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Bickerton v. Gunn

Feb 23, 2021
No. 1 CA-CV 20-0264 (Ariz. Ct. App. Feb. 23, 2021)


No. 1 CA-CV 20-0264


DICK BICKERTON, et al., Judgment Creditors/Appellants, v. BROOKE GUNN, Garnishee/Appellee.

COUNSEL Brentwood Law Group PLLC, Tempe By Stephen Brower Counsel for Judgment Creditors/Appellants Thomas E. Littler Esq., Tempe By Thomas E. Littler Counsel for Garnishee/Appellee

No. CV2008-013866
The Honorable Lindsay P. Abramson, Judge Pro Tempore


COUNSEL Brentwood Law Group PLLC, Tempe
By Stephen Brower
Counsel for Judgment Creditors/Appellants Thomas E. Littler Esq., Tempe
By Thomas E. Littler
Counsel for Garnishee/Appellee


Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined. HOWE, Judge:

¶1 Appellants Dick Bickerton and Lauren Rudd ("Judgment Creditors") appeal the trial court's order overruling their objection to Garnishee Brooke Gunn's answer to a Writ of Garnishment. For the reasons stated below, we affirm.


¶2 Judgment Creditors hold a non-dischargeable, multi-million-dollar consent judgment against Judgment Debtor, Blake Gunn, and his entity, AGM Entertainment, LLC from 2010. Brooke, Blake Gunn's wife, executed a consent to make the judgment effective against the Gunns' community property, agreeing that the judgment "shall be effective against the Gunn marital community, notwithstanding the fact that her name will not appear on the form of judgment, and that she will not assert a defense in a future collection proceeding that the [j]udgment is not a community debt or that the [j]udgment may not be collected from community property." In April 2015, the Gunns sold their community property home. Brooke used the proceeds of the sale to purchase a 3800-square-foot, five-bedroom home with a fenced in pool in an affluent neighborhood in Mesa as her sole and separate property.

Because individuals in this appeal are family with the same last name, for purposes of clarity we respectfully use the party's first name when describing them individually and use their last name when describing them collectively. --------

¶3 In September 2019, Judgment Creditors served Writs of Garnishment on the Gunns, which required Brooke to claim whether she was "holding personal property or money belonging to any of the Judgment Debtors at the time this Writ was served" and if she did "possess any personal property belonging to the Judgment Debtor" that she was to "describe each item or group of items" held and to "describe the specific items" that she withheld. On September 19, 2019, Brooke filed her answer to the Writ stating that she did not possess any money or personal property of Blake belonging to Judgment Creditors. On September 25, 2019, Judgment Creditors objected to Brooke's answer to the Writ and requested a hearing.

¶4 During the subsequent debtor's exam, Blake testified that he kept property at the home and detailed the couple's household property. Blake also testified that Brooke owned their residence as sole and separate property and that he had signed a disclaimer deed relinquishing all interest in the residence. Since 2015, Blake has paid Brooke rent for the privilege to live in their marital home from his earnings, which he said were sole and separate property under a premarital property agreement. Because he had not paid her rent in some time, he did not believe that she was currently up to date on the mortgage. Blake had not disclosed the property agreement to Judgment Creditors at the time of the exam and it is not part of the record.

¶5 The trial court held two evidentiary hearings regarding Brooke's answer to the Writ and Judgment Creditors' objections. During the first hearing, Brooke testified that she signed a property agreement before her marriage to Blake but was unsure of what it said, saying only that it was a "disclaimer," but did not offer the agreement as evidence. She speculated that she qualified for the mortgage based solely on her husband's income as produced on his tax return documents for 2013 and 2014 because she had not worked during their marriage. For a down payment, Brooke paid $60,000 she had received from the proceeds of the sale of her and Blake's previous home, which they had owned jointly. She admitted that Blake had an interest in the proceeds before he disclaimed interest in the new property. Brooke stated that she took the house solely in her name because Blake had bad credit and she did not.

¶6 Brooke also testified that Blake kept his belongings in her home when the Writ had been served, including sellable household items and furnishings and other sellable goods. She clarified, however, that her answer to the Writ was meant to say that she did not have "non-exempt" property in her possession at the time the Writ was served and that her conclusion was based on privileged communications with her attorney. In cross-examination she maintained that she did not know if any of the property was "non-exempt."

¶7 During the second hearing, Judgment Creditors called their expert, Russell Roberts, to review exhibits and give prices on some of the items at the Gunns' residence. Blake testified that he and Brook had entered into a property agreement. He testified that his earnings were community property, but his testimony otherwise mirrored what he said at his debtor's examination.

¶8 After the evidence, Judgment Creditors argued that Brooke's answer was improper. The court asked if Judgment Creditors wanted the court to strike the answer and order a new one, to which Judgment Creditors said, "as a fall back." Its main remedy request, however, was to award garnishment judgment because no claim of exemption was made. The trial court allowed for written closing arguments and took the matter under advisement.

¶9 In their written closing argument, Judgment Creditors asked the court to find that Blake fraudulently transferred the rental payments to Brooke as defined under A.R.S. § 44-1004(A)(1), to compel the Gunns' to truthfully answer the Writ, to find that the Gunns could not claim any exemptions because they failed to timely file exemptions to the Writ, and in the alternative, to find that the value of the property the Gunns' held was greater than the allowed exemptions. In her written closing argument, Brooke conceded "[t]he record in this case shows that the garnishee does have personal property in which the judgment debtor holds an interest, but the only admissible evidence demonstrates that it is either exempt or has nominal value." Brooke also argued that Judgment Creditors provided insufficient evidence that Brooke had received fraudulently transferred funds, claiming, among other things, that a mortgage payment could not be a fraudulent transfer because the transferee was the mortgagee, not the mortgagor, and that it was a transfer for sufficient value.

¶10 The trial court found that Blake's testimony was suspect at best, but did not prove by clear and convincing evidence that he fraudulently transferred $123,000 to Brooke for payment of her mortgage. The trial court also disregarded Robert's testimony because he was not an expert. The trial court found Brooke credible and stated that "[t]he testimony and exhibits do not prove that Garnishee is holding any non-exempt property." Judgment Creditors filed their notice of appeal. The trial court signed an order amending its ruling to make it a final order and we have jurisdiction under A.R.S. § 12-2101(A).


¶11 Judgment Creditors argue that the trial court erred in overruling their objection to Brooke's answer to the Writ of Garnishment. They also argue that the trial court committed an error of law in allowing Brooke to assert an exemption to personal property after the statutory time allowing such a claim had passed. We generally review the superior court's garnishment judgment for an abuse of discretion, Carey v. Soucy, 245 Ariz. 547, 552 ¶ 19 (App. 2018); see also Cota v. S. Ariz. Bank & Trust Co., 17 Ariz. App. 326, 327 (1972), but when a garnishment judgment interprets the garnishment and exemption statutes it presents a question of law that we review de novo, Milner v. Colonial Trust Co., 198 Ariz. 24, 26 ¶ 8 (App. 2000). A court abuses its discretion where the record fails to provide substantial support for its decision, or the court commits an error of law in reaching the decision. Carey, 245 Ariz. at 552 ¶ 19; see also Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456 (1982). We are not bound by the trial court's conclusions of law and are free to draw our own conclusions from the facts found by the trial court. Arizona Bd. of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257 (1991).

¶12 "Since garnishment is a creature of statute, garnishment proceedings are necessarily governed by the terms of those statutes. Thus, courts may not allow garnishment proceedings to follow any course other than that charted by the legislature." Andrew Brown Co. v. Painters Warehouse, Inc., 11 Ariz. App. 571, 572 (App. 1970). An answer to a Writ of Garnishment must be filed within ten days of service of the Writ. A.R.S § 12-1578.01. A garnishee in her answer must state whether she possesses any of the Judgment Debtor's property and must describe "each item, or group of items, of personal property of the judgment debtor in the garnishee's possession at the time the Writ was served" regardless whether the garnishee believes an exemption may apply. A.R.S. § 12-1579(D)(5), (6). The statute further requires the garnishee prepare a "list of the personal property withheld by the garnishee pursuant to the [W]rit." A.R.S. § 12-1579 (D)(7).

¶13 A party who has an "objection to the [W]rit of garnishment, the answer of the garnishee or the amount held by the garnishee or a party claiming an exemption from garnishment may, not later than ten days after the receipt of the answer, file a written objection and request for hearing." A.R.S. § 12-1580(A). After hearing evidence and argument, the trial court shall determine what amount of nonexempt personal property of the judgment debtor, if any, the garnishee was holding at the time the Writ was served. A.R.S. § 12-1585.

¶14 Judgment Creditors served a Writ of Garnishment on the Gunns. Brooke answered that she did not have any of Blake's property in her possession. Judgment Creditors then objected to the answer and requested a hearing under A.R.S. § 12-1580(A). The trial court heard substantial and specific evidence of all the property located at the Gunn house at the time the Writ was served but disregarded Robert's testimony about the property's value because he was not an expert under Arizona Rules of Evidence Rule 701. It did find credible Brooke's testimony that she and Blake had more than nominally valued property in their possession but that the property was exempt. Since Judgment Creditors provided no expert to value the personal property in Brooke's possession, substantial evidence supports the court's conclusion that Brooke did not possess nonexempt property.

¶15 Judgment Creditors argue, however, that Brooke did not file a claim of exemption in writing within the statutorily required period of ten days, see A.R.S. § 12-1580(A), and therefore waived her right to claim an exemption at the hearing. Contrary to Judgment Creditors' argument, A.R.S. § 12-1580(A) did not require that Brooke file an independent objection to her own answer to preserve a claim of exemption. First, exemptions cannot be waived, only the right to a hearing. See A.R.S. § 12-1580(A). Since Judgment Creditors had requested a hearing under A.R.S. § 12-1580(A), the trial court was required to determine if exemptions applied to the property that Brooke possessed and she was free to raise exemptions then. See A.R.S. § 12-1585(B). Second, Brooke asserted exemptions in her answer when she claimed that she did not possess property subject to the Writ. While Judgment Creditors could have sought other remedies to have Brooke's answer strictly comply with A.R.S. § 12-1579(D), they chose to have a hearing and the trial court properly accepted Brooke's testimony that the property she possessed was exempt. See A.R.S. § 12-1585(B).

¶16 Judgment Creditors further petition this Court reverse the trial court's ruling that they did not meet their burden in proving that Blake fraudulently transferred funds to Brooke. Judgment Creditors, however, only make a passing reference to the trial court's ruling regarding the fraudulent transfer argument in a footnote:

At the hearing, Judgment Creditors also argued that Mr. Gunn made fraudulent transfers that exceeded $123,200 by paying the monthly mortgage on Garnishee's separately owned property. See generally EIR 637. The Trial Court found that Judgment Creditors "failed to prove, by clear and satisfactory evidence, that a fraudulent conveyance has occurred."
This is insufficient argument for appellate review, and we find the issue waived. See State v. Carver, 160 Ariz. 167, 175 (1989) ("In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim.").


¶17 For the reasons stated, we affirm the trial court's order overruling Judgment Creditors' objection to Brooke's answer. We deny Judgment Creditors' request for attorneys' fees and costs pursuant to A.R.S. § 12-1580 (E) and A.R.S. § 12-349 because they are not successful on appeal. In our discretion, we deny Brooke's request for attorneys' fees but award her costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.

Summaries of

Bickerton v. Gunn

Feb 23, 2021
No. 1 CA-CV 20-0264 (Ariz. Ct. App. Feb. 23, 2021)
Case details for

Bickerton v. Gunn

Case Details

Full title:DICK BICKERTON, et al., Judgment Creditors/Appellants, v. BROOKE GUNN…


Date published: Feb 23, 2021


No. 1 CA-CV 20-0264 (Ariz. Ct. App. Feb. 23, 2021)