Brown v. Matthew et al

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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 SUSANA BROWN, Plaintiff/Appellant, v. MATTHEW HENSON APARTMENTS; JILL DAVENPORT, SABRINA LORA; TAYSHIA FLANAGAN; ENA CASTILLO; SCOTT CLARK, PAUL HENDERSON, MCCORMACK BARON RAGAN; CITY OF PHOENIX HOUSING DEPARTMENT; KIM DORNEY; and RICHARD BEARDSLEY, Defendants/Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 04-22-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0416 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, ARCAP) Appeal from the Superior Court in Maricopa County Cause No. CV 2008-003368 The Honorable A. Craig Blakey, II, Judge The Honorable Eileen S. Willett, Judge AFFIRMED Susana Brown Plaintiff/Appellant In Propria Persona Phoenix Law Offices of Scott M. Clark, P.C. by Paul A. Henderson Attorneys for Defendants/Appellees Phoenix W I N T H R O P, Judge ¶1 Susana Brown appeals the trial court s entry judgment as a matter of law in favor of the appellees. of For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 Susana Brown, Matthew Henson Apartments ( MHA ), and McCormack Baron Ragan ( MBR ), MHA s managing agent, were parties to a public housing residential lease contract Brown as the tenant, and MHA and MBR as the landlords. In October 2007, MBR sent Brown a thirty-day notice of lease termination, alleging harassment of the apartment community s residents and management staff. Pursuant to housing regulations, Brown contested the decision to terminate her lease by requesting an informal hearing. The informal hearing officer and MHA area manager, Jill Davenport, upheld the termination. Brown then requested of a formal grievance hearing. The City Phoenix declined her request for a continuance, Brown did not appear for the scheduled hearing, and the panel upheld termination of her lease. Brown vacated her apartment on December 28, 2007. 1 Neither party s briefs contain citations to the record, and therefore do not comply with Arizona Rule of Civil Appellate Procedure ( ARCAP ) 13(a)(4). Unless a party s brief is totally deficient, we prefer to decide each case upon its merits rather than to dismiss summarily on procedural grounds. Adams v. Valley Nat l Bank of Arizona, 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984) (citation omitted). Accordingly, we must rely on our own review of the record. 2 ¶3 On February 19, 2008, Brown filed the first of many lawsuits related to her eviction. These actions were either consolidated or dismissed over the course of the litigation. ¶4 After a December 2008 settlement conference apparently failed to resolve the matter, appellees brought their motion for summary judgment, which the trial court granted. 2 A different judge entered judgment as a matter of law in favor of appellees, and denied Brown s various post-trial motions, further awarding appellees costs and reasonable attorneys fees. ¶5 Brown appealed after the ruling granting the motion, but before the entry of judgment. Despite the premature nature of Brown s appeal, we may review it. See Performance Funding, L.L.C. v. Barcon Corp., 197 Ariz. 286, 288, ¶ 5, 3 P.3d 1206, 1208 (App. 2000) ( courts strive to dispose of cases on their merits rather than on harmless technical errors. Premature appeals are not necessarily jurisdictionally defective and need not always be jurisdiction dismissed. pursuant to (citations Arizona omitted)). Revised Statutes We have ( A.R.S. ) section 12-2101(B) (2003). ANALYSIS ¶6 judgment, Brown and disputes raises the the trial court s following 2 grant arguments: of summary (1) that A settlement conference was scheduled, but aside from a statement in Appellees answering brief, there is no indication that the conference actually took place. 3 appellees breached the lease contract by refusing to accept Brown s October 2007 rent check, (2) that appellees released Brown s credit appellees report sabotaged to her unauthorized ability to parties, obtain (3) housing that after eviction, (4) the court erred in declining to order damages in Brown s favor, and (5) Brown was entitled to a jury trial. ¶7 When reviewing a grant of summary judgment, we take the facts in the light most favorable to the non-moving party and will affirm if the evidence produced in support of the defense or claim has so little probative value reasonable person could find for its proponent. that no State Comp. Fund v. Yellow Cab Co. of Phoenix, 197 Ariz. 120, 122, ¶ 5, 3 P.3d 1040, 1042 court s grant genuine issues (App. of 1999). summary of judgment material application of the law. We fact review and or de novo whether errors the there in the trial are any court s Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App. 2000). 3 ¶8 In its minute entry, the trial court explained that [Brown s] filings do not establish a genuine issue of material fact. We agree. Brown s filings consist of unsupported allegations and inferences, many of which are nearly impossible 3 Without objection from either party, the court decided the motion for summary judgment without oral argument. As we have not received copies of transcripts from any proceedings, the scope of our review is limited to both parties motions and pleadings, and the court s written rulings. 4 to discern. The trial court properly disposed of her claim, as no reasonable jury, based upon the record, could resolve this case in [Brown s] favor. 1. October 2007 Rent Check ¶9 The landlord s lease termination notice cited harassment of community residents and management staff as the reasons for eviction, not non-payment of rent. Thus, the landlord s refusal to accept Brown s October rent payment is immaterial fact. to this dispute and creates no issue of material See A.R.S. §§ 33-1368(A) (2007) & 33-1377(E)-(F) (2007). 2. ¶10 Release of Credit Report to Unauthorized Parties Brown argues that the appellees disclosed her private credit reports to unauthorized parties. She does not, however, specify who these parties were, nor does she offer evidence to contradict Jill Davenport s sworn affidavit. See Stevens v. Anderson, 75 Ariz. 331, 334, 256 P.2d 712, 714 (1953) (noting that a pleader cannot create a genuine issue of material fact simply by making a contradictory statement, where motion for summary judgment is supported by facts in the form of affidavit ). Davenport asserts that MHA disclosed information from tenant Brown s file to legal counsel, to the City of Phoenix Housing Department, at trial in the Downtown Precinct of the Maricopa County Justice Courts, to the Civil Rights Division of the Arizona Attorney General s 5 Office, and to Ms. Brown herself[,] Further, and explains Davenport why that denies information disclosing was released. 4 Brown s financial information to other apartment communities. ¶11 Brown s bare allegations fail to create an issue of material fact sufficient to overcome a properly supported motion for summary judgment. 3. ¶12 Inability to Find Housing Next, Brown argues, without any factual proof in the form of admissible evidence, that MHA s landlord verifications of her rental history presented her to prospective landlords in a negative light and prevented her from obtaining housing. The Davenport affidavit and supporting documents indicate otherwise. Davenport personally responded to three separate requests for information regarding Brown. She provided specifics concerning Ms. Brown s period of tenancy and the amounts of rent she paid. No details were issued in these verification reports regarding Ms. Brown s negative history with site employees and neighbors, nor did she editorialize her responses. report, truthfully, problems 4 Davenport did, however, regarding [Brown s] payment The City of Phoenix received information from Brown s tenant file, possibly including a credit report, because she benefited from City-administered public housing. MHA introduced letters from Brown s file, but no credit report, as evidence related to various injunctions against harassment in justice court. The attorney general, in its capacity as investigator of civil rights complaints that Brown submitted against the appellees, may have received Brown s credit report because it was part of the housing application review process. 6 history. Our review of the landlord verification forms supports Davenport s statements. ¶13 Further, one of the complexes, Kivel Manor Apartment Homes, approved Brown to reside in their receiving Davenport s verification form. Console, a Kivel employee, stated, community after In her affidavit, Rita None of Ms. Davenport s comments discouraged my employer from leasing an apartment to Ms. Brown. On Brown s scheduled move in date, however, she failed to accept the apartment because she did not want to live at Kivel. ¶14 The fact that Kivel Manor Apartment Homes offered Brown an apartment after receiving verification from MHA belies Brown s contention that MHA sabotaged her ability to find housing. 4. Damages ¶15 Brown seeks $5700 in punitive damages and a refund of $325.80 for rent overpayments. Her refund request is unsubstantiated, and, given this decision, she has failed to prove by clear and convincing evidence that she is entitled to punitive damages. See Walter v. Simmons, 169 Ariz. 229, 240, 818 P.2d 214, 225 (App. 1991). 5. Jury Trial ¶16 Because the trial court disposed of Brown s claim on summary judgment and because we are affirming the trial court s 7 judgment, we need not reach the question of whether Brown was entitled to a jury trial. CONCLUSION ¶17 For the foregoing reasons, we affirm the trial court s entry of judgment as a matter of law in favor of the appellees. Further, we grant appellees request for attorneys fees upon compliance with ARCAP 21(c). ___________/S/_______________ LAWRENCE F. WINTHROP, Judge CONCURRING: ______________/S/________________ MAURICE PORTLEY, Presiding Judge ______________/S/________________ MARGARET H. DOWNIE, Judge 8

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