Opinion
No. 1 CA-CV14-0425
02-26-2015
JAMES L. JONES, JR., Plaintiff/Appellant, v. CHRISTOPHER JONES; BRYAN J. BLY, Defendants/Appellees.
COUNSEL James L. Jones, Jr., Kingman Plaintiff/Appellant Bruno, Brooks & Goldberg, P.C., Kingman By Jeffrey A. Goldberg, Lisa S. Bruno Counsel for Defendants/Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CV201300874
The Honorable Randolph A. Bartlett, Judge
AFFIRMED
COUNSEL James L. Jones, Jr., Kingman
Plaintiff/Appellant
Bruno, Brooks & Goldberg, P.C., Kingman
By Jeffrey A. Goldberg, Lisa S. Bruno
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Michael J. Brown joined. THUMMA, Judge:
¶1 James L. Jones, Jr., appeals from the superior court's order denying his motion for relief from judgment in favor of defendants Christopher Jones and Bryan Bly. Because the superior court did not err, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Defendants are employees of Nationwide Title Clearing, Inc., which provided mortgage services to World Alliance Financial Corporation. In March 2010, World Alliance appointed Bryan to serve as a corporate officer to sign documents to effectuate transfers of World Alliance's interests in certain assets. In late April 2010, on behalf of World Alliance, Bryan signed, and Christopher (a Florida notary public) notarized, an assignment of interests in a deed of trust involving real property in Mohave County. In early May 2010, the assignment was recorded with the Mohave County Recorder. James claims an interest in the real property covered by this assignment, citing a March 2012 quitclaim deed.
Because two of the parties on appeal have the same last name, the parties are referred to by their first names to avoid confusion.
¶3 James filed this action pro se seeking a declaratory judgment that the April 2010 assignment was invalid, claiming it was fraudulent. In early March 2014, defendants moved for summary judgment, attaching affidavits from Bryan and Christopher stating they signed and notarized (respectively) the assignment. James opposed the motion, purporting to dispute, among other things, that Bryan's signature matched the signature on the assignment. On April 4, 2014, after defendants' filed their reply, the superior court granted the motion for summary judgment. On April 24, 2014, the court entered judgment for defendants, including awarding attorneys' fees and costs.
¶4 Later on April 24, 2014, and apparently without knowledge of the entry of judgment, James moved for relief from judgment alleging newly discovered evidence and fraud. See Ariz. R. Civ. P. 60(c)(2), (3) (2015). The motion attached a letter from a forensic document examiner opining that Bryan's signature on the assignment "is genuine" but "has been mechanically authored." The motion also attached transcripts from a July 2010 deposition of Bryan in a Florida case, claiming Bryan admitted that he allowed a supervisor to use an electronic version of his signature. After considering defendants' response and James' reply, the court denied the motion on May 13, 2014. This court has jurisdiction over James' timely appeal from the denial of his motion pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-2101(A)(2) and -120.21(A)(1).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
I. The Superior Court Did Not Err In Denying The Motion.
A. The Motion Failed To Show Newly Discovered Evidence Under Rule 60(c)(2).
¶5 James argues the superior court erred in denying his motion based on newly discovered evidence under Rule 60(c)(2). To prevail on such a motion, James was required to show "newly discovered evidence which by due diligence could not have been discovered in time" to move for a new trial. Ariz. R. Civ. P. 60(c)(2). Stated differently, James was required to show that newly discovered evidence existed at the relevant time that was not in James' possession or known by James and was not available to him. See Soto v. Brinkerhoff, 183 Ariz. 333, 336, 903 P.2d 641, 644 (App. 1995) (citing cases). This court reviews a decision on such a motion for an abuse of discretion. Tovrea v. Nolan, 178 Ariz. 485, 490-91, 875 P.2d 144, 149-50 (App. 1993).
¶6 James' motion did not show that the forensic document examiner's opinion letter and Bryan's deposition transcript could not have been discovered in a timely fashion in the exercise of due diligence. Although the reply on appeal argues James "just received the newly discovered evidence two days before filing" his motion, James did not argue or show to the superior court that his motion was based on "newly discovered evidence which by due diligence could not have been discovered" in a timely fashion. Ariz. R. Civ. P. 60(c)(2). Although the reply on appeal states that James "has had medical and financial challenges," the "[n]ew evidence took money not available" and "[t]he forensic document examination took several weeks," James did not make these arguments to the superior court or support them factually. Additionally, although James filed this case in August 2013, as discussed below, when facing defendants' motion for summary judgment in March 2014, James did not seek relief pursuant to Rule 56(f) or claim that additional discovery was needed. Similarly, James' motion did not show that he lacked knowledge about the opinion letter and deposition transcript or that such evidence was not available to him in a timely fashion. Accordingly, the motion did not make the showings required by Rule 60(c)(2).
¶7 James argues, without citation to authority, that "[u]nless [defendants] can disprove, with new evidence, [his own] evidence," this court must "rule on the evidence presented by" James, adding that defendants have submitted no new evidence on appeal. The relevant inquiry, however, is whether the superior court abused its discretion in applying Rule 60(c)(2), which turns on whether James' motion made the required showing. Moreover, this court cannot properly consider (or require) evidence not provided to the superior court. See Premier Fin. Servs. v. Citibank (Arizona), 185 Ariz. 80, 86, 912 P.2d 1309, 1315 (App. 1995).
¶8 On this record, the superior court did not abuse its discretion in concluding that James' motion failed to make the showing required by Rule 60(c)(2).
B. The Motion Failed To Show Fraud By Defendants Under Rule 60(c)(3).
¶9 James argues the superior court erred in denying his motion based on alleged fraud by defendants under Rule 60(c)(3). To prevail, such a motion was required to show fraud "of an adverse party." Ariz. R. Civ. P. 60(c)(3). This places on James the burden to show fraud by defendants, and that he had a meritorious claim he was precluded from presenting given that fraud. See Estate of Page v. Litzenburg, 177 Ariz. 84, 93, 865 P.2d 128, 137 (App. 1993). This court reviews a decision on such a motion for an abuse of discretion. Tovrea, 178 Ariz. at 490-91, 875 P.2d at 149-50.
¶10 As applied, James' motion addressing Rule 60(c)(3) alleged that Bryan fraudulently signed the assignment. Without regard to whether Rule 60(c)(3) requires a showing of due diligence, the motion failed to show fraud by defendants. See Comerica Bank v. Mahmoodi, 224 Ariz. 289, 291-92 ¶ 14, 229 P.3d 1031, 1033-34 (App. 2010) (setting forth elements of fraud). The motion also failed to show that any alleged fraud precluded James from presenting a meritorious claim. Accordingly, the motion did not make the showing required by Rule 60(c)(3).
¶11 On appeal, James claims, without citation to the record or authority, that there was a "constructive conspiracy and fraud" by defendants and the superior court, adding in reply that defendants have acquiesced on appeal. These assertions, however, are insufficient to successfully invoke Rule 60(c)(3).
James also argues defendants improperly submitted hearsay that the superior court considered. James, however, has not shown that the superior court considered inadmissible hearsay. See Ariz. R. Civ. P. 56(e); Ariz. R. Evid. 801, 803. Similarly, contrary to James' argument on appeal, defendants' answering brief on appeal is advocacy pursuant to the Arizona Rules of Civil Appellate Procedure, not evidence that would only be considered by the superior court or a fact finder if admissible under the Arizona Rules of Evidence.
¶12 On this record, the superior court did not abuse its discretion in concluding that James' motion failed to make the showing required by Rule 60(c)(3). II. Other Issues On Appeal.
¶13 James argues the superior court erred in granting defendants summary judgment by: (1) "not upholding Rules 56, 58(a)," (2) failing to recognize that there were material issues of disputed fact and (3) not allowing him a jury trial. Because there was no appeal from the grant of summary judgment, and because the motion filed under Rule 60 sought relief on different grounds, these arguments are waived. See Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386 ¶ 12, 258 P.3d 200, 204 (App. 2011). Moreover, on the record, James has failed to show that the superior court erred in granting defendants summary judgment in these respects.
Although James also alleges the superior court "erred by allowing Summary Judgment not allowing Appellant discovery," the record cited for this proposition (his opposition to the motion for summary judgment) did not make this claim. Nor did James file a Rule 56(f) affidavit or claim that additional discovery was needed before the court granted summary judgment. Similarly, James has not explained or supported his statement that the superior court "perjure[d] his oath of office."
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¶14 Similarly, and even if properly and timely raised, James has not shown how the superior court failed to properly account for the equitable defense of unclean hands; denied him due process; improperly failed to make findings of fact, conclusions of law or provide reasoning in the rulings; improperly signed an order; failed to uphold Arizona or United States law; was biased or failed to properly construe his pleadings, filings and arguments as a pro se litigant.
¶15 Finally, defendants seek an award of attorneys' fees pursuant to A.R.S. § 12-349, claiming "there was no legitimate, legal justification for the filing of the lawsuit." Construing this as a request for fees under A.R.S. § 12-349(A), as applied, defendants must show that James' appeal "is groundless and is not made in good faith." A.R.S. § 12-349(F). On this record, because defendants have not made such a showing, the request for fees is denied.
CONCLUSION
¶16 The superior court's order denying the motion for relief from judgment is affirmed.