NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COUR T 111(c), THIS DECISION IS NOT PRECEDENTIAL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

R & A SM ART INVESTMENTS, LLC, Plaintiff/Appellee

,

v.

DAVID GODWIN FRANK, Defendant/Appellant

.

No. 1 CA-CV 23-0471

Appeal from the Superior Court in Maricopa County
No. CV2023-008344 The Honorable Richard F. Al brecht, Commissioner Judge Pro Tempore

AFFIRMED

COUNSEL

Zona Law Group P.C., Scottsdale By Scott E. Williams, Amy N. Toppel Counsel for Plaintiff/Appellee

By David Godwin Frank, Phoenix Defendant/Appellant FILED 3 -26-2024R & A SMART v. FRANK Decision of the Court

2 MEMORANDUM DECISION

Presiding Judge Anni Hill Foster deliver ed the decision of the Court, in which Judge Brian Y. Furuya and Vi ce Chief Judge Randall M. Howe joined.

F O S T E R , Judge:

¶1 David Frank appeals the superior court’s eviction ruling in favor of R & A Smart Investments, LLC (“Smart Investments”). For the following reasons, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 The contested property in this case was previously owned by Ekpeno Enyie, Frank’s mother, who en cumbered the property with a deed of trust in 2015. Enyie died in 2019, and Frank inherited the property. Nothing in the record indicates whether payments were made toward the mortgage after her death. But in May 2023, the property was sold at a trustee’s sale to AK 2010 LLC, who subs equently sold the property to Smart Investments. Smart Investments sent a notice by certified mail to the occupants of the property stating the pr operty had been sold at a trustee’s sale and that all occupants must va cate. The next month, because the property remained occupied, Smart Investments filed its eviction action. After appearing at the initial hearing, Frank 1 also filed an answer. After trial, on July 3, the court issued a judg ment in the eviction action in Smart
Investments’ favor.

¶3 Frank appealed the judgment that same day. Frank also moved to vacate or modify the judg ment, and Smart Investments filed its first application for a writ of restitution. After the court denied his motion to vacate or modify, Frank then requeste d the court to stay or quash the writ of restitution, which the court al so denied. Finally, Frank sought a supersedeas bond to stay the writ. The court granted Frank’s request but conditioned it on Frank’s payment of the bond by the end of the next day. That same day, Frank filed a document with an international bill of exchange attached, attempting to po st the bond. A few days later, Smart

1 Frank also filed a quiet title action in Maricopa County Superior Court, which is still pending.R & A SMART v. FRANK Decision of the Court

3 Investments filed its second application for a writ of restitution, which the court issued that same day.

DISCUSSION

I. Frank’s Opening Brief Did Not Comp ly with Arizona Rule of Civil Appellate Procedure 13.

¶4 This Court begins by addressing Smart Investments’ argument that Frank has waived his arguments on appeal by failing to follow Arizona Rule of Civil Appellate Procedure 13 (“Rule 13”). Frank’s opening brief does not include a statemen t of issues for this Court to review. Ariz. R. Civ. App. P. 13(a)(6). He also failed to provide any citation to the record for his factual assertions or argum ents. Ariz. R. Civ. App. P. 13(a)(5), (7)(A). The only cases cited within his brief are memorandum decisions, which generally may only serve as pers uasive authority rather than binding authority. Ariz. R. Civ. App. P. 13( a)(7) (requiring citations to legal authorities); Ariz. R. Sup. Ct. 111(c)(1) (limiting when memorandum decisions may be cited to three scenarios).

¶5 Violations of Rule 13 can cons titute waiver of a party’s argument. See Ramos v. Nichols , 252 Ariz. 519, 522-23, ¶¶ 8–11 (App. 2022). Self-represented litigants are held to the same standards that attorneys
must follow. Id. at 522, ¶ 8. However, this Court “prefers to decide each case upon its merits” instead of dismi ssing for procedural violations. Adam v. Valley Nat’l Bank of Ariz. , 139 Ariz. 340, 342 (App. 1984) (citing Clemens v.
Clark , 101 Ariz. 413, 414 (1966)). Therefore, th is Court exercises its discretion
to address the merits of Frank’s brief. See Azore, LLC v. Bassett , 236 Ariz. 424, 427, ¶ 7 (App. 2014) (“[W]aiver is a procedural concept that we do not rigidly employ in a mechanical fashion, and we may use our discretion in determining whether to address waived issues.”).

II. Arizona Rule of Civil Appellate Procedure 11 Does Not Require Frank to File a Transcript of the Superior Court Proceeding.

¶6 Smart Investments next argues that this Court should dismiss Frank’s appeal because he failed to file the superior court’s transcripts with this Court on appeal, alleging that Frank violated Arizona Rule of Civil Appellate Procedure 11 (“Rule 11”). This Court “review[s] the interpretation of court rules de novo ,” beginning with the rule’s text. Kelly v. Blanchard in and for Cnty. of Maricopa , 255 Ariz. 197, 200, ¶ 11 (App. 2023). Read in its entirety, Rule 11 does not require an appellant to order and file a transcript; it allows an appellant to do so. As Smart Investments points out, the rule incorporates “[t]ranscripts of oral proceedings in the superiorR & A SMART v. FRANK Decision of the Court

4 court,” into the record but Smart Investments fails to recognize an important modifying phrase in the rule —“[t]ranscripts of oral proceedings in the superior court that the parties ordered , or other narratives prepared under this Rule, and that are not othe rwise contained within the official record.” Ariz. R. Civ. App. P. 11(a)(2) (emphasis added). This portion of the rule merely states what this Court can re view as part of the record, and it is appropriate for the rule to limit this Court’s review to those transcripts that the parties have ordered; nothing here mandates a transcript’s inclusion. Though this language is clear on whet her a transcript is required, Rule 11(b) provides support for this reading. Specif ically, it states, how “[a] party that

wants the record on appeal to include a transcript of an oral proceeding” must order the desired transcript. Ariz. R. Civ. App. P. 11(b) (emphasis added). The lack of a transcript does no t justify dismissal of Frank’s appeal. 2

III. Frank’s Arguments Fail.

¶7 The superior court has discretio n when deciding whether to grant a stay. State v. Ott , 167 Ariz. 420, 428 (1990) (stating that the trial court had discretion in whether to grant a stay in a civil proceeding parallel to a criminal proceeding). This Court will “view the evidence in a light most favorable to supporting the trial court’s judgment” and will uphold the judgment unless no evidence supports it. Premier Fin. Servs. v. Citibank (Ariz.) , 185 Ariz. 80, 85 (App. 1995). This Court has attempted to discern Frank’s arguments as best it can but considers only adequately supported arguments. See In re Aubuchon , 233 Ariz. 62, 64–65, ¶ 6 (2013).

¶8 Frank contends that Smart Invest ments applied for its writ of
restitution too late after the eviction judgment and did not justify its delay. When a plaintiff in an eviction, or forcible detainer, action receives a judgment in its favor, the court will issu e a writ of restitution. A.R.S. § 12- 1178(A). Once a defendant has been served with a writ of restitution, if he remains in, or returns to, the proper ty he will commit criminal trespass. A.R.S. § 12-1178(D)–(E). Generally, a prevailing party has “45 days to apply for a writ of restitution,” and if the p arty applies after that deadline, it must “explain the reasons for the delay.” Ari z. R.P. Eviction Act. 14(b). Here, the court issued its judgment on July 3, 2023, and Smart Investments filed its initial application for a writ of restit ution on July 14, well within the 45 days

2 This is not to say that failure to provide this Court with transcripts has no consequences. If any transcript is missi ng from the record on appeal this Court must “presume that the record supports the trial court’s decision.” Old Republic Nat’l Title Ins. Co. v. New Falls Corp. , 224 Ariz. 526, 531, ¶ 23 n.4 (App. 2010).R & A SMART v. FRANK Decision of the Court

5 allotted. Although the court did not i ssue the writ until Smart Investments’ subsequent September 21 application, th e delay resulted from Frank’s posttrial motions, which allowed him to seek to vacate or modify the judgment, to stay the writ, and to request a su persedeas bond. The explanations for Smart Investments’ delay were already before the court.

¶9 Frank also points to an appare nt ambiguity about whether he
has been a tenant. This complication arises in case s such as eviction actions, which involve tenancies at sufferance. These “tenancies” begin when someone had a legal right to possess pr operty, lost that right, and yet unlawfully continued to possess the pr operty. That period of unlawful continued possession is a tenancy at sufferance. See Grady v. Barth ex rel. Cnty. of Maricopa , 233 Ariz. 318, 321, ¶ 12 (App. 2013) (“Use of the word ‘tenant’ in this phrase is unfortunate as a tenancy at sufferance is not a true landlord-tenant relationship, but rather an interest in property. It exists when a party who had a lawful possesso ry interest in property wrongfully continues in possession of the proper ty after its interest terminated.”). Frank argues that this apparent cont radictory use by Smart Investments “substantially erodes [its] credibility ,” but the law uses the term “tenant” in different ways, and so can Smart Investments. Even if the terminology used by Smart Investments eroded its credibility, as Frank claims, it is the trial court’s role, not this Court’s, to weigh evidence, including witness credibility. Carey v. Soucy , 245 Ariz. 547, 552, ¶ 19 (App. 2018).

¶10 To the extent Frank argues that he has posted the requested supersedeas bond with the international bill of exchange attached to a filed document, the superior court has discr etion to determine whether his bond satisfied the requirements of the court order. See Grady , 233 Ariz. at 323, ¶ 23. In its order, the court specifically cautioned that “[i]t is [Frank’s] responsibility to contact the Clerk’s [O]ffi ce such that there are no issues in when, how, and where [Frank] makes the payments required hereunder.”
This Court finds no abuse of di scretion in the superior court’s
determination that Frank failed to sati sfactorily post the required bond.

¶11 Lastly, Frank’s remaining arguments contend that he has superior title to Smart Investments. But “[t]he only issue to be decided in an [eviction] action is the right to possession.” Iverson v. Nava , 248 Ariz. 443, 448, ¶ 11 (App. 2020). Other issues such as the validity of title must be decided in other civil actions, such as a quiet title action. Curtis v. Morris

, 184 Ariz. 393, 398 (App. 1995). Frank arg ues that his unfamiliarity with these nuances justify leniency, but again, self-represented litigants are held to the same standards as attorneys. Ramos , 252 Ariz. at 522, ¶ 8.R & A SMART v. FRANK Decision of the Court

6 ¶12 The record before this Court indi cates that at the time of the eviction action, Smart Investments had lawful title to the property and that Frank was afforded due process of la w. Nothing in the record supports Frank’s argument that he held superior title. Instead, the record supports Smart Investments’ ability to sell the property. A.R.S. § 33-807(A) (conferring the power to sell property afte r a breach or default on the trustee of a deed of trust). Frank was afforded full due process; he was provided notice to vacate the premises after th e sale, was given notice of the action, and appeared at the hearing and trial. See In re Walker , 200 Ariz. 155, 159, ¶ 16 (2001) (stating that what due proc ess requires is notice and a fair opportunity to appear and present evidence). Smart Investments even waited a few days before filing the firs t writ of restitution, which provided Frank additional time to vacate the premises. Even if Frank claims further evidence would bolster his case, this court “must assume any evidence not available on appeal supported the trial court’s action” Bliss v. Treece , 134 Ariz. 516, 519 (1983)

.

CONCLUSION

¶13 For the reasons above, the superior court’s judgment is affirmed. Smart Investments requests its attorneys’ fees but fails to cite any authority authorizing the award; therefor e, its request for fees is denied. Ariz. R. Civ. App. P. 21(a)(2) (“A claim for fees under this Rule must specifically state the statute, rule, decisional law, contract, or other authority for an award of attorneys’ fees.”); accord Cavallo v. Phx. Health Plans, Inc. , 254 Ariz. 99, 108, ¶ 38 (2022). Citing Arizona Rule of Civil Appellate Procedure 21 (“Rule 21”) is insufficient. Assyia v. State Farm Mut.
Auto. Ins. Co. , 229 Ariz. 216, 224, ¶ 34 (App. 2012) (denying a party’s request for attorneys’ fees because the party “cit[ed] only ARCAP 21, which does not provide a substantive basis for a fee award”). But as the prevailing party, its request for costs is granted upon compliance with Rule 21. Ferneau v. Wilder , 256 Ariz. 68, 76, ¶ 27 (App. 2023).