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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

JOE AND GERI MESTRO, MESTRO FAMILY TRUST, DATED 

10/20/1998, Plaintiffs/Appellants,

1

v.

ROBERT A. PASIONEK, CHERYL A. PASIONEK, Defendants/Appellees.

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 Plaintiffs/Appellants

Robert A. Pasionek and Cheryl A. Pasionek, Mesa

Defendants/Appellees

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 11-29-2022
MESTRO, 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 Geri Mestro, and the Mestro Family Trust, dated

10/20/1998 (collectively, “the Mestros”), appeal the superior court’s order 

dismissing their second eviction action against Robert and Cheryl Pasionek

(“the Pasioneks”). For the following reasons, we vacate the court’s order 

and remand for further proceedings.

BACKGROUND

¶2 In 2006, the Mestros and the Pasioneks signed a lease 

agreement in which the Pasioneks would pay $2,500 per month for six 

months to lease a house the Mestros owned. When the lease term ended, 

the Pasioneks 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 

operation of law when the original lease ended. See A.R.S. § 33-342. The 

Pasioneks did not vacate the premises, so the Mestros filed an eviction 

action, alleging that when the Pasioneks refused to vacate the property, 

they became holdover tenants. 

¶3 In their answer, the Pasioneks alleged that the original lease 

had been converted and extended to an annual lease with automatic 

renewals and that a one-year notice of termination was required. They also 

claimed the lease conversion was memorialized in a letter they sent to the 

Mestros in December 2006. After briefing and argument, the court 

dismissed the case without prejudice, reasoning it was “not appropriate for 

an eviction matter,” and the issue needed to be “decided in a civil matter 

where discovery can 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 Mestros filed a new eviction action; for 

purposes of this appeal, it was essentially the same as the first action. The 

Mestros also filed a motion for change of judge under the Rules 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 Pasioneks moved to dismiss, asserting in part there had been a prior 

adjudication and accusing the Mestros of abusing the legal system. 

¶5 After conducting a hearing, the court granted the Pasioneks’

motion. The court then entered a final judgment, dismissing the case and 

awarding the Pasioneks $1,462 for their attorneys’ fees, plus taxable costs. 

The Mestros 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 thereafter, 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 Mestros cite 

A.R.S. § 12-2101(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 The 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 and “prevents judgment from 

which an appeal might be taken.” Dusold v. Porta–John Corp., 167 Ariz. 358, 

361 (App. 1990). However, we have jurisdiction only over the court’s 

rulings that occurred before Mestro filed his notice of appeal. See Sotomayor

v. Sotomayor-Muñoz, 239 Ariz. 288, 290, ¶¶ 7–8 (App. 2016) (finding that an 

RPEA Rule 15 motion 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 

issues of law, including interpretation of statues and rules, de novo. Cox v. 

Ponce in & for Cnty. 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 Ariz. at 448, ¶ 11 (“The only issue to be decided 

in an FED action is the right of possession.”). The court reasoned that

genuine disputes 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 an annual 

lease, as confirmed by a December 2006 letter allegedly sent to the Mestros 

(the Mestros denied receiving the letter). At various points in the superior 

court and on appeal, the Pasioneks refer to the oral agreement as an 

amendment, a conversion and extension, or a modification. They make no 

argument, however, that a conversion is different from an amendment or a 

modification, or how any difference in those terms affects 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 were genuine disputes 

regarding the lease. We agree. The Pasioneks’ letter reflects their view of 

what they hoped for in a new lease (including more 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 the Pasioneks assert that a contractual 

provision restricting any amendments to a mutually signed agreement may

nonetheless be orally amended, they provide no supporting authority. And 

while they also suggest the superior court could consider the December 

2006 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 payments constitute evidence of the parties’ reliance on the 

alleged oral agreement. But those 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 When the original six-month lease expired on January 31, 

2007, and the Pasioneks maintained possession and the Mestros accepted 

rent, a month-to-month tenancy was created under A.R.S. § 33-342. It is 

undisputed that the Mestros gave the Pasioneks 30 days’ written notice, see

A.R.S. § 33-1375(B), which informed the Pasioneks that the month-to-month 

tenancy would terminate at the end of September 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 dismissed without prejudice, the court erred in dismissing the present

case. 

¶14 The Mestros also argue the superior court should have 

granted their motion for change 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 outlined in Rule 9(c). See Ariz. R. P. Eviction Act. 9(c). The 

court erred in denying the motion.

CONCLUSION

¶15 We 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. Because 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.