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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LOTHAR GOERNITZ, CHAPTER 7 TRUSTEE FOR THE BANKRUPTCY 

ESTATE OF IN RE: MARK L. MOSS NO. 2:18-BK-06456-PS,

1

Plaintiff/Appellee,

v.

MELISSA PAVEY, Defendant/Appellant.

No. 1 CA-CV 19-0099 

Appeal from the Superior Court in Maricopa County

No. CV2017-055069

The Honorable Steven K. Holding, Judge Pro Tempore (Retired)

APPEAL DISMISSED AS MOOT

COUNSEL

Lane & Nach, P.C., Phoenix

By Michael P. Lane, Stuart B. Rodgers

Counsel for Plaintiff/Appellee

Ivan & Associates, P.C., Glendale

By Florin V. Ivan

Counsel for Defendant/Appellant

1 Following Mark Moss’s bankruptcy, the superior court granted a

substitution for Lothar Goernitz, Chapter 7 Trustee, as the real party in 

interest and amended the caption. Only one of the orders Pavey appeals 

used the amended caption. In these appellate proceedings, this court uses

the amended caption as ordered by the superior court.

FILED 3-12-2020
TRUSTEE v. PAVEY

Decision of the Court

2

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding 

Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

G A S S, Judge:

¶1 Melissa Pavey (Pavey) appeals the superior court’s denial of 

her motion to set aside a default judgment quieting title to real property in 

Glendale (the property), and of her motion for a new trial.

¶2 Pavey’s appeal is dismissed as moot because (1) Pavey 

transferred any interest she may have had in the property to her son 

Brandon Pavey (Brandon), (2) Moss’s Chapter 7 bankruptcy trustee, Lothar 

Goernitz (the trustee) obtained clear title to the property from Brandon, and 

(3) trustee has sold the property at a public sale.

2

FACTUAL AND PROCEDURAL HISTORY

¶3 Mark Moss (Moss) filed suit against Pavey seeking to quiet 

title to the property. Moss also pled claims for unjust enrichment and 

conversion. Pavey did not file a timely answer to Moss’s complaint. After 

Moss applied for default, Pavey filed an answer within the allotted ten-day 

period, curing the default. See Ariz. R. Civ. P. 55(a)(5).

¶4 Moss began discovery, sending his first set of interrogatories 

and document requests to Pavey. Pavey did not respond. After several 

failed attempts to communicate with Pavey, Moss filed a motion to compel

discovery. Pavey did not respond. The superior court granted Moss’s

motion and set deadlines for Pavey to respond to Moss’s discovery. Pavey 

did not comply.

¶5 Moss then filed a motion to strike Pavey’s answer as a 

discovery sanction. See Ariz. R. Civ. P. 37(b)(2). Once again, Pavey did not 

respond. The superior court struck Pavey’s answer. Two weeks later, Moss 

filed a motion for default judgment. The superior court entered a 

restraining order enjoining Pavey from transferring, selling, or 

2 On February 12, 2020, the trustee filed a motion to dismiss this appeal.

Based on this ruling, the trustee’s motion and all subsequent briefing are

dismissed as moot, including the Motion to Strike filed on February 19, 

2020. 
TRUSTEE v. PAVEY

Decision of the Court

3

encumbering the property. Nonetheless, two days after its issuance, Pavey 

transferred the property to Brandon. Brandon later filed for Chapter 13 

bankruptcy, claiming ownership of the real property. The trustee recovered 

the real property in Brandon’s bankruptcy proceedings.

¶6 Before the superior court held a hearing or ruled on the

default judgment motion, Moss filed for Chapter 7 bankruptcy. The trustee

was then substituted as the real party in interest.3

¶7 After several continuances, the superior court held a default 

judgment hearing. Pavey did not respond to the default notices or attend 

the hearing. After the hearing, the superior court entered a final judgment 

against Pavey. The judgment quieted title to the property in favor of trustee 

but did not address the conversion or unjust enrichment claims. 

¶8 More than ten months after her answer was struck, and two 

weeks after entry of the default judgment, Pavey filed a motion asking the 

superior court to vacate the default judgment and order a new trial. The 

trustee’s response included—for the first time—the following information: 

On or about April 6, 2018, two days after the entry of the 

Restraining Order and despite the clear prohibition by this 

Court, Melissa Pavey executed a “Warranty Deed” conveying 

the Real Property to Brandon Pavey, her son, and recorded 

such deed with the Maricopa County Recorder’s Office at 

2018-0261076.

The trustee attached a copy of that deed as an exhibit to its response. Pavey 

never informed the trustee, the superior court, or this court of the property 

transfer.

¶9 The superior court summarily denied Pavey’s motion. Two 

weeks later, the superior court issued an order “dismissing all 

unadjudicated claims in this case, without prejudice, in their entirety.” 

Pavey timely appealed the denial of her motion. This court has jurisdiction 

over Pavey’s appeal pursuant to Article 6, Section 9, of the Arizona 

Constitution, and A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

3 Before Moss filed for bankruptcy, Bank of America (BOA) intervened 

based on its interest in certain vehicles owned by Moss. At this point, Pavey

engaged in the litigation but only to object to BOA’s intervention. BOA is 

not a party to this appeal.
TRUSTEE v. PAVEY

Decision of the Court

4

ANALYSIS

¶10 “A question is moot if it seeks to determine an abstract 

problem which does not arise upon existing facts or rights.” Mueller v. City 

of Phoenix ex rel. Phoenix Bd. of Adjustment II, 102 Ariz. 575, 583 (1967). Long 

standing Arizona Supreme Court precedent directs state courts to “refrain 

from considering” such questions. Fraternal Order of Police Lodge 2 v. Phoenix 

Emp. Relations Bd., 133 Ariz. 126, 127 (1982). Accordingly, this court “will 

[generally] dismiss an appeal as moot when our action as a reviewing court 

will have no effect on the parties.” Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 5 

(App. 2012).

¶11 The deed transferring Pavey’s putative rights in the property 

to Brandon is part of the record—the trustee attached it in response to 

Pavey’s motion. In August 2019, the bankruptcy court entered an order 

quieting title against Brandon, declaring the trustee to be the true owner of 

the property. On January 10, 2020, trustee sold the property to a third-party. 

¶12 Pavey does not challenge any of these facts. Indeed, her 

opening brief did not even identify this highly pertinent transfer.

4 Instead, 

Pavey asks this court to disregard her transfer of title, and the trustee’s 

arguments on the issue, as “not properly part of the record on appeal.” To 

be sure, the two bankruptcy proceedings and the trustee’s deeds are not a 

part of the record before this court. The relevant documents, however, are 

readily and publicly available in the records of the Maricopa County 

Recorder and the Bankruptcy Court. Accordingly, this court can, and does, 

take judicial notice of them. Ariz. R. Evid. 201. See also In re Sabino R., 198 

Ariz. 424, 425, ¶ 4 (App. 2000).

CONCLUSION 

¶13 As a result of Pavey’s transfer of the property to Brandon, the 

trustee has already obtained the relief it sought here—a final declaration of 

its ownership of the property—just in a separate forum. Even if this case is

4 This lack of candor to the tribunal raises concerns as to compliance with 

several rules of professional conduct by counsel for Pavey. See, e.g., Ariz. R. 

Sup. Ct. 42, ER 3.3. Pavey’s transfer of the property to Brandon was a blatant 

violation of the superior court’s restraining order. Further, the filing of this 

frivolous appeal has wasted the time of this court, implicating Ethical Rule 

8.4 (c) and (d). See also Ariz. R. Sup. Ct. 41(c). As such, we refer this matter 

to the State Bar of Arizona for further investigation and proceedings as 

appropriate.
TRUSTEE v. PAVEY

Decision of the Court

5

remanded and a new trial granted, Pavey could only seek to validate the 

ownership rights she transferred to Brandon. Brandon, in turn, lost the 

property to the trustee in his own separate bankruptcy proceedings.

¶14 The trustee did not appeal the superior court’s dismissal of its

conversion and unjust enrichment claims, and no party asked the superior 

court or this court for attorney fees or costs. Though this court does have 

discretion to consider moot appeals if they present an issue of great public 

importance or an issue capable of repetition but evading review, these 

exceptions are not present here. See, e.g., Big D Constr. Corp. v. Court of 

Appeals, 163 Ariz. 560, 563 (1990); Phoenix Newspapers, Inc. v. Molera, 200 

Ariz. 457, 460, ¶ 12 (App. 2001). Accordingly, Pavey’s appeal is dismissed 

as moot.