Opinion
No. 2 CA-CV 2014-0114
08-31-2015
FV-I INC., IN TRUST FOR MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS, LLC, Plaintiff/Appellee, v. ANDY GARCIA ROMERO, Defendant/Appellant.
COUNSEL Tiffany & Bosco, P.A., Phoenix By Kevin P. Nelson and Michael J. Rogers Counsel for Plaintiff/Appellee Law Firm of Richard Luff, LLC, Tucson By Richard Luff Counsel for Defendant/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Pima County
No. C20142238
The Honorable James E. Marner, Judge
AFFIRMED
COUNSEL Tiffany & Bosco, P.A., Phoenix
By Kevin P. Nelson and Michael J. Rogers
Counsel for Plaintiff/Appellee
Law Firm of Richard Luff, LLC, Tucson
By Richard Luff
Counsel for Defendant/Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly concurred. HOWARD, Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Appellant Andy Romero appeals from the trial court's judgment, entered after a hearing, finding him guilty of forcible detainer of property owned by appellee FV-I Inc. Romero argues that the court erred by failing to follow the procedures contained in the Arizona Rules of Procedure for Eviction Actions. Because he waived review of these issues by failing to properly raise them before the trial court, we affirm.
Factual and Procedural Background
¶2 At a trustee's sale in March 2014, FV-I purchased the home in which Romero was living. FV-I then demanded Romero vacate the property and, when he did not, filed a complaint for forcible detainer to evict him.
¶3 The trial court set the date of initial appearance for May 5, but, after neither party appeared in court, continued it to May 27. At that hearing, the court questioned Romero, found him guilty of forcible detainer, and entered judgment.
¶4 On June 20, Romero timely filed a notice of appeal from the judgment. Seventeen days later, he filed a motion for relief from judgment pursuant to Rule 15, Ariz. R. P. Eviction Actions, which the trial court denied. We have jurisdiction over his appeal from the May 27 judgment pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1) and 12-1182(A).
Discussion
¶5 Romero argues the trial court abused its discretion and violated his procedural and statutory rights by continuing the initial appearance on May 5. He further argues that the court erred by entering a judgment against him without conducting a trial. Romero finally appears to argue that the court erred by violating his due process rights in a variety of ways.
¶6 But Romero did not raise these issues in the trial court before the entry of judgment. As a general rule, "an appellate court will not consider issues not raised in the trial court." Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503, 733 P.2d 1073, 1086 (1987); Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 17, 160 P.3d 223, 228 (App. 2007). "Our court has observed that the consideration of belatedly urged issues undermines 'sound appellate practice' and violates the interests of the party against whom the claim is newly asserted on appeal." Harris, 215 Ariz. 344, ¶ 17, 160 P.3d at 228, quoting Hawkins, 152 Ariz. at 503, 733 P.2d at 1086.
¶7 Because Romero did not raise any of his current arguments before entry of the judgment, he waived review of those issues on appeal from that ruling. Airfreight Exp. Ltd. v. Evergreen Air Center, Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238 (App. 2007) (holding claim is waived if trial court did not have opportunity to address issue on merits). Therefore, we will not overturn the judgment based on those arguments.
¶8 Romero did, however, present these arguments, which directly challenge the judgment, to the trial court in his July 7 motion for relief pursuant to Rule 15, Ariz. R. P. Eviction Actions (permitting motion for relief from judgment "contrary to the law"). But we conclude we lack jurisdiction to review the order denying that motion.
¶9 Even when our jurisdiction is not challenged, we have an independent duty to review it. Kim v. Mansoori, 214 Ariz. 457, ¶ 5, 153 P.3d 1086 (App. 2007). Romero claims we have jurisdiction of his appeal pursuant to A.R.S. § 12-1182, which allows an appeal from a superior court forcible detainer action "as in other civil actions." Section 12-2101 governs appeals in other civil actions. Section 12-2101(A)(1) allows appeals from a final judgment, but here the final judgment is the May 27 judgment. See also A.R.S. § 12-2102 (appeal includes "any intermediate orders").
¶10 Section 12-2101(A)(2) allows appeals from a special order made after final judgment. M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App. 1990) (finding denial of motion for relief appealable as special order). A proper special order made after final "judgment must raise different issues than those that would be raised by appealing the underlying judgment." In re Marriage of Dorman, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000). Otherwise, it would effectively extend the time for appeal and undermine the purpose of Rule 9, Ariz. R. Civ. App. P.
¶11 In his motion for relief, Romero raises issues which directly attack the judgment and which would be raised by appealing the underlying judgment when properly preserved. Therefore, he cannot appeal the order as a special order after judgment. Marriage of Dorman, 198 Ariz. 298, ¶ 3, 9 P.3d at 331. None of the other subsections in § 12-2101 appear to have any relevance to this case.
¶12 Moreover, even if the denial of Romero's motion for relief were separately appealable as a special order made after final judgment, he failed to file a notice of appeal after the ruling. In Navajo Nation v. MacDonald, we stated: "[appellant] filed his notice of appeal before the trial court decided his [motion for relief from judgment], and he did not file another notice of appeal after the trial court issued its decision. Accordingly . . . we lack jurisdiction to decide this issue on appeal." 180 Ariz. 539, 547, 885 P.2d 1104, 1112 (App. 1994); see also Lee v. Lee, 133 Ariz. 118, 124, 649 P.2d 997, 1003 (App. 1982) (holding timely notice of appeal must follow entry of order sought to be appealed). And further, this court has "no jurisdiction to review matters not contained in the notice of appeal." Lee, 133 Ariz. at 124, 649 P.2d at 1003; see also Ariz. R. Civ. App. P. 8(c) (notice of appeal "must . . . [d]esignate the judgment or portion of the judgment from which the party is appealing"); China Doll Rest., Inc. v. Schweiger, 119 Ariz. 315, 316, 580 P.2d 776, 777 (App. 1978) ("Since this action was not contained in the notice of appeal, and in fact occurred approximately two months after the notice of appeal was filed, we acquired no jurisdiction to determine this issue.").
The court in Navajo Nation was disposing of a Rule 60, Ariz. R. Civ. P., motion for relief from judgment. Here, we are considering a motion for relief from judgment under Rule 15, Ariz. R. P. Eviction Actions. But the analysis in Navajo Nation applies equally here. --------
¶13 Romero's only notice of appeal was filed before his motion for relief and solely designates "the Judgment of [the trial court] entered on May 27, 2014." Thus, Romero's failure to file a new notice of appeal deprives this court of jurisdiction to consider the denial of the motion for relief, even were the denial of the motion appealable. See Navajo Nation, 180 Ariz. at 547, 885 P.2d at 1112; see also Lee, 133 Ariz. at 124, 649 P.2d at 1003.
Attorney Fees
¶14 FV-I has requested its attorney fees incurred in this appeal pursuant to A.R.S. § 12-1178(A) and Rule 13(c)(2), and (f), Ariz. R. P. Eviction Actions. Section 12-1178(A) requires that, upon a finding of guilt in a forcible detainer action, "the court shall give judgment for the plaintiff for . . . attorney fees." Similarly, Rule 13(c)(2), Ariz. R. P. Eviction Actions, authorizes a grant of attorney fees upon proof of a factual or legal basis for an award. Rule 13(f), Ariz. R. P. Eviction Actions, requires the trial court to award attorney fees as provided for by statute or in a written contract.
¶15 But § 12-1178 and Rule 13, by their terms, only apply in the trial court. Section 12-1178 allows, in relevant part, the trial court to award a money judgment and a writ of restitution to the plaintiff in a forcible detainer proceeding. The Arizona Rules of Procedure for Eviction Actions are expressly limited to specifically defined "eviction actions" heard in "the superior courts and justice courts." Rule 1, Ariz. R. P. Eviction Actions. FV-I has offered no authority or argument for its contention that the statute and rule allow this court to award fees on appeal. It therefore has waived that issue. See Ariz. R. Civ. App. P. 13(a)(7) ("An 'argument' . . . must contain . . . Appellant's contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies."); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393-94 n.2 (App. 2007) (appellant's failure to develop and support argument waives issue on appeal). Thus, we deny FV-I's request for an attorney fees award.
Disposition
¶16 Because Romero did not effectively raise any issues before the trial court, he has waived all arguments over which we have jurisdiction. We therefore affirm the judgment of the trial court.