NOTICE: NOT FOR PUBLICATION.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

NATIONAL BANK OF ARIZONA, N.A., Plaintiff/Appellee,

v.

GREGORY R. BODINE, Defendant/Appellant.

No. 1 CA-CV 13-0042

Appeal from the Superior Court in Yavapai County

No. P1300CV20091144

The Honorable Kenton D. Jones, Judge

AFFIRMED

COUNSEL

Shapiro, Van Ess & Sherman, LLP, Phoenix

By Jason P. Sherman

Counsel for Plaintiff/Appellee

Gregory R. Bodine, Prescott

Defendant/Appellant in Propria Persona
NATIONAL v. BODINE

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2

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

T H O M P S O N, Judge:

¶1 Gregory R. Bodine (Bodine) appeals from the trial court’s 

decision denying his motion for a new trial and striking his cross-claim 

against his co-defendant and ex-wife, Melody Thomas-Morgan (ThomasMorgan). For the following reasons, we affirm. 

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2005, appellee National Bank of Arizona (National) 

loaned Bodine and Morgan-Thomas money to purchase real property in 

Dewey, Arizona. Bodine and Morgan-Thomas signed a promissory note 

and the loan was secured by a deed of trust encumbering the property. 

Bodine and Morgan-Thomas were divorced in 2008. Bodine and MorganThomas defaulted on the loan, and National noticed a trustee’s sale. At 

the trustee’s sale in May 2009, National purchased the property for its 

credit bid of $48,000. At the time of the foreclosure sale, the amount owed 

on the note and deed of trust was $165,212.09. 

¶3 In July 2009, National Bank filed a complaint in the trial 

court seeking a deficiency judgment against Bodine and Morgan-Thomas. 

National filed a motion for summary judgment, which the trial court 

granted in part in February 2011, finding that Bodine and MorganThomas were liable for a deficiency judgment. The court set a valuation 

hearing and, after considering the parties’ evidence and closing

arguments, ruled that the fair market value of the property was $85,000 at 

the date of the foreclosure sale.1 Bodine filed a cross-claim against 

Thomas-Morgan in August 2012, after the trial court’s ruling. In 

September 2012, the trial court entered a deficiency judgment against 

 

1 National’s expert testified that the value of the property as of the date of 

the foreclosure sale was $58,000. Bodine & Morgan-Thomas’s expert 

testified that the value of the property was between $177,260.00 and 

$220,030.00.
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Bodine and Thomas-Morgan in the amount of $80,212.09 ($165,212.09 loan 

amount due minus $85,000 fair market value), plus attorneys’ fees and 

costs. Bodine filed a motion for new trial pursuant to Arizona Rule of 

Civil Procedure 59(a)(1),(2),(3),(5),(6), and (8) in October 2012.

¶4 In an unsigned minute entry, the trial court denied the 

motion for new trial and dismissed Bodine’s cross-claim as untimely. 

Bodine appealed. We suspended the appeal to allow Bodine to obtain a 

signed order from the trial court, and he did so. We have jurisdiction 

pursuant to Arizona Revised Statutes (A.R.S.) § 12-2101(A)(1) and (5)(a)

(Supp. 2013).

DISCUSSION

¶5 At the outset, we note that Bodine’s opening brief fails to 

comply with the Arizona Rules of Civil Appellate Procedure. Arizona 

Rule of Civil Appellate Procedure (ARCAP) 13(a)(4) requires “[a] 

statement of facts relevant to the issues presented for review, with 

appropriate references to the record.” Rule 13(a)(6) requires an argument 

section “contain[ing] the contentions of the appellant with respect to the 

issues presented, and the reasons therefor, with citations to the 

authorities, statutes and parts of the record relied on.”

¶6 The opening brief fails to provide a statement of facts. 

Instead, in a section entitled “Statement of Facts” Bodine directs us to 

“transcripts of trial and hearings below, as well as the Index of Record,” 

without actually citing the record. This does not comply with ARCAP 

13(a)(4). The argument section also lacks citations to the record and to 

relevant authority to support Bodine’s arguments.2

¶7 The opening brief fails to even minimally comply with 

ARCAP 13. We may dismiss the appeal for this reason. See Adams v. 

Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342-43, 678 P.2d 525, 527-28 (App. 

1984). However, even overlooking the defects in the opening brief, we 

find no error in the trial court’s decision.

¶8 Summary judgment is appropriate when “the moving party 

shows that there is no genuine dispute as to any material fact and the 

moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 

 2 For example, Bodine repeatedly asserts that the family court ordered 

Thomas-Morgan to obtain a new loan on the property in her name only 

but provides no citation to the record for his assertion.
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56(a). We review the grant of summary judgment de novo, viewing the 

evidence in the light most favorable to the party opposing summary 

judgment. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). 

Because the trial court has heard the evidence and observed the demeanor 

of witnesses, the trial court has broad discretion in granting or denying a 

motion for new trial. Mammo v. State, 138 Ariz. 528, 533-34, 675 P.2d 1347, 

1352-53 (App. 1983).

¶9 First, the trial court granted Thomas-Morgan’s motion to 

strike Bodine’s cross-claim because it was filed three and one- half months 

after the trial in this matter, after the court had ruled on the matter, and 

was therefore untimely. We find no abuse of discretion. See Lake v. 

Stewart, 117 Ariz. 520, 523, 573 P.2d 920, 923 (App. 1977) (trial court’s 

discretion to allow amendment to include a counterclaim ends once trial 

begins); Drumwright v. Lynn Eng’g & Mfg., 14 Ariz. App. 282, 285, 482 P.2d 

891, 894 (1971) (power to allow counterclaim is discretionary with the trial 

court).

¶10 To the extent that Bodine argues that the trial court erred by 

entering the deficiency judgment against him, we disagree. Even if 

Bodine and Thomas-Morgan’s divorce decree ordered Thomas-Morgan to 

refinance the note and deed of trust to remove Bodine’s name3, Bodine 

was still liable under the note and deed of trust. Creditors are not bound 

by the family court’s allocation of community obligations. Community 

Guardian Bank v. Hamlin, 182 Ariz. 627, 631, 898 P.2d 1005, 1009 (App. 

1995). 

¶11 Bodine further argues, without supporting his argument,

that the court should have “monitor[ed] and ensure[d]” that ThomasMorgan obtained a new loan and transferred the property into her own 

name, and that the family court should have included an “indemnification 

provision” in the divorce decree. An action to enforce Bodine’s divorce 

decree was not within the purview of the trial court here, however. To the 

extent that Bodine argues that the divorce decree was unjust and that the 

family court violated his constitutional rights, we do not consider these

arguments in this appeal. 

¶12 Bodine argues that the trial court’s ruling is a violation of the 

ex post facto provisions of the Arizona and U.S. Constitutions. We do not 

 3 As noted above, Bodine provides no citation to the record for this 

assertion.
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consider this argument because it was not raised in the trial court. Bodine 

also argues that the trial court in this matter violated his due process 

rights by refusing to consider his cross-claim, by denying his motion for 

referral to the Arizona Supreme Court, and by depriving him of 

knowledge about court proceedings. As noted above, the trial court did 

not abuse its discretion in denying the cross-claim. Further, the record 

does not reflect that Bodine was denied due process in this matter. 

Instead, the trial court delayed the valuation hearing and ordered the 

parties to provide Bodine with documents.

¶13 With regard to Bodine’s motion for referral to the supreme 

court, the trial court did not lose jurisdiction to rule in this case for an 

asserted violation of Article 6, Section 21 of the Arizona Constitution, as 

Bodine argued below. That provision was not implicated in this case.

¶14 Bodine further argues that National withheld documents 

and pleadings from him, but does not specify which documents or 

pleadings National allegedly withheld. We find no error. 

¶15 Finally, Bodine argues that the trial court abused its 

discretion when it determined the fair market value of the property 

because 1) he did not have the opportunity to make his case about the fair 

market value of the property, 2) because National delayed the sale of the 

property, 3) because the property was more valuable than found by the 

trial court, and 4) because National sold the property at auction instead of 

listing it. The record reflects that Bodine participated in the valuation 

hearing, examined the witnesses, and made arguments to the trial court 

regarding the fair market value of the property. We find no abuse of 

discretion on this issue. Bodine cites no authority to support his 

arguments about the sale being delayed or about the propriety of sale by 

auction, and we do not consider these arguments. The trial court did not 

abuse its discretion in valuing the property at $85,000 in light of the 

evidence in the record. 

¶16 National requests its attorneys’ fees on appeal pursuant to 

A.R.S. § 12-341.01 and pursuant to the note and deed of trust. We award 

National its attorneys’ fees subject to its compliance with ARCAP 21.
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CONCLUSION

¶17 For the foregoing reasons, we affirm the decision of the trial 

court.