Opinion
1 CA-CV 12-0281
02-05-2013
LAWRENCE WOJTOWICZ, Plaintiff/Appellant, v. DON MARRIN; DENNIS MCMULLEN; JIM JAMES; LOWELL PRATHER; MIKE CONNOLLY; HOAMCO MANAGEMENT CO., Defendants/Appellees.
Lawrence Wojtowicz In Propria Persona Carpenter, Hazlewood, Delgado & Bolen, PLC By Mark A. Holmgren Nikita V. Patel Attorneys for Defendants/Appellees
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Navajo County
Cause No. S0900CV201100054
The Honorable Ralph E. Hatch, Judge
AFFIRMED
Lawrence Wojtowicz
In Propria Persona
Show Low Carpenter, Hazlewood, Delgado & Bolen, PLC
By Mark A. Holmgren
Nikita V. Patel
Attorneys for Defendants/Appellees
Tempe THUMMA, Judge ¶1 Plaintiff/Appellant Lawrence Wojtowicz appeals from a judgment against Wojtowicz on his complaint against the individual Defendants/Appellees, who are former and current board members of the Voyager at Juniper Ridge Homeowners Association (Juniper Ridge Association) and Defendant/Appellee HOAMCO Management Co. (HOAMCO), the property management company for Juniper Ridge Association. Finding no error, the judgment is affirmed.
This court has an independent duty to determine jurisdiction over an appeal. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). Although the two named plaintiffs (David D. Wilcox and Lawrence Wojtowicz) appear pro se, the notice of appeal is signed by Wojtowicz but not by Wilcox. Because Wilcox appears pro se and did not sign the notice of appeal, this court lacks jurisdiction over his attempted appeal. See ARCAP 8(e) ("[I]f the party is not represented by an attorney," the notice of appeal "shall be signed . . . by the party."). Although the opening and reply briefs on appeal purport to be filed on behalf of both Wilcox and Wojtowicz, they are signed by Wilcox but not by Wojtowicz. Appellees have not objected to this aspect of the briefs, which would not be a jurisdictional issue even if raised. Accordingly, the court addresses the arguments raised on Wojtowicz's behalf in the opening and reply briefs on appeal. Cf. ARCAP 3 (affording court discretion to suspend requirements or provisions of court's rules and noting "[t]hese rules shall be liberally construed in the furtherance of justice").
FACTS AND PROCEDURAL HISTORY
In reviewing the grant of summary judgment, this court views "the facts and the inferences to be drawn from those facts in the light most favorable to the party against whom judgment was entered." Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 506, ¶ 10, 269 P.3d 678, 682 (App. 2011).
¶2 In 2006, the Juniper Ridge Association, the White Mountain Lake Vistas Homeowners Association (Vistas Association), Voyager at Juniper Ridge, LLC (VJR) and a title company entered into a Joint Use and Maintenance Agreement (JUMA) to build and operate an 18-hole golf course located between the two associations. Prior to the JUMA, the Juniper Ridge Association owned and operated a nine-hole golf course, and VJR had completed five golf holes on property owned by the Vistas Association. Under the JUMA, VJR agreed to fund construction of four additional golf holes and both associations would jointly use, operate and maintain all of the holes as an integrated 18-hole golf course. Wojtowicz filed this action challenging the validity of the JUMA and claiming defendants misappropriated Juniper Ridge Association funds by paying for the construction of the four additional golf holes and misrepresenting the payments as maintenance fees. ¶3 After Wojtowicz provided a court-ordered more definite statement of his claims, defendants filed a motion to dismiss arguing that Wojtowicz failed to state a claim upon which relief could be granted. Wojtowicz opposed that motion and filed a motion for summary judgment on all of his claims. The superior court treated defendants' motion to dismiss as a motion for summary judgment and, in substance, considered cross-motions for summary judgment by all parties on all claims. ¶4 The superior court granted summary judgment in favor of defendants and against Wojtowicz on all claims, finding no disputed issue of material fact, that Wojtowicz did not have standing to challenge the JUMA and that defendants were entitled to judgment as a matter of law. Thereafter, Wojtowicz moved to vacate summary judgment, to admit new evidence and for a permanent injunction to prevent the transfer of property from a non-party to the Juniper Ridge Association. The superior court denied Wojtowicz's motions, awarded defendants attorneys' fees and entered judgment. Wojtowicz timely appealed. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1).
On appeal, Wojtowicz argues that the superior court did not rule on his motion for summary judgment. This argument is not supported by the record and is contrary to the superior court's express ruling.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
The superior court also held Wojtowicz's claims regarding improper annexation were not ripe for adjudication. Wojtowicz's opening brief does not challenge that holding, does not address the denial of his motion to admit new evidence and does not address the denial of his request for injunctive relief. Wojtowicz therefore abandoned those issues on appeal. Torrez v. Knowlton, 205 Ariz. 550, 552 n.1, ¶ 3, 73 P.3d 1285, 1287 n.1 (App. 2003).
¶5 Summary judgment is proper if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1) (2012). This court determines de novo whether any genuine issues of material fact exist and whether the superior court properly applied the law. Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 506, ¶ 10, 269 P.3d 678, 682 (App. 2011). Judgment will be affirmed if the superior court was correct for any reason. City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985). Wojtowicz raises a number of issues on appeal and seeks certain specified relief from this court. Considering each issue in turn, the superior court did not err.
Effective January 1, 2013, this provision was renumbered as Arizona Rule of Civil Procedure 56(a), although with no substantive change relevant to this appeal.
I. The Superior Court Properly Rejected Wojtowicz's Claims Seeking Relief Against VJR.
¶6 Wojtowicz claims the superior court erred by rejecting his argument that "VJR was and did not have legal status as a Declarant" under the Juniper Ridge Declaration of Covenants, Conditions and Restrictions (CC&Rs). Wojtowicz, however, did not join VJR as a defendant. Accordingly, the superior court lacked jurisdiction to adjudicate claims against VJR or enter any judgment against VJR. See Bussart v. Superior Court, 11 Ariz. App. 348, 351, 464 P.2d 668, 671 (1970) (noting superior court "is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court"). ¶7 Wojtowicz named as defendants current and former board members of the Juniper Ridge Association and HOAMCO, the Association's property management company. According to Wojtowicz's allegations, however, the individual defendants did not become board members until after VJR pronounced itself as the Declarant under the CC&Rs and after the JUMA became effective. As relevant here, as to HOAMCO, Wojtowicz alleged that "[a]t or about this time frame" (when VJR pronounced itself as the Declarant) HOAMCO "was hired to keep the books." Significantly, Wojtowicz did not allege or show with admissible evidence that any named defendant was responsible for these actions by VJR. For this additional reason, the superior court properly rejected Wojtowicz's claims seeking relief against VJR. See Orme Sch. v. Reeves, 166 Ariz. 301, 310-11, 802 P.2d 1000, 1009-10 (1990) (summary judgment proper where party failed to present evidence countering defense raised).
Because the superior court properly rejected Wojtowicz's claims seeking relief against VJR, this court need not, and expressly does not, address Wojtowicz's request on appeal that "if the court determines the Declarant [VJR] to be illegal, that [the court] find all the amended CC&R's void." Moreover, by failing to allege that the amended CC&Rs were invalid in his pleadings, Wojtowicz cannot now make such a claim on appeal. CDT Inc. v. Addison, Roberts & Ludwig, C.P.A., P.C. , 198 Ariz. 173, 178, ¶ 19, 7 P.3d 979, 984 (App. 2000).
II. The Superior Court Properly Held Wojtowicz Lacked Standing To Seek To Invalidate The JUMA.
¶8 Wojtowicz next argues that the superior court incorrectly found he lacked standing to have the JUMA declared invalid and unenforceable. Neither Wojtowicz nor any of the parties named as defendants are parties to the JUMA. Although Wojtowicz brought this action as a "concerned homeowner" of the Juniper Ridge Association, the Juniper Ridge Association homeowners are not parties to the JUMA. Accordingly, Wojtowicz lacked standing to challenge the JUMA as a party to that contract. ¶9 Although Wojtowicz argues he is a third party beneficiary of the JUMA, under Arizona law,
[f]or a person to recover as a third-party beneficiary in Arizona, the contracting parties must intend to directly benefit that person and must indicate that intention in the contract itself. In addition, "the third person must be the real promisee. The promise must be made to him in fact . . . and it is not enough that the contract may operate to his benefit but it must appear that the parties intended to recognize him as the primary party in interest and as privy to the promise."Sherman v. First Am. Title Ins. Co., 201 Ariz. 564, 567, ¶ 6, 38 P.3d 1229, 1232 (App. 2002) (citations omitted and omission and emphasis in original); see also Norton v. First Fed. Sav. , 128 Ariz. 176, 178, 624 P.2d 854, 856 (1981). Nothing in the JUMA indicates an intention to directly benefit Wojtowicz or an intention to recognize Wojtowicz as the primary party in interest. Accordingly, the superior court did not err in finding that Wojtowicz lacked standing to challenge the JUMA as a third party beneficiary. ¶10 For the first time on appeal, Wojtowicz argues that he has standing to press his claims as a derivative action on behalf of the Juniper Ridge Association pursuant to A.R.S. § 10-3631(B). The record does not show that Wojtowicz undertook the necessary prerequisites to press such a derivative action. See A.R.S. §§ 10-3631(B)(1), -3632. Moreover, because Wojtowicz failed to make this argument to the superior court, he has waived the argument on appeal. CDT Inc. v. Addison, Roberts & Ludwig, C.P.A., P.C., 198 Ariz. 173, 178, ¶ 19, 7 P.3d 979, 984 (App. 2000).
III. The Superior Court Properly Held Wojtowicz Failed To Show The Annual Extensions Of The JUMA Were Void.
¶11 Wojtowicz alleged that defendants, in 2009 and 2010, sought approval of extensions to the JUMA "knowing it was not a valid agreement and through rumors and other sources intimidated the Homeowners to vote for the [JUMA extensions] in lieu of a lawsuit." Wojtowicz argues the superior court erred by failing to find the annual extensions of the JUMA were void. ¶12 To the extent Wojtowicz claims the JUMA extensions were void because the JUMA itself was invalid, as noted above, the superior court properly held Wojtowicz lacked standing to claim the JUMA was invalid. See supra ¶¶ 8-10. Having failed to show the JUMA was invalid, Wojtowicz cannot succeed in his residual claim that the annual extensions were void because the underlying JUMA was not valid. See Lohmeier v. Hammer, 214 Ariz. 57, 62, ¶ 16, 148 P.3d 101, 106 (App. 2006) (derivative claim cannot be maintained where necessary predicate claim fails). ¶13 To the extent Wojtowicz's claim is based on his allegation that defendants improperly intimidated homeowners to vote for the JUMA extensions, Wojtowicz failed to provide any legal or factual support for the claim. In supporting their dispositive motion on the claim, without objection, defendants filed petitions signed by hundreds of homeowners attesting that they did not agree with Wojtowicz's allegations and that they are "in favor of the JUMA and do not believe it is invalid." In response, when seeking summary judgment on the claim, Wojtowicz stated: "[e]vidence provided previously and new evidence with witnesses will substantiate the claim. We have not included any exhibits of recent discovery as the court ask[ed] us not to include additional paperwork with our motions." The record, however, does not contain any "evidence provided previously" supporting this claim and does not include any directive by the superior court telling Wojtowicz not to file supporting evidence with his motion for summary judgment. ¶14 Wojtowicz's allegations and arguments are not admissible evidence that the superior court properly could consider in determining whether summary judgment was appropriate. See State v. Grounds, 128 Ariz. 14, 15, 623 P.2d 803, 804 (1981) (noting argument does not constitute evidence); Bank of Yuma v. Arrow Constr. Co. , 106 Ariz. 582, 585, 480 P.2d 338, 341 (1971) ("Allegations in pleadings are not evidence" and must be proven unless "admitted by the opposing party."). Because Wojtowicz provided no legal or factual support to controvert defendants' evidence or to support his claim regarding the JUMA extensions, the superior court properly held defendants were entitled to summary judgment on the issue of the validity of the JUMA extensions. See Orme Sch. , 166 Ariz. at 310-11, 802 P.2d at 1009-10.
Wojtowicz was told that "he must follow the Rules of Civil Procedure, and is not allowed to file gratuitous or unauthorized pleadings." Such a directive would compel, as opposed to prohibit, filing relevant supporting evidence in pressing or opposing summary judgment in these circumstances. See Ariz. R. Civ. P. 56.
IV. The Superior Court Did Not Err In Addressing Wojtowicz's Request That The Matter Be Investigated As A Crime.
¶15 Wojtowicz argues the superior court erred by not declaring this dispute "a serious crime" and ordering the Navajo County Attorney to investigate the matter. Wojtowicz cites no authority for his argument and the Navajo County Attorney is not a party to this case. Moreover, Wojtowicz admits he raised this matter with the Navajo County Attorney's Office and the Navajo County Sheriff. There was no error by the superior court.
V. The Superior Court Properly Granted Summary Judgment For Defendants On Wojtowicz's Misappropriation Of Funds Claim.
¶16 Under the JUMA, VJR agreed to pay construction costs to build the additional golf holes necessary to complete an 18-hole golf course and the Juniper Ridge Association was responsible for paying its share of maintenance costs (not construction costs). Wojtowicz argues defendants misappropriated Juniper Ridge Association funds by misrepresenting as maintenance costs what were actually construction costs. ¶17 As noted previously, having failed to join VJR as a party, Wojtowicz cannot obtain relief against VJR and also has not shown that he properly can press derivative claims on behalf of Juniper Ridge Association. See supra ¶¶ 8-10. In addition, although Wojtowicz moved for summary judgment, he provided no legal or factual support for his claim. Instead, Wojtowicz stated that "further discovery and witnesses have determined that the Juniper Ridge [Association] completed or finished nine golf holes at the expense of the Homeowners and the costs were hidden by the Board of Directors." Such a statement does not comport with Arizona Rule of Civil Procedure 56(f) and was not sufficient to create a genuine issue of material fact. See Grounds, 128 Ariz. at 15, 623 P.2d at 804; Orme Sch. , 166 Ariz. at 310-11, 802 P.2d at 1009-10. The superior court did not err in granting summary judgment in favor of defendants on Wojtowicz's misappropriation of funds claim.
VI. The Superior Court Properly Awarded Defendants Attorneys' Fees.
¶18 Wojtowicz argues the superior court erred in awarding attorneys' fees to defendants because a non-party is paying defendants' fees. The fact that fees may be borne by a third party does not prevent a successful party from obtaining an award of attorneys' fees pursuant to A.R.S. § 12-341.01. Wilcox v. Waldman, 154 Ariz. 532, 538, 744 P.2d 444, 450 (App. 1987).
Contrary to Wojtowicz's argument, the superior court had jurisdiction to award attorneys' fees, given that this court dismissed Wojtowicz's original appeal for lack of jurisdiction due to the pending attorneys' fees application and the absence of Rule 54(b) language in the order. See Craig v. Craig, 227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011) (notice of appeal from non-appealable order is a nullity).
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CONCLUSION
¶19 The judgment of the superior court is affirmed. Defendants request an award of attorneys' fees on appeal pursuant to A.R.S. § 12-341.01. In exercising the discretion associated with such a request, defendants are awarded their attorneys' fees on appeal upon their compliance with ARCAP 21. Defendants also are awarded their costs on appeal upon their compliance with ARCAP 21.
____________________________
SAMUEL A. THUMMA, Judge
CONCURRING: ____________________________
PHILIP HALL, Presiding Judge
____________________________
PETER B. SWANN, Judge