Valencia v. BP Capital Ventures, LLC

• Decision Date: 09 June 2015
• Docket Number: No. 1 CA-CV 14-0330,1 CA-CV 14-0330
• Citation: Valencia v. BP Capital Ventures, LLC, No. 1 CA-CV 14-0330 (Ariz. App. Jun 09, 2015)
• Parties: SALLY P. VALENCIA, Plaintiff/Appellant, v. BP CAPITAL VENTURES, LLC; CASEY and KATELYN BLOCK; BRETT KALINA; BLOCK ESTATES, LLC; RLI INSURANCE COMPANY, Defendants/Appellees.
• Court: Arizona Court of Appeals

SALLY P. VALENCIA, Plaintiff/Appellant, v. BP CAPITAL VENTURES, LLC; CASEY and KATELYN BLOCK; BRETT KALINA; BLOCK ESTATES, LLC;RLI INSURANCE COMPANY, Defendants/Appellees.

No. 1 CA-CV 14-0330

ARIZONA COURT OF APPEALS DIVISION ONE

June 9, 2015

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County

No. CV2012-055263

The Honorable Alfred M. Fenzel, Judge

DISMISSED IN PART; AFFIRMED IN PART AND REVERSED IN PART

COUNSEL

Ivan & Kilmark, PLC, Glendale

By Florin V. Ivan

Counsel for Plaintiff/Appellant

Miranda Law Firm, Gilbert

By Daniel L. Miranda

Counsel for Defendant/Appellee BP Capital Ventures, LLC

Schneider & Onofry, PC, Phoenix

By Jonathan D. Schneider, Erin A. Hertzog

Counsel for Defendants/Appellees Casey Block and Katelyn Block

Fowler St. Clair, PLLC, Mesa

By Andrew M. Fowler

Counsel for Defendant/Appellee Brett J. Kalina

Gust Rosenfeld, PLC, Phoenix

By Timothy J. Watson

Counsel for Defendant/Appellee Block Estates, LLC

Keller & Hickey, PC, Tempe

By Thomas F. Hickey

Counsel for Defendant/Appellee RLI Insurance Company

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.

OROZCO, Judge:

¶1 Sally P. Valencia appeals the trial court's: (1) grant of summary judgment in favor of Casey Block, Brett Kalina, BP Capital Ventures, LLC (BP), and Block Estates, LLC (BE) (collectively Appellees); (2) grant of RLI Insurance Company's (RLI) motion to dismiss without prejudice; (3) denial of Valencia's motion for a new trial and to amend her complaint; (4) denial of Valencia's motion to strike BP's answer, and (5) award of taxable costs to Appellees. For the following reasons, we dismiss the appeal to the extent it purports to challenge the dismissal without prejudice; reverse the portion of the judgments awarding Block, as taxable costs, the expense of a "CD court transcript" and in all other respects affirm.

FACTS AND PROCEDURAL HISTORY

¶2 BP purchased a house at 5327 E. Wallace Ave. (the Property) at a trustee's sale following a bank foreclosure. At the time of the sale, Kalina was a member of BP and Valencia resided at the Property. Shortly thereafter, BP filed an eviction action in justice court. The justice court issued a Writ of Restitution and a constable removed Valencia from the Property.

¶3 Pursuant to Arizona Revised Statute (A.R.S.) section 33-1368.E, BP was required to hold Valencia's personal property remaining at the Property for twenty-one days after serving her with the Writ of Restitution. Casey Block, BP's owner and manager, called and left three voicemails for Valencia, advising her that more than twenty-one days had passed since her eviction but that she could retrieve her belongings from the Property on a date specified by Block.

¶4 Valencia claimed she was not given sufficient time to retrieve her property and that Appellees removed "personal property, including jewelry, furniture, and other sentimental items" from the Property. Valencia subsequently filed suit in superior court, alleging breach of covenant of good faith and fair dealing, violation of the Arizona Consumer Fraud Act, violation of the Arizona Residential Landlord and Tenant Act, replevin, conversion, intentional infliction of emotional distress, unjust enrichment, and civil conspiracy.

¶5 Valencia later filed an application for entry of default against BP, alleging BP failed to plead or otherwise defend in a timely fashion. BP filed an answer shortly thereafter. Valencia moved to strike the answer as untimely and the trial court denied the motion.

¶6 The trial court granted summary judgment on behalf of BE, Block, BP, and Karina and granted RLI's motion to dismiss without prejudice. It denied Valencia's cross-motion for partial summary judgment as well as Valencia's motions for reconsideration and for leave to file a first amended complaint. The trial court entered partial judgments reflecting these rulings and awarding BE, BP, Block and Kalina their taxable costs.

¶7 Valencia moved for a new trial or in the alternative to amend the judgments to include the trial court's specific findings of fact and conclusions of law upon which it relied in each judgment. The trial court denied both motions. Valencia timely appealed and we have jurisdictionpursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21.A.1. and -2101.A.1. (West 2015).¹

DISCUSSION

I. Summary Judgment

¶8 Valencia argues the trial court erred by granting Appellee's Motions for Summary Judgment. We review the grant of summary judgment de novo. Lewis v. Debord, 236 Ariz. 57, 59, ¶ 5 (App. 2014). "[W]e view the facts in the light most favorable to the party opposing the summary judgment." Kaufmann v. M & S Unltd, L.L.C., 211 Ariz. 314, 315, ¶ 2 (App. 2005). "We will affirm summary judgment only if there is no genuine issue as to any material fact and the party seeking judgment is entitled to judgment as a matter of law." Williamson v. PVOrbit, Inc., 228 Ariz. 69, 71, ¶ 11 (App. 2011).

¶9 Valencia contends that the trial court did not provide a reason for its ruling in violation of Arizona Rule of Civil Procedure 56(a). However, the relevant portion of Rule 56(a) simply states, "The court should state reason on the record the reasons for granting or denying the request." (Emphasis added.).

¶10 "If the statute is clear and unambiguous, we apply the plain meaning of the statute." Stein v. Sonus USA, Inc., 214 Ariz. 200, 201, ¶ 3 (App. 2007) (citation omitted). A plain reading of Rule 56(a) suggests that the trial court may or may not state the reason(s) for its rulings at its own discretion. See Purchase v. Mardian Constr. Co., Inc., 21 Ariz. App. 435, 438 (App. 1974) (noting the word "'should' [is] permissive and not mandatory").

¶11 Additionally, Valencia argues, "[G]enuine disputes existed to be resolved by a jury and other facts in [Valencia's] favor were undisputed." In her opening brief, Valencia notes that her cross motion for summary judgment and reply addresses these arguments and attempts to incorporate them by reference without further specifying what disputed facts exist therein. However, we have held that such an incorporation does not comport with Arizona Rule of Civil Appellate Procedure 13(a)(6). See Ortiz v. Rappeport, 169 Ariz. 449, 452 (App. 1991) (finding that appellant's reference to arguments presented in a prior special action filed in the casewithout further development in the briefs did not comply with the rule). Thus, we do not address these arguments.

¶12 Throughout her opening brief, which has a lengthy, detailed recitation about her view of the facts, Valencia sporadically references what a "jury could have concluded." For example, she asserts that "a jury could have found that the trustee sale was improper and [Valencia] had a property interest in [the Property]." As support, Valencia claims Christopher R. Perry, who recorded "a notice of sale attempting to re-foreclose" on the Property, could be impeached because he was involved in a car crash and was suspended from practicing law three days after filing an affidavit concerning the Property's sale. However, Valencia does not cite to any documents in the record supporting her contention that a factual dispute exists concerning her interest in the Property, nor does she cite legal authority supporting her proposition. Thus, this argument is waived, and we do not address it. See Ritchie v. Krasner, 221 Ariz. 288, 305 ¶ 62 (App. 2009).² Because Valencia has not demonstrated genuine issues of material fact exist, we affirm the trial court's summary judgment rulings.

II. The Eviction Proceedings

¶13 On appeal, Valencia sets forth various purported facts and arguments regarding the eviction proceedings leading up to the July 7, 2011 eviction judgment. Valencia, however, abandoned her appeal from that judgment in 2011 and the time for her to appeal from that judgment had passed before Valencia filed this action. Moreover, the claims Valencia presses in this action all post-date that judgment. Valencia's claims in this case turn on a purported agreement negotiated and reached "[a]t sometime after the Judgment," Appellees' purported breaches of their obligations in negotiating and performing under that purported agreement, and Appellees' purported failure to return personal property and pets to Valencia after she was removed from the Property. Given Valencia's claims in this case, she has not shown how her claimed "[f]acts concerning theeviction proceedings" precluded the superior court's rulings challenged in this appeal.

III. Motion to Amend Complaint

¶14 Valencia next argues the trial court erred by denying her motion to amend. "We review a trial court's denial of a motion to amend a complaint for an abuse of discretion." Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 231 Ariz. 517, 519, ¶ 4 (App 2013). When the trial court does not state the basis for its ruling, we will affirm if the denial was correct for any reason. Id.

¶15 Valencia filed her complaint in August 2012 and her motion to amend in August 2013, after the trial court granted Appellees' Motions for Summary Judgment and Motion to Dismiss.³ "Delay alone is not usually cause to deny a request to amend." Uyleman v. D.S. Rentco, 194 Ariz. 300, 303, ¶ 11 (App. 1999). However, on this record, the trial court properly acted within its discretion. See Hall v. Romero, 141 Ariz. 120, 124 (App. 1984) (finding no abuse of discretion when trial court denied plaintiffs' motion to amend after summary judgment had been entered against them).⁴

IV. Motion for a New Trial

¶16 Valencia also claims the trial court erred by denying her motion for a new trial. We review the denial of a motion for a new trial for an abuse of discretion. Desert Palm Surgical Grp. P.L.C. v. Petta, 236 Ariz. 568, 582, ¶ 37 (App. 2015)...