Drunasky v. Countrywide

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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 KEITH LESLIE DRUNASKY, ) ) Plaintiff-Appellant, ) ) v. ) ) COUNTRYWIDE HOME LOANS, INC.; and ) BANK OF AMERICA, N.A., ) ) Defendants-Appellees. ) ) DIVISION ONE FILED: 05-25-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0347 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2008-070234 The Honorable Harriet E. Chavez, Judge APPEAL DISMISSED Keith Leslie Drunasky Plaintiff-Appellant In Propria Persona Bryan Cave LLP By Robert W. Shely Rodney W. Ott Attorneys for Defendants-Appellees Litchfield Park Phoenix P O R T L E Y, Judge ¶1 Keith Leslie Drunasky appeals from an order dismissing certain claims against Countrywide Home Loans, Inc., Bank of America, N.A., and ReconTrust institutional defendants ). Company (collectively the For the reasons that follow, we dismiss the appeal. FACTS AND PROCEDURAL BACKGROUND ¶2 This action arises out of Drunasky s alleged purchase of residential property (the property ) from Jared and Cristina Taylor (the Taylors ) dated April 28, 2007. based on a written purchase contract The purchase contract, however, was not recorded. ¶3 The property was subject to two deeds of trust at the time of the written contract the first held by Countrywide securing a $112,100 loan, and the second held by Bank of America securing a loan with a credit limit of $50,000. According to the contract, Drunasky was required to make monthly payments to the Taylors in the amount of $1336.92, and to ultimately pay off the Countrywide and Bank of America loans before May 1, 2008. ¶4 A fire occurred on the property in April 2008, and insurance Taylors. settlement proceeds were allegedly paid to the Drunasky then sued the Taylors for breach of contract and fraud, and recorded a notice of lis pendens against the property on June 12, 2008. He claimed that the Taylors made misrepresentations regarding the mortgages, fraudulently rewrote the Bank contract, of America failed to credit record line the 2 after sale as signing the required by purchase Arizona Revised Statutes ( A.R.S. ) section 33-411.01 (2007), and misrepresented themselves as the property owners to obtain the insurance settlement proceeds. The Taylors answered on August 22, 2008, and asserted a breach of contract counterclaim against Drunasky for his alleged failures to make timely payments and pay rental taxes. ¶5 Three months later, Drunasky received a notice of trustee s sale, which stated that the property was scheduled to be sold on January 12, 2009. 1 Drunasky amended defendants, and his Prior to the scheduled sale, complaint sought, among to join other the forms of moved to institutional relief, to permanently enjoin the trustee s sale. ¶6 The institutional defendants claims asserted against them with prejudice. dismiss any They argued that Drunasky lacked standing to challenge the trustee s sale or the insurance settlement payment. ¶7 After argument, the trial court granted the motion and found that Drunasky ha[d] no standing under contract or otherwise to challenge the Trustee[ ]s sale o[r] the application of insurance proceeds. The court s signed dismissal order stated, Pursuant to Defendants Motion to Dismiss[,] . . . this 1 The notice listed ReconTrust as trustee. 3 action is dismissed, with prejudice, each side to bear its own fees and costs. This appeal followed. DISCUSSION ¶8 The institutional defendants contend that this court lacks jurisdiction to review Drunasky s appeal because the dismissal order failed to dispose of all claims and all parties and contains no certification Procedure Rule 54(b). court only under Arizona Rule of Civil Drunasky does not dispute that the trial dismissed the claims against the institutional defendants, but argues that the dismissal was made appealable under Rule 54(b). We have a duty to review jurisdiction and, if found lacking, to dismiss the appeal. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997); Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991). ¶9 is The right to appeal, absent constitutional authority, statutory, and if no statute makes a judgment or order appealable, this court [does] not have jurisdiction to consider the merits of the question raised on appeal. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981); see generally A.R.S. § 12-2101 jurisdiction (2003). to review Pursuant final to § 12-2101(B), judgments. However, we have when a judgment does not dispose of all claims and all parties, the judgment is not final and appealable under § 12-2101(B) absent 4 express language of finality. Pulaski v. Perkins, 127 Ariz. 216, 217, 619 P.2d 488, 489 (App. 1980). Rule 54(b) permits a trial court to direct the entry of final judgment as to fewer than all claims or parties upon an express determination that there is no just reason for delay and express direction for the entry of judgment. ¶10 The institutional defendants argue that the dismissal order was entered in response to their motion to dismiss only the claims asserted against them. The Taylors contend that because the dismissal order did not apply to the claims made against them, and because language of finality was not included, the order is not appealable under § 12-2101(B). We agree. ¶11 Here, the dismissal order disposed of only the claims asserted against the institutional defendants. Although the trial court adopted broad language in dismissing the action, it expressly did so [p]ursuant defendants motion to dismiss. motion only sought dismissal to the institutional The institutional defendants of the claims asserted against them, and the minute entry ruling on the motion only addressed the argument that Drunasky lacked standing to enjoin the trustee s sale or contest the insurance settlement payment. The conclusion that the order did not dismiss all claims against all parties is also supported by 5 the court s statements that Drunasky could still pursue his damages claims against the Taylors. ¶12 Although we lack jurisdiction under § 12-2101(B), certain interlocutory rulings are nevertheless appealable under various other subsections of § 12-2101. 2 Here, § 12-2101(F)(2) grants us jurisdiction to review a denial of injunctive relief. See Bulova Watch Co. v. Super City Dep t Stores of Ariz., Inc., 4 Ariz. App. 553, 555, 422 P.2d 184, 186 (App. 1967) (holding that an order denying preliminary injunctive relief was appealable by statute and no Rule 54(b) findings were required). The trial court denied Drunasky s request for injunctive relief based upon the conclusion that he lacked standing to prevent the trustee s sale. review the other Consequently, although we lack jurisdiction to issues Drunasky raises on appeal, we have jurisdiction to review the denial of his request to enjoin the trustee s sale. 2 Alternatively, this court has discretion to review interlocutory rulings by taking special action jurisdiction. See A.R.S. § 12-120.21(A)(4) (2003). Special action jurisdiction is appropriate when there is no plain, speedy and adequate remedy by way of appeal or in cases involving a matter of first impression, statewide significance, or pure questions of law. Roman Catholic Diocese v. Superior Court, 204 Ariz. 225, 227, ¶ 2, 62 P.3d 970, 972 (App. 2003) (quoting State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001)). Drunasky makes no argument why we should take special action jurisdiction, and because he has an adequate remedy by way of appeal, we decline to do so. 6 ¶13 We need not review the court s denial of injunctive relief, however, because the property was sold at a trustee s sale on May 18, 2009. Consequently, the appeal is moot with respect to Drunasky s effort to enjoin the sale of the property, and we decline to address the substantive merits of the court s ruling. Ariz. See A Tumbling-T Ranches v. Flood Control Dist., 222 515, 545, ¶ 107, 217 P.3d 1220, 1250 (App. 2009) (declining to reach an issue found moot based upon a report by the Arizona Navigable Stream Adjudication Commission issued during the pendency of an appeal). CONCLUSION ¶14 For the foregoing reasons, we dismiss the appeal. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ LAWRENCE F. WINTHROP, Judge /s/ ______________________________ MARGARET H. DOWNIE, Judge 7

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