NOTICE: NOT FOR PUBLICATION.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.

IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

BMO HARRIS BANK, N.A., 

Plaintiff/Appellee, 

 

v. 

 

MORGEN THRUSTON; HOWARD THRUSTON, 

Defendants/Appellants. 

No. 1 CA-CV 13-0372 

 

Appeal from the Superior Court in Maricopa County 

No. CV2013-003138 

The Honorable Michael J. Herrod, Judge 

AFFIRMED 

COUNSEL 

Quarles & Brady, LLP, Phoenix 

By John M. O'Neal, Krystal Aspey Fleischmann 

Counsel for Plaintiff/Appellee 

Morgen Thruston and Howard Thruston, Mesa 

Defendants/Appellants
BMO HARRIS v. THRUSTON 

Decision of the Court 

2 

MEMORANDUM DECISION 

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in 

which Judge Randall M. Howe and Judge Maurice Portley joined. 

O R O Z C O, Judge: 

¶1 Morgen and Howard Thruston (collectively the Thrustons) 

appeal from a preliminary injunction prohibiting them from damaging real 

property owned by BMO Harris Bank, N.A. (BMO).1 Finding no abuse of 

discretion, we affirm. 

FACTS AND PROCEDURAL BACKGROUND2

¶2 The Thrustons purchased real property (the Property) in 

Mesa and partially completed the construction of a home. They failed to 

make payments due under a deed of trust, and BMO subsequently obtained 

title to the Property at a trustee’s sale. Despite BMO’s three forcible entry 

and detainer actions, the Thrustons continue to occupy the Property.3 In its 

complaint, BMO alleged the Thrustons have not maintained the Property 

and have allowed significant deterioration to occur. 

¶3 BMO also learned that the Thrustons allowed three 

unidentified individuals to move into the Property’s unfinished guest 

 

1 BMO is the successor by merger of Marshall & Ilsley Bank, FSB. For 

ease of reference, we refer to BMO throughout. 

2 Because the Thrustons fail to cite to the record in their Opening Brief 

in violation of Arizona Rule of Civil Appellate Procedure 13(a)(4) , we rely 

on our independent review of the record. See Clemens v. Clark, 101 Ariz. 413, 

414, 420 P.2d 284, 285 (1966). 

3 Multiple bankruptcy filings, among other issues, thwarted previous 

forcible entry and detainer actions. See BMO Harris Bank, N.A. v. Thruston, 

1 CA-CV 12-0003, 2013 WL 182732 (Ariz. App. Jan. 17, 2013) (mem. 

decision). 
BMO HARRIS v. THRUSTON 

Decision of the Court 

3 

house. BMO then posted a “demand to vacate” at the Property. A 

“bulldozer/earth mover” appeared on the Property two days later. 

¶4 In an effort to obtain assurances that the Thrustons would not 

damage the Property, BMO’s attorney called Howard Thruston’s cell phone 

and left a voice mail message. After the Thrustons failed to respond, BMO 

filed an application for a temporary restraining order (TRO) without notice

and a verified complaint for forcible entry and detainer (The FED action) 

asserting claims of trespass and property destruction and seeking 

injunctive relief. See Arizona Revised Statutes (A.R.S.) sections 12-1171 to -

1183 (West 2014).4 The trial court granted the temporary restraining order.

¶5 The Thrustons did not respond to the TRO or BMO’s filings 

before the trial court’s order to show cause hearing on the preliminary 

injunction.5 Howard Thruston appeared at that hearing, testified, and 

presented evidence. At the close of the hearing, the trial court granted BMO 

a preliminary injunction, stating that “Defendants, and any other person 

acting on their behalf, shall be restrained from damaging the real property 

and improvements and structures thereon . . . .” 

¶6 This timely appeal followed. We have jurisdiction pursuant 

to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21.A 

and -2101.A.5(b) (West 2014). 

DISCUSSION

¶7 We review the grant of the preliminary injunction for abuse 

of discretion. Valley Med. Specialists v. Farber, 194 Ariz. 363, 366, ¶ 9, 982 P.2d 

1277, 1280 (1999). A party seeking a preliminary injunction must establish: 

(1) a strong likelihood of success on the merits; (2) the possibility of 

irreparable injury not remediable by damages if the injunction is not 

granted; and (3) the balance of hardships favors the party seeking the 

injunction and (4) public policy favors the injunction. Shoen v. Shoen, 167 

Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990). As a result, “[a]n injunction may 

serve to undo accomplished wrongs, or to prevent future wrongs that are 

likely to occur.” TP Racing, L.L.L.P. v. Simms, 232 Ariz. 489, 495, ¶ 21, 307 

 

4 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 

5 The Thrustons filed their unverified answer to the FED Action after 

the trial court had entered its judgment. 
BMO HARRIS v. THRUSTON 

Decision of the Court 

4 

P.3d 56, 62 (App. 2013); see A.R.S. § 12-1801 (West 2014). The court may 

apply these requirements on a “sliding scale.” Ariz. Ass’n of Providers for 

Persons with Disabilities v. State, 223 Ariz. 6, 12, ¶ 12, 219 P.3d 216, 222 (App. 

2009). 

¶8 The underlying facts support issuing the preliminary 

injunction. Injunctive relief is appropriate when evidence of possible 

irreparable injury to interests in real property exists “not remediable by 

damages.” See IB Property Holdings, LLC v. Rancho Del Mar Apartments Ltd. 

P’ship, 228 Ariz. 61, 65, ¶ 10, 263 P.3d 69, 73 (App. 2011) (internal citations 

omitted); see also Sun Village Farms v. Bowery Sav. Bank, 735 F. Supp. 945, 949 

(D. Ariz. 1990) (ruling that injunctive relief was appropriate when the 

movant stood to lose interests in real property, and that such a loss is 

irreparable); cf. Financial Associates, Inc. v. Hub Properties, Inc., 143 Ariz. 543, 

546, 694 P.2d 831, 834 (App. 1984) (affirming a denial of injunctive relief 

when the alleged intrusion onto real property “is of relatively short 

duration” and “the property will be returned to its prior condition”). The 

trustee’s deed established that BMO owned the Property, a fact Howard 

Thruston confirmed at the hearing. The evidence demonstrated a threat to 

BMO’s interest in the Property, which it was entitled to protect from 

irreparable harm. That evidence included notice that additional persons 

occupied the Property, an earth mover was parked out front, and Howard 

Thruston was not responding to BMO’s voicemail message requesting 

assurances that no damage would occur. 

¶9 The Thrustons contend, however, that an injunction was 

unnecessary.6 Howard Thruston introduced an affidavit from Corey Allen 

in which Allen stated he had parked the earth mover on the Property after 

doing some work for another homeowner nearby to avoid parking it on the 

street and possibly being in the way of neighbors. Moreover, the Allen 

affidavit explained that Allen had removed his earth mover approximately 

two days later after completing the job, and disavowed any intent to 

damage the Property. As a result, Howard Thruston denied having 

“anything to do with the backhoe”. 

¶10 Although the trial court acknowledged that no evidence of 

actual damage was presented, it found that granting BMO an injunction 

 

6 The Thrustons assert the trial court entered the TRO without notice, 

however they fail to develop a legal argument. Consequently, we will not 

address this issue. See Polanco v. Indus. Comm’n of Ariz., 214 Ariz. 489, 491 

n.2, ¶ 6, 154 P.3d 391, 394 n.2 (App. 2007); ARCAP 13(a)(6). 
BMO HARRIS v. THRUSTON 

Decision of the Court 

5 

would cause only nominal harm to the Thrustons. Accordingly, it enjoined 

the Thrustons from damaging the Property and its improvements. 

¶11 The trial court was in the best position to evaluate the 

evidence presented and the credibility of witnesses. See Gutierrez v. 

Gutierrez, 193 Ariz. 343, 347-48, ¶ 13, 972 P.2d 676, 680-81 (App. 1998). The 

trial court was not required to accept Allen’s affidavit or Howard 

Thruston’s testimony. See Hamilton v. Municipal Court of City of Mesa, 163 

Ariz. 374, 377, 788 P.2d 107, 110 (App. 1989). Because the earth mover 

appeared less than forty-eight hours after BMO had posted its demand to 

vacate and given the unwillingness of the Thrustons to relinquish 

possession, their conduct raised questions about their likely future conduct. 

See TP Racing, 232 Ariz. at 496 ¶ 24, 307 P.3d at 63 (holding that past attempt 

to remove a general partner provided reasonable grounds for preliminary 

injunction); see alsoState ex rel. Babbitt v. Goodyear Tire & Rubber Co., 128 Ariz. 

483, 486-87, 626 P.2d 1115, 1118-19 (App. 1981) (explaining that an inquiry 

into a party’s past conduct is relevant to the likelihood that a party could 

engage in similar future conduct). Accordingly, the evidence supports the 

court’s decision to issue the preliminary injunction to “maintain the status 

quo.” See Cracchiolo v. State, 135 Ariz. 243, 247, 660 P.2d 494, 498 (App. 1983)

(observing that an injunction to protect real property, if sought by a party 

entitled to possession, may be appropriate if it preserves the status quo). 

Consequently, the trial court did not abuse its discretion by issuing the 

preliminary injunction. 

CONCLUSION 

¶12 We affirm the issuance of the preliminary injunction. BMO is 

entitled to costs on appeal contingent upon its compliance with ARCAP 21.