Flury v. Ortiz

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VAN FLURY, Plaintiff/Appellant,

v.

FRANK ORTIZ, et al., Defendant/Appellee.

No. 1 CA-CV 23-0243
FILED 2-29-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-053038
The Honorable Melissa Iyer Julian, Judge

AFFIRMED

COUNSEL

Van Flury, Sun City
Plaintiff/Appellant

Mushkatel Robbins & Becker PLLC, Phoenix
By Matthew A Gobbato
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge Michael S. Catlett joined.
 FLURY v. ORTIZ, et al.
Decision of the Court

M O R S E, Judge:

¶1 Van Flury appeals from the superior court's ruling granting
summary judgment to the David and Martha Ortiz family trust ("Ortiz").
For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In July 2017, Flury signed a lease with Ortiz to rent a
residential property in Glendale, Arizona. The lease expired in 2018, but
Flury remained a tenant on a month-to-month basis until December 2019,
when Ortiz first provided notice to vacate the home. In May 2021, after
lengthy delays, including a stay while Flury resolved his bankruptcy case,
Ortiz filed a contested eviction action in North Valley Justice Court. Flury
asserted numerous defenses, including challenging the justice court's
jurisdiction. The justice court sided with Ortiz and ordered Flury out of the
residence. Flury appealed to the superior court, which affirmed the justice
court's eviction order. Ortiz evicted Flury in June 2021. Flury again
challenged the eviction order in superior court. In February 2022, the
superior court rejected his claims.

¶3 In September 2022, Flury filed the underlying complaint for
"Wrongful Residential Eviction." Flury sought $25,000 in damages,
contending improper service in the original eviction action and that the
justice court lacked subject-matter jurisdiction. Ortiz filed a motion for
summary judgment, arguing claim preclusion bars Flury's claim and that
he is not entitled to relitigate the previous suit. At a February 2023 hearing
on the motion, Flury contended that the justice court in the prior litigation
lacked subject-matter jurisdiction and he could raise that issue at any time.
In March 2023, the court granted the motion for summary judgment and
dismissed Flury's complaint with prejudice. Flury timely appealed, and we
have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶4 We review a grant of summary judgment de novo. Andrews
v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). In doing so, we view the evidence
and reasonable inferences "in the light most favorable to the party opposing
the motion." Id. 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).

¶5 This Court "prefer[s] to decide each case upon its merits rather
than to dismiss summarily on procedural grounds." Adams v. Valley Nat'l

2
 FLURY v. ORTIZ, et al.
Decision of the Court

Bank of Ariz., 139 Ariz. 340, 342 (App. 1984). But we also "have a
responsibility to see that [litigants] conform to an acceptable, minimum
level of competency and performance," Evans v. Arthur, 139 Ariz. 362, 364
(1984), and "there is a limit to which judicial leniency can be stretched,"
Adams, 139 Ariz. at 342; see Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017)
(noting that courts hold unrepresented litigants to the same standards as
attorneys).

¶6 ARCAP 13 sets forth the requirements for an appellate brief.
At a minimum, "[t]he brief must present arguments that explain an
appellant's 'contentions concerning each issue presented for review' with
supporting reasons, citations to legal authorities, and appropriate
references to the record." Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8 (App.
2022) (quoting ARCAP 13(a)(7)). "If we ignore a failure to comply with
these elementary rules and tolerate unprofessional standards, it will be the
clients, the public, the bar, and the courts which ultimately suffer." Id. at
523, ¶ 13 (cleaned up). Accordingly, when an appellant "fail[s] to provide
a bona fide and reasonably intelligent effort to comply with Rule 13," the
court may find that he has "waived any issues he may have wished to
submit for this court's review." Id. at 522, ¶ 9.

¶7 The opening brief fails to comply with ARCAP 13. Flury
presents two issues in his brief—the justice court did not have "personam
jurisdiction" and there was no res judicata—but he fails to provide
supporting reasoning or citations to legal authorities. And his only
"references to the record" are from the earlier litigation. Flury has
essentially thrown "the whole case 'into our laps' on the theory that
somewhere therein is something, which made the final result in some way
erroneous." Adams, 139 Ariz. at 342 (quoting In re Hesse's Est., 65 Ariz. 169,
171 (1947)).

¶8 "We are not required to assume the duties of an advocate and
search voluminous records and exhibits to substantiate an appellant's
claims." Id. at 343. Flury has often litigated before this Court, appearing in
propria persona.1 We hold self-represented litigants "to the same familiarity
with required procedures and the same notice of statutes and local rules as
would be attributed to a qualified member of the bar," and Flury "is entitled
to no more consideration than if he had been represented by counsel."

1 Since 2006, Flury has unsuccessfully appealed or applied for special
action with this Court on fifteen occasions. He has also unsuccessfully filed
several motions for reconsideration and petitioned for review by the
Arizona Supreme Court.

3
 FLURY v. ORTIZ, et al.
Decision of the Court

Copper State Bank v. Saggio, 139 Ariz. 438, 441 (App. 1983). Because Flury
failed to make a bona fide and reasonably intelligent effort to comply with
ARCAP 13, he has waived all appealable issues and effectively abandoned
his appeal. Ramos, 252 Ariz. at 523, ¶ 11. Accordingly, we affirm the
superior court's ruling granting summary judgment. Id.2

¶9 Ortiz requests attorney fees on appeal under A.R.S. §
12-341.01 and A.R.S. § 12-349(A)(1), (2), and (3). Section 12-349(A)(1) allows
the Court to award attorney fees when an appeal is brought "without
substantial justification," which means "that the claim or defense is
groundless and is not made in good faith." A.R.S. § 12-349(F). "While
groundlessness is determined objectively, bad faith is a subjective
determination." Takieh v. O'Meara, 252 Ariz. 51, 61, ¶ 37 (App. 2021). "A
claim is groundless 'if the proponent can present no rational argument
based upon the evidence or law in support of that claim.'" Id. (quoting
Rogone v. Correia, 236 Ariz. 43, 50, ¶ 22 (App. 2014)). These elements "must
be proven by a preponderance of the evidence and 'the absence of even one
element render[s] the statute inapplicable.'" Reynolds v. Reynolds, 231 Ariz.
313, 318, ¶ 16 (App. 2013) (quoting Cypress on Sunland Homeowners Ass'n v.
Orlandini, 227 Ariz. 288, 301, ¶ 49 (App. 2011)).

¶10 Flury's appeal is groundless and not made in good faith.
Flury has repeatedly litigated his claims over several years and at great
expense to Ortiz. Flury now attempts to relitigate the same issues because
he did not like the results in prior litigation. Flury's appeal in this case
cannot be considered to have been brought in good faith. See Standage v.
Jaburg & Wilk, P.C., 177 Ariz. 221, 230 (App. 1993) (awarding attorney fees
pursuant A.R.S. § 12-349 because appellant "failed to conduct formal
discovery, make reasonable inquiry, or accept and be governed by previous
decisions of this Court and the bankruptcy court that have already
addressed the underlying issues of this appeal"). Therefore, we grant
Ortiz's reasonable attorney fees upon compliance with ARCAP 21.

2 Even if we ignored the deficiencies in Flury's brief, we agree with the
superior court that claim preclusion bars this suit. See In re Gen. Adjudication
of All Rts. to Use Water in Gila River Sys. & Source, 212 Ariz. 64, 69–70, ¶ 14
(2006) (identifying the elements for claim preclusion as, "(1) an identity of
claims in the suit in which a judgment was entered and the current
litigation, (2) a final judgment on the merits in the previous litigation, and
(3) identity or privity between parties in the two suits").

4
 FLURY v. ORTIZ, et al.
Decision of the Court

CONCLUSION

¶11 We affirm.

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

5