Ely v. Ely

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In the Matter of the Estate of:

DENNIS NOEL ELY, Deceased

THE ESTATE OF DENNIS NOEL ELY, Plaintiff/Appellee,

v.

CHRISTINE ELY, Defendant/Appellant.

No. 1 CA-CV 23-0235
FILED 01-09-2024

Appeal from the Superior Court in Maricopa County
No. CV2021-019683
The Honorable Gary L. Popham, Jr., Judge Pro Tempore

AFFIRMED

COUNSEL

Platt & Westby, PC, Phoenix
By Peter H. Westby
Counsel for Plaintiff/Appellee

Christine Ely, Mesa
Defendant/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Vice
Chief Judge Randall M. Howe and Judge Jennifer M. Perkins joined.

K I L E Y, Judge:

¶1 Christine Ely (“Christine”) appeals the judgment of eviction
granting possession of her former residence to her father’s estate (the
“Estate”).1 For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2011, Christine’s father Dennis Ely (“Dennis”), a
citizen of the United Kingdom, bought a house in Mesa, Arizona, (the
“Residence”) for $90,000. The Residence was titled solely in Dennis’s name.
Dennis and Christine agreed that she would live in the Residence and buy
it from him by making payments over time. Although he continued to
reside in the U.K., Christine contends, Dennis visited her annually until
2015, when he became too ill to travel.

¶3 Christine asserts that in addition to making purchase
payments to Dennis, she simultaneously maintained the Residence and
paid its property taxes for “more than 5 years.” She ceased making
payments on the purchase contract in August 2017. By that point, according
to Christine, she had paid $46,000 toward the purchase of the Residence.

¶4 Dennis died in 2018. He had signed a will in January 2017,
which Christine’s brother Martin Ely (“Martin”) subsequently filed in the
United States. The will did not mention Christine or the Residence.

¶5 After Dennis’s death, the Estate demanded payment from
Christine of the balance due under the purchase contract, but to no avail.
The Estate then proceeded to forfeit her interest in the contract. Christine
was given a deadline of December 7, 2022, to pay off the balance due. She
made no payment by the deadline, and the Estate submitted an affidavit of
completion of forfeiture the following day.

1 Family members who share a last name will be referred to by their first

names for clarity.

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¶6 In January 2023, the Estate demanded possession of the
Residence. When Christine failed to vacate the premises, the Estate filed a
complaint seeking immediate possession of, and Christine’s eviction from,
the Residence.

¶7 At a hearing in March 2023, counsel for the Estate asserted
that the Residence “belong[ed] to [Dennis] and is still titled in his name.”
Counsel further asserted that “[a]t one point” Christine “had an equitable
interest in” the Residence because “[s]he was buying it” from Dennis but
that “she defaulted in her payments.” As a result, counsel stated, the Estate
“proceeded to forfeit her interest in the contract,” giving her a December 7
deadline “to pay off the contract.” When “[n]o payment was made,” the
Estate “recorded an affidavit of completion of forfeiture” under A.R.S.
§ 33-745. The Estate then made a demand for possession of the Residence,
but Christine did not comply.

¶8 In response, Christine did not dispute the facts as set forth by
the Estate’s counsel. She acknowledged that title to the Residence “was in
[Dennis’s] name,” that she entered an agreement with him to purchase the
Residence by making periodic payments, that she later stopped making
those payments, and that the Estate elected to forfeit her interest in the
Residence. She further admitted that she received notice to vacate the
Residence in January 2023 and that she nonetheless continued to occupy it.
She asserted, however, that she stopped making payments toward her
purchase of the Residence with Dennis’s consent. She explained that Dennis
agreed that she could “suspend[] any payments” toward her purchase of
the Residence while she paid expenses related to two other properties that
Dennis owned in Fort Smith, Arkansas, which, Christine stated, were “in
disrepair.” She continued that Dennis intended “to basically split [his]
properties” among his children upon his death by “forgiv[ing]” the debt
she owed on the Residence while leaving “the properties in Fort Smith” to
her two brothers. Instead, Christine stated, her brothers “got [her] written
out of [Dennis’s] will” to “grab” all three properties, “sell them off,” and
keep the proceeds for themselves.

¶9 Noting that the relevant facts were undisputed, the court
found Christine guilty of forcible detainer under A.R.S. § 12-1173.01(a)(3).
The court entered judgment (the “March 2023 Judgment”) against her,
ordering her to “leave and vacate” the Residence by April 4, 2023, and
awarding the Estate attorney fees and costs of $3,553.32.

¶10 Christine appealed and refused to leave the Residence. The
Estate then obtained a writ of restitution requiring her to vacate the

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premises by June 23. Shortly before that date, Christine filed two motions
seeking a stay and postponement of the eviction pending the outcome of
both this appeal and of a separate suit she had filed in superior court to
quiet title to the Residence.

¶11 The Estate objected to Christine’s motions, arguing that she
“delayed until June 19th, 2023, four days before her deadline” to vacate the
premises, to file motions “in a bad faith attempt to stay the eviction.” The
Estate asked that Christine be required to post a supersedeas bond of
$21,553.32 in the event the court stayed the eviction pending appeal, noting
that A.R.S. § 12-1182(B) and Arizona Rule of Procedure for Eviction Actions
17 both require the party seeking a stay of a judgment for possession to post
security for the rental value of the premises.

¶12 At a hearing on July 5, 2023, Christine stated that she no
longer resided at the Residence but acknowledged that her personal
possessions remained there. Stating that it would treat Christine’s request
to stay the eviction as a request for a bond hearing, the court ordered
Christine to remove her belongings from the Residence “no later than July
19, 2023,” and required her to “post a bond in the amount of $3,553.32” if
she still wished to “pursue a stay of eviction.” Noting that the Estate had
recently filed a Motion for Entry of Judgment, the court stated that it would
treat the Estate’s motion as a request to amend the March 2023 Judgment
and set a hearing on July 27, 2023, to address it.

¶13 On July 14, 2023, Christine filed another motion, seeking
“clarification from the court regarding the validity of the eviction” and
asking the court to “take appropriate actions to address any potential
irregularities.” After receiving evidence at the July 27 hearing, the court
found that the Estate was “entitled to reasonable rent in the amount of
$5,823.00 for the months of March 29, 2023 through June 28, 2023” and
entered judgment for that amount in favor of the Estate. The court further
stated that it would decline to consider Christine’s motion to clarify the
validity of her eviction, staying the issue pending the outcome of her
appeal.

¶14 We have jurisdiction under A.R.S. § 12-2101(A)(1) and Article
6, Section 9, of the Arizona Constitution.

DISCUSSION

¶15 In her opening brief, Christine complains that Martin, who
resides in the U.K., used “his close proximity” to their father to take
advantage of his “deteriorating condition” by “coerc[ing]” him into making

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“decisions [he] would not have made independently.” “[D]riven” by
“greed,” she asserts, “[her] siblings, specifically Martin,” exerted “undue
influence” on Dennis to convince him to “exclud[e] [her] from the will,” and
then relied on the “fraudulent will” to “evict[]” her from the Residence and
“deprive[] [her] of [her] rightful ownership and inheritance.” She asks that
the March 2023 Judgment be reversed in light of “the questionable validity
of [Dennis’s] will and the unjust enrichment of [her] siblings.” She further
requests “a thorough reassessment of [Dennis’s] will” and “a fair and
equitable distribution of his assets, including the property in question.”

¶16 Christine’s opening brief contains not a single citation to the
record or to legal authority. Her brief thus does not comply with ARCAP
13, which requires an appellant to provide “citations of legal authorities and
appropriate references to portions of the record on which the appellant
relies.” As case law has long recognized, a litigant’s failure to make a “bona
fide and reasonably intelligent effort to comply with the rules will waive
issues and arguments not supported by adequate explanation, citations to
the record, or authority.” Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8 (App.
2022) (cleaned up).

¶17 Nevertheless, because “resolution of cases on their merits is
preferred,” DeLong v. Merrill, 233 Ariz. 163, 166, ¶ 9 (App. 2013), we will, in
the exercise of our discretion, address the substance of Christine’s
arguments to the extent they are developed sufficiently for us to do so.

¶18 If the purchaser of real property is in default by failing to pay
sums due under the contract, the seller may, after giving the purchaser
notice and an opportunity to cure, forfeit the purchaser’s interest in the
property by recording an affidavit of completion of forfeiture. A.R.S.
§§ 33-742(A), (D), -745(A). At that point, “the property reverts to the seller
clear of all interests, liens and encumbrances” except those senior to the
seller’s interest. A.R.S. § 33-745(B). The seller may then serve a written
demand for possession to the purchaser or other occupant of the premises
and may initiate a forcible detainer proceeding if the occupant refuses to
surrender possession. A.R.S. § 12-1173.01(A)(3).

¶19 A forcible detainer action “is a statutory proceeding whose
object is to provide a summary, speedy and adequate means for obtaining
possession of premises by one entitled to actual possession.” Colonial
Tri-City Ltd. P’ship v. Ben Franklin Stores, Inc., 179 Ariz. 428, 433 (App. 1993).
“[N]o counterclaims, offsets or cross complaints are available either as a
defense or for affirmative relief in such action.” United Effort Plan Tr. v.
Holm, 209 Ariz. 347, 351, ¶ 21 (App. 2004) (cleaned up). Instead, “[t]he only

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issue to be decided in the action is the right of actual possession.” Id.; see
also A.R.S. § 12-1177(A) (“On the trial of an action of . . . forcible detainer,
the only issue shall be the right of actual possession, and the merits of title
shall not be inquired into.”).

¶20 Although Christine asserts in her opening brief that she and
Dennis “jointly purchased” the Residence, she admitted at the March 28
hearing that Dennis bought the Residence using his own funds and that
“the title went into his name.” Because she conceded at trial that Dennis
alone held legal title to the Residence, she is not entitled to dispute that fact
for the first time on appeal. See Dillig v. Fisher, 142 Ariz. 47, 51 (App. 1984)
(“[A]ppellants did not raise this argument before the trial court and
therefore cannot raise it for the first time on appeal.”). Further, Christine’s
claim that she paid Dennis $46,000 toward the purchase price, if true, may
establish that she had an equitable interest in the Residence, but would not
change the fact that Dennis alone held legal title. See Wayt v. Wayt, 123 Ariz.
444, 446 (1979) (“A contract for the sale of realty does not effect a transfer of
legal title. The vendor remains the owner of the legal estate, while the
vendee holds an equitable interest in the property.”); Hoyle v. Dickinson, 155
Ariz. 277, 280 (App. 1987) (“In a land contract, legal title to the property is
not conveyed but remains in the vendor. After payment in full of the sums
due under the contract, the purchaser then receives legal title to the
property.”) (cleaned up). An equitable interest in property cannot be
litigated in a forcible detainer action. See A.R.S. § 12-1177(A).

¶21 Christine admitted that she stopped making payments on the
purchase contract for the Residence, that she did not pay the outstanding
balance by the December 7 deadline, that the Estate proceeded to forfeit her
interest, and that she refused to comply with the notice to vacate the
premises. Under the circumstances, the Estate, as successor-in-interest to
the original titleholder, was entitled to possession of the premises, and the
court had no choice but to grant the requested relief. See Holm, 209 Ariz. at
351, ¶ 21 (“[T]he only appropriate judgment [in a forcible detainer action]
is the dismissal of the complaint or the grant of possession to the plaintiff.”).

¶22 Christine’s other arguments regarding the allegedly improper
conduct of her siblings and the purported invalidity of her father’s will are
not properly raised in a forcible detainer action. See id. If Christine seeks to
pursue claims based on those allegations, she must do so in separate
proceedings.

¶23 In its answering brief, the Estate “gives notice . . . that it will
request an award of attorney fees pursuant to A.R.S. § 12-349” on the basis

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that this appeal “was brought without substantial justification for the
purpose of delay.”

¶24 Before awarding fees under A.R.S. § 12-349, courts consider a
variety of factors that may include whether a claim was brought or
defended “for delay or harassment,” “[w]hether the action was prosecuted
or defended . . . in bad faith,” and “[t]he relative financial positions of the
parties involved.” A.R.S. §§ 12-349, -350. Given the summary nature of the
proceedings below, the present record is insufficient to enable us to
determine the relevant factors. Accordingly, we grant the Estate leave to file
an application for attorney fees that sets forth the factors relevant to
whether to award fees as a sanction under A.R.S. § 12-349 and, if so, the
amount of such a fee award. See ARCAP 21(b)(2). The Estate’s application
shall be filed within ten days of the issuance date of this decision. Christine
has until ten days after the Estate’s application is served on her to file a
written objection to the Estate’s application, and the Estate may reply
within five days thereafter. Because “[a] fee award under § 12-349 must be
supported by a preponderance of the evidence,” Ariz. Republican Party v.
Richer, 255 Ariz. 363, 373, ¶ 32 (App. 2023), any factual assertions in the
parties’ filings must be supported by affidavit or a transcript of sworn
testimony.

CONCLUSION

¶25 For the foregoing reasons, we affirm the superior court’s
judgment. As the prevailing party, the Estate is entitled to recover costs on
appeal. Additionally, the Estate is granted leave to file an application for
attorney fees, with further briefing as set forth above.

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

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