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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

JOE AND G ERI MESTRO , MESTRO FAMILY TRUST, DATED

10/20/199 8 , Plaintiff

s /Appellant s , 1

v.

ROBERT A. PASIONEK , CHERYL A. PASIONEK , Defendant s /Appellee s

.
No. 1 CA

- CV 22

- 0218

Appeal from the Superior Court in Maricopa County

No. CV 2022

- 000396 The Honorable Mary C

. Cronin , Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Casler Law Office PLLC
, Avondale By Carlton C. Casler Counsel for Plaintiff

s /Appellant s

Robert A. Pasionek and Cheryl A. Pasionek
, Mesa Defendant s

/Appellee s

1 On the court’s own motion, it is ordered amending the caption in this appeal as reflected in this decision. The above

- referenced caption shall be used on all further documents filed in this appeal. FILED 11-29-2022MESTRO, et al. v. PASIONEK, et al. Decision of the Court

2 MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Acting Presiding Judge James B. Morse Jr. and Chief Judge Kent E. Cattani joined.

B R O W N , Judge:

¶1 Joe and G eri Mestro, and the Mestro Family Trust , date d 10/20/199 8 ( collectively, “ the Mestro s ” ) , appeal the superior court’s order dism iss ing their second eviction action against Robert and Cheryl Pasionek ( “ the Pasionek s ”)

. For the following reasons , we vacate the court’s order and remand for further proceedings

.
BACKGROUND

¶2 In 2006
, the Mestro s and the Pasionek s signed a lease agreement in which the Pasionek s would pay $2,500 per month for six months to lease a house the Mestros owned. When the lease term ended, the Pasionek s continued to live in the home and made the monthly $2
, 500 payment for the next 15 years. In 2021, the Mestros gave a 30

- day notice of termination, asserting the lease was a month

- to

- month tenancy created by operat ion of law when the original lease ended

. See A.R.S. § 33

- 342

. The Pasionek s did not vacate the premises, so the Mestro s filed a n eviction action , alleging that when the Pasionek s refused to vacate the property, they became holdover tenant s

. ¶3 In their an swer, the Pasionek s alleged that the original lease had been converted and extended to an annual lease with automatic renewal s and that a one

- year notice of termination was required. The y also claimed the lease conversion was memorialized in a let ter they sent to the Mestros in December 20 0 6

. After briefing and argument, the court d ismiss ed the case without prejudice, r eason ing it was “ not appropriate for an eviction matter,” and the issue need ed to be “decided in a civil matter where discovery ca n be had

. . . [ to ] flesh out whether or not this was truly converted into a year

- to

- year lease or was it really a month

- to

- month lease.”

¶4 A few weeks later the Mestro s filed a new eviction action ; for purposes of this appeal, it was essentially the same as the first action. The Mestros also filed a m otion for c hange of j udge under the Rule s of Procedure for Eviction Actions (“RPEA”) Rule 9(c) , which the court denied

.MESTRO, et al. v. PASIONEK, et al. Decision of the Court

3 The Pasionek s moved to dismiss
, a sserting in part there had b een a prior adjudication and accusing the Mestro s of abusing the legal system

. ¶5 After conducting a hearing, the cour t granted the Pasioneks ’ motion. The court then entered a final judgment
, dismissing the case and award ing the P asionek s $1,462 for their attorneys’ fees
, plus taxable costs

. The Mestro s filed additional motions, including a motion for relief from judgment under RPEA Rule 15 , but before the court ruled on those motions the Mestros filed a notice of appeal. Shortly thereafte r , the court denied the post

- judgment motions.

DISCUSSION

¶6 We independently determine whether we have appellate jurisdiction over an appeal. Sorensen v. Farmers Ins. Co. of Ariz. , 191 Ariz. 464, 465 (App. 1997). In their jurisdictional statement, the Mestro s cite A.R.S. § 12

- 21 01(A)(1)
, which establishes jurisdiction over appeals from “a final judgment entered in an action .” Because the superior court did not address the merits of the eviction complaint, the dismissal was without prejudice and thus not a final judgment

. Nonetheless, a judgment or order may be appealable under other exceptions. See In re Marriage of Flores , 231 Ariz. 18, 20, ¶ 7 ( App. 2012).

¶7 T he superior court’s order essentially dismissed the eviction action for lack of jurisdiction because the matters at issue exceeded the narrow scope of what may be adjudicated in such a proceeding. See A.R.S. § 33

- 1377(D); Iverson v. Nava , 248 Ariz. 443, 448, ¶ 11 (App. 2020). Thus , we have appellate jurisdiction under A.R.S. § 12

- 2101(A)(3), as the order affects a substantial right that determines the action an d “ prevents judgment from which an appeal might be taken. ” Dusold v. Porta

– John Corp.
, 167 Ariz. 358, 361 (App. 1990)

. However , we have juris diction only over the court’s ruling s that occurred before Mestro filed his notice of appeal. See Sotomayor v. Sotomayor

- Mu ñoz , 239 Ariz. 288, 290, ¶ ¶ 7

– 8 (App. 2016) ( finding that an RPEA Rule 15 m otion in an eviction case is not time

- extending under ARCAP Rule 9); see also In re Marriage of Cotter
, 245 Ariz. 82, 85, ¶ 5 (App. 2018) ( finding that the family court lacked jurisdiction over matters filed after the notice of appeal was filed).

¶8 We review the dismissal of a complaint de novo. State ex rel. Brnovich v. Ariz

. Bd

. of Regents
, 250 Ariz. 127, 130, ¶ 7 (2020). We also review i ssues of law , including interpretation of statues and rules
, de novo. Cox v. Ponce in & for C n ty

. of Maricopa , 251 Ariz. 302, 304, ¶ 7 (2021).MESTRO, et al. v. PASIONEK, et al. Decision of the Court

4 ¶9 The superior court dismissed this action on the basis that it would require delving into issues outside the narrow scope of an eviction proceeding. See Iverson , 248 A r iz. at 448, ¶ 11 ( “ The only issue to be decided in an FED action is the right of possess ion.”)

. The court reasoned that genuine dispute s existed concerning the relationship of the parties as well

as the existence and terms of the lease

. Id

. ¶10 The Pasioneks alleged that an oral agreement between the parties “ converted and extended ” the original six

- month lease to a n annual lease, as confirmed by a December 2006 letter allege dly sent to the Mestros ( t he Mestros den ied receiving the letter)

. At various points in the superior court and on appeal, t he Pasioneks refer to t h e oral agree ment as an amendment
, a conversion and extension
, or a modification

. The y make no argument, however, that a conversion is different from an amendment or a modification , or how a ny difference in those terms affect s the tenancy or the lease

. ¶11 The Mestros argue in part that the court should not have relied on the December 2006 letter in finding there w ere genuine disputes regarding the lease

. We agree. The Pasioneks’ letter reflects the ir view of what they hoped for in a new lease ( including m ore favorable terms for them), but the Pasioneks do not assert that the Mestros signed any type of document agreeing to such terms. The parties’ original six

- month lease states that the “agreement can only be modified in writing and signed by Landlord and Tenant. ” Although t he Pasioneks assert that a contract ual provision restricting any amendments to a mutually signed agreement may nonetheless be orally amended, they provide no supporting authority

. And

w hile t he y also suggest the superior court could consider the December 20 0 6 letter as evidence of the parties’ intent, doing so would contradict the lease instead of providing context for interpretation. See Taylor v. State Farm Mut. Auto. Ins. Co. , 175 Ariz. 148, 153 (1993) ( “ [T] he court can admit evidence for interpretation but must stop short of contradiction .”)

. ¶12 The Pasioneks argue their 15

- year history of possession and continuous rent payment s constitute evidence of the parties ’ reli ance on the alleged oral agreement

. But th ose facts are equally consistent with a holdover month

- to

- month tenancy

. In either case, continuing to live in the house and pay rent proves nothing as to why the Pasioneks were not bound by the lease’s requirement that any amendment be signed by both parties. Thus, the court erred by concluding a dispute existed regarding whether the lease had been amended

.MESTRO, et al. v. PASIONEK, et al. Decision of the Court

5 ¶13 W hen the original six

- month lease expired on January 31, 2007, and the Pasioneks maintained possession and the Mestros accepted
rent , a mon th

- to

- month tenancy was created under A.R.S. § 33

- 342. It is undisputed that the Mestros gave the Pasioneks 30 days’ written notice, s ee A.R.S. § 33

- 1375(B), which informed the Pasioneks that the month

- to

- month tenancy would terminate at the end of Septem ber 2021. Therefore, the court improperly found that the eviction action involved more than the right of possession. See Iverson , 248 Ariz. at 448, ¶ 11. And because the first action was dis missed without prejudice
, the court erred in dismiss ing the present

case.
¶14 The Mestros also argue the superior court should have granted their m otion for c hange of judge filed under RPEA Rule 9(c)

. The court found that it was untimely filed because the same judge had made rulings in the first action

. However , the court had not yet ruled on any matter in the second action, and the Mestros ’ motion otherwise met the requirements as outline d in Rule 9(c). See Ariz. R. P. Evic tion Act

. 9(c). The court erred in denying the motion.

CONCLUSION

¶15 W e vacate the superior court’s judgment dismissing this eviction action , including the award of attorneys’ fees and costs, and remand for further proceedings consistent with this decision. B ecause the merits of the action have not been adjudicated, we deny the Mestros’ request for attorneys’ fees incurred on appeal without prejudice
, deferring the request to the superior court pending ultimate resolution of this matter. See Tierra Ranchos Homeowners Ass’n v. Kitchukov , 216 Ariz. 195, 204, ¶ 37 (App. 2007). As the successful party on appeal, the Mestros are awarded taxable costs subject to compliance with ARCAP 21.