Wituck/Grosser v. Leef

Annotate this Case

Download PDF

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 DENNIS WITUCKI and GAIL WITUCKI,) Husband and wife, ) ) Plaintiffs/Appellees, ) ) and ) ) GRANT GROSSER and REESE GROSSER,) ) Defendants/Cross-Claimant/ ) Appellees, ) ) v. ) ) HOWARD LEEF, ) ) Defendant/Cross-Defendant/ ) Appellant. ) ________________________________) DIVISION ONE FILED: 02/08/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH No. CA-CV 10-0253 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2008-053480 The Honorable Brian R. Hauser, Judge AFFIRMED Keller, Keller & Newman, PLLC By Donald J. Newman Attorneys for Plaintiffs/Appellees Howard Leef Defendant/Cross-Defendant/Appellant In Propria Persona Phoenix Goodyear O R O Z C O, Judge ¶1 Howard Leef (Leef) appeals from the superior court s judgment in favor of Dennis and Gail Witucki (the Wituckis).1 For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 The Rosalie Wituckis Morton and leased Aileen certain Leavitt business pursuant premises to a from Vehicular Service Facility Lease agreement (the Lease) dated May 10, 2000. The Lease was originally set to expire after five years, but was subsequently extended an additional five years. ¶3 On May 6, 2005, the Wituckis entered into a sublease agreement (the Sublease) with Grant Grosser and Reese Grosser (the Grossers) under which the Grossers assumed the Wituckis obligations under the Lease. On December 15, 2006, the Grossers assigned all of their rights, title and interest in the Sublease to the Leef Corporation, Assumption of Sublease Leef his wife, and pursuant Agreement Italia (the Leef, 1 to an Assignment Assumption (the Leefs) and Agreement). personally The notice of appeal was signed by Leef on behalf of himself, his wife, Italia Leef, and The Leef Corporation, USA (Leef Corporation). Because Leef is not an attorney, he cannot represent his wife or Leef Corporation in this appeal. See Haberkorn v. Sears, Roebuck & Co., 5 Ariz. App. 397, 399, 427 P.2d 378, 380 (App. 1967) (a non-lawyer may not represent a spouse in court); Boydston v. Strole Dev. Co., 193 Ariz. 47, 50, ¶ 14, 969 P.2d 653, 656 (1998) (a lawyer must sign a notice of appeal on behalf of a corporation). Therefore, the notice of appeal is invalid as to Italia Leef and Leef Corporation and those two defendants are not parties to this appeal. 2 guaranteed Leef Corporation s Assumption Agreement. monetary obligations under the The Grossers, however, were not released from liability under the Sublease. The Wituckis, the Grossers, the Leefs, and Leef as president of Leef Corporation, all signed the Assumption Agreement. ¶4 In August 2008, Leef Corporation breached the Assumption Agreement by failing to pay rent and the Grossers failed to cure the breach of the Sublease. The Wituckis filed a complaint against Leef Corporation and the Leefs (collectively, Leef Defendants) and the Grossers, seeking damages for breach of contract. The Defendants. Grossers filed a cross-claim against Leef After filing answers to the complaint and cross- claim, Leef Defendants attorney withdrew from representation. The court granted the Wituckis motion for summary judgment against the Grossers and the claims against Leef Defendants were set for a bench trial. ¶5 Prior to trial, Leef Defendants filed a motion in limine to preclude a Consent to Assignment of Lease from being admitted at trial on grounds that the document was not legible. The court denied the motion following oral argument the day of trial. After the trial concluded, the court ruled in favor of the Wituckis and the Grossers and against Leef Defendants. 3 Leef filed a notice of appeal.2 We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) section 12-2101.B. (2003). DISCUSSION Motion in Limine ¶6 Leef first argues the court erred by hearing argument on the motion in limine the day of trial because the motion was filed prior to trial without objection. We review the superior court s ruling on a motion in limine for an abuse of discretion. Warner v. Southwest Desert Images, LLC, 218 Ariz. 121, 133, ¶ 33, 180 P.3d 986, 998 (App. 2008). ¶7 The motion in limine was filed almost two months prior to trial. Leef, however, did not press the court for resolution of the motion in limine prior to trial, and instead, raised the issue of the pending motion before trial began. argument and denied the motion. The court heard Leef did not oppose the court s consideration of the motion just prior to the start of trial, nor did he raise the Grossers or the Wituckis objection as grounds for granting the motion. lack of See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (errors not asserted in the trial court cannot be raised on appeal); 2 Leef s notice of appeal was premature, but the superior court later entered a final appealable judgment on April 13, 2010. See Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981). Because several other judgments were entered, but no notice of appeal was filed for those judgments, we only consider the April 13, 2010 judgment. 4 accord City of Tempe v. Fleming, 168 Ariz. 454, 456, 815 P.2d 1, 3 (App. 1991). supporting his Further, argument Leef that cites the court no legal could not authority hear oral argument on the motion in limine immediately prior to trial.3 See Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) ( We will not consider arguments posited without authority. ). ¶8 motion Leef does not argue the court erred in denying the in consider limine this on substantive argument grounds abandoned.4 See and, Robert therefore, we Schalkenbach Found. v. Lincoln Found., Inc., 208 Ariz. 176, 180, ¶ 17, 91 3 Arizona Rule of Civil Procedure 7.2 governs motions in limine and provides, in part, that motions in limine should be ruled on before trial unless the court determines an issue of admissibility is better considered at trial. Ariz. R. Civ. P. 7.2(d). Leef does not cite this rule, but even if he did, the court ruled on the motion before trial began. 4 Even if Leef did argue the merits, the record reveals no abuse of discretion. First, although not entirely clear, the consent is legible. Additionally, the consent pertained to a prior sublease not at issue in this case and was irrelevant to the court s ultimate decision. See Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 201 n.2, ¶ 8, 129 P.3d 487, 490 n.2 (App. 2006) (reversal requires a showing of prejudice to appellant s substantial rights). Indeed, Leef did not dispute the failure to pay rent, but merely maintained the Sublease and the Assumption Agreement were invalid because the original lessors, Leavitt and Morton, did not consent to those assignments as required by the Lease. The testimony at trial, however, revealed the lessors verbally consented to the Sublease and the Assumption Agreement. Regardless, the court determined that even if the lessors did not consent, Leef Defendants performed under the Assumption Agreement for 19 months, and thus, waived any objection to a lack of consent and further, the consent was for the benefit of the lessors, not the lessee. Accordingly, there was no abuse of discretion. 5 P.3d 1019, appellant's 1023 (App. opening 2004) brief is (an issue deemed not abandoned raised or in an conceded). Therefore, the court did not abuse its discretion in hearing oral arguments and denying the motion on the day of trial. Judgment as to other Leef Defendants ¶9 Leef also appears to challenge the judgment as to the other Leef Defendants on grounds that neither was represented by an attorney at trial. See State v. Eazy Bail Bonds, 224 Ariz. 227, 229, ¶ 12, 229 P.3d 239, 241 (App. 2010) (a corporation cannot appear in court without an attorney). The Leefs appeared in the proceedings below and the court entered judgment against Leef Defendants for $210,069.84 plus attorneys fees and costs. As previously stated, only Leef signed the notice of appeal. Because Leef is not a licensed attorney, he cannot represent his wife or Leef Corporation in this appeal.5 notice of appeal is invalid as to Consequently, the Italia Leef and Leef Corporation and those two defendants are not parties to this appeal. See State v. One Single Family Residence at 1810 East Second Ave., Flagstaff, Ariz., 193 Ariz. 1, 2 n.1, 969 P.2d 166, 167 n.1 (App. 1997) (notice of appeal invalid as to a spouse who did not sign it when the spouse who signed the notice is not a licensed attorney); Boydston, 193 Ariz. at 51, ¶ 15, 969 P.2d at 5 There are several exceptions in which an individual not licensed to practice law may represent a corporation in certain types of proceedings; none of which are applicable here. See Ariz. R. Sup. Ct. 31(d). 6 657 (notice of appeal defective when signed by a non-lawyer on behalf of a corporation). ¶10 There were no efforts made to cure the defective notice of appeal as to Italia Leef and Leef Corporation after this court notified Leef of the issue. Cf. Boydston, 193 Ariz. at 51, ¶ 15, 969 P.2d at 657 (once notified of the defective notice of appeal, counsel immediately appeared on behalf of the corporation). Because Leef is the only appellant in this appeal, he lacks standing to raise arguments pertaining solely to Italia Leef and Leef Corporation. See Goglia v. Bodnar, 156 Ariz. 12, 18, 749 P.2d 921, 927 (App. 1987) ( When an error applies to only one party who does not appeal, another party cannot make that argument on its own behalf. ); accord In re Estate of Friedman, 217 Ariz. 548, 552, ¶ 11, 177 P.3d 290, 294 (App. 2008). Accordingly, we will not consider Leef s argument on appeal concerning the other two defendants. See State v. B Bar Enter., Inc., 133 Ariz. 99, 101 n.2, 649 P.2d 978, 980 n.2 (1982) (our reluctance to consider issues raised when there is no standing is a rule of judicial restraint). ¶11 To the extent Leef is attempting to attack the judgment against himself or his community property on the basis that his wife and the corporation were not represented by counsel at trial, we are not persuaded because his wife was present at trial and both his wife and the corporation had the 7 choice of being represented by counsel. The mere fact they were not represented by counsel at trial does not invalidate the judgment against Leef. Attorneys fees ¶12 The Wituckis request attorneys fees on appeal pursuant to the Lease which was incorporated into the Sublease and the Assumption Agreement. The Lease provides that any breach or default by the lessee, including failing to timely pay rent, entitles the lessor to recover all damages from the lessee including reasonable attorneys fees. The Sublease incorporates the terms of the Lease as if the Wituckis are the lessors and the Grossers are the lessees. Similarly, under the Assumption Agreement, Leef Defendants agreed to be bound by the terms of the Sublease, as if originally made by Leef Corporation. Accordingly, we grant the Wituckis their reasonable attorneys fees and costs on appeal against Leef, subject to the Wituckis compliance with Arizona Rule of Civil Appellate Procedure 21. CONCLUSION ¶13 For the foregoing reasons, we affirm the superior court s judgment in favor of the Wituckis. /S/ _________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge 8 /S/ ________________________ JOHN C. GEMMILL, Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.