Chas Roberts v. Pekrul

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE CHAS ROBERTS AIR CONDITIONING, INC., an Arizona corporation, ) ) ) Plaintiff/Appellee, ) ) v. ) ) GORDON DENNIS PEKRUL and CAROLYN ) PEKRUL, husband and wife, ) ) Defendants/Appellants. ) ) __________________________________) DIVISION ONE FILED: 05/03/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CV 10-0593 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2007-010586 The Honorable Michael L. Barth, Commissioner AFFIRMED Wees Law Firm, LLC By James F. Wees Attorney for Plaintiff/Appellee Phoenix Gordon Dennis Pekrul and Carolyn Pekrul Defendants/Appellants In Propria Persona Scottsdale B R O W N, Judge ¶1 Gordon and Carolyn Pekrul appeal the trial court s ruling that they are not entitled to a homestead exemption for their motor home under section 33-1101 (2007). Arizona Revised Statutes ( A.R.S. ) For the following reasons, we affirm. BACKGROUND ¶2 In 2008, Chas Roberts Air Conditioning, Inc. ( Chas Roberts ) obtained a default judgment against the Pekruls for breach of contract. order to Pekruls satisfy motor On December 3, 2009, pursuant to a court the home, house in Scottsdale. judgment, which was the sheriff parked in levied the on driveway the of a On December 14, 2009, the Pekruls filed a Declaration of Homestead pursuant to A.R.S. § 33-1101 asserting they actually reside in the motor home. 1 Chas Roberts then filed a petition requesting that the Pekruls show cause why [they should not be enjoined] . . . from falsely claiming a Homestead Exemption on [the motor home]. ¶3 At a contested hearing on the petition, the Pekruls testified in support of their position. with documentation Scottsdale Following home the showing as that their hearing, the Pekruls residence the court Chas Roberts countered in had other noted that claimed the proceedings. the Pekruls testified they had moved into the motor home in March 2008 after transferring title of the house 1 to 223 Wittmann, L.L.C., of Section 33-1101(A)(3) provides an exemption from attachment, execution, and forced sale for [a] mobile home in which the person resides. 2 which their daughter was a principal, because the house was a source of bad financial Pekruls testimony plagued with was memories. not credible inconsistencies. The and The court noted found it was determined court that the the transfer to the L.L.C. was a sham and the Pekruls continued to reside in the house after the transfer. the Pekruls did not produce any The court also stated neutral evidence[] to corroborate their testimony and there were no indicia of an ongoing physical presence in the motor home. Concluding that the word residence requires a personal presence and intent to remain, the court ruled the Pekruls were not entitled to a homestead exemption appealed, and we on have the motor home. jurisdiction The pursuant Pekruls to A.R.S. timely § 12- 2101(A)(2),(4) (Supp. 2011). DISCUSSION ¶4 The Pekruls first argue the trial court erred in placing on them the burden of proving they resided in the motor home. Chas Roberts contends the Pekruls failed to preserve this argument because, at the hearing, the Pekruls counsel agreed with a statement by the court that because the Pekruls were the ones asserting the homestead exemption, . . . they would have the burden of proving it. Our review of the record shows the Pekruls counsel acknowledged three times that the burden of proof was on the Pekruls and he expressly waived any objection 3 to going forward on that premise. Therefore, Pekruls have waived this argument on appeal. we find the See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (noting appellate courts generally do not consider arguments raised for the first time on appeal). ¶5 Even without a finding of waiver, we disagree that the court improperly shifted the burden of proof to the Pekruls. The general rule governing the burden of proof in Arizona is that a party who asserts the affirmative of an issue has the burden of proving it. Black, Robertshaw, Frederick, Copple & Wright, P.C. v. United States, 130 Ariz. 110, 114, 634 P.2d 398, 402 (App. 1981); cf. Ryan v. S.F. Peaks Trucking Co., 228 Ariz. 42, ___, ¶ 22, 262 P.3d 863, 869 (App. 2011) (holding a party asserting an affirmative defense of comparative fault has the burden of proving the facts supporting that defense). 33-1101 plainly homestead states exemption resides. in that a a person motor home is only in Section entitled which the to a person In filing the declaration of homestead, the Pekruls swore under oath that they actually reside[d] in the motor home. Thus, the court did not err in declaring that the Pekruls bore the burden of proving their assertion was true. ¶6 the Next, in their opening brief, the Pekruls challenge trial court s description of reside physical presence for some period of time. 4 as requiring a However, in their reply brief, the Pekruls acknowledge they could not qualify for the exemption without actually living at that spot and that the statute requires actual occupancy plus intent to make a particular loci [sic] [the claimant s] homestead. And during the hearing, the Pekruls counsel acknowledged to the court that there must exemption be to actual apply. evidence We of agree physical and do occupancy not see a for the meaningful distinction between a requirement of physical presence for some period of time and one of actual occupancy, as any duration of occupancy would necessarily have to be for some period of time. See Morrisey v. Ferguson, 156 Ariz. 536, 536-37, 753 P.2d 1192, 1192-93 (App. 1988) (finding individual who filed a homestead declaration on his mobile home while in prison did not reside in the mobile home for purposes of prior version of A.R.S. § 33 1101(A)(4) and, therefore, did not comply with the requirements of the statute). Thus, the court did not err in describing the legal requirements for establishing a homestead exemption. ¶7 Finally, the Pekruls argue there was no reasonable basis for the trial court s decision. We will affirm the trial court s findings unless they are clearly erroneous and there is no reasonable evidence to support them. Nordstrom, Inc. v. Maricopa County, 207 Ariz. 553, 558, ¶ 18, 88 P.3d 1165, 1170 (App. 2004). Further, we will not substitute our judgment for 5 that of the trial court in determining the credibility witnesses and weighing the evidence presented. of Id. at 559, ¶ 24, 88 P.3d at 1171. ¶8 At the hearing, Chas Roberts submitted into evidence a verified complaint for emergency declaratory and injunctive relief the Pekruls filed in January 2010 in an attempt to void the trustee s sale of the house. The Pekruls alleged in the complaint that they have and continue to reside at the address of their Scottsdale house. Chas Roberts also submitted a notice of removal the Pekruls filed in response to a forcible detainer action which sought to remove them from the house. In this document, the Pekruls referred to the property as their home. The Pekruls argue that the fact they referred to their Scottsdale address as their residence is entirely consistent with claiming a residence in the motor home because the motor home was located in the driveway at the same address. this argument. The documents submitted into We reject evidence were clearly filed in an attempt to preserve the Pekruls right to live in the house, not the motor home, as only the house and the land it was proceedings built and the on were the Pekruls subject filings. of the Further, foreclosure in their homestead declaration, the Pekruls did not claim a homestead in the land, but only in the motor home itself. Moreover, the Pekruls acknowledge in their opening brief that the transfer of 6 the property to the L.L.C. was a misguided idea for [home] ownership preservation against foreclosure. ¶9 The only evidence the Pekruls presented in support of their homestead exemption claim was their own testimony. The Pekruls testified that they had all their personal belongings in the motor home and that they lived in the motor home for the most part since they transferred title of the house to the L.L.C. two years prior. They also stated that their son lived in the house and ran a day trading business there. The Pekruls asserted further that they would sometimes stay in the house when there were electrical problems with the motor home or when Mr. Pekrul was helping his son with his business. And Mrs. Pekrul admitted that she had slept in the house the night before the motor home was seized. Mrs. Pekrul also testified that she kept clothing and furniture in the house, but that she had sold the furniture and was storing it there for the purchaser. When asked why they stayed in the motor home rather than the house, Mr. Pekrul testified that [they] liked the motor home and [they] didn t have a good feeling about the [house] because they were losing it to foreclosure. The trial court found the Pekruls testimony that they actually resided in the motor home 7 was not credible, and we defer to this finding. See Nordstrom, 207 Ariz. at 559, ¶ 24, 88 P.3d at 1171. 2 ¶10 in Accordingly, we conclude there is substantial evidence the Pekruls record did supporting not reside the in trial the court s motor finding home and that were the thus ineligible for the homestead exemption permitted by A.R.S. § 331101. CONCLUSION ¶11 For the foregoing reasons, we affirm the trial court s ruling. /s/ ________________________________________ MICHAEL J. BROWN, Acting Presiding Judge CONCURRING: /s/ ___________________________________ MARGARET H. DOWNIE, Judge /s/ ___________________________________ JON W. THOMPSON, Judge 2 The Pekruls assert that the credibility of their testimony is simply irrelevant [i]n light of the physical state of affairs at and in the motor home when it was seized by the sheriff. However, aside from the Pekruls own testimony, there is no evidence in the record suggesting the motor home appeared to have been recently occupied at the time it was seized. 8

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