Smith-Harris v. Harris ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ANITA E. SMITH-HARRIS, Plaintiff/Appellant,
v.
PERRY R. HARRIS, Defendant/Appellee.
No. 1 CA-CV 18-0666
FILED 01-07-2020
Appeal from the Superior Court in Maricopa County
No. CV2018-008398
The Honorable James D. Smith, Judge
AFFIRMED
COUNSEL
Anita Elaine Smith-Harris, Phoenix
Plaintiff/Appellant
SMITH-HARRIS v. HARRIS
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the Court, in which Acting
Presiding Judge David D. Weinzweig and Chief Judge Peter B. Swann
joined.
G A S S, Judge:
¶1 Anita Smith-Harris (ex-wife) appeals from a superior court
order invalidating a lis pendens she filed against a home ex-wife owned with
Perry Smith (ex-husband). Ex-wife challenges the superior court’s ruling,
arguing the superior court improperly denied her request to continue an
evidentiary hearing on ex-husband’s motion to invalidate ex-wife’s lis
pendens. Because the superior court did not abuse its discretion, the superior
court is affirmed.
FACTUAL AND PROCEDURAL HISTORY
¶2 In 2017, a family court dissolved the parties’ marriage and
ordered the home sold as community property. Ex-wife tried to delay the
home sale in federal bankruptcy court. The bankruptcy court affirmed the
family court’s division of assets and debts, lifted its stay, and allowed the
sale to proceed. Ex-wife filed many unsuccessful motions in superior court
to stop the sale and was held in contempt.
¶3 As the home was about to be sold, ex-wife brought this civil
action asserting claims of constructive trust, intentional default on the
home’s mortgage, and violation of her procedural due process rights
related to the contempt hearing. Ex-wife also filed and recorded a notice of
lis pendens. Ex-husband filed a motion to remove the lis pendens. Ex-wife was
present when the superior court set an evidentiary hearing on ex-husband’s
motion. Three days before the hearing, ex-wife filed an unsupported
motion to continue the hearing.
¶4 Ex-husband appeared for the evidentiary hearing. Ex-wife
did not. The superior court denied her requested continuance, took
evidence, granted ex-husband’s motion, filed a judgment declaring the lis
pendens invalid, awarded ex-husband $5,000 in statutory damages, and
declared the issue final pursuant to Arizona Rule of Civil Procedure 54(b).
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SMITH-HARRIS v. HARRIS
Decision of the Court
Ex-wife timely appealed and filed post judgment motions in the superior
court. The superior court denied the motions. The home sold within two
weeks.
ANALYSIS
¶5 On appeal, ex-wife argues she had good cause for failing to
appear and the superior court erred in denying her a continuance.1 This
court reviews a denial of a motion for continuance for abuse of discretion.
Evans v. Scottsdale Plumbing Co., 10 Ariz. 184, 188-89 (App. 1969). “To find
an abuse of discretion, there must either be no evidence to support the
superior court’s conclusion or the reasons given . . . must be clearly
untenable, legally incorrect, or amount to a denial of justice.” Charles I.
Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17 (App. 2006).
¶6 Here, the superior court gave a well-reasoned explanation for
denying ex-wife’s requested continuance, saying:
[Ex-wife] appeared at the return hearing on September 12,
2018, when the Court set the evidentiary hearing on the
matter. [Ex-wife] did not object to setting the evidentiary
hearing on September 24 then. It was not until September 21
that [ex-wife] asked to continue the hearing, based on a
putative work commitment. But [ex-wife’s] request to
continue the hearing did not include any information from
her employer supporting her position. The relevant statute
commands this [C]ourt to ‘immediately clear title to the real
property’ in such actions. A.R.S. § 33-420(B). Considering this
statutory command, [ex-wife’s] history of dilatory tactics, and
the lack of merit to [ex-wife’s] lis pendens, [ex-wife] did not
establish good cause to continue the evidentiary hearing on
September 24, 2019. [Ex-wife’s] post-judgment motions do
not change that conclusion.
1 Husband filed no answering brief. This court could treat ex-husband’s
silence as a confession of error but declines to do so and rules on the merits.
See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994); ARCAP 15(c).
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SMITH-HARRIS v. HARRIS
Decision of the Court
CONCLUSION
¶7 Because the superior court did not abuse its discretion, the
superior court is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: JT
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