Sesma v. Marquez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RAFAELA SOTO SESMA, Plaintiff/Appellant,

v.

TONI MARQUEZ, et al., Defendants/Appellees.

No. 1 CA-CV 21-0335
FILED 8-23-2022

Appeal from the Superior Court in Maricopa County
No. CV2020-006318
The Honorable M. Scott McCoy, Judge

JUDGMENT AFFIRMED; BOND VACATED IN PART

COUNSEL

Dominguez Law Firm, P.C., Phoenix
By Antonio Dominguez, Lisa M. Montes
Counsel for Plaintiff/Appellant

Fowler St. Clair, PLLC, Scottsdale
By Elizabeth Best, Dustin Schanaker
Counsel for Defendants/Appellees

SESMA v. MARQUEZ
Decision of the Court

MEMORANDUM DECISION

Chief Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.

C A T T A N I, Chief Judge:

¶1 This property dispute involves ownership of a residence in
Phoenix (the “Property”) and arises out of a deed filed by Joe Manuel Lopez
creating a joint tenancy with his son, Manuel Anthony Lopez.1 Joe
subsequently passed away, and Manuel died a few months later. Rafaela
Soto Sesma, the devisee under Joe’s will, then sued Toni Marquez, the
personal representative of Manuel’s estate, asserting that she was entitled
to a one-half interest in the Property. The superior court entered summary
judgment in favor of Marquez, and Sesma now appeals. Sesma also
challenges the $5,000 supersedeas bond she was required to post to stay
execution of the judgment pending appeal. For reasons that follow, we
affirm the summary judgment in favor of Marquez but vacate the bond in
part, with instructions for the superior court to release any portion of the
bond beyond the $319.35 awarded in taxable costs.

FACTS AND PROCEDURAL BACKGROUND

¶2 The material facts are not in dispute. Joe was the sole owner
of the Property when he deeded it to himself and Manuel “as joint tenants
with rights of survivorship.” Joe signed and recorded the deed.

¶3 Almost a year later, Joe married Sesma, and they lived
together on the Property. Joe then drafted a will purporting to give Sesma
the Property upon his death. A few months after that, Joe entered into a
contract to sell the entire Property to a third party, but he died 10 days later
and the sale was never completed. Manuel recorded Joe’s death certificate
in the county recorder’s office where the Property was located. Just six
months after Joe’s death, Manuel died.

¶4 Sesma continued to live on the Property following Joe’s and
Manuel’s deaths. Marquez ultimately filed a successful forcible entry and

1 For ease of distinguishing father and son, we refer to them by their
first names.

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SESMA v. MARQUEZ
Decision of the Court

detainer action in justice court to evict Sesma, which the superior court
affirmed on appeal. Manuel’s estate took possession of the Property
following the superior court’s judgment.

¶5 Sesma then filed this action in the superior court to, among
other things, quiet title to an undivided one-half interest in the Property.
Marquez counterclaimed to quiet title to the entire Property. The parties
filed cross-motions for summary judgment. Sesma argued that the deed to
Manuel did not create a valid joint tenancy or, if it did, the joint tenancy
was severed by Joe’s contract to sell the Property to a third party. Marquez
in turn argued that Joe and Manuel held the Property as joint tenants,
leaving Manuel as the sole owner (as reflected on the county assessor’s
website) when Joe died.

¶6 The court granted Marquez’s motion, reasoning that Joe had
created a valid joint tenancy and that Manuel was the owner of the Property
in fee simple by virtue of surviving Joe. The court awarded Marquez
$319.35 in taxable costs and set a $5,000 supersedeas bond, apparently
based in part on potential lost rental revenue while the case remained
pending on appeal.

¶7 Sesma timely appealed, and we have jurisdiction under
A.R.S. § 12-2101(A)(1). See also ARCAP 7(c).

DISCUSSION

¶8 Sesma argues the superior court erred by granting Marquez’s
motion for summary judgment, asserting that Joe did not create a valid joint
tenancy, or alternatively, that the joint tenancy was severed when Joe
executed a contract to sell the Property without Manuel’s consent. Sesma
thus contends she was entitled to Joe’s share of the Property under the
terms of his will. She also argues the court erred by setting an excessive
supersedeas bond.

I. Joint Tenancy.

¶9 We review the superior court’s ruling on motions for
summary judgment de novo, viewing the evidence “in the light most
favorable to the party opposing the motion.” Andrews v. Blake, 205 Ariz.
236, 240, ¶ 12 (2003). Summary judgment is appropriate when “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. 56(a); see Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990). We review the court’s interpretation and

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SESMA v. MARQUEZ
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application of statutes de novo. Naslund v. Indus. Comm’n, 210 Ariz. 262,
264, ¶ 8 (App. 2005).

¶10 Under A.R.S. § 33-431(B), a joint tenancy can be created “by
grant or transfer from a sole owner to himself and others” if the owner
expressly declares the grant to be a “joint tenancy with right of
survivorship.” Joint tenants hold equal, undivided interests in the subject
property. Graham v. Allen, 11 Ariz. App. 207, 208 (App. 1970). The key
factor distinguishing a joint tenancy from other forms of ownership “is the
right of survivorship by which the survivor takes the estate free of any claim
of a deceased joint tenant.” In re Estelle’s Est., 122 Ariz. 109, 111 (1979).

A. Creation.

¶11 Sesma first argues that to create a joint tenancy, the deed must
show that all grantees knowingly and intentionally accepted the joint
tenancy. Citing In re Baldwin’s Estate, 50 Ariz. 265 (1937), Collier v. Collier, 73 Ariz. 405 (1952), and Bostwick v. Jasin, 170 Ariz. 15 (App. 1991), Sesma
contends that Joe and Manuel owned the Property as tenants in common
because nothing in the deed indicates that Manuel accepted the joint
tenancy. See A.R.S. § 33-431(A).

¶12 Neither the language of § 33-431(B) nor the cases on which
Sesma relies require a grantee to accept joint tenancy in writing to create a
valid joint tenancy. At most, these cases suggest that a grantee may object
to the joint tenancy. See In re Baldwin’s Est., 50 Ariz. at 274–75; Collier, 73
Ariz. at 409, 411; Bostwick, 170 Ariz. at 17.

¶13 Here, Manuel did not object to Joe’s creation of the joint
tenancy—in fact, following Joe’s death, he sought to enforce it. Manuel
recorded Joe’s death certificate, and that filing established Manuel’s right
to sole ownership of the Property. Moreover, after Manuel died, his estate
continued to assert its ownership right to the Property by counterclaiming
to quiet title to the entire Property. Accordingly, the superior court
correctly concluded that Joe created a valid joint tenancy and that Manuel,
as grantee, accepted the joint tenancy.

B. Severance.

¶14 Sesma argues that, even assuming the deed created a valid
joint tenancy, Joe severed the joint tenancy by entering a contract to sell the
Property without Manuel’s consent. A joint tenant can unilaterally sever a
joint tenancy by (1) filing with the county recorder an affidavit terminating
the right of survivorship, A.R.S. § 33-431(E), or (2) taking an action

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SESMA v. MARQUEZ
Decision of the Court

“inconsistent with the continued existence of the joint tenancy.” In re
Estelle’s Est., 122 Ariz. at 111. A successful severance of a joint tenancy
“leav[es] the joint tenants as tenants in common, without the right of
survivorship.” Brant v. Hargrove, 129 Ariz. 475, 478 (App. 1981).

¶15 Sesma asserts that Joe severed the joint tenancy because the
proposed contract to sell the Property was inconsistent with the continued
existence of the joint tenancy. Although “a joint tenant cannot convey an
entire estate unless authorized by his co-tenant,” he can sever the joint
tenancy by conveying his interest. Register v. Coleman, 130 Ariz. 9, 12 (1981).

¶16 Here, Joe contracted to sell the entire Property to a third party,
apparently without Manuel’s consent. But although the proposed contract
may have reflected Joe’s intent to do something inconsistent with a joint
tenancy interest in the Property, there is no indication that the sale ever
went through or was otherwise enforceable. Thus, the proposed contract
did not change the form of Joe’s ownership interest in the Property. See
Smith v. Tang, 100 Ariz. 196, 204–05 (1966).

¶17 Because Joe created a valid joint tenancy and his unsuccessful
attempt to sell the Property did not sever the joint tenancy, the court
correctly concluded that Manuel owned the Property in fee simple as the
surviving tenant upon Joe’s death.

II. Supersedeas Bond.

¶18 Sesma argues the superior court erred by setting an excessive
supersedeas bond, asserting that, as in an eviction action, the bond should
not have included lost rental income because Sesma did not retain
possession of the Property while the appeal was pending. See Grady v.
Barth, 233 Ariz. 318, 320–21, ¶¶ 10, 13 (App. 2013).2 In superior court, Sesma
requested a $319.35 supersedeas bond to cover taxable costs awarded to
Marquez, whereas Marquez requested a $18,175.35 bond to cover estimated
lost rental income during the appeal. The court set a $5,000 supersedeas
bond, finding that “some lost rental income [was] to be expected.”
Although the court has discretion in determining an appropriate bond
amount, see, e.g., ARCAP 7(a)(4)–(9), we consider de novo the court’s

2 Sesma initially filed a special action seeking review of the
supersedeas bond. This court declined to exercise special action jurisdiction
and instead directed Sesma to raise any issues related to the supersedeas
bond in this appeal.

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SESMA v. MARQUEZ
Decision of the Court

interpretation of statutes and court rules. Kellin v. Lynch, 247 Ariz. 393, 396,
¶ 11 (App. 2019).

¶19 A supersedeas bond permits an appellant to stay enforcement
of the judgment and “preserve the status quo pending appeal” while
concurrently providing adequate security for the appellee. Id. at ¶ 13
(citation omitted); ARCAP 7(a)(1)(A), (4)–(9). Generally, for judgments
involving real property, the court may set a supersedeas bond in the
amount of fair rental value while the appeal is pending. ARCAP 7(a)(5)(A).

¶20 Here, however, the bond amount should not have included
projected lost rental income. Manuel’s estate held legal title to the Property
and was in possession of the Property both before and after the judgment.
In essence, the judgment itself preserved the status quo ante because it
simply affirmed that the estate was in the same position as it was before the
quiet title action. Thus, there was no need to stay enforcement of the
judgment as to title, and no need to post a bond to secure possessory rights
to the Property. Accordingly, the court improperly required Sesma to post
a bond that included projected lost rental income, and it must release to
Sesma all but the $319.35 necessary to cover taxable costs. See ARCAP
7(a)(4)(A).

CONCLUSION

¶21 For the foregoing reasons, we affirm the judgment in favor of
Marquez but vacate the bond in part with instruction for the court to release
the bond as detailed above. Marquez requests an award of attorney’s fees
on appeal under ARCAP 21(a), but that rule does not establish a substantive
basis for awarding fees. We therefore deny her request. See ARCAP
21(a)(2). Both sides request an award of costs. As the prevailing party on
the merits, Marquez is entitled to her costs on appeal upon compliance with
ARCAP 21.

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

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