Ez Homes v. Mall

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EZ HOMES, INC., Plaintiff/Appellee,

v.

MARK A. MALL, Defendant/Appellant.

No. 1 CA-CV 23-0755
FILED 09-05-2024

Appeal from the Superior Court in Maricopa County
No. CV2023-015502
The Honorable Mary Collins Cronin, Judge Pro Tempore

AFFIRMED

COUNSEL

Mark Anthony Mall, Phoenix
Defendant/Appellant

Zona Law Group, Scottsdale
By Scott E. Williams, Amy N. Toppel
Counsel for Plaintiff/Appellee

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Andrew M. Jacobs joined.
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Decision of the Court

C R U Z, Judge:

¶1 Defendant Mark A. Mall appeals the superior court’s
judgment finding him guilty of forcible detainer. For the following reasons,
we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In September 2023, plaintiff EZ Homes purchased Mall’s
residence at a trustee sale. EZ Homes provided Mall written notice to
vacate the property. When Mall did not vacate the property, EZ Homes
filed this forcible detainer action. The superior court held a hearing where
it found Mall guilty of forcible detainer and granted EZ Homes immediate
possession of the property. The superior court also determined Mall owed
$4,200 in rent, $1,500 in attorneys’ fees, and $598 in costs.

¶3 Mall timely appeals. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

¶4 Mall’s opening brief fails to comply with Arizona Rule of
Civil Appellate Procedure (“ARCAP”) 13. ARCAP 13(a)(7)(A) requires
arguments to include “contentions concerning each issue presented for
review, with supporting reasons for each contention, and with citations of
legal authorities and appropriate references to the . . . record.” “[W]e
consider waived those arguments not supported by adequate explanation,
citations to the record, or authority.” In re Aubuchon, 233 Ariz. 62, 64-65, ¶
6 (2013). Mall argues EZ Homes initiated an unlawful eviction action, and
the superior court infringed his rights to due process and trial by jury. But
Mall does not support any of his arguments with adequate explanation or
citations to the record, thus waiving them.

¶5 Even if Mall’s claims were not waived on appeal, he has not
provided the transcript of the hearing necessary to review the superior
court’s ruling. See ARCAP 11(c)(1) (“The appellant must order transcripts
of superior court proceedings not already in the official record that the
appellant deems necessary for proper consideration of the issues on
appeal.”); Baker v. Baker, 183 Ariz. 70, 73 (App. 1995) (“A party is responsible
for making certain the record on appeal contains all transcripts or other
documents necessary for us to consider the issues raised on appeal.”). “[I]n
the absence of a transcript, we presume the evidence and arguments
presented at the hearing support the trial court’s ruling.” Blair v. Burgener, 226 Ariz. 213, 217, ¶ 9 (App. 2010). Because we lack a transcript of the

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Decision of the Court

hearing where the superior court received evidence and heard arguments,
we cannot say the superior court erred.

¶6 Additionally, we have independently reviewed the record
including: 1) the complaint that alleged Mall retained possession after
termination of his tenancy or demand for possession, 2) the complaint’s
exhibits, including a certified copy of the Trustee’s Deed Upon Sale, 3) the
order granting alternate service by posting notice on the property, and 4)
the superior court’s judgment of eviction finding Mall guilty of forcible
detainer and granting EZ Homes immediate possession of the property.
Nothing in the record shows the superior court erred in its judgment.

¶7 EZ Homes requests attorneys’ fees and costs pursuant to
ARCAP 21. We deny its request because ARCAP 21 does not provide an
independent basis for an award of attorneys’ fees and because EZ Homes
did not cite a statute, rule, or other substantive authority for its request. See
ARCAP 21(a)(2). As the prevailing party, we grant EZ Homes its costs on
appeal upon compliance with ARCAP 21.

CONCLUSION

¶8 We affirm.

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

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