FEDERAL NATIONAL v. PRZYBYLSKI

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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 DIVISION ONE FILED: 10/16/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE FEDERAL NATIONAL MORTGAGE ASSOCIATION, ) ) ) Plaintiff/Appellee, ) ) v. ) ) BERNARD PRZYBYLSKI, ) ) Defendant/Appellant. ) ) No. 1 CA-CV 11-0747 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Yavapai County Cause No. CV 2011-01508 The Honorable Warren R. Darrow, Judge AFFIRMED Bernard John Przyblyski, Jr. In Propria Persona Tiffany & Bosco, P.A. by Leonard J. McDonald, Jr. David W. Cowles Attorneys for Appellee Chino Valley Phoenix H A L L, Judge ¶1 Bernard Przyblyski appeals the judgment for Federal National Mortgage Association (Federal) on its claim of forcible detainer. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 On detainer September action 16, alleging 2011, that Federal Przybylski filed was a forcible occupying and refusing to surrender possession of a property Federal purchased in a trustee's sale on August 29, 2011. Federal attached a copy of the trustee's deed to its complaint. ¶3 Przybylski did not file an answer to the complaint. He did file a motion, however, requesting that the superior court stay the forcible detainer proceedings until final judgment was entered in parallel litigation already underway in federal court. In his motion, Przybylski explained that the foreclosure sale would be deemed null and void if he prevailed in the federal litigation, and therefore a stay in the state action would be the most prudent judicial procedure. ¶4 On November 7, 2011, the superior court held a hearing on the forcible detainer complaint. After hearing argument from both parties, the superior court implicitly denied Przybylski s request for a stay and found him guilty of forcible detainer. ¶5 to This appeal followed. Arizona Revised Statutes We have jurisdiction pursuant (A.R.S.) (Supp. 2012). 2 section 12-2101(A)(1) DISCUSSION ¶6 the On appeal, Przybylski raises numerous challenges to validity of Federal s title to the property, including claims of defective notice and fraud. ¶7 The only issue Przybylski raised court, however, was a request for stay. in the superior Therefore, the scope of our review is limited to whether the court abused its discretion by implicitly denying his stay request.1 State v. Ott, 167 Ariz. 420, 428, 808 P.2d 305, 313 (App. 1990) ( Whether to grant a stay is within the trial court s discretion. ). proceedings would substantially prejudice rights, the court should grant a stay request. ¶8 any When parallel the [litigant s] Id. Here, Przybylski did not contend that he would suffer prejudice if the court denied his request for a stay. Rather, he opined that he had a good likelihood of prevailing in his federal appeal and argued that, if he was successful in that appeal, all the forcible detainer 1 proceedings would be Although the superior court held a hearing on the forcible detainer action on November 7, 2011, Przybylski did not provide transcripts of the hearing as part of the appellate record. Therefore, any argument he may have raised at the hearing, beyond his request for a stay, is not properly before us. See Walker v. Walker, 18 Ariz.App. 113, 114, 500 P.2d 898, 899 (1972) (explaining that appellate courts must presume that the findings by the trial court were supported by the evidence at trial when a party fails to provide transcripts of the proceedings); Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (holding an issue not raised in the superior court is waived on appeal). 3 null and void. Thus, Pryzbylski argued, the most prudent judicial procedure forcible detainer was for the proceedings. superior Absent court any to the claim valid stay of prejudice, we cannot conclude that the superior court abused its discretion in denying Przybylski s request for a stay. Moreover, even assuming, based on the circumstances then known to the superior court, that the court should have stayed the proceedings pending the outcome of the federal litigation, Przybylski's federal appeal was dismissed on February 22, 2012. Therefore, he was not prejudiced by the denial of his stay request. CONCLUSION ¶9 We affirm the superior court s order finding Pryzybylski guilty of forcible entry and detainer. _/s/______________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/___________________________________ PETER B. SWANN, Judge _/s/___________________________________ LAWRENCE F. WINTHROP, Judge 4

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