Catamount v. Kurtz

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CATAMOUNT PROPERTIES, 2018 LLC,
Plaintiff/Appellee,
v.
EVAN A. KURTZ, et al.,
Defendants/Appellants.
No. 1 CA-CV 21-0669
FILED 8-2-2022
Appeal from the Superior Court in Maricopa County
No. CV2021-091856
The Honorable Brian Kaiser, Judge Pro Tempore
APPEAL DISMISSED
COUNSEL
Evan A. Kurtz & Gail Kurtz, Phoenix
Defendants/Appellants
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.
CATAMOUNT v. KURTZ, et al.
Decision of the Court
T H U M M A, Judge:
¶1 Defendant Evan A. Kurtz (Kurtz) seeks to appeal the denial
of his July 2021 motion to set aside a judgment of eviction from a property
owned by plaintiff Catamount Properties, 2018 LLC (Catamount). Because
this court lacks jurisdiction, the appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2021, Catamount purchased a Phoenix home, where
Evan and Gail Kurtz lived. Catamount then filed a forcible entry and
detainer action against Kurtz. Kurtz was found guilty, resulting in a May
2021 judgment granting possession of the premises to Catamount. Kurtz
filed a timely notice of appeal and in March 2022, this court affirmed that
judgment. See Catamount Properties 2018, LLC v. Kurtz, 1-CA-CV 21-0368,
2022 WL 971871 (Ariz. App. Mar. 31, 2022) (mem. decision). Although a
mandate initially issued, Kurtz sought review by the Arizona Supreme
Court, which remains pending. Thus, there is no valid mandate in the May
2021 appeal revesting jurisdiction in the superior court. See ARCAP 24(a)
(“An appellate court retains jurisdiction of an appeal until it issues the
mandate.”).
¶3 In July 2021, Kurtz filed a motion to set aside the May 2021
judgment. The superior court denied that motion, and Kurtz filed a notice
of appeal from that denial, creating this appeal.
DISCUSSION
¶4 Because there is no valid mandate in the prior appeal,
jurisdiction has not yet been revested in the superior court. See ARCAP
24(a). Accordingly, the superior court lacked jurisdiction to address the
merits of Kurtz’ July 2021 motion to set aside the judgment. In re Estate of
Killen, 188 Ariz. 569, 572 (App. 1996) (“When an appeal to a higher court
‘has been perfected, the trial court loses all jurisdiction except for actions in
furtherance of the appeal.’”) (citation omitted). Because the superior court
lacked jurisdiction to address the motion, this court lacks jurisdiction to
consider Kurtz’ putative appeal from that ruling. Natasha S. v. Dep’t of Child
Safety, 246 Ariz. 491, 493 ¶ 8 (App. 2019) (where superior court lacked
jurisdiction to deny a motion, “this court lacks appellate jurisdiction to
consider the merits of that denial”).
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CATAMOUNT v. KURTZ, et al.
Decision of the Court
¶5 Even if this court had jurisdiction, the current law of this case
would preclude Kurtz’ argument. See Ariz. Corp. Comm’n v. Mountain States
Tel. & Tel. Co., 71 Ariz. 404, 407-08 (1951). This court’s March 31, 2022
decision rejected the argument Kurtz seeks to press in this appeal:
[Kurtz] first contends the FED judgment
must be reversed because Catamount did not
prove its “ownership status” of the property.
We disagree. FED actions “provide a summary,
speedy and adequate means for obtaining
possession of premises by one entitled to actual
possession.” Catamount was not required to
prove actual ownership, and [the] court could
not inquire into the merits of title.
Kurtz, 2022 WL 971871, at *1 ¶5 (citations omitted). Unless altered, that
decision remains the law of this case and would preclude the arguments
Kurtz pressed in his July 2021 motion to set aside the judgment, and would
continue to do so if he reasserts them after the issuance of the mandate
revesting jurisdiction in the superior court.
CONCLUSION
¶6 Kurtz’ appeal is dismissed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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