Trinity Financial v. Mercier

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TRINITY FINANCIAL SERVICES LLC,
Plaintiff/Appellee,

v.

JASON MERCIER,
Defendant/Appellant.

No. 1 CA-CV 20-0691
FILED 10-14-2021

Appeal from the Superior Court in Maricopa County
No. CV2020-010730
The Honorable David W. Garbarino, Judge Pro Tempore

AFFIRMED

COUNSEL

McCarthy & Holthus, LLP, San Diego, CA
By Melissa Robbins Coutts
Counsel for Plaintiff/Appellee

Quinn Law, PLLC, Phoenix
By Ian D. Quinn
Counsel for Defendant/Appellant
 TRINITY FINANCIAL v. MERCIER
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge David B. Gass joined.

M O R S E, Judge:

¶1 Jason Mercier appeals from a judgment finding him guilty of
forcible detainer of a residential property. For the following reasons, we
affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In November 2019, Trinity Financial Services ("Trinity")
purchased Mercier's residence at a trustee sale. Trinity provided Mercier
notice to vacate the property. When Mercier did not leave, Trinity filed this
forcible detainer action.

¶3 Mercier answered the complaint and denied the allegation.
Mercier asserted the trustee's deed upon sale was void under Arizona law
based on defective service. Specifically, Mercier alleged the trustee used an
incorrect address for the property.

¶4 At the initial hearing on September 17, 2020, Mercier pleaded
not guilty to the charge of forcible detainer, and the court set trial for
September 24. The court continued trial several times. On November 5, the
court continued trial to November 20. At trial on November 20, Trinity
submitted a certified copy of the trustee's deed upon sale and testimony
from the trustee as evidence that it purchased the property. Mercier has not
provided a transcript from the trial, but asserts he testified at trial that "he
had no actual notice of the trustee's sale." The superior court rejected
Mercier's arguments, found Mercier guilty of forcible detainer, and entered
judgment in favor of Trinity. Mercier appealed. We have jurisdiction under
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶5 Mercier raises two arguments on appeal: (1) the superior
court abused its discretion when it continued trial on November 5; and (2)
insufficient evidence supports the superior court's judgment because the
trustee's sale suffered deliberate notice defects.

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Decision of the Court

I. The Continuance.

¶6 Mercier claims the superior court abused its discretion when
it continued the November 5 trial because: (1) it issued the continuance over
Mercier's objection; and (2) it continued the trial solely because Trinity was
not prepared to proceed.

¶7 We review the superior court's decision to continue the trial
for abuse of discretion. Dykeman v. Ashton, 8 Ariz. App. 327, 330 (1968).
"An abuse of discretion exists when the record, viewed in the light most
favorable to upholding the trial court's decision, is devoid of competent
evidence to support the decision." State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 14 (App. 2003).

¶8 Mercier correctly notes that the superior court granted a 14-
day continuance and Rule of Procedure for Eviction Action 11(c) states "[n]o
continuance of more than . . . ten days in superior courts may be ordered
unless both parties are in agreement." However, Mercier fails to cite any
evidence in the record to support his claim that he objected to the
November 5 continuance. See ARCAP 13(a)(7) (requiring opening briefs to
contain "supporting reasons for each contention . . . and appropriate
references to the portions of the record on which the appellant relies").
Similarly, Mercier fails to provide any record evidence to support his claim
that the superior court issued the continuance for the sole reason that
Trinity was unprepared to proceed to trial.

¶9 "An appellant is responsible for making certain that the
record on appeal contains all transcripts or other documents necessary for
us to consider the issues raised on appeal. When a party fails to do so, we
assume the missing portions of the record would support the trial court's
findings and conclusions." Burton, 205 Ariz. at 30, ¶ 16 (citation omitted).
Here, Mercier failed to provide the transcripts and documents necessary for
us to consider his claims. Therefore, we assume the record supports the
superior court's decision to issue the continuance. See id. Accordingly,
Mercier has shown no abuse of discretion.

II. The Judgment.

¶10 Mercier claims the notice of trustee's sale had an incorrect
address for the property and he never received notice of the trustee's sale
until after the trustee issued the trustee's deed upon sale. Mercier contends
this constitutes deliberate notice failure, which should preclude finding him
guilty of forcible detainer.

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Decision of the Court

¶11 When reviewing a verdict, we review the evidence in a light
most favorable to sustaining the trial court's judgment. Castro v. Ballesteros-
Suarez, 222 Ariz. 48, 51, ¶ 11 (App. 2009). "We will not set aside the [trial]
court's findings of fact unless clearly erroneous, giving due regard to the
opportunity of the court to judge the credibility of witnesses." Id. (quoting
In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5 (App. 2000)).

¶12 Again, Mercier does not point to any record evidence to
support his claims. Mercier neither provides evidence that the notice of
trustee's sale used the wrong address nor identifies the purported error in
the address. To the contrary, the copy of the notice of trustee's sale in the
record lists the same address noted on the trustee's deed upon sale and used
by Mercier in his opening brief to identify the property. The available
evidence contravenes Mercier's claim.

¶13 Even if the notice of trustee's sale listed the incorrect property
address, Mercier's argument addresses the merits of title, and is beyond the
scope of a forcible detainer action. "On the trial of an action of forcible entry
or forcible detainer, the only issue shall be the right of actual possession and
the merits of title shall not be inquired into." A.R.S. § 12-1177(A); see also
Curtis v. Morris, 186 Ariz. 534, 535 (1996) (noting that litigating title "would
convert a forcible detainer action into a quiet title action and defeat its
purpose as a summary remedy"). Therefore, Mercier's argument is not
within the scope of a forcible detainer action.

¶14 Finally, Mercier argues that In re Hills, 299 B.R. 581 (Bankr. D.
Ariz. 2002), and Main I Ltd. P'ship v. Venture Capital Constr. Dev. Corp., 154
Ariz. 256 (App. 1987), establish that "(1) a party defending an eviction action
following a trustee's sale can raise 'deliberate notice defects' from the
trustee's sale as a defense to the eviction action and (2) should a prima facie
case be made to establish those defects an eviction judgment should not be
issued." We reject these arguments because neither case applies here.

¶15 Main I and In re Hills provide for equitable relief from
foreclosure sales in the event of "serious sale defects, including deliberate
notice failure, fraud, misrepresentation, or concealment." In re Hills, 299
B.R. at 586; Main I, 154 Ariz. at 260. Even if those cases provide a basis for
challenging a trustee's sale, neither involves a forcible detainer action after
a trustee's sale has been completed. Because both cases address the merits
of title, they fall outside the scope of a forcible detainer action. See supra
¶ 13. Moreover, Main I and In re Hills support the superior court's ruling.
The plaintiff in Main I claimed the trustee provided the notice of trustee's
sale one day later than required by statute, and therefore the sale and deed

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Decision of the Court

were void. Main I, 154 Ariz. at 258. Citing A.R.S. § 33-811(A), Main I
concluded a trustee's deed constitutes "'conclusive evidence' of compliance
with the requirements of the deed of trust statute . . . ." Id. at 259, 260.

¶16 In re Hills reached a similar result, saying "a Trustee's Deed
creates a 'presumption of compliance' and 'conclusive evidence' that the
sale was conducted regularly in accordance with the required statutory
notice provisions." 299 B.R. at 585-86 (citing A.R.S. § 33-811(B)). Here,
through the trustee's deed, Trinity introduced "conclusive evidence" the
trustee complied with all statutory requirements—including notice
requirements—in conducting the sale. Main I, 154 Ariz. at 260; see also
Carrington Mortg. Servs. LLC v. Woods, 242 Ariz. 455, 457, ¶¶ 11-13 (App.
2017) (concluding that challenged trustee deed, and accompanying
testimony, established superior right to possession). Mercier points to no
evidence rebutting this presumption of compliance.

¶17 For the foregoing reasons, sufficient evidence supported the
superior court's judgment.

CONCLUSION

¶18 We affirm the superior court.

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

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