Pima Cause No CV 20083640 The Honorable Edward O Burke Judge The Ho - PDF document

1 ) )
) ) 2 Pima Cause No. CV 2008-3640 The Honorable Edward O. Burke, Judge The Honorable Barry C. Schneider, Judge (Retired) The Honorable Paul Tang, Judge Dominguez Law Firm, PC Phoenix By Antonio Dominguez Stanley M. Slonaker Attorney at Law Phoenix By Stanley M. Slonaker Law Office of Victoria Miranda Phoenix By Victoria Miranda facts. Plaintiff/App

2 ellee Ken Soza (“Soza”) entered into two
ellee Ken Soza (“Soza”) entered into two consideration. Miranda purported to transfer the property to Jardin”). When a dispute arose as to Miranda’s performance 3 granting partial summary judgment to Soza on his quiet title it received from Miranda. El Jardin also appeals from adverse by Soza pursuant to the partial summary judgment. Miranda title against El Jardin is not barred by the dismissal of the prior

3 counterclaim. We therefore affirm the t
counterclaim. We therefore affirm the trial court’s grant of summary judgment in favor of Soza. We also affirm the was not barred by the adjudication of the prior litigation. We 4 On April 18, 2004, Soza and Miranda for his services. In one, Soza agreed to sell and for $200,000 (“the business agreement”). Miranda was to make of the agreement. In the second contract, Soza agreed to sell Avenue in Tucson

4 Avenue Property”). The agreement provid
Avenue Property”). The agreement provided that 1 5 October 1, 2004, and that Miranda was to execute all documents to transfer title of the Latham Property to Soza. Both for breach of contract in CV2004-020098. The complaint alleged Soza answered the complaint on November 12, 2004. He Property. Soza denied interfering with the operation of the [Soza’s] personal or business financial affairs.” In addition,

5 6 Notice of Election to Forfeit with t
6 Notice of Election to Forfeit with the Maricopa County Recorder. Latham Property. The document stated that if Miranda did not he would forfeit any interest in the properties and business April 18, 2004 agreements. On had given. On January 3, 2005, Soza recorded a document titled had given. On January 3, 2005, Soza recorded a document titled that Miranda had forfeited his interest in the real property. ¶12

6 On February 11, 2005, Miranda recorded
On February 11, 2005, Miranda recorded with the Maricopa County Recorder several Avenue Property. On the same day, Miranda recorded a new transfer the South Central Avenue Property to El Jardin. On 7 Avenue Property to El Jardin. Both of the quitclaim deeds were signed by CV2004-020098. The counterclaim asserted that during the course real property belonging to Soza pursuant to a power of attorney. motion.

7 Miranda also filed a motion to dismiss
Miranda also filed a motion to dismiss Soza’s filed with Soza’s answer. Soza did not respond. Judge Kenneth 8 Soza sought leave to file an complaint on October 25, 2005. The new pleadings added El that order. Miranda argued that the counterclaim had been dismiss, the trial court noted that (1) a review of the file showed that the original counterclaim had been dismissed in a counterclaim had been previous

8 ly dismissed. In its order, filed in th
ly dismissed. In its order, filed in that case. . . . It was incumbent upon Soza explained that he had not responded to Miranda’s motion to 9 case. Counterclaimant’s Motion to Amend motion. . . . This Court did not have jurisdiction when it granted that motion. Soza did not appeal that order. Accordingly, the Amended 003058, against Miranda, El Jardin and others. Soza’s amended the real property. Soza al

9 leged that Miranda forged his 1 turn
leged that Miranda forged his 1 turn conveyed the properties to others. As to Miranda, the conversion, breach of fiduciary duty, rescission, and forgery. Avenue Property, and a third property in Tucson. As to El Jardin, the amended order filed February 8. They argued that the claims raised in was a dismissal on the merits. Therefore, they argued, claim 1 had been rejected earlier. Soza also filed a cros

10 s-motion for title claim on the South Ce
s-motion for title claim on the South Central Avenue Property. Soza argued Jardin. He further argued that the power of attorney was not Jardin. Soza argued that the quitclaim deed on which El Jardin and El Jardin’s motion for summary judgment and denied Soza’s cross-motion. With 1 party’s claim. A compulsory counterclaim must be asserted or it is barred. . . . those alleged in Miranda’s Complaint. Soza’s A

11 nswer did not address these claims. ove
nswer did not address these claims. oversight. Soza did not ask leave to amend oversight. Soza did not ask leave to amend CV2004-020098, was neither res judicata nor did it constitute collateral estoppel and was not an adjudication on the merits. . . . Judge Schneider’s July 14, 2006, ruling is the law of the case . . . whether this Court agrees with it or not. . . . ¶26 With respect to Soza’s cross-motion on

12 Count Ten, the court framed the issue a
Count Ten, the court framed the issue as follows: Soza alleges that . . . Miranda 1 . . . December 16, 2004. Therefore, Soza Avenue Property.the law of this case.” The court found that Soza had Default judgments for quiet title had already been entered 1 from a source unrelated to the events that were the subject of the litigation. It also objected to the inclusion of language estopped” from claiming a

13 ny interest in the property. Ariz. inte
ny interest in the property. Ariz. interest in the property. The judgment included language Avenue Property. In answering the July 2005 order dismissing Soza’s counterclaim in CV2004-020098. 1 court, concluded that El Jardin was guilty of forcible detainer. Miranda. After a bench trial, the court found El Jardin guilty of forcible detainer and ordered the South 12 Avenue Property trial. Soza chose to proc

14 eed only with Counts Two and Three -Mira
eed only with Counts Two and Three -Miranda. The remaining counts were dismissed by agreement of the parties. In a joint summary of the case, Soza and Miranda involving the sale of the business. Soza claimed that Miranda failed to pay him in accordance with the contract for sale, and Miranda asserted that the terms of the contract were modified. 1 2004 agreements were intended to work together. He testified

15 he obtained financing. According to Mi
he obtained financing. According to Miranda, he and Soza also Miranda had operated since April 2004. Miranda testified that April to October 2004 when the contract was modified. Miranda contracts. He agreed he had received some payments from Miranda and testified that he had made a single withdrawal on the Hi Dreams account in October 2004. Soza testified that he received October 15, 2004. However, Soza also

16 testified that he had not 1 verdict i
testified that he had not 1 verdict in that amount. Miranda argued that both contracts had by refusing to transfer the properties. Miranda contended that contract. He argued that he was entitled to withhold payment $163,896.79. Soza filed an application for attorneys’ fees pursuant to A.R.S. § 12-341.01(A) (2003). Miranda and El Jardin the fraud and forgery claims related to the business agreement. Dreams a

17 nd prevailed in all other respects. Mir
nd prevailed in all other respects. Miranda also sought 1 8made withdrawals from the Hi Dreams account as late as April 2005. The court found that Soza was the successful party in the litigation and awarded Soza his attorneys’ fees plus costs. The court granted the remittitur and entered judgment against Miranda in the amount of $146,955.32 on the breach of contract claim, $16,340 in attorneys’ fees, and $1,09

18 6.45 in costs. ¶42This court has juris
6.45 in costs. ¶42This court has jurisdiction over the four appeals pursuant to A.R.S. § 12-2101(B). DISCUSSION I. The Effect of the Dismissal in CV2004-020098 A Dismissal Pursuant to Rule 41(a) Was an Adjudication On parties or their privies based on the same cause of action. 28, 30 (1986). The application of claim preclusion is an issue 1 does not trigger the application of claim preclusion. He and a su

19 bstantive decision rendered by the court
bstantive decision rendered by the court. He further stipulation or pretrial rulings). Furthermore, Soza considers prosecute or to comply with these rules or against the defendant. Unless the court in 2 Ariz. R. Civ. P. 41(b)(emphasis added). Contrary to Soza’s dismissal other unless the court specifies otherwise. Miranda’s motion to argument that the counterclaim was barred because it was a raised in Soza’

20 s answer. The judgment of dismissal did
s answer. The judgment of dismissal did not specify that the dismissal was without prejudice. None of the the dismissal is deemed to be an adjudication on the merits. 2 Dep’t of Corrs., 188 Ariz. 237, 240, 934 P.2d 801, 804 (App. 1997). Under the same evidence test, “[i]f no additional needed in the first, then the second action is barred.” In truth and in fact, this document was MIRANDA misrepresented his

21 authority to As a result of negligence
authority to As a result of negligence, the breach to the forged General Power of Attorney dated April 18, 2004.” 2 cause of action. In both cases, Soza would have to produce and that, using that document, Miranda conveyed property. recipients of the conveyance, which are specified in the amended that Miranda had conveyed property to another. The power of have been required in the first. Accordingly, Soza

22 is CV2004-020098. We first consider the
is CV2004-020098. We first consider the summary judgment against 2 3 Claim Preclusion Did Not Bar Soza’s Suit Against El been raised as compulsory counterclaims in CV2004-020098. a second suit against Miranda based on the same causes of action precluded from raising related claims against El Jardin. We Ariz. 118, 123, 811 P.2d 370, 375 (App. 1991). We conclude, claim 2 Ariz. R. Civ. P. 13(a)(emphases add

23 ed). The plain language of party. Beca
ed). The plain language of party. Because El Jardin was not a party to the original suit, party. Because Soza’s prayer for relief in his counterclaim Ariz. R. Civ. P. 19(a)(1). 476 (App. 1971). Miranda filed his complaint in CV2004-020098 on October 15, 2004; Soza filed his answer on November 12, 2004. 2 to El Jardin until February and March 2005. Until Miranda Soza had no claim against El Jardin for quiet

24 title. their privies as the first. El
title. their privies as the first. El Jardin was not in privity with Miranda. “A privy is one who, )). Although both the motion to dismiss Soza’s counterclaim until July 2005. with Miranda for purposes of claim preclusion. Accordingly, 2 Issue Preclusion Did Not Bar Soza’s Suit Against El Soza was not barred from bringing suit against El Jardin on the basis of issue preclusion. In contrast to claim a

25 decision on an issue litigated in a pre
decision on an issue litigated in a previous lawsuit if the 204 Ariz. 221, 223, ¶ 9, 62 P.3d 966, 968 (App. 2003) counterclaim addressed only the procedural deficiencies of the counterclaim, not the factual merits. Though the dismissal of The claims against El Jardin are not “derivative” of those claim preclusion. El Jardin’s liability involves the same as those at issue in Soza’s claim against Miranda, but

26 it 2 Judgments § 27 cmt. d (1982). A
it 2 Judgments § 27 cmt. d (1982). Accordingly, we conclude that El Jardin also argues entry of summary judgment. El Jardin contends that the April to Miranda. It argues that the agreement includes language consideration of . . ., I hereby convey to A.B. the following real property,” is a sufficient form of conveyance. A.R.S. § 33-402(2)(2007). “The interpretation of a contract is a the critical “hereby conv

27 ey” language in § 33-402(2). The agreem
ey” language in § 33-402(2). The agreement is a contract “for the sale” of certain real property. 2 the property and establishes a timeline for performance. It transfer of the property. Further, El Jardin’s contention that Kenny Soza,” not as the owner. Even if some disputed issue signed the power of attorney remains a disputed issue of fact. fact so as to preclude summary 2 invalid on its face because

28 it was not witnessed. A.R.S. § 14-attor
it was not witnessed. A.R.S. § 14-attorney. To be valid, however, the power of attorney must public.” A.R.S. § 14-5501(D)(3). The power of attorney does not comply with § 14-5501(D). It argues, however, that the ct.” A power coupled with an , 101 Ariz. 182, 184, 416 P.2d 979, 981 (1966). A 3 at 183, 416 P.2d at 980. In one, the parties agreed to purchase a In the other, the parties agreed Under the a

29 greement, Roberts was to subdivide, expe
greement, Roberts was to subdivide, expense and receive a commission on the sale price of the lots. The court found that Roberts had been given a power coupled at 184, 416 P.2d at 981. The court noted The court found that reflected in the document. The real property agreement does not 3 take any action under the agreement. None of the provisions of might imply the existence of a related power of attorney

30 . The effectuating the intent of the re
. The effectuating the intent of the real property agreement. The document does not mention any simultaneously executed documents. necessary to manage any of my personal or business financial described,” and “to transact any business, perform every act and accomplish the intents and purposes of this Power of Attorney.” ¶68 The power conferred is a general power authorizing Miranda to conduct any act related to

31 any business, not a power coupled with
any business, not a power coupled with any particular purpose. Nothing in the document 3 transactions or the particular properties at issue. El Jardin’s not establish otherwise. In addition, a power of attorney 101 Ariz. at 184, 416 P.2d at 981. The power of attorney here not coupled with an interest. It therefore was required to comply with A.R.S. § 14-5501(D). Because it does not satisfy was not valid.

32 There is no genuine dispute of material
There is no genuine dispute of material fact, Jardin. Consequently, the disputed fact of whether Miranda exists. Accordingly, we conclude that the trial court properly 3 bringing a later claim against Miranda. But neither claim related claims against El Jardin. We therefore affirm the summary judgment of the trial court in favor of Soza. We Miranda for breach of the business contract. The judgment . . . an

33 d to provide security for the purchase o
d to provide security for the purchase of the . . . business.” The business agreement provided that Soza would transfer to Miranda all shares of Hi Dreams for $200,000. In each of its appeals, El Jardin argues that the trial 54(b), Arizona Rules of Civil Procedure. El Jardin argues that case. A final judgment as to all claims has now been entered being considered together. We therefore need not address 193

34 Ariz. 570, 574, 975 P.2d 700, 704 (1999
Ariz. 570, 574, 975 P.2d 700, 704 (1999) 3 violation of the contract. With respect to the business contract Soza answered: “Mr. Miranda began to perform with specifically the purchase of the business ‘Hi-Dreams.’” Soza property contract. Soza also referred to Miranda’s monthly physically interfered at one of the business locations. Soza alleged: “Defendant recalls that Plaintiff indicated the Hi alleged:

35 “Defendant recalls that Plaintiff indica
“Defendant recalls that Plaintiff indicated the Hi in question, yet Defendant can verify that the stores were in operation and as such allowed supported [sic] Mr. Miranda’s obligation to make good on him [sic] monthly obligation to Defendant, particularly as the inventory was unaccounted for.” make the required payments on the business contract. With 3 had forged a power of attorney and used it to sell Hi Drea

36 ms. the presence of third parties of wh
ms. the presence of third parties of whom the Ariz. R. Civ. P. 13(a). A defendant who fails to plead a 927 (1950). A claim arises out of the same transaction if it is Prods., Inc. v. Sheridan-Gray, Inc., 103 Ariz. 450, 452, 445 P.2d 426, 428 (1968). To be a compulsory counterclaim and 3 at 476. A partially mature claim is also subject to the bar since it can be asserted as a counterclaim in the answer and su

37 pplemental pleadings can be filed later
pplemental pleadings can be filed later as the claim matures. ; Ariz. R. Civ. P. 13(e). The bar applies to all issues that operation of the business. Both claims arise from the same transaction - the sale of Hi Dreams under the business agreement. However, the record does not support the conclusion already been dismissed. In that motion, Soza asserted that filing of the complaint.” At trial, Miranda testified

38 that he 3 modified their agreement to
that he 3 modified their agreement to allow Soza to make withdrawals from the Hi Dreams account. Miranda produced canceled checks of the $1,911.30 monthly payments due over that period. In made such a claim if it had been true. Consequently, the record for failure to pay under the business agreement. Because the pursuant to Rule 13(a). Soza was therefore not precluded from contract only. He also argues that

39 the judgment should have 3 its verdi
the judgment should have 3 its verdict, on June 24, 2008, finding in the court’s order, not to provide details of the proceeding. of pleadings.”). Although the judgment here could have noted court. The judgment here appropriately states the result of the 3 9 awarded attorneys’ fees as the prevailing parties. The trial pursuant to A.R.S. § 12-341.01(A) in the full amount requested. In granting the request

40 , the court stated: “Plaintiff was the
, the court stated: “Plaintiff was the In granting the request, the court stated: “Plaintiff was the counsel’s] ability in this and other cases fully justifies the fee award.” ¶82 Miranda argues that he and El Jardin are the successful parties because he prevailed on all counts but breach of contract on the business agreement and El Jardin prevailed on all counts but Count Ten, the quiet title claim. ¶83 A.R.S.

41 § 12-341.01(A) authorizes the court to
§ 12-341.01(A) authorizes the court to award contested action arising out of contract. The court has (App. 2007). We will affirm the trial court’s decision if it is 4 the ten claims he had asserted in his amended complaint. Miranda could be viewed as having prevailed on the abandoned Harris v. Reserve Life Ins. Co.A.R.S. § 12-341). The jury, however, found in favor of Soza on the claim that Miranda breached

42 the business agreement. This determinat
the business agreement. This determination that Soza was the prevailing party. We find no 1990). His counsel was required to submit an affidavit that 4 138 Ariz. 183, 188, 673 P.2d 927, 932 (App. 1983). The rate to those services. It also indicated that an hourly rate of with the hourly rate. Although the affidavit did not describe of Soza’s counsel. We conclude that the application for 4 awarding fees

43 to Soza. In determining whether an awa
to Soza. In determining whether an award of fees 081, 1086 (App. 1999). We view Rowland v. Great States Ins. Miranda argues that most Soza was not “successful” on all of his claims, having abandoned all but the contract claims against Miranda. However, 4 were not superfluous in obtaining that result. We do not others from litigating legitimate issues. We find the trial and Rule 11(a), Arizona Rules of Civ

44 il Procedure. Additionally, the FED com
il Procedure. Additionally, the FED complaint. As Soza is the prevailing party in this respect to Miranda’s appeal. In our discretion, we award the same claim as against Miranda. But because neither issue trial court’s grant of summary judgment in favor of Soza. We 4 breach of contract claim against Miranda. We find that the answered Miranda’s complaint in CV2004-020098. The claim /S/ /S/ /S