Mestro v. Pasionek

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOE AND GERI MESTRO, MESTRO FAMILY TRUST, DATED
10/20/1998, Plaintiffs/Appellants,1

v.

ROBERT A. PASIONEK, CHERYL A. PASIONEK, Defendants/Appellees.

No. 1 CA-CV 22-0218
FILED 11-29-2022

Appeal from the Superior Court in Maricopa County
No. CV 2022-000396
The Honorable Mary C. Cronin, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Casler Law Office PLLC, Avondale
By Carlton C. Casler
Counsel for Plaintiffs/Appellants

Robert A. Pasionek and Cheryl A. Pasionek, Mesa
Defendants/Appellees

1 On the court’s own motion, it is ordered amending the caption in
this appeal as reflected in this decision. The above-referenced caption shall
be used on all further documents filed in this appeal.
 MESTRO, et al. v. PASIONEK, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which Acting
Presiding Judge James B. Morse Jr. and Chief Judge Kent E. Cattani joined.

B R O W N, Judge:

¶1 Joe and Geri Mestro, and the Mestro Family Trust, dated
10/20/1998 (collectively, “the Mestros”), appeal the superior court’s order
dismissing their second eviction action against Robert and Cheryl Pasionek
(“the Pasioneks”). For the following reasons, we vacate the court’s order
and remand for further proceedings.

BACKGROUND

¶2 In 2006, the Mestros and the Pasioneks signed a lease
agreement in which the Pasioneks would pay $2,500 per month for six
months to lease a house the Mestros owned. When the lease term ended,
the Pasioneks continued to live in the home and made the monthly $2,500
payment for the next 15 years. In 2021, the Mestros gave a 30-day notice of
termination, asserting the lease was a month-to-month tenancy created by
operation of law when the original lease ended. See A.R.S. § 33-342. The
Pasioneks did not vacate the premises, so the Mestros filed an eviction
action, alleging that when the Pasioneks refused to vacate the property,
they became holdover tenants.

¶3 In their answer, the Pasioneks alleged that the original lease
had been converted and extended to an annual lease with automatic
renewals and that a one-year notice of termination was required. They also
claimed the lease conversion was memorialized in a letter they sent to the
Mestros in December 2006. After briefing and argument, the court
dismissed the case without prejudice, reasoning it was “not appropriate for
an eviction matter,” and the issue needed to be “decided in a civil matter
where discovery can be had . . . [to] flesh out whether or not this was truly
converted into a year-to-year lease or was it really a month-to-month lease.”

¶4 A few weeks later the Mestros filed a new eviction action; for
purposes of this appeal, it was essentially the same as the first action. The
Mestros also filed a motion for change of judge under the Rules of
Procedure for Eviction Actions (“RPEA”) Rule 9(c), which the court denied.

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 MESTRO, et al. v. PASIONEK, et al.
Decision of the Court

The Pasioneks moved to dismiss, asserting in part there had been a prior
adjudication and accusing the Mestros of abusing the legal system.

¶5 After conducting a hearing, the court granted the Pasioneks’
motion. The court then entered a final judgment, dismissing the case and
awarding the Pasioneks $1,462 for their attorneys’ fees, plus taxable costs.
The Mestros filed additional motions, including a motion for relief from
judgment under RPEA Rule 15, but before the court ruled on those motions
the Mestros filed a notice of appeal. Shortly thereafter, the court denied the
post-judgment motions.

DISCUSSION

¶6 We independently determine whether we have appellate
jurisdiction over an appeal. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz.
464, 465 (App. 1997). In their jurisdictional statement, the Mestros cite
A.R.S. § 12-2101(A)(1), which establishes jurisdiction over appeals from “a
final judgment entered in an action.” Because the superior court did not
address the merits of the eviction complaint, the dismissal was without
prejudice and thus not a final judgment. Nonetheless, a judgment or order
may be appealable under other exceptions. See In re Marriage of Flores, 231
Ariz. 18, 20, ¶ 7 (App. 2012).

¶7 The superior court’s order essentially dismissed the eviction
action for lack of jurisdiction because the matters at issue exceeded the
narrow scope of what may be adjudicated in such a proceeding. See A.R.S.
§ 33-1377(D); Iverson v. Nava, 248 Ariz. 443, 448, ¶ 11 (App. 2020). Thus, we
have appellate jurisdiction under A.R.S. § 12-2101(A)(3), as the order affects
a substantial right that determines the action and “prevents judgment from
which an appeal might be taken.” Dusold v. Porta–John Corp., 167 Ariz. 358,
361 (App. 1990). However, we have jurisdiction only over the court’s
rulings that occurred before Mestro filed his notice of appeal. See Sotomayor
v. Sotomayor-Muñoz, 239 Ariz. 288, 290, ¶¶ 7–8 (App. 2016) (finding that an
RPEA Rule 15 motion in an eviction case is not time-extending under
ARCAP Rule 9); see also In re Marriage of Cotter, 245 Ariz. 82, 85, ¶ 5 (App.
2018) (finding that the family court lacked jurisdiction over matters filed
after the notice of appeal was filed).

¶8 We review the dismissal of a complaint de novo. State ex rel.
Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 130, ¶ 7 (2020). We also review
issues of law, including interpretation of statues and rules, de novo. Cox v.
Ponce in & for Cnty. of Maricopa, 251 Ariz. 302, 304, ¶ 7 (2021).

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 MESTRO, et al. v. PASIONEK, et al.
Decision of the Court

¶9 The superior court dismissed this action on the basis that it
would require delving into issues outside the narrow scope of an eviction
proceeding. See Iverson, 248 Ariz. at 448, ¶ 11 (“The only issue to be decided
in an FED action is the right of possession.”). The court reasoned that
genuine disputes existed concerning the relationship of the parties as well
as the existence and terms of the lease. Id.

¶10 The Pasioneks alleged that an oral agreement between the
parties “converted and extended” the original six-month lease to an annual
lease, as confirmed by a December 2006 letter allegedly sent to the Mestros
(the Mestros denied receiving the letter). At various points in the superior
court and on appeal, the Pasioneks refer to the oral agreement as an
amendment, a conversion and extension, or a modification. They make no
argument, however, that a conversion is different from an amendment or a
modification, or how any difference in those terms affects the tenancy or
the lease.

¶11 The Mestros argue in part that the court should not have
relied on the December 2006 letter in finding there were genuine disputes
regarding the lease. We agree. The Pasioneks’ letter reflects their view of
what they hoped for in a new lease (including more favorable terms for
them), but the Pasioneks do not assert that the Mestros signed any type of
document agreeing to such terms. The parties’ original six-month lease
states that the “agreement can only be modified in writing and signed by
Landlord and Tenant.” Although the Pasioneks assert that a contractual
provision restricting any amendments to a mutually signed agreement may
nonetheless be orally amended, they provide no supporting authority. And
while they also suggest the superior court could consider the December
2006 letter as evidence of the parties’ intent, doing so would contradict the
lease instead of providing context for interpretation. See Taylor v. State Farm
Mut. Auto. Ins. Co., 175 Ariz. 148, 153 (1993) (“[T]he court can admit
evidence for interpretation but must stop short of contradiction.”).

¶12 The Pasioneks argue their 15-year history of possession and
continuous rent payments constitute evidence of the parties’ reliance on the
alleged oral agreement. But those facts are equally consistent with a
holdover month-to-month tenancy. In either case, continuing to live in the
house and pay rent proves nothing as to why the Pasioneks were not bound
by the lease’s requirement that any amendment be signed by both parties.
Thus, the court erred by concluding a dispute existed regarding whether
the lease had been amended.

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 MESTRO, et al. v. PASIONEK, et al.
Decision of the Court

¶13 When the original six-month lease expired on January 31,
2007, and the Pasioneks maintained possession and the Mestros accepted
rent, a month-to-month tenancy was created under A.R.S. § 33-342. It is
undisputed that the Mestros gave the Pasioneks 30 days’ written notice, see
A.R.S. § 33-1375(B), which informed the Pasioneks that the month-to-month
tenancy would terminate at the end of September 2021. Therefore, the court
improperly found that the eviction action involved more than the right of
possession. See Iverson, 248 Ariz. at 448, ¶ 11. And because the first action
was dismissed without prejudice, the court erred in dismissing the present
case.

¶14 The Mestros also argue the superior court should have
granted their motion for change of judge filed under RPEA Rule 9(c). The
court found that it was untimely filed because the same judge had made
rulings in the first action. However, the court had not yet ruled on any
matter in the second action, and the Mestros’ motion otherwise met the
requirements as outlined in Rule 9(c). See Ariz. R. P. Eviction Act. 9(c). The
court erred in denying the motion.

CONCLUSION

¶15 We vacate the superior court’s judgment dismissing this
eviction action, including the award of attorneys’ fees and costs, and
remand for further proceedings consistent with this decision. Because the
merits of the action have not been adjudicated, we deny the Mestros’
request for attorneys’ fees incurred on appeal without prejudice, deferring
the request to the superior court pending ultimate resolution of this matter.
See Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 204, ¶ 37
(App. 2007). As the successful party on appeal, the Mestros are awarded
taxable costs subject to compliance with ARCAP 21.

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

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