lux served a second notice—for non-renewal and termination of
the month-to-month tenancy—on May 13, 2019.

¶4 On June 19, 2019, Lux initiated eviction proceedings in justice
court against Hughes for nonpayment of rent pursuant to Arizona Revised
Statutes (“A.R.S.”) section 33-1368(B) (hereinafter, the “first eviction
action”). The justice court entered judgment against Hughes and he
appealed to the superior court. Hughes posted a bond to the justice court,
including rental arrears, and the justice court stayed the execution of the
writ of restitution. The first eviction action is still pending in the superior
court appellate division and is not the subject of this appeal.

1 Mortgages of the property have since been brought current.

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Decision of the Court

¶5 In July 2019, Lux initiated a second eviction action in justice
court against Hughes, this time based on Hughes’ failure to vacate the
property following the thirty-day notice of non-renewal/termination of his
month-to-month tenancy pursuant to A.R.S. § 33-1375 (hereinafter, the
“second eviction action”). At the initial appearance for this action, Hughes
claimed there were issues of title with the property. Because Arizona law
does not allow issues of title to be litigated in an eviction action, the justice
court permitted Lux to voluntarily dismiss the second eviction action
without prejudice to refiling in superior court, which has jurisdiction to not
only address the right to possession, but also to resolve any title issue. See
A.R.S. § 12-1177(A); Curtis v. Morris, 186 Ariz. 534, 535 (1996).

¶6 Lux then filed a civil complaint in superior court, seeking
possession based upon the lawful non-renewal and termination of the lease.
Hughes filed a motion to dismiss the complaint, which the court denied.
Hughes did not file an answer; nevertheless, the court heard arguments on
July 25, 2019, as to the merits of the complaint. Hughes’ counsel raised a
variety of procedural defenses, including insufficient service of process and
vague allegations of an issue with title.2 The court took the matter under
advisement and later granted judgment of forcible detainer against
Hughes. As part of its judgment, the court awarded possession of the
property to Lux, awarded damages for unpaid rent, and included an award
for attorneys’ fees and court costs. Hughes filed a timely appeal of the
superior court judgment. We have jurisdiction pursuant to A.R.S. § 12-
2101(A)(1).

ANALYSIS3

I. Amount of the Award

¶7 The parties stipulate on appeal that the superior court
incorrectly calculated the amount of the total damages awarded to Lux. The

2 Hughes later filed a separate civil fraud complaint against Lux
challenging the validity of the sale of the property and alleging breach of
fiduciary duty. We are not aware of the status of that action, and the issues
raised in that case are not relevant to this appeal.

3 Pursuant to Arizona Rule of Civil Appellate Procedure (“ARCAP”)
13(a)(7), an appellant’s opening brief must contain an argument section
“with supporting reasons for each contention, and with citations of legal
authorities and appropriate references to the portions of the record on

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Decision of the Court

superior court awarded Lux $1,839.70 in unpaid rent, $383 in costs, and
$1,200 in attorneys’ fees, which totals $3,422.70; however, the court’s order
misstated the total to be $6,115.70.4 Accordingly, we modify the judgment
awarded to reflect the accurate total of $3,422.70.

¶8 Hughes also argues the amount of the award should not
include the $1,839.70 in unpaid rent because he has paid equivalent funds
in the form of a supersedeas bond in the first eviction action. But, the
parties have represented to this court that superior court appellate review
of the first eviction action is still pending and, as such, the bond has not yet
been released to either party. Hughes argues that if he loses the appeal of
the first eviction action as well, Lux will then be able to collect the same rent
twice; however, he does not present any argument or authority for why a
judgment in the first eviction action that is not yet final warrants
modification of an already-final judgment in this case. Moreover, Lux
acknowledges in its answering brief that it does not intend to collect the
same unpaid rent twice and recognizes that the rent portion of the award
could be satisfied either through payment of this judgment, which would
result in return of the bond funds to Hughes, or instead by release of the
bond funds by the justice court to Lux. Therefore, aside from the
modification above for the miscalculation, we see no error requiring us to
alter the superior court’s award.

II. Refusal to Stay Proceedings

¶9 Hughes contends the superior court erred in failing to grant a
stay of the proceedings pending the appeal of the first eviction action and
pending the outcome of the separate civil fraud complaint in which Hughes
disputes Lux’s title to the property.

which the appellant relies.” Here, Hughes included only a single citation
to the record in his argument section and failed to include any citations to
legal authority in support of his arguments. Based on Hughes’
noncompliance with ARCAP 13(a)(7), we could dismiss the action outright;
however, in our discretion, we briefly address his arguments as we
understand them. See ARCAP 25.

4 In the complaint and in its proposed judgment form submitted to the
court, Lux sought additional holdover damages in the amount of two times
the monthly rent. The superior court crossed out the holdover damages in
the judgment form and only awarded one month’s rent, but then failed to
recalculate the total award.

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Decision of the Court

¶10 Hughes fails to cite to any place in the record where he raised
this argument before entry of a final judgment. Our own review of the
record shows Hughes instead filed a post-judgment “Emergency Motion to
Set Supersedeas Bond and Motion to Stay Enforcement/Execution of
Judgment” as well as a “Preliminary Injunction to Enjoin Enforcement of
the Writ of Restitution.” The superior court neither issued an injunction
nor stayed the proceedings, but instead set a supersedeas bond, which
Hughes obtained. We assume Hughes may have meant to appeal that
order, but we have no jurisdiction over it; Hughes filed his notice of appeal
before that order and never amended the notice of appeal to include it.

III. Denial of Motion to Dismiss

¶11 Hughes argues the superior court erred in denying his motion
to dismiss because the “issues were already in front of the Justice Court” in
the first eviction action and because he was current with his monthly rental
payments, which were being paid to the clerk of the justice court in relation
to the first eviction action.

¶12 “[A] trial court’s denial of a motion to dismiss is a non-
appealable interlocutory order,” and as such, we do not have jurisdiction to
review the denial. Phillips v. Garcia, 237 Ariz. 407, 409, ¶ 5 (App. 2015).

CONCLUSION

¶13 For the foregoing reasons, we affirm the judgment as
modified. We also award Lux its costs and reasonable attorneys’ fees on
appeal pursuant to A.R.S. § 12-341.01, upon compliance with ARCAP 21(b).

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

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