Aea Fed. Credit Union v. Yuma Funding, Inc.

• Decision Date: 31 March 2015
• Docket Number: No. 1 CA–CV 14–0305.,1 CA–CV 14–0305.
• Citation: 237 Ariz. 105,709 Ariz. Adv. Rep. 7,346 P.3d 991
• Parties: AEA FEDERAL CREDIT UNION, Plaintiff/Appellee, v. YUMA FUNDING, INC., an Arizona corporation, Defendant/Appellant.
• Court: Arizona Court of Appeals

237 Ariz. 105

346 P.3d 991

709 Ariz. Adv. Rep. 7

AEA FEDERAL CREDIT UNION, Plaintiff/Appellee

v.YUMA FUNDING, INC., an Arizona corporation, Defendant/Appellant.

No. 1 CA–CV 14–0305.

Court of Appeals of Arizona, Division 1.

March 31, 2015.

Law Offices of Larry W. Suciu PLC By Barry L. Olson, Yuma, Counsel for Plaintiff/Appellee.

Schneider & Onofry PC By Jason M. Kelly, Yuma, Counsel for Defendant/Appellant.

Judge KENTON D. JONES delivered the Opinion of the Court, in which Presiding Judge JOHN C. GEMMILL and Judge DONN KESSLER joined.

OPINION

JONES, Judge:

¶ 1 Yuma Funding, Inc. (Yuma Funding) appeals from the trial court's order denying its motion to set aside orders appointing, and subsequently releasing, a receiver requested by AEA Federal Credit Union (AEA). We hold that an order declining to set aside an order appointing or releasing a receiver is not a final appealable order under Arizona Revised Statutes (A.R.S.) section 12–2101(A)(5)(b).¹ Accordingly, we dismiss this appeal for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 2 Yuma Funding is an Arizona corporation which, during the events giving rise to the underlying action, was owned and operated by Ken Stevenson, his wife, and his daughter, Tammy Sherman. By 2009, Yuma Funding had obtained nearly three hundred loans from AEA to assist customers in purchasing vehicles from T & K Enterprises, an automobile retailer owned and operated by Stevenson. Each loan obtained from AEA was secured by a lien on the title of the respective vehicle and/or the personal guaranty of Stevenson or Sherman.

¶ 3 In January 2010, AEA filed a verified complaint against Yuma Funding, Stevenson, and Sherman alleging they breached the loan agreements by failing to pay the amounts due from September 2009 through January 2010. AEA further alleged it had recently learned Stevenson's wife was attempting to remove or destroy Yuma Funding's business records, and, although the underlying agreements required Yuma Funding to provide information regarding its operations and financial affairs upon request, AEA had been denied access to those business records on two separate occasions. AEA requested monetary damages, as well as appointment of a receiver “to take possession of, secure, maintain and operate Yuma Funding to ensure repayment of the loans” at issue.

¶ 4 That same day, the trial court entered an ex parte order appointing the requested receiver for Yuma Funding, finding “the opportunity to preserve and protect [AEA]'s interest in the collateral or other property currently in the control of Yuma Funding ... and the opportunity to satisfy the outstanding obligations of [Yuma Funding] owed to [AEA] w[ould] be lost or substantially impaired” if a receiver was not appointed on an expedited basis. The order authorized the receiver to undertake “any and all acts necessary to the proper and lawful conduct of the receivership,” including vesting complete and exclusive control over Yuma Funding's records, financial accounts, assets and operations in the receiver. The order further authorized the receiver to apply income received by Yuma Funding to the obligations owed to AEA after the payment of operating expenses and receiver's fees. The appointment became effective on January 25, 2010, when the receiver posted a $100,000 bond and filed his oath of receiver.

¶ 5 Yuma Funding was served on January 29, 2010, with a copy of the complaint, summons, application for appointment of receiver ex parte, and order appointing receiver. While both Stevenson and Sherman personally appeared and participated in the trial court proceedings, albeit in a limited fashion, Yuma Funding did not obtain counsel to enter an appearance, file an answer, or otherwise proffer a defense.² Nor did any of the defendants request a hearing or object to the appointment of the receiver. As a result, AEA filed an application for entry of default against Yuma Funding on February 22, 2010, and after no response was received, default entered on March 8, 2010.

¶ 6 Meanwhile, consistent with the trial court's order, the receiver submitted a report detailing his initial assessment of Yuma Funding's financial situation, an inventory of assets, and a list of issues with Yuma Funding's operations, including poor record-keeping, missing car titles, and potentially improper accounting practices. The receiver continued to manage the operations of Yuma Funding and filed and served on all parties—including counsel for Stevenson and Sherman—monthly status reports detailing cash receipts and disbursements. No objection or request for hearing was made in regard to any of these filings.

¶ 7 In June 2010, AEA requested the receivership be terminated and all property in the receiver's possession be turned over to AEA to satisfy the debt allegedly owed by Yuma Funding. AEA represented that the receiver “ha[d] recovered, insofar as possible, all vehicles subject to a lien in favor of AEA,” and the only remaining task was to collect accounts receivable. Therefore, the purpose of the receivership—to protect and preserve collateral—had been fulfilled and the receivership was no longer necessary. The receiver joined in the request, and the trial court entered an order on July 16, 2010, releasing the receiver, discharging him from any liability for acts taken in the course of the receivership, purporting to exonerate the bond, approving the receiver's final compensation, setting a thirty-day deadline for a final accounting, and ordering the receiver to “abandon all books and records” to AEA.³ The receiver filed and served an interim status report in August 2010 and a final status report in September 2010.

¶ 8 More than two years later, in December 2012, AEA filed a motion to dismiss and for release of the receivership bond. In response, Yuma Funding made its first appearance in the litigation,⁴ requesting a thirty-day extension to file an objection to the motion to dismiss on the basis it was “not urgent as the case has been pending for a considerable time without adjudication.” Following receipt of Yuma Funding's written objection and after oral argument, the trial court denied AEA's motion for voluntary dismissal, but released the receivership bond.

¶ 9 In November 2013, almost four years after the receiver was appointed, Yuma Funding filed a motion to set aside the order appointing the receiver and “restore the status quo ante as it existed on January 22, 2010.” It alleged several grounds for relief, including, among other things, jurisdictional defects and due process violations.

¶ 10 After hearing arguments, the trial court denied the motion to set aside in a signed order on January 30, 2014. Yuma Funding filed its notice of appeal from that order on February 5, 2014.

DISCUSSION

¶ 11 We first consider AEA's contention that we lack jurisdiction over this putative appeal. “[A]n appeal is a matter of privilege granted by the Constitution or by statute, and the right to appeal does not exist unless expressly and affirmatively granted.” Ginn v. Superior Court, 1 Ariz.App. 455, 457, 404 P.2d 721, 723 (1965) (citations omitted). In the absence of such authority, we “do not have jurisdiction to consider the merits of the question raised on appeal.” Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981) (citing Cnty. of Pima v. State Dep't of Rev., 114 Ariz. 275, 277, 560 P.2d 793, 795 (1977) ). Yuma Funding appeals the trial court's order (1) denying Yuma Funding's motion to set aside the January 22, 2010 order appointing the receiver, and (2) denying Yuma Funding's motion to set aside the July 16, 2010 order releasing the receiver.

I. Appellate Jurisdiction

A. The Order Denying the Motion to Set Aside the January 22, 2010 Order Appointing the Receiver is Not Appealable.

¶ 12 “The right [to appeal] is both defined and limited by A.R.S. § 12–2101.”Kemble v. Porter, 88 Ariz. 417, 418–19, 357 P.2d 155, 156 (1960). Under A.R.S. § 12–2101(A)(5)(b), an appeal may be taken “[f]rom an order ... [g]ranting or dissolving an injunction, or refusing to grant or dissolve an injunction or appointing a receiver.” Before the 1974 amendment of this statute, there was a comma between “refusing to grant or dissolve an injunction” and “or appointing a receiver.” Compare A.R.S. § 12–2101(F)(2) (1974), with A.R.S. § 12–2101(F)(2) (1956). Yuma Funding relies on the removal of the comma in arguing “the ‘refusing to grant or dissolve’ language applies to ‘appointing a receiver.’ ”⁵ Therefore, it contends, “based on the plain reading of the deleted comma,” the order denying the motion to set aside the appointment of the receiver is appealable.

¶ 13 To discern the meaning of a statute, we first consider the plain language and sentence structure. Advanced Prop. Tax Liens, Inc. v. Sherman, 227 Ariz. 528, 531, ¶ 14, 260 P.3d 1093, 1096 (App.2011) (citing New Sun Bus. Park, L.L.C. v. Yuma Cnty., 221 Ariz. 43, 46, ¶ 12, 209 P.3d 179, 182 (App.2009) ). If “ ‘a statute's language is clear and unambiguous, we must give effect to that language and need not employ other rules of statutory construction.’ ” State v. Wood, 198 Ariz. 275, 277, ¶ 7, 8 P.3d 1189, 1191 (App.2000) (quoting State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997) ). In considering the plain language, we assume words are meant to be given “their natural and obvious meanings unless otherwise stated.” State v. Garcia, 219 Ariz. 104, 106, ¶ 6, 193 P.3d 798, 800 (App.2008) (citing A.R.S. § 1–213 ). Moreover, “ ‘[s]tatutes must be given a sensible construction that accomplishes the legislative intent and which avoids absurd results.’ ” State v. Affordable Bail Bonds, 198 Ariz. 34, 37, ¶ 13, 6 P.3d 339, 342 (App.2000) (quoting AHCCCS v. Bentley, 187 Ariz. 229, 233, 928 P.2d 653, 657 (App.1996) ).

¶ 14 The word “or” is a conjunction that is “ ‘used to link alternatives.’ ” Garcia, 219 Ariz. at 106, ¶ 10, 193 P.3d at 800 (quoting The New Oxford American Dictionary 1196 (2d ed.2005)). Dividing A.R.S. § 12–2101(A)(5)(b) into only...