IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION T WO

C ECE LIA M. L EWIS AND R ANDALL L EWIS ,

A MARRIED COUPLE , P laintiffs /Appell ants
,

v.

R AY C. D EBORD AND A NNE N ELSON

- D EBORD ,

HUSBAND AND WIFE , Defendants

/Appell ees

.

No. 2 CA

- CV 2014

- 0004 Filed October 6 , 2014

Appeal from the Superior Court in Pima County

No. C20125400 The Honorable Gus Aragón , Judge

AFFIRMED

COUNSEL

Slutes, Sakrison & Rogers, P.C., Tucson By James M. Sakrison and Diana L. Kanon

- Ustariz and Decker Holland, Snowflake By Joseph E. Holland Counsel for Plaintiffs/Appellants

Gust Rosenfeld P.L.C., Phoenix By Scott A. Malm and Justin M. Scorza Counsel for Defendants/AppelleesLEWIS v. DEBORD Opinion of the Court

2 OPIN ION

Judge Vásquez authored the opin ion of the Court, in which Judge Howard and Judge Miller concurred.

V Á S Q U E Z, Judge:

¶1 In this appeal, Cecelia and Randall Lewis challenge the trial court’s summary judgment in favor of appellees Ray Debord
and Anne Nelson

- Debord in the Lewises’ action to foreclose a judgment lien against the Debords ’ property

. 1 The court found that,
becaus e the Lewises failed to comply with A.R.S. § 33

- 967(A), they
did not have a valid judgment lien against the property. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 In reviewing a trial court’s grant of summary judgment,
we view the facts in the light most favorable to the party opposing entry of the judgment. Gorman v. Pima C ou nty , 230 Ariz. 506, ¶ 2, 287 P.3d 800, 801 (App. 2012). The relevant facts are undisputed. In June 2003, the Lewises obtained a default money judgment against Karen MacKean and Fred Foust. Intending to create a lien against real property, the Lewises recorded the judgment in January 2006 in Pima County. The y renewed the judgment lien in June 2008. Neither the judgment recorded in 2006 nor the renewal r ecorded in 2008 was accompanied by a separate information statement as required by § 33

- 967(A)

. 2

¶3 In March 2008, MacKean purchased real property in Pima County. She then transferred the property to Sonomex, LLC, for which Foust is the statutory agent. In July 2012, the Debords purch ased the property from Sonomex.

1 Randall passed away duri ng the pendency of this appeal.

2 The Lewises did not record an informati on statement until August 2013.LEWIS v. DEBORD Opinion of the Court

3 ¶4 In August 2012, the Lewises sought judicial foreclosure of the lien or execution of the judgment, naming MacKean, Sonomex, and the Debords as defendants. The Debords moved for summary judgment, a rguing that the Lewises’ “failure to record a separate information statement with the Judgment and the Renewal . . . render[ed] their alleged judgment lien invalid and unenforceable against the Property.” In response, the Lewises maintained that “the
fail ure to record an information sheet of this kind does not affect the validity of the judgment lien, only the priority afforded to the judgment lien.” After hearing argument, the trial court entered summary judgment in favor of the Debords. 3 This appeal fo llowed. We have jurisdiction pursuant to A.R.S. §§ 12

- 120.21(A)(1) and
12

- 2101(A)(1). 4

3 After the trial court entered the final judgment, it issued an
in

- chambers ruling suggesting it had done so “prematurely” and setting a status conference on the matter. However, the Lewises filed their notice of appeal before the status conference. We
th erefore suspended the appeal pursuant to Rule 9.1, Ariz. R. Civ. App. P ., to allow the court to consider whether the judgment was indeed final. The court ordered that its prior judgment “shall remain in full force and effect, ” and we reinstated the appeal

.

4 Generally, our jurisdiction “is limited to final judgments which dispose of all claims and all parties.” Musa v. Adrian , 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981) . However, Rule 54(b), Ariz. R.
Civ. P ., “allows a trial court to certify finality to a judgment which disposes of one or more, but not all, of the multiple claims, if the court determines that there is no just reason for delay and directs the entry of judgment.” Davis v. Cessna Aircraft Corp. , 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1 991) . Here, although the judgment resolves only the Lewises’ claim against the Debords, and the Debords’ request for attorney fees is still pending, it nevertheless contains language pursuant to Rule 54(b) . We therefore review the entry of summary judgme nt in favor of the Debords.LEWIS v. DEBORD Opinion of the Court

4 Discussion

¶5 The Lewises argue “[t]he trial court erred in finding that the lack of a timely information statement voided an otherwise valid money judgment lien” and conse quently its entry of summary judgment in favor of the Debords was improper. We review a grant of summary judgment de novo, determining whether any genuine issues of material fact exist and whether the trial court properly applied the law. Ochser v. Funk

, 228 Ariz. 365, ¶ 11, 266 P.3d 1061, 1065 (2011). We will affirm a grant of summary judgment if it is correct for any legal reason. Pi’Ikea, LLC v. Williamson , 234 Ariz. 284, n.7, 321 P.3d 449, 454 n.7 (App. 2014). We also review de novo
issues of statu tory interpretation. Miller v. Hehlen , 209 Ariz. 462, ¶ 5, 104 P.3d 193, 196 (App. 2005).

¶6 “Our primary task in interpreting statutes is to give effect to the intent of the legislature.” In re Estate of Winn , 214 Ariz. 149, ¶ 8, 150 P.3d 236, 238 (2007). We look first to the plain language of the statute as the best indicator of that intent and give effect to the terms according to their commonly accepted meanings. Sierra Tucson, Inc. v. Pima County , 178 Ariz. 215, 220, 871 P.2d 762, 767 (App. 1994). Wh en the language is clear and unambiguous, we look no further and apply it as written. City of Tucson v. Clear Channel Outdoor, Inc. , 218 Ariz. 172, ¶ 6, 181 P.3d 219, 225 (App. 2008). But if the language is unclear or ambiguous, we resort to other method s of statutory interpretation, including : the statute’s context; spirit and purpose; subject matter and historical background; and effects and

consequences. Stein v. Sonus USA, Inc. , 214 Ariz. 200, ¶ 3, 150 P.3d 773, 774 (App. 2007).

¶7 Judgment liens are c reations of statute, Rowe v. Schultz

, 131 Ariz. 536, 538, 642 P.2d 881, 883 (App. 1982), and thus require strict statutory compliance, Sysco Ariz., Inc. v. Hoskins , 235 Ariz. 164, ¶ 8, 330 P.3d 354, 355

- 56 (App. 2014). We therefore begin our analysis with A.R.S. § 33

- 961(A), which sets forth the process for creating a judgment lien:

A copy of the judgment of a court, certified by the clerk, shall be filed and recorded in the office of the countyLEWIS v. DEBORD Opinion of the Court

5 recorder in each county where the judgment creditor desires the judgment to become a lien upon the real property of the judgment debtor before the judgment shall become a lien upon or in any manner affect or encumber the real property of the judgment debtor, or any part of the real property of the judgment debtor.

The certified copy of the judgment must identify: the court, the action, and the cause number; the date the judgment and the docket record were entered; the names of the judgment debtor and judgment creditor; the amount of the judgment; and the name of th e judgment creditor’s attorney. § 33

- 961(A)(1)

- (5).

¶8 Once a judgment has been recorded pursuant to § 33

- 961(A), “ the judgment creditor may satisfy the judgment by executing on any real property ” that is then owned or later acquired by the judgment debtor. Byers v. Wik , 169 Ariz. 215, 218

- 19, 818 P.2d 200, 203

- 04 (App. 1991); Sysco Ariz. , 235 Ariz. 164, ¶ 6, 330 P.3d at
355 ; see also A.R.S. § 33

- 964(A)

. “The general rule is that once a judgment lien has attached to the land, it remain s until legally removed.” Freeman v. Wintroath Pumps

- Div. of Worthington Corp.

, 13 Ariz. App. 182, 1 84, 475 P.2d 274, 276 (1970).

¶9 Despite the existence of a judgment lien, t he judgment debtor retains “full power to sell . . . or otherwise dispose of” his or her real property. Id. However, a ny subsequent purchaser who has notice of the judgment lien takes the property subject to it. Sysco
Ariz. , 235 Ariz. 164, ¶ 6, 330 P.3d at 355; Warren v. Whitehall Income
Fund 86 , 170 Ariz. 241, 243

- 44 , 823 P.2d 689, 691

- 92 (App. 1991); see also Delo v. GMAC Mortg., L.L.C. , 232 Ariz. 133, ¶ 18, 302 P.3d 658, 663 (App. 2013) (purchaser has constructive notice of recorded documents). Thus, the purpose of § 33

- 961(A) is to give notice of the judgment lien to subsequent p urchasers and others who may deal with the judgment debtor’s real property. Freeman , 13 Ariz. App. at 184, 475 P.2d at 276.

¶10 In 1996

, o ur legislature amended the judgment

- lien

statutes to require a judgment creditor to attach an informationLEWIS v. DEBORD Opinion of the Court

6 statement to the recorded judgment

. See 1996 Ariz. Sess. Laws, ch. 289, §§ 5, 7. Section 33

- 961(C) now provides that “[a] judgment or decree or any renewal that requires payment of money shall also be accompanied by an informati on statement as prescribed by § 33

- 967.” And, § 33

- 967(A) states:

In addition to the requirements prescribed by § 33

- 961, any judgment or decree or any renewal that requires the payment of money and that is recorded on or after January 1, 1997, shall be attached to a separate information statement of the judgment creditor that contains all of the following information:

1. The correct name and last known address of each judgment debtor and the address at which each judgment debtor received the summons by personal service or by mail.

2. Th e name and address of the judgment creditor.

3. The amount of the judgment or decree as entered or as most recently
renewed.

4. If the judgment debtor is a natural person, the judgment debtor’s social security number, date of birth and driver
license num ber.

5. Whether a stay of enforcement has been ordered by the court and the date the stay expires.

Section 33

- 967(D) further explains that “[a] judgment or decree or any renewal that requires the payment of money recorded on or after January 1, 1997, has as its priority the date of compliance with subsection A of this section.”LEWIS v. DEBORD Opinion of the Court

7 ¶11 T he parties agree that the legislature’s purpose in creating the information

- statement requirement was “to help identify true judgment debtors and protect those who have been

errone ously identified as so.” Senate Fact Sheet, S.B. 1300, 42d Leg., 2d Reg. Sess. (Ariz. 1996). Presumably, the legislature sought to accomplish this by requiring judgment creditors to provide
additional infor mation about judgment debtors.

¶12 T he Lewises maint ain that their failure to attach an information statement to their recorded judgment and renewal did not invalidate their judgment lien but merely caused them to lose their priority. 5 They further reason that the term “ priority ” as used in § 33

- 967(D) applies to only competing lienholders and not to subsequent purchasers. T he Lewises also maintain that subsequ ent purchasers like the Debords “st[an]d in the shoes of the original judgment debtors with regard to the judgment lien.” Accordingly,
the Lewises conclude they have a valid judgment lien against the Debords’ property.

5 The Lewises contend “[t]he trial court was bound to follow valid precedent” contained in Sourcecorp, Inc. v. Norcutt ( Sourcecorp II

) , 227 Ariz. 463, 258 P.3d 281 (App. 2011)

. But Sourcecorp II did not involve the issue present ed in this case. In the factual and procedural history of that opinion, this court referred to an earlier appeal in which we determined that the plaintiff’s “failure to attach the money judgment information statement [pursuant to §§ 33

- 961(C) and 33

- 967(A ) ] did not invalidate its lien.” Sourcecorp II

, 227 Ariz. 463, ¶ 6, 258 P.3d at 283

, citing Sourcecorp, Inc. v. Shill ( Sourcecorp I

) , No. 1 CA

- CV 05

- 0425 (memorandum decision filed Sept. 26, 2006) . Generally, “[m]emorandum decisions shall not be regarded as precedent nor cited in any court.” Ariz. R. Civ. App. P. 28(c) ; see also Calpine Constr. Fin. Co. v. Ariz. Dep’t of Revenue

, 221 Ariz. 244, ¶ 24, 211 P.3d 1228, 1233 (App. 2009) . Courts similarly do not treat passing references to previous memorandum decisions in published opinions as precedent. See Creach v. Angulo , 186 Ariz. 548, 552, 925 P.2d 689, 693 (App. 1996) (court’s statement on question not involved in case before it is dict um and not binding precedent).LEWIS v. DEBORD Opinion of the Court

8 ¶13 To address this issue

, w e first must determine what is

necessary to create a valid judgment lien. Based on the plain language of § 33

- 961, the recording of a judgment pursuant to
subsection (A) , regardless of whether an information statement is
attached thereto

, creates a valid judgment lien as to the judgment debtor’s then

- existing or later

- acquired real property

. See City of
Tucson , 218 Ariz. 172, ¶ 6, 181 P.3d at 225. Section 33

- 961(A) states that a certified copy of the judgment must be filed and recorded in the appropriate county “before the judgment shall become a lien.” Despite listing the specific requirements for the certif ied copy of the judgment, § 33

- 961(A) does not require that an information statement also be attached “before the judgment shall become a lien.” Likewise, although § 33

- 961(C) expressly states that the judgment or renewal “shall also be accompanied by an information statement,” it does not condition the validity of the judgment lien on the attachment of the information statement. If the legislature had intended such a requirement, it easily could have said so. See Democratic Party of Pima Cnty. v. Ford

, 228 Ariz. 545, ¶ 17, 269 P.3d 721, 726 (App. 2012).

¶14 This conclusion is further supported by the plain language of § 33

- 964(A)

, which provides that, “from and after the time of recording as provided in § 33

- 961, a judgment shall become a lien for a period o f five years from the date it is given, on all real property of the judgment debtor . . . in the county in which the judgment is recorded.” See Bonito Partners, LLC v. City of Flagstaff

, 229 Ariz. 75, ¶ 30, 270 P.3d 902, 910 (App. 2012) (statutes relating to same subject construed together). Similar to § 33

- 961(A), this statute focuses on the recording of the judgment as the basis for creating a judgment lien and does not condition the lien’s validity on the
attachment of an information statement. Thus, even after the 1996 amendment, the principles su pporting a judgment creditor’s ability

to satisfy a judgment by executing on a judgment debtor’s real property and the judgment debtor’s ability to dispose of his or her property generally still stand

. See Byers , 169 Ariz. at 218

- 19, 818 P.2d
at 203

- 04; Freeman , 13 Ariz. App. at 184, 475 P.2d at 276.

¶15 We next must determine the consequence for failing to
attach an information statement to a recorded judgment or renewal

.LEWIS v. DEBORD Opinion of the Court

9 B ased on the plain language of § 33

- 96 7(D), we agree with the
Lewises that a judgment creditor’s failure to attach an information
statement affects the priority of the judgment lien

. 6 See City of
Tucson , 218 Ariz. 172, ¶ 6, 181 P.3d at 225. Section 33

- 967(D) clearly specifies that a judgment lien has priority once the information
statement is attached to the judgment . Priority commonly means “[t]he status of being earlier in time or higher in degree or rank;

6 Relying on Department of Revenue v. Southern Union Gas Co.

, 119 Ariz. 512, 582 P.2d 158 (1978) , the Lewises argue that the requirement to attach an information statement is directory, rather than mandatory, notwithstanding the use of the term “shall” in §§ 33

- 961(C) and 33

- 967(A) . In South ern Union Gas , our supreme court addressed “the legal consequence for noncompliance” with a statute providing that the trial court “shall” hear a case within ninety days of docketing. 119 Ariz. at 513, 582 P.2d at 159. The court started with the “general proposition” that “statutes may be classified as either mandatory or directory.” Id. It recognized that, when a mandatory statute is not followed, the proceedings to which it relates are void, while the failure to follow a directory statute has “no inva lidating consequence.” Id. at 513

- 14, 582 P.2d at 159

- 60. The court concluded that the statute, “while couched in obligatory language,” was directory based on its “effect and consequences” and that the failure to comply did not require dismissal. Id . at 514, 582 P.2d at 160. The Lewises similarly reason that §§ 33

- 961(C) and 33

- 967(A) are directory and that their failure to attach a timely information statement did not invalidate their judgment lien.

Although we disagree that the language in the statut es is directory, we agree with the Lewises’ argument that the failure to
attach an information statement affects a judgment lien’s priority and not its validity. Unlike the statute at issue in Southern Union
Gas

, § 33

- 967(D) plainly provides the legal con sequence for failing to file a timely information statement

— the judgment lien loses its priority. See City of Tucson , 218 Ariz. 172, ¶ 6, 181 P.3d at 225 . Thus, even though the language in §§ 33

- 961(C) and 33

- 967(A) is mandatory, it is mandatory for the purpose of establishing the priority, not the validity, of the judgment lien.LEWIS v. DEBORD Opinion of the Court

10 precedence.” Black’s Law Dictionary 1386 (10th ed. 2014) ; see also Webster’s Third New Int’l Dictionary 1804 (1971) (defining priority as “superiority in rank, position, or privilege”)

. Thus, b y introducing
th e concept of priority here , the legislature necessarily placed conditions on the judgment creditor’s ability to r each the judgment debtor’s real property in which third parties have acquired a superior interest. Cf. Rowe , 131 Ariz. at 538, 642 P.2d at 883 (“[S]tatutes may expressly or by implication require recording of . . . conveyances if their pr iority is to be m aintained.”).

¶16 Our conclusion that the failure to attach an information
statement affects a judgment lien’s priority , not validity, is bolstered by the other provisions of § 33

- 967. See Bonito Partners , 229 Ariz. 75, ¶ 30, 270 P.3d at 910

. Subsection (B) makes clear that the information statement must include the data prescribed by subsection (A) only if it is known by or available to the judgment creditor; if the data is not known, the judgment creditor must
indicate as much in the information statement. And, subsection (C) provides that

, if the judgment creditor fails to include an information statement with the judgment or any renewal, it may be
amended to include one. 7 The facts that all the data need not be included and that the judgment or renewal m ay be amended
undercut the argument that the lien is invalid if the information
statement is not attached. See Princess Plaza Partners v. State , 187 Ariz. 214, 222 n.5, 928 P.2d 638, 646 n.5 (App. 1995) (“A ‘voidable’ agreement would be one subject to res cission or ratification whereas a ‘void’ agreement would be incapable of ratification or disaffirmance.”); Black’s Law Dictionary 1 805 (defining voidable as

“ [ v ] alid until annulled”); cf. State ex rel. Herman v. Mestas , 12 Ariz. App. 289, 295, 469 P.2d 855 , 861 (1970) (contract based on mutual mistake voidable).

¶17 Nevertheless , we disa gree with the Lewises that the failure to attach an information statement affects the priority of a judgment lien in relation to only competing lienholder s and not subsequent pu rchasers. If the legislature wanted to limit th e concept

7 “Recording an amendment . . . does not affect the computation of time prescribed by § 33

- 964 .” § 33

- 967(E)

.LEWIS v. DEBORD Opinion of the Court

11 of priority in § 33

- 967(D) to the interests of competing lienholders,

see Black’s Law Dictionary 1386 (also defining priority as “a creditor’s right to have a claim paid before other creditors of th e same debtor receive payment”), it could have said so

, s ee Democratic Party of Pima Cnty. , 228 Ariz. 545, ¶ 17, 269 P.3d at 726. And, w e will not read
such a limitation into the statute. See Haag v. Steinle , 227 Ariz. 212, ¶ 13, 255 P.3d 1016, 1019 (App. 2011) (“Courts will not read into a statute something that is not within the manifest intent of the legislature as indicated by the statute itself, nor will the courts inflate, expand, stretch, or extend a statute to matters n ot falling within its express provisions.”). Furthermore, our judgment

- lien statutes require strict compliance. Sysco Ariz. , 235 Ariz. 164, ¶ 8, 330 P.3d at 355

- 56.

¶18 Thus, where a subsequent purchaser acquires an interest in a judgment debtor’s real prope rty after a judgment
creditor record s a judgment but before attach ing an information statement, the resulting judgment lien loses its priority and th e judgment creditor cannot satisfy his or her judgment by executing on that property. By adding the inform ation

- statement requirement
in 1996 , our legislature carved out a narrow exception to the general principle that a subsequent purchaser who has notice of a judgment lien takes the property subject to it

. See Sysco Ariz. , 235 Ariz. 164, ¶ 6, 330 P.3d at 35 5; Warren , 170 Ariz. at 243

- 44 , 823 P.2d at 691

- 92

.
¶19 Here, the Debords acquired their interest in the property in July 2012. But the Lewises did not attach an information
statement to their recorded judgment until August 2013. Because the Debords acquired their interest in the property before the Lewises complied with § 33

- 967(A), the Debords’ interest in the property has priority over the Lewises’ judgment lien

. Accordingly,

t he Lewises cannot satisfy their judgment by executi ng on the Debords’ property. The trial court therefore did not err in granting summary judgment in favor of the Debords. See Ochser , 228 Ariz. 365, ¶ 11, 266 P.3d at 1065 ; Pi’Ikea , 234 Ariz. 284, n.7, 321 P.3d at 454
n.7

.LEWIS v. DEBORD Opinion of the Court

12 Attorney Fees and Costs

¶20 Both par ties have requested an award of attorney fees on appeal pursuant to A.R.S. § 12

- 341.01. We deny the Lewises’ request because they are not the prevailing party. And

, in our discretion, because the trial court has not yet resolved the Debords’ request for attorney fees incurred before it, we defer resolution of
their request on appeal to the trial court as part of those proceedings

. However, we grant the Debords their costs on appeal , pursuant to A.R.S. § 12

- 341 , contingent upon their compliance with Rule 21, Ariz. R. Civ. App. P.

Disposition

¶21 For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of the Debords.