Schumacher v. Hargrave ( 2023 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
NATHAN SCHUMACHER, Plaintiff/Appellee,
v.
LINDA HARGRAVE, Defendant/Appellant.
No. 1 CA-CV 22-0342
FILED 2-23-2023
Appeal from the Superior Court in Maricopa County
No. CV2021-095508
The Honorable Brian Kaiser, Judge Pro Tempore
AFFIRMED AS MODIFIED
COUNSEL
Greenbriar Law, PLC, Phoenix
By Walid A. Zarifi
Counsel for Defendant/Appellant
Giles & Dickson, P.C., Mesa
By Spencer Dickson
Counsel for Plaintiff/Appellee
SCHUMACHER v. HARGRAVE
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge David D. Weinzweig joined.
C A M P B E L L, Judge:
¶1 In this forcible detainer action brought by Nathan
Schumacher, Linda Hargrave appeals from the superior court’s monetary
award. We affirm the award but modify the amount based on the parties’
agreement that an arithmetic error led to an overassessment of damages.
BACKGROUND
¶2 Schumacher bought Hargrave’s 10,000-plus square-foot
home in Paradise Valley (the Property) at a trustee’s sale in November 2021.
Later that month, Schumacher gave Hargrave a written demand for
possession of the Property. When Hargrave did not vacate, Schumacher
filed a forcible detainer action.
¶3 Before trial, the parties agreed that Schumacher was entitled
to possession and Hargrave would vacate the Property. The parties
disputed the amount of fair market rent owed to Schumacher but agreed to
forgo trial and each submit to the court their evidence and written
argument. Based on the parties’ agreement,1 the court granted judgment
against Hargrave, finding her guilty of forcible detainer, and ordered the
parties “to submit [their] documentation for fair market value.”
¶4 Schumacher, who “is in the business of purchasing, selling,
and renting real estate,” argued that the fair market rental value was
“$30,000 per month.” He cited a “common rule of thumb . . . that monthly
fair market rent is 1% of the value of the property,” and he purchased the
Property for $3.09 million. Schumacher also provided five Zillow listings
that he considered “the most relevant comps for rentals.” Because “[t]here
[we]re no 10,000+ sq[uare foot] homes for rent in the area,” he relied on
1 The parties’ agreement is not in the appellate record, and Hargrave
did not provide the hearing transcript. We therefore assume the transcript
“would support the court’s findings and conclusions.” Baker v. Baker, 183
Ariz. 70, 73 (App. 1995).
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SCHUMACHER v. HARGRAVE
Decision of the Court
homes with smaller square footage. The monthly rent varied from $17,000
to $50,000, leading to an average price of $4.56 per square foot. Although
that rate would place the Property’s rental value at roughly $53,188
monthly, Schumacher maintained that “$30,000 per month” was “a fair
number,” “[c]onsidering that [the Property] may have some defects in need
of repair.”
¶5 Hargrave, on the other hand, asked the court to either ascribe
a zero-dollar rental value or consider evidence of the Property’s poor
condition when determining the fair market rental value. She emphasized
the Property’s issues went “well beyond normal wear and tear” and
included “numerous hazardous conditions . . . that simply preclude any
type of residential lease as improper or illegal.” In support of her contention
that the Property had no rental value, she provided a half-page list and 12
photos of “hazardous conditions/items of repair,” noting water, structural,
and electrical damage in parts of the Property. Hargrave also emphasized
that prior to his purchase, Schumacher knew of the Property’s dilapidated
condition.
¶6 In January 2022, the superior court issued its judgment (1)
awarding Schumacher possession of the Property and (2) granting him a
money judgment consisting of “[f]air market rent in the amount of $62,000
(93 days rent2 at $20,000 per month),” plus costs and attorney’s fees.
Hargrave later moved for a new trial. Noting that the motion lacked “any
affidavit[s] and contain[ed] no citations to case law, statute, or the record,”
the court denied it as “[l]acking any specific assertion of error or basis for a
new trial.” Hargrave timely appealed.3
2 Although disputed below, the applicable rental period is not before
us. Hargrave did not raise the issue here, thereby waiving it on appeal. See
Belen Loan Invs., LLC v. Bradley, 231 Ariz. 448, 457, ¶ 22 (App. 2012) (“[I]ssues
not clearly raised and argued in a party’s appellate brief are waived.”).
3 Hargrave cites as error the lack of “any requisite Rule 54(b) or (c)
language.” But appeals from forcible detainer actions are governed by Rule
17 of the Rules of Procedure for Eviction Actions (RPEA), which does not
incorporate the Rules of Civil Procedure by reference. AU Enters. Inc. v.
Edwards, 248 Ariz. 109, 111, ¶ 6 (App. 2020); see also Ariz. R. P. Eviction Act.
17. “Therefore, the determination of finality as contemplated by Rule 54,
Ariz. R. Civ. P., does not apply here.” AU Enters. Inc., 248 Ariz. at 111, ¶ 6.
Instead, Rules 13 and 17 of RPEA govern, along with Rule 9 of ARCAP. Id.
(requiring resolution of possession, damages, costs, and attorney’s fees).
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SCHUMACHER v. HARGRAVE
Decision of the Court
DISCUSSION
¶7 On appeal, Hargrave challenges only the court’s valuation of
the fair market rental rate. She argues the court erred by “neglecting to take
account of the specific deficiencies/issues that existed at the property at the
time of sale, which essentially rendered the premises unmarketable in a true
market scenario.” Finding reasonable evidence to support the court’s
valuation, we disagree.
¶8 In a forcible detainer action brought under A.R.S.
§ 12-1173.01, fair market rent is an appropriate measure of damages when
a tenant refuses to vacate a rental property because the owner is denied use
of his property. See Montano v. Luff, 250 Ariz. 401, 404–05, ¶ 9 (App. 2020);
see also A.R.S. § 12-1173.01 (permitting forcible detainer action by purchaser
of property at trustee’s sale). Fair market valuation is “a factual
determination that must be based on the facts and circumstances of each
case.” BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, 592, ¶ 18 (App. 2021).
“When a ruling is based on conflicting testimony, we will not disturb the
court’s ruling by reweighing the evidence.” CSA 13-101 Loop, LLC v. Loop
101, LLC, 233 Ariz. 355, 363, ¶ 25 (App. 2013), vacated in part by 236 Ariz.
410, 415, ¶ 25 (2014).
¶9 Hargrave first argues that Schumacher’s evidence “lacks
foundational support.” She objects to Schumacher’s “rule of thumb” for
measuring damages at one percent of the Property’s sale price, which she
describes as “unsupported” because Schumacher did not provide an expert
opinion or affidavit “offering any opinion . . . as to the value of the
property.” But that argument ignores that Hargrave, too, offered no
alternative valuation method, nor expert opinions or affidavits, and no
comparable property valuations for the court’s consideration. Hargrave
simply argued the property had no rental value based on its poor condition.
In the end, the court determined fair market rent based on the only
valuation method presented in the briefing. We will not second-guess the
superior court’s resolution of competing evidence on appeal. See id.¶10 Hargrave also argues that “Zillow itself states it cannot be
relied upon in determining valuation.” More accurately, in the exhibit
provided by Schumacher, Zillow “said . . . it couldn’t accurately predict
future home prices.” (Emphasis added.) There was no disclaimer regarding
reliance on current valuations. Moreover, Schumacher relied on actual
For that reason, the court’s omission of finality language was not error. See
id.4
SCHUMACHER v. HARGRAVE
Decision of the Court
listings of comparable homes nearby, rather than Zillow’s algorithm
utilized for determining home values. See CSA 13-101 Loop, LLC, 233 Ariz.
at 363, ¶ 26 (affirming reliance on “comparable sales of nearby properties”).
¶11 Hargrave also suggests that Schumacher’s evidence is
irrelevant because he purchased the Property at a trustee’s sale. Not so.
First, Schumacher is entitled to three month’s fair-market rent because
Hargrave failed to timely vacate the Property. See Montano, 250 Ariz.
at 404–05, ¶ 9; see also Curtis v. Morris, 186 Ariz. 534, 535 (1996) (framing
occupant “remain[ing] in possession of property after termination of his
interest under a deed of trust [a]s a tenant at will or sufferance” under
A.R.S. § 12-1173). Second, Hargrave’s emphasis on valuation in a trustee’s
sale is misplaced. She cites case law for the propositions that “‘fair market
value’ presumes market conditions that [we] . . . do not obtain in the context
of a forced sale,” In re Krohn, 203 Ariz. 205, 211, ¶ 27 (2002) (citation
omitted), and forced sale prices “should not be given much weight” when
determining fair market value, see CSA 13-101 Loop, LLC, 233 Ariz. at 363,
¶ 26. But even though courts may encounter “difficulty when attempting to
determine fair market value in the context of a [trustee’s sale,]” it “does not
mean the courts should or could avoid the problem.” Krohn, 203 Ariz. at211–12, ¶¶ 27–28.
¶12 Furthermore, a court’s inquiry into fair market value when
awarding damages is distinguishable from that resolving a deficiency
following a trustee’s sale. In Krohn and CSA 13-101 Loop, LLC, courts were
concerned with how fair market valuation restricts lenders and protects
deed-of-trust borrowers, who lack the right of redemption available in
judicial foreclosures. See Krohn, 203 Ariz. at 208–09, 212, ¶¶ 8–11, 28 (“[T]he
risk of a below-market sale price belong[s] with the [lender].”); CSA 13-101
Loop, LLC, 236 Ariz. at 412–15, ¶¶ 9–17, 24 (discussing policy reasons for
barring prospective waiver of fair market valuation).
¶13 In calculating the fair market rent, the court was within its
discretion to consider the only evidence presented on the home’s value: (1)
Schumacher’s $30,000 estimate based on his 1% rule of thumb and five
Zillow listings illustrating comparable properties’ rental rates, and (2)
Hargrave’s request that the court ascribe “a zero value” as the fair market
rental rate. We will sustain “a result anywhere between the highest and
lowest estimate which may be arrived at by using the various factors
appearing in the testimony in any combination which is reasonable.” CSA
13-101 Loop, LLC, 233 Ariz. at 362–63, ¶ 25 (citation and quotation omitted).
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SCHUMACHER v. HARGRAVE
Decision of the Court
¶14 Hargrave next argues that Schumacher “fail[ed] to . . . refute”
her evidence “specifically relating to the [P]roperty.” She claims the evidence
Schumacher submitted ignored “the state of disrepair of [the Property]” or
“the cost to repair [it].” But the estimate tendered by Schumacher
specifically considered that the Property “may have some defects in need
of repair.” And although Hargrave claims to have submitted “affidavits on
value and repair costs and the like,” the record lacks any such
documentation. Rather, Hargrave offered a short list and photos “of
hazardous conditions/items of repair,” and argued “there are numerous
hazardous conditions . . . that simply preclude any type of residential lease
as improper or illegal.” This evidence does not compel a “zero value,” given
Schumacher’s competing valuation and Hargrave’s ongoing occupancy. See
id. at 364, ¶ 29 (declining to reweigh competing evidence on appeal because
“[s]ubstantial evidence support[ed] the [superior] court’s fair market value
determination”).
¶15 Beyond that, the court determined a fair market rental value
for the property at $20,000 per month, $10,000 less than Schumacher’s
estimate yet more than Hargrave’s preferred “zero value.” This middle-
ground valuation reflects that the court did consider the Property’s
condition and decreased the fair market rental rate accordingly. Given that
reasonable evidence supports the court’s valuation, we will not disturb it
here.4 See id. at 363–64, ¶ 25.
¶16 That said, as raised by both parties on appeal, the court’s
judgment contains an arithmetic error. The court awarded fair market rent
of “$62,000 (93 days rent at $20,000 per month),” plus $423 in costs and
$2,670 in attorney’s fees. These amounts total $65,093.00, but the court
erroneously calculated a “total judgment of $75,093.00.” The parties agree
that the correct damage amount is $65,093.00, and we reduce the award
amount accordingly.
4 Hargrave argues the court’s analysis was “a hollow shell.” We
disagree. In agreeing to a streamlined procedure and participating as
evidenced by submission of photos and a list of “hazard and repair items,”
she agreed to the procedure and cannot now challenge the decision because
she disagrees with the outcome. Cf. CSA 13-101 Loop, LLC, 233 Ariz. at 363,
¶ 26 (resolving valuation after evidentiary hearing in detailed minute entry
that addressed witness testimony and three appraisal reports with
supporting evidence).
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SCHUMACHER v. HARGRAVE
Decision of the Court
CONCLUSION
¶17 For these reasons, we affirm the court’s ruling but decrease
the money judgment to $65,093.00. Schumacher requests his attorney’s fees
and costs under ARCAP 21. As the prevailing party, Schumacher is entitled
to his taxable costs upon compliance with ARCAP 21. But because he cited
no substantive basis for awarding attorney’s fees, we decline to award
them. See ARCAP 21(a)(2); see also Bed Mart, Inc. v. Kelley, 202 Ariz. 370, 375,
¶ 24 (App. 2002).
AMY M. WOOD • Clerk of the Court
FILED: AA
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