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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LINDA V. LYNAUGH, Plaintiff/Appellant,

v.

12TH STREET PROPERTY TRUST, Defendant/Appellee.

No. 1 CA-CV 18-0375

Appeal from the Superior Court in Maricopa County

No. CV2016-017960

The Honorable Daniel J. Kiley, Judge

AFFIRMED

COUNSEL

Linda V. Lynaugh, Phoenix

Plaintiff/Appellant

Law Offices of Kyle A. Kinney, PLLC, Scottsdale

By Kyle A. Kinney

Counsel for Defendant/Appellee

FILED 4-30-2019
LYNAUGH v. 12TH ST.

Decision of the Court

2

MEMORANDUM DECISION

Acting Presiding Judge Maria Elena Cruz delivered the decision of the 

Court, in which Judge Kenton D. Jones and Chief Judge Samuel A. Thumma 

joined.

C R U Z, Judge:

¶1 Linda V. Lynaugh sued 12th Street Property Trust (the 

“Trust”) to void a trustee’s sale, alleging that the Trust committed fraud 

and that the trustee’s sale was illegal. Lynaugh did not seek to enjoin the 

sale before it occurred. We thus hold her claims against the Trust are barred 

by Arizona Revised Statutes (“A.R.S.”) section 33-811(C) and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Lynaugh entered a Home Equity Credit Agreement (the 

“Loan”) in 2007 with M&I Bank, which was secured by a deed of trust on 

rental property she owned (the “Property”). BMO Bank acquired M&I 

Bank and sent a notice of acquisition to customers, including Lynaugh. 

Lynaugh later defaulted on the Loan, a trustee’s sale was scheduled, and 

BMO Bank mailed Lynaugh a notice of sale. The sale was held on December 

13, 2016. A trustee’s deed upon sale conveyed the Property to the Trust.

¶3 Lynaugh filed a complaint in superior court against the Trust

and other defendants, including BMO Bank (the “Defendants”). 

Defendants filed or joined a motion for summary judgment on all claims. 

Lynaugh filed her own motion for summary judgment, which the court 

struck for noncompliance with page limitations. Lynaugh later filed a 

response to the motion for summary judgment. The superior court granted 

the Defendants’ motion for summary judgment on all claims, finding that 

Lynaugh waived her claims by not obtaining injunctive relief before the 

December 2016 sale took place. The court also found the Trust was entitled 

to summary judgment on Lynaugh’s “fraud by concealment” claim because 

even if a relationship existed between the Trust and any Defendant, such 

relationship did not cause Lynaugh’s default and claimed damages; A.R.S. 

§ 33-811(C) barred Lynaugh’s claims challenging the validity of the 

trustee’s sale; and the default judgment entered against Foresight 

Investment Group, LLC (“Foresight”), in Gregory Best v. Steve Villareal, et al., 

CV 2017-000578 (the “Best Case”), had no “preclusive effect or precedential 
LYNAUGH v. 12TH ST.

Decision of the Court

3

value in this case.” Lynaugh filed a new motion for summary judgment, 

complying with page limitations, and a motion to amend her complaint. 

The superior court denied both motions because her motion for summary 

judgment was moot and thus amendment to her complaint would be futile.

¶4 Lynaugh timely appealed, and then obtained a stay from this 

court to file an Arizona Rule of Civil Procedure (“Rule”) 60 motion 

challenging the summary judgment ruling based on new evidence. The 

superior court denied the motion, explaining that A.R.S. § 33-811(C) barred 

her argument. Lynaugh timely appealed that denial. We have jurisdiction

pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Summary Judgment

¶5 We review the superior court’s grant of summary judgment 

de novo, viewing the evidence in the light most favorable to the non-moving 

party. Lee v. M & H Enters., Inc., 237 Ariz. 172, 175, ¶ 10 (App. 2015).

Summary judgment is appropriate if the moving party demonstrates that 

“there is no genuine dispute as to any material fact and [it] is entitled to 

judgment as a matter of law.” Ariz. R. Civ. P. 56(a). We review a court’s 

decision denying a motion to amend a complaint for an abuse of discretion.

Hall v. Romero, 141 Ariz. 120, 124 (App. 1984).

¶6 As noted above, the superior court granted summary 

judgment, in part, based on A.R.S. § 33-811(C). Under that statute, when a 

trustee mails a notice of sale to the trustor, the trustor waives any title claims 

and any claims that are dependent on the trustee’s sale unless they obtain 

an injunction halting the sale. Morgan AZ Fin., LLC v. Gotses, 235 Ariz. 21, 

23-24, ¶ 7 (App. 2014). The statute is strictly construed in favor of trustors.

Id. at 24, ¶ 8.

¶7 Lynaugh did not seek injunctive relief before the trustee’s 

sale. She argues her claims are not waived, the superior court wrongly 

granted summary judgment for the Trust before the close of discovery and,

finally, that the court wrongly denied her leave to amend her complaint.

A. Lynaugh’s A.R.S. § 33-420 Claims are Waived Pursuant to 

A.R.S. § 33-811(C)

¶8 Lynaugh challenges the dismissal of her A.R.S. § 33-420 

claims against the Trust. Specifically, Lynaugh contends she is 

“challenging [the] validity” of both the trustee’s sale and the deed after the 
LYNAUGH v. 12TH ST.

Decision of the Court

4

trustee’s sale, which she argues was a “transfer [of] property via 

inducement, not a sale[.]” Moreover, she argues the Trust was not the 

highest bidder at the trustee’s sale and thus the Trust’s “active 

concealment” precluded the superior court from granting summary 

judgment for the Trust. We disagree.

¶9 Section 33-420(A) authorizes an owner of real property to 

recover damages from a person claiming an interest in real property, “who 

causes a document asserting such claim [to be filed] knowing or having 

reason to know that the document is forged, groundless, contains a material 

misstatement or false claim or is otherwise invalid[.]” The Arizona 

Supreme Court held in Zubia v. Shapiro, 243 Ariz. 412, 415, ¶ 18 (2018), that 

any claim, including an A.R.S. § 33-420 damage claim, is waived by A.R.S. 

§ 33-811(C) if the claim is dependent on the validity of the sale. Here, 

Lynaugh’s claims depend on a finding that the trustee’s sale was invalid 

and are therefore waived. Accordingly, the superior court did not err.

¶10 Lynaugh relies on Sitton v. Deutsche Bank National Trust Co., 

233 Ariz. 215 (App. 2013) to argue that “A.R.S. § 33-420 claims survive even 

when a TRO is not obtained prior to a trustee’s sale.” Lynaugh’s reliance 

on Sitton is misplaced. Sitton recognized that A.R.S. § 33-811(C) does not 

bar claims or defenses that are independent of the trustee’s sale. 233 Ariz. 

at 217-18, ¶¶ 12-13. Because Lynaugh’s claims are dependent on the 

validity of the trustee’s sale, they are waived. See A.R.S. § 33-811(C) (stating 

that the trustor “waive[s] all defenses and objections to the sale” unless 

raised in a successful request for a presale injunction). Here, the trustee’s 

deed raised a presumption that the sale comported with statutory 

requirements, see A.R.S. § 33-811(B), and the record before us shows 

Lynaugh received prior notice of the trustee’s sale. Accordingly, the 

superior court did not err.

¶11 Lynaugh also claims that the superior court erred because the 

doctrine of judicial estoppel binds the Trust in this case to the “admissions” 

obtained through a default judgment against Foresight in the Best Case. 

Although the Trust was also a defendant in that case, it is unclear what 

Lynaugh claims the default judgment against Foresight proves concerning

the Trust. In granting summary judgment for the Trust, the superior court 

concluded, “[w]hile a default judgment has been entered against a different 

defendant, [Foresight,] . . . a default judgment entered against a non-party 

to this case has no preclusive effect or precedential value in this case.” The 

Best Case is not part of this record on appeal. Moreover, Lynaugh failed to 

cite to the record or relevant authority and thus this argument is waived on 

appeal, and we do not address it. See ARCAP 13(a)(6)-(7).
LYNAUGH v. 12TH ST.

Decision of the Court

5

B. Lynaugh’s Failure to File a Rule 56(d) Request Waives Her 

Discovery Argument

¶12 Lynaugh argues the superior court erred by granting the 

Trust’s motion for summary judgment before the close of discovery. 

Arizona Rule of Civil Procedure 56 allows parties other than the plaintiff to

“move for summary judgment at any time after the action is commenced.”

Ariz. R. Civ. P. 56(b)(2). Further, Rule 56(d) permits a party to request 

additional time for discovery if it “cannot present evidence essential to 

justify its opposition,” but the request must include an affidavit

establishing specific and adequate grounds for the request 

and addressing, if applicable, . . . (i) the particular evidence 

beyond the party’s control; (ii) the location of the evidence; 

(iii) what the party believes the evidence will reveal; (iv) the 

methods used to obtain it; (v) an estimate of the amount of 

time the additional discovery will require; and . . . a good faith 

consultation certificate.

Ariz. R. Civ. P. 56(d)(1)(A)-(B). Because Lynaugh did not request additional 

time pursuant to Rule 56(d), she waived her argument that the summary 

judgment ruling was premature. Edwards v. Bd. of Supervisors, 224 Ariz. 221, 

224, ¶ 19 (App. 2010) (construing 56(f), predecessor to current Rule 56(d)).

C. Lynaugh’s Motion to Amend Her Complaint was Moot

¶13 Finally, Lynaugh argues the superior court improperly 

denied her motion for leave to amend her complaint. In denying the 

motion, the court concluded the amended complaint was futile because it 

“simply re-urges claims that have already been resolved against [Lynaugh] 

as a matter of law.” See First-Citizens Bank & Trust Co. v. Morari, 242 Ariz. 

562, 567, ¶ 12 (App. 2017) (“A court does not abuse its discretion by denying 

a request to amend if the amendment would be futile.”). Lynaugh contends 

her amended complaint would have cured deficiencies in her prior 

pleading but does not specifically show how the proposed amended 

complaint’s allegations would have defeated summary judgment. 

Accordingly, this argument is waived. See MT Builders, L.L.C. v. Fisher 

Roofing, Inc., 219 Ariz. 297, 304 n.7, ¶ 19 (App. 2008) (noting that arguments 

not developed on appeal are generally waived). Additionally, as a practical 

matter, Lynaugh’s motion to amend the complaint was moot. Although the 

opportunity to amend the complaint should usually be freely given, the 

superior court did not abuse its discretion because the court already 

granted summary judgment in favor of the Defendants, which was proper, 
LYNAUGH v. 12TH ST.

Decision of the Court

6

and Lynaugh cites no authority suggesting otherwise. Accordingly, the 

superior court did not err.

II. Vexatious Litigant

¶14 The Trust requests that we declare Lynaugh a vexatious 

litigant pursuant to A.R.S. § 12-3201(C) and (E)(1)(a)-(c), (e). Assuming 

without deciding that Lynaugh could qualify for such a designation, in the 

exercise of our discretion, we decline to do so here.

CONCLUSION

¶15 Lynaugh requests her costs on appeal. Lynaugh’s request is 

denied. The Trust requests its costs and attorneys’ fees on appeal pursuant 

to A.R.S. § 12-349(A)(1)-(3). In the exercise of our discretion, we grant the 

Trust’s request for costs upon compliance with ARCAP 21 and decline its 

request for fees.

¶16 For the foregoing reasons, we affirm.