Cook v. McAllister ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
COOK FAMILY TRUST, ROBERT COOK, trustee and individually,
Plaintiffs/Appellants,
v.
SUZANNE MCALLISTER, as trustee of the McAllister Family Trust,
Defendant/Appellee.
No. 1 CA-CV 21-0162
FILED 2-17-2022
Appeal from the Superior Court in Yavapai County
No. P1300CV201801025
The Honorable Michael P. McGill, Judge
AFFIRMED
APPEARANCES
Robert Cook, Prescott
Plaintiff/Appellant
Law Office of Russell S. Duerksen, Chino Valley
By Russell S. Duerksen
Counsel for Defendant/Appellee
COOK, et al. v. MCALLISTER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.
W E I N Z W E I G, Judge:
¶1 Robert Cook, trustee of the Cook Family Trust, appeals the
superior court’s release of his supersedeas bond to Suzanne McAllister,
trustee of the McAllister Family Trust. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 McAllister owned a vacant home in Yavapai County. Cook
lived in the residence for about six years without McAllister’s knowledge
or permission before suing to quiet title under the doctrine of adverse
possession. After a bench trial, the superior court found that Cook did not
prove his adverse possession claim and entered final judgment for
McAllister, quieting title in her favor and awarding $1,063.62 in costs.
¶3 Cook timely noticed an appeal from the final judgment. He
also moved the superior court to stay enforcement of the judgment and set
a supersedeas bond. The court twice scheduled Cook’s motion for oral
argument. Cook twice failed to appear. Even so, the court granted Cook’s
motion, ordering him to post two bonds “during the pendency of [his]
appeal,” including (1) a $1,063.62 bond “to stay execution of the monetary
judgment,” and, assuming he continued living in McAllister’s home, (2) “an
additional bond of $1,400 per month” as fair market rental value. Cook
unsuccessfully moved to alter or amend the bonds. He then posted the first
bond and paid the first month’s rent, but he made no payments in 9 of 12
months overall.
¶4 After all of that, Cook never filed an opening brief in his
appeal. And so, we dismissed the appeal and our supreme court denied
review. McAllister moved the superior court to release Cook’s bonds,
which the court did, ruling the bonds were no longer required because
Cook lost his appeal.
¶5 Cook appealed that ruling to us but only addressed the
superior court’s earlier judgment rejecting his quiet title lawsuit, which
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COOK, et al. v. MCALLISTER
Decision of the Court
prompted the skirmish over supersedeas bonds that permitted Cook to
pursue an appeal he ultimately abandoned.
¶6 To assure our jurisdiction and clarify the scope of appeal, we
narrowed the issues on appeal to whether the superior court erroneously
released the bond. See Sorensen v. Farmers Ins. Co., 191 Ariz. 464, 465 (App.
1997) (“Although neither party has raised the issue, this court has an
independent duty to determine whether it has jurisdiction to consider an
appeal.”). We thus decline to consider Cook’s challenges to the earlier
judgment. As narrowed, we have jurisdiction under A.R.S. § 12-2101(A)(2).
DISCUSSION
¶7 The sole issue on appeal is whether the superior court
erroneously released Cook’s supersedeas bond, which we review for an
abuse of discretion. See Bruce Church, Inc. v. Superior Court, 160 Ariz. 514,
517 (App. 1989) (“[T]he inherent discretion and power of the trial court
allow for flexibility in the determination of the nature and extent of the
security required to stay the execution of the judgment pending appeal.”).
¶8 The court did not abuse its discretion. Cook posted the
supersedeas bonds to pause enforcement and preserve the status quo while
he appealed the judgment. See ARCAP 7(a)(1). Once this court dismissed
Cook’s appeal and the supreme court denied review, the bond was no
longer needed and thus appropriately released. See Kellin v. Lynch, 247 Ariz.
393, 396, ¶ 13 (App. 2019) (“[T]he purpose of posting a supersedeas bond is
to preserve the status quo pending appeal.”) (italics in original).
¶9 McAllister requests an award of attorney fees and costs
incurred on appeal under Arizona Rule of Civil Appellate Procedure 25,
arguing that Cook’s appeal is frivolous as a “serial appeal of matters that
have already be[en] decided” or “a matter he had already affirmatively
consented to in writing.” Cook did not discuss or contest McAllister’s fee
request in his reply brief.
¶10 Rule 25 permits the appellate court in its discretion to award
reasonable attorney fees if an appeal “is frivolous, or was filed solely for the
purpose of delay.” ARCAP 25. Rule 25 sanctions are imposed to
“discourage similar conduct in the future,” ARCAP 25, and we impose
them with “great reservation,” Ariz. Tax Rsch. Ass’n v. Dep’t of Revenue, 163
Ariz. 255, 258 (1989). We grant the request for sanctions. The arguments
Cook makes on appeal are frivolous and unsupported by any reasonable
legal theory.
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COOK, et al. v. MCALLISTER
Decision of the Court
CONCLUSION
¶11 We affirm. As the prevailing party, we award McAllister’s
taxable costs on appeal upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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