No. 1 CA-CV 14-0292
COUNSEL Van E. Flury, Laveen Plaintiff/Appellant Tiffany & Bosco, P.A., Phoenix By Kevin P. Nelson, Michael J. Rogers Counsel for Defendants/Appellees
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
The Honorable Robert H. Oberbillig, Judge
COUNSEL Van E. Flury, Laveen
Tiffany & Bosco, P.A., Phoenix
By Kevin P. Nelson, Michael J. Rogers
Counsel for Defendants/Appellees
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined. THUMMA, Judge:
¶1 Van E. Flury appeals from the judgment dismissing his negligence claim. Because Flury failed to state a claim upon which relief could be granted, the judgment is affirmed.
¶2 As alleged in the First Amended Complaint, since 2002, Flury has lived in a home that, for several years, was titled solely in the name of Flury's wife Rosaura N. Flury. In 2003, Rosaura obtained a loan secured by a deed of trust on the home, and later authorized Flury to act as her agent. Flury alleges he served as her agent for several years, including dealing with different servicers of her loan. Flury claims that, in 2006, the title holder of the home was changed so that Flury and his wife held the home as community property.
Because the resolution of this appeal is based on allegations Flury's First Amended Complaint, this court need not, and expressly does not, address the parties' arguments addressing exhibits attached to the various filings.
¶3 In late 2013, defendant Specialized Loan Servicing, LLC (SLS) became the loan servicer for the loan to Rosaura. Flury alleges SLS is the loan servicing agent for The Bank of New York Mellon Trust Company, N.A., defendant, and the beneficiary of the deed of trust securing the loan to Rosaura. Flury alleges that, unlike previous loan servicers, SLS refused to talk or negotiate with him about the loan to Rosaura or the deed of trust, stating "[t]hey could only speak with the actual borrower." Flury alleges defendants began to foreclose on the home, scheduling a trustee's sale in early 2014.
¶4 In December 2013, Flury brought this action in a "Complaint for Negligence" alleging defendants improperly failed to negotiate with him as Rosaura's agent on the loan and deed of trust. Defendants moved to dismiss, arguing Flury is not the real party in interest and that he failed to state a claim upon which relief can be granted. Finding Rosaura (not Flury) is "the real party in interest," the superior court granted the motion and dismissed Flury's claims with prejudice. This court has jurisdiction over Flury's timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-2101(A)(1) and -120.21(A)(1) (2014).
¶5 Flury's briefs on appeal seek to press arguments not presented to the superior court and do not comply with this court's rules because the briefs fail to cite authority and the record as required. Ariz. R. Civ. App. P. 13(a); see also Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., L.L.C., 227 Ariz. 382, 386 ¶ 12, 258 P.3d 200, 204 (App. 2011) (noting arguments not presented to superior court will not be addressed on appeal); Ritchie v. Krasner, 221 Ariz. 288, 305 ¶ 62, 211 P.3d 1272, 1289 (App. 2009) (failure to provide such citation "can constitute abandonment and waiver of [a] claim"). Accordingly, this court limits its review to Flury's arguments presented to the superior court. ¶6 "Every action shall be prosecuted in the name of the real party in interest." Ariz. R. Civ. P. 17(a). Flury's allegations appear to turn on Rosaura's rights and obligations for her loan and deed of trust. Rosaura, however, is not a party to this litigation and Flury, who is appearing pro se, cannot represent her. See, e.g., Encinas v. Mangum, 203 Ariz. 357, 359 ¶ 8, 54 P.3d 826, 828 (App. 2002) (citing cases). Accordingly, to the extent Flury's claim turns on Rosaura's rights, because she is not a party, his claim fails. Ariz. R. Civ. P. 17(a). ¶7 To the extent Flury's claim is based on his own rights, Flury has not shown defendants owed him a cognizable duty. Flury has the burden to show that defendants owed him a duty. See Gipson v. Kasey, 214 Ariz. 141,143 ¶¶ 9-11,145 ¶¶ 21-22, 150 P.3d 228, 230, 232 (2007). Absent such a showing, Flury's claim "cannot be maintained." Id. at 143 ¶ 11,150 P.3d at 230. As applied, Flury cites no authority supporting his allegation that defendants had "a legal duty to recognize [Flury] as the general agent in all matters . . . connected with" the loan to Rosaura. Accordingly, to the extent his claim turns on his own rights, Flury has failed to demonstrate defendants owed him a duty, meaning he failed to state a claim upon which relief could be granted. See Ariz. R. Civ. P. 12(b)(6).
Even absent waiver, Flury has not shown how A.R.S. §§ 25-214(C), - 318(B) and Ramsay v. Wheeler-Ramsey, 224 Ariz. 467, 232 P.3d 1249 (App. 2010), which cannot be cited because it was depublished in Ramsay v. Wheeler-Ramsey, 225 Ariz. 586, 242 P.3d 1055 (2010), warrant reversal.
Although Flury had months in which to join Rosaura as a party, he did not do so, meaning the dismissal on this ground is not premature. See Ariz. R. Civ. P. 17(a). Similarly, although Flury argued defendants failed to cite Rule 12(b)(7), defendants sought dismissal under Rule 17(a) and for failure to state a claim and did not claim dismissal was required because Flury failed to join a party needed for just adjudication under Rule 19. Accordingly, defendants' motion does not implicate Rule 19 or Rule 12(b)(7).
¶8 The superior court's judgment is affirmed.