monroe/pirtle v. Gagan

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JAMES A. MONROE, an unmarried man, and KIMBERLEY MONROE
PIRTLE, Plaintiffs/Appellants/Cross-Appellees,

v.

JAMES L. GAGAN and JANE DOE GAGAN, husband and wife,
Defendants/Appellees/Cross-Appellants.

No. 1 CA-CV 13-0273
FILED 6-25-2015

Appeal from the Superior Court in Maricopa County
No. CV2007-016208 and CV2007-016537
The Honorable Robert H. Oberbillig, Judge

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

COUNSEL
By James A. Monroe, Kimberley Monroe Pirtle, Scottsdale
In Propria Persona Plaintiffs/Appellants/Cross-Appellees

Law Office of Lyndon B. Steimel, Scottsdale
By Lyndon B. Steimel
and
Brian Custy, Merrillville, IN
Co-Counsel for Defendants/Appellees/Cross-Appellants
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MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.

G E M M I L L, Judge:

¶1 This appeal and cross appeal arise from a judgment in favor
of Plaintiffs/Appellants/Cross-Appellees James A. Monroe (“Monroe”)
and Kimberley Monroe Pirtle. For the following reasons, we affirm the
judgment, with the exception that we vacate the trial court’s denial of
prejudgment interest and remand for entry of an amended judgment that
includes prejudgment interest.

BACKGROUND

¶2 In 1994, Defendant/Appellee/Cross-Appellant James L.
Gagan obtained a $1.7 million judgment against Monroe in an Indiana
federal court. Enforcement of this judgment led to a United States
Marshal’s sale of Monroe’s Scottsdale property in November 2006, at which
time Gagan purchased the property with a $560,000 credit bid. Gagan
received a marshal’s deed to the property in May 2007, at that time paying
approximately $8,000 in marshal’s costs and approximately $104,000 to
satisfy Monroe’s mortgage.

¶3 Monroe sued Gagan in August 2007, seeking declaratory
judgment, quiet title, and damages for his eviction from the Scottsdale
property. Summary judgment was granted in Gagan’s favor in 2010, from
which Monroe appealed. Monroe and Pirtle also filed two lis pendens over
the course of litigation, each of which was quashed by the trial court.

¶4 In Monroe v. Gagan, 1-CA-CV 10-0589, 2011 WL 2555736 (Ariz.
App. June 28, 2011), this court affirmed summary judgment in Gagan’s
favor on most of Monroe’s claims, remanding on the issues of whether
Monroe was entitled to payment of a homestead exemption from the
proceeds of the marshal’s sale and what, if any, offsets might be deducted
from the exemption. Id. at *7, ¶26. The trial court then held a bench trial,
ultimately ruling that Monroe was entitled to a homestead exemption
under Arizona Revised Statutes (“A.R.S.”) sections 33-1101 and -1105. The
trial court also decided that Gagan had proved waste of the property
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justifying offsets to the $150,000 homestead exemption in the amount of
$36,595.24. Judgment was entered in 2013 in Monroe’s favor for
$113,404.76, plus post-judgment interest until paid. Prejudgment interest
was not awarded. Monroe timely appealed, and Gagan timely cross-
appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -
2101(A)(1).

ANALYSIS

I. Monroe’s Appeal

A. Trial Court’s Interpretation of A.R.S. § 33-1101(c)

¶5 Monroe first contends that the trial court erred in applying
A.R.S. § 33-1101(c), but Monroe does not develop this argument or cite any
authority as required by the Arizona Rules of Civil Appellate Procedure.
See Ariz. R. Civ. App. P. 13(a)(6) (requiring a party to support an argument
with the “reasons therefor, with citations to the authorities, statutes and
parts of the record relied on”). We therefore decline to address this issue.
See Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393
n.2 (App. 2007) (holding that a party waived an issue by only mentioning it
in passing in the opening brief, citing no supporting legal authority, and
failing to further develop the argument).

B. Prejudgment Interest and Post-Judgment Interest Rate

1. Entitlement to Prejudgment Interest

¶6 Monroe next argues that the trial court erred in failing to
award prejudgment interest on the homestead exemption proceeds. He
claims that he is entitled to prejudgment interest because the exemption is
a liquidated debt. Because this issue involves a matter of law, our review
is de novo. Alta Vista Plaza, Ltd. v. Insulation Specialists Co., 186 Ariz. 81, 82,
919 P.2d 176, 177 (App. 1995).

¶7 When a claim sounds in contract or tort, “a party with a
liquidated claim is entitled to prejudgment interest as a matter of right.”
Precision Heavy Haul, Inc. v. Trail King Industries, Inc., 224 Ariz. 159, 160, ¶ 4,
228 P.3d 895, 896 (App. 2010). A liquidated claim is one “ascertainable by
accepted standards of valuation,” Alta Vista Plaza, 186 Ariz. at 83, 919 P.2d
at 178, such that the sum demanded is “susceptible to exact computation”
without reliance on opinion or discretion. Costanzo v. Stewart Title & Trust
of Phoenix, 23 Ariz. App. 313, 317, 533 P.2d 73, 77 (App. 1975). A dispute
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over liability, apportionment of fault, or the amount due will not serve to
make a claim for damages unliquidated when the basis for calculating those
damages is certain. Precision Heavy Haul, 224 Ariz. at 162–63, 228 P.3d at
898–99 (citing Safeway Stores, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburg, Pa.,
64 F.3d 1282, 1291 (9th Cir. 1995)).

¶8 Here, the homestead exemption is a liquidated debt.
Although there was a dispute as to whether the exemption should be
awarded and the extent, if any, of offsets to be applied against it, the
potential amount was calculable by subtracting any potential offsets from
the base amount of the homestead exemption. Gagan argues that because
there was a dispute as to the applicable amount of offsets, the claim was not
exactly calculable and therefore unliquidated. But a question as to liability
or apportionment of damages does not make a claim unliquidated. Id.; see
also Homes & Son Const. Co. v. Bolo Corp., 22 Ariz. App. 303, 306, 526 P.2d
1258, 1261 (App. 1974) (explaining that “[m]ere differences of opinion as to
the amount” of a judgment will not preclude awarding prejudgment
interest). We conclude, therefore, that the amount owed Monroe under the
homestead exemption was a liquidated claim. As a matter of law, Monroe
is entitled to prejudgment interest.

¶9 Prejudgment interest begins to accrue when the judgment
creditor provides “sufficient information” and supporting data to allow the
debtor to determine the amount owed. Homes & Son Const., 22 Ariz. App.
at 306–07, 526 P.2d at 1261–62. This typically occurs when demand for a
“sum certain” is made on the judgment debtor. Rawlings v. Apodaca, 151
Ariz. 180, 186, 726 P.2d 596, 602 (App. 1985), vacated in part on other grounds,
151 Ariz. 149 (1986). Because the $150,000 homestead exemption
“automatically attached to the [debtor’s] interest in identifiable cash
proceeds” from the sale of the property, see A.R.S. § 33-1101, an adequate
“demand” for the exemption was deemed to have been made at that time,
see Stenz v. Indus. Comm’n of Ariz., 236 Ariz. 104, 107, ¶ 8, 336 P.3d 737, 740
(App. 2014) (explaining that interest began to accrue on a claim for
disability benefits when the debtor had “notice of its obligation” to pay the
benefits). Gagan had sufficient information to determine the amount owed
at the time of the sale. We therefore vacate the trial court’s denial of
prejudgment interest and remand to the superior court to enter an award

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of prejudgment interest accruing from the time of the foreclosure sale in
November 2006.1

2. Post-Judgment Interest Rate

¶10 Monroe next argues that the trial court erred when it
approved a post-judgment interest rate of 4.25 percent.2 Monroe claims
that the correct interest rate is 10 percent pursuant to A.R.S. § 44-1201(A).
We review de novo the interpretation of statutes. See Minjares v. State, 223
Ariz. 54, 61, ¶ 33, 219 P.3d 264, 271 (App. 2009) (reviewing a previous
version of this statute).

¶11 Before a statutory amendment in 2011, Monroe’s assertion
that A.R.S. § 44-1201(A) governed the default interest rates on Arizona
judgments would have been correct. The legislature amended § 44-1201 in
2011, however, and the word “judgment” was deleted from subsection (A).
2011 Ariz. Sess. Laws, ch. 99, § 15 (1st Reg. Sess.). Since that amendment, §
44-1201(B) contains the following operative language regarding judgments:

Unless specifically provided for in statute or a different rate is
contracted for in writing, interest on any judgment shall be at the
lesser of ten per cent per annum or at a rate per annum that is equal

1 We disagree with Gagan’s argument that prejudgment interest awarded
should be offset against the debt Monroe currently owes Gagan.
Prejudgment interest is not a supplement to a judgment, but is an integral
part of a judgment awarded in order to make a judgment creditor whole.
See Precision Heavy Haul, Inc. v. Trail King Indus., Inc., 224 Ariz. 159, 162, ¶
14, 228 P.3d 895, 898 (App. 2010); see also Stenz v. Indus. Comm’n of Ariz., 236
Ariz. 104, 110, ¶ 22, 336 P.3d 737, 743 (App. 2014) (awarding interest in
order to compensate for both the lost use of and the “time value of the
money” (internal quotation omitted)). Prejudgment interest awarded on a
creditor-exempt judgment is also, therefore, exempt from creditors.

2 As of the date of judgment (March 5, 2013), the prime rate as published
by the board of governors of the Federal Reserve System in statistical
release H.15 was 3.25 percent. See Board of Governors of the Federal Reserve
System, Selected Interest Rates (Weekly) – H.15 (March 4, 2013), available at
www.federalreserve.gov/releases/h15/20130304 (last visited April 28,
2015).

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to one per cent plus the prime rate as published by the board of
governors of the federal reserve system in statistical release H.15 or
any publication that may supersede it on the date that the judgment
is entered. The judgment shall state the applicable interest rate
and it shall not change after it is entered.

(emphasis added). The legislature stated that this amendment “applies to
all loans that are entered into, all debts and obligations incurred and all
judgments that are entered on or after” July 20, 2011. See S.B. 1212, 50th
Leg. 1st Sess. (Ariz. 2011) (enacted). Although the events giving rise to the
judgment occurred before 2011, Monroe’s right to post-judgment interest
did not vest until judgment was entered in 2013. See Steinfeld v. Nielsen, 15
Ariz. 424, 465, 139 P. 879, 896 (1913) (explaining that rights contingent on
the happening of a future event are not vested). The court, therefore,
appropriately followed the amended version of the statute by applying a
post-judgment interest rate of 4.25 percent.3

C. Evidentiary Issues

¶12 Finally, Monroe argues that the trial court erred in admitting
evidence that resulted in “excessive” offsets from Monroe’s homestead
exemption award. We review evidentiary rulings for an abuse of discretion
and will generally affirm them unless abuse or legal error and prejudice are
apparent. Ryan v. San Francisco Peaks Trucking Co., Inc., 228 Ariz. 42, 46, ¶
12, 262 P.3d 863, 867 (App. 2011). Monroe also contends that the evidence
does not support the trial court’s rulings on the offsets to the exemption.
We view the evidence and the reasonable inferences drawn from it in the
light most favorable to the prevailing party, and we will affirm a judgment
if reasonable evidence supports it. FL Receivables Trust 2002-A v. Arizona
Mills, L.L.C., 230 Ariz. 160, 166, ¶ 24, 281 P.3d 1028, 1034 (App. 2012).
Whether the judgment is supported by sufficient evidence is a question of

3 Although not specifically addressed in the briefs, in the interest of judicial
economy in this litigation, we note that the same 4.25 percent interest rate
is applicable to the award of prejudgment interest on remand. See A.R.S. §
44-1201(B), (F); S.B. 1212, 50th Leg. 1st Sess. (Ariz. 2011) (enacted)
(explaining that A.R.S. § 44-1201(B) applies to judgments entered after July
20, 2011); Metzler v. BCI Coca-Cola Bottling Co. of Los Angeles, Inc., 235 Ariz.
141, 146, ¶¶ 19–20, 329 P.3d 1043, 1048 (2014) (explaining that the obligation
to pay prejudgment interest does not arise until the judgment is entered
“even though the time frame for which prejudgment interest is owed
obviously predates the judgment”).

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law that we review de novo. Acuna v. Kroack, 212 Ariz. 104, 110, ¶ 23, 128
P.3d 221, 227 (App. 2006).

¶13 In awarding offsets, the trial court stated only that “[t]he
Court finds that Mr. Gagan has met his burden of proof to establish offsets
of $36,595.24 as summarized in Gagan’s [Closing Argument] Brief at p.7.”4
A heading in Gagan’s closing argument brief declares “Gagan is Entitled to
$36,595.24 for Replacement of Various Appliances Monroe Removed From
the Property and Related Repairs.” Underneath this heading, the brief
itemizes the expenses that equal $36,595.24.

¶14 Gagan’s closing argument brief relies on exhibits presented at
trial and the trial transcript to support its itemized list of offsets. These trial
exhibits are copies of bills paid by Gagan. At trial, Gagan testified to paying
these bills. Gagan further testified, and Monroe stipulated, that some
appliances had been removed from the property. From these exhibits and
the testimony, the trial court had sufficient evidence to conclude that these
expenditures were necessary because of waste to the property that was
allowed or performed by Monroe.5 Accordingly, the trial court did not
abuse its discretion in allowing the evidence presented, and we affirm the
award of offsets because sufficient evidence reasonably supports the trial
court’s ruling.

4 Neither here nor in the trial court did the parties address whether offsets
against a homestead exemption are legally permitted. By this court’s prior
decision in this matter, Monroe v. Gagan, 2011 WL 2555736 (Ariz. App. 2011),
the matter was remanded for a determination of the amount of applicable
offsets. That decision now constitutes the law of the case. See State ex rel.
Herman v. Schaffer, 110 Ariz. 91, 95, 515 P.2d 593, 597 (1973); Snyder v. Pima
Cnty., 6 Ariz. 41, 47, 53 P. 6, 6 (1898). We therefore assume, without
deciding, that offsets are permissible against the homestead exemption.

5 “Waste . . . may be briefly and very generally defined as the destruction,
misuse, alteration, or neglect of premises by one lawfully in possession
thereof, to the prejudice of the estate or interest therein of another.” Jowdy
v. Guerin, 10 Ariz. App. 205, 208, 457 P.2d 745, 748 (App. 1969) (quoting 56
Am. Jur. Waste § 2 (1947)). “Thus, three elements are essential to [a waste
claim]: 1. There must be an act constituting waste[;] 2. The act must be done
by one legally in possession[;] 3. The act must be to the prejudice of the
estate or interest therein of another.” Id.
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II. Gagan’s Cross-Appeal

A. Homestead Exemption Claims

¶15 The major claim of Gagan’s cross-appeal is that Monroe is not
entitled to the homestead exemption. Gagan argues that Monroe was not a
resident of Arizona on the date of the marshal’s sale, November 16, 2006, or
if he was, he had abandoned the property. To qualify for the homestead
exemption, A.R.S. § 33-1101(A) requires a person to “reside[] within the
state.” Gagan proffers that residency is determined by an examination of
“the intent of a party,” citing cases primarily from Arizona’s federal
bankruptcy court.

¶16 The Arizona Supreme Court has stated that “[r]esidence . . .
like ‘[d]omicile is primarily a state of mind combined with actual physical
presence in the state’ or county” that “’involves basically subjective
material.’” St. Joseph’s Hosp. and Med. Center v. Maricopa Cnty., 142 Ariz. 94,
99, 688 P.2d 986, 991 (1984) (quoting Arizona Board of Regents v. Harper, 108
Ariz. 223, 228, 495 P.2d 453, 458 (1972)). Here, Monroe testified that he was
a resident of Arizona at the time of the marshal’s sale. Although Gagan
asserts that the evidence he presented of Monroe’s alleged intent to move
to Texas in November 2006 was sufficient for the court to find that Monroe
was not an Arizona resident, he cites no evidence or authority that required
the trial court to make such a finding. The trial court had discretion to
resolve the conflict in the evidence by finding that Monroe was an Arizona
resident at the time of the marshal’s sale.

¶17 Gagan next asserts that if Monroe was an Arizona resident in
November 2006, he had abandoned the property prior to the marshal’s sale
and therefore, under A.R.S. § 33-1104, abandoned his claim to a homestead
exemption. Gagan claims that the proof of abandonment was that “Monroe
swore that he was a Texas resident for at least a period of two years.” The
two-year period relied upon by Gagan, however, was between December
2006 and December 2008, after the homestead exemption attached in
November 2006. Accordingly, the trial court did not err in rejecting Gagan’s
argument that Monroe’s homestead exemption was abandoned.

B. Statute of Limitations

¶18 Gagan also argues that the trial court erred in holding that the
applicable statute of limitations does not bar Monroe’s claim to the
homestead exemption. Under A.R.S. § 12-541, claims to “liability created

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by statute, other than a penalty or forfeiture” are waived unless commenced
within one year from the time they arise.

¶19 Gagan claims that Monroe did not raise the issue of the
homestead exemption until it was added to his second amended complaint,
filed more than five years from the time the claim arose in November 2006.
However, as the trial court correctly noted, Monroe’s original complaint
effectively raised the issue by claiming that Gagan wrongfully failed to pay
the exemption as required by Arizona’s statutory scheme. This complaint
was timely filed on August 30, 2007, within a year of the marshal’s sale in
November 2006. Therefore, the statute of limitations does not bar Monroe’s
claim.

C. Gagan’s Payment of Monroe’s Outstanding Mortgage

¶20 Gagan also contends that the trial court erred by not including
his payment of the remaining amount of Monroe’s mortgage as an offset to
the homestead exemption. Gagan asserts that the language of A.R.S. § 33-
1105, directing the sale officer to pay the “the amount of any consensual
liens on the property having priority to the judgment,” should be
interpreted as granting Gagan an offset against the homestead exemption
for the amount of the consensual lien. We review the interpretation of
statutes de novo. State v. Garcia, 219 Ariz. 104, 105, ¶ 6, 193 P.3d 798, 799
(App. 2008). We look first to the statute’s plain language as the most
reliable indicator of its meaning. State v. Moore, 218 Ariz. 534, 535, ¶ 5, 189
P.3d 1107, 1108 (App. 2008).

¶21 In relevant part, A.R.S. § 33-1105 states:

After receipt of a sufficient bid, the officer shall sell the
property. From the proceeds, the officer shall first pay the
amount of the homestead to the judgment debtor plus the
amount of any consensual liens on the property having a
priority to the judgment and then pay the costs of the sale.

Nowhere does the statute suggest that homestead exemption should be
offset by the payment of any consensual liens remaining on the property at
the time of the sale. Instead, the statute’s plain language indicates that the
homestead exemption is wholly separate from the payment of any
consensual liens. Gagan cites no authority for his proposition that payment
of consensual liens results in an offset against the homestead exemption,

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nor is it supported by the plain language of the statute. The trial court did
not err in its interpretation of A.R.S. § 33-1105.

D. Gagan’s Wrongful Lis Pendens Claims

¶22 Gagan lastly contends that the trial court erred by refusing to
offset Monroe’s homestead exemption with damages for the filing of
multiple wrongful lis pendens claims. He asserts that the wrongful lis
pendens actions filed by Monroe and Pirtle were directly responsible for
Gagan’s sale of the Scottsdale property at approximately $350,000 less than
he would have otherwise been able to obtain. Gagan argues that this
$350,000 difference “provide[s] an additional offset to any claim upon
which Monroe is successful following appeal.”

¶23 During the bench trial, the following exchange occurred
between the trial court and counsel for the parties:

[GAGAN’S COUNSEL #1]: And -- the part of it is that the --
the expenses later on in time were attributable to the lis
pendens and Mr. Gagan’s inability to sell the property while
that issue was being resolved in Court. Once that issue was
finally resolved, the property was sold immediately.

THE COURT: Well I don’t have any claim in front of me
about -- that there was some sort of wrongful lis pendens and
damages that flow from a wrongful lis pendens. That’s not
the claim. The claim that I had from the Court of Appeals,
sent back to me, was determine what the setoffs are to the
homestead exemption and it certainly -- you know, there isn’t
a lot of detail here from them as to what those offsets might
be. But to say that because he couldn’t sell it because it was
tied up in litigation for two years so every dime he spent on it
should be attributable to the Plaintiff. That’s your position?

[GAGAN’S COUNSEL #1]: It is, Your Honor.

THE COURT: Okay. Interesting. Wouldn’t that be some sort
of claim for wrongful lis pendens?

[GAGAN’S COUNSEL #1]: I believe that’s the appropriate
claim.

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THE COURT: Is that a claim that you guys brought? Is that
a counterclaim in this case?

[MONROE’S COUNSEL]: No.

[GAGAN’S COUNSEL #1]: It showed up in our disclosure
statement.

THE COURT: Well it didn’t -- when did it show up in your
disclosure statement?

[GAGAN’S COUNSEL #1]: I think that was dated February
19th -- February 15th, 2012, Defendant’s disclosure statement,
notes that if a lis pendens is not removed, then Monroe is
liable for sanctions and fees under Arizona Revised Statute
33-420.

THE COURT: And what -- what is he liable under that
statute?

[GAGAN’S COUNSEL #2]: The statute is pretty specific,
Your Honor, as to what constitutes a violation.

THE COURT: No, that’s not what I asked him. I’m asking
what are the elements of damages that he can collect on.
(Counsel confer)

[GAGAN’S COUNSEL #2]: You’re talking about, Your
Honor, 33-420?

THE COURT: Yeah, what about it?

[GAGAN’S COUNSEL #2]: It’s $5,000 or . . . actual damages
and I believe there might be a double or trebling.

THE COURT: Or actual damages?

[GAGAN’S COUNSEL #2]: Yes.

THE COURT: Yeah. Well that’s a separate claim for relief,
counsel. That doesn’t sound like a setoff.

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¶24 As the trial court correctly noted, a wrongful lis pendens
claim is a separate cause of action that is distinct from the question of what
offsets, if any, Gagan is entitled to take from Monroe’s homestead
exemption. See A.R.S. § 33-420. Although Gagan demanded “that the Lis
Pendens be immediately removed” from the property in his answer to
Monroe’s second amended complaint, this demand was granted when the
trial court quashed Monroe’s first lis pendens. Moreover, a claim of
wrongful lis pendens was not raised by Gagan in the Rule 16(D) joint
pretrial statement. Gagan has never filed or pled a wrongful lis pendens
claim for damages as part of this litigation in accordance with the Arizona
Rules of Civil Procedure. The trial court was therefore correct to not
consider Gagan’s claims regarding alleged damages for wrongful lis
pendens, and, similarly, we will not consider his arguments on this issue
because it was not properly asserted and pled in the trial court. See Flood
Control Dist. of Maricopa Cnty. v. Paloma Inv. Ltd. Partnership, 230 Ariz. 29,
43, ¶ 44, 279 P.3d 1191, 1205 (App. 2012) (refusing to consider an argument
on appeal that was not properly raised in the trial court).

III. Costs and Attorney Fees on Appeal

¶25 Both parties have requested an award of costs on appeal.
Because Monroe prevailed on his claim for prejudgment interest, we will
award taxable costs to Monroe as the successful party. See A.R.S. § 12-341;
see also Henry v. Cook, 189 Ariz. 42, 43–44, 938 P.2d 91, 92–93 (App. 1996)
(holding that “a party who succeeds on less than all claims is sufficiently
successful to recover costs”). Gagan also requested attorney fees on appeal
under A.R.S. § 33-420(A), in conjunction with his lis pendens argument.
Because we reject Gagan’s lis pendens claim, we deny his request for
attorney fees based on that claim.

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CONCLUSION

¶26 We affirm the trial court’s judgment, except that we vacate the
denial of prejudgment interest and remand to the trial court for entry of an
amended judgment awarding Monroe prejudgment interest at 4.25 percent
from the date of the sale to the date of the judgment.

:ama

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