Stange v. Johns, Jr.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CASEY ANTHONY STANGE, Plaintiff/Appellee,
v.
ROBERT DENNIS JOHNS, JR., on behalf of himself and his wife, SUSAN
ROWENA JOHNS, Defendant/Appellant.
No. 1 CA-CV 18-0233
FILED 2-5-2019
Appeal from the Superior Court in Yuma County
No. S1400CV201600258
The Honorable John P. Plante, Judge
AFFIRMED
COUNSEL
Allen Barnes & Jones PLC, Phoenix
By Thomas Henry Allen, David B. Nelson
Counsel for Plaintiff/Appellee
Law Offices of Scott MacMillan Baker PC, Tucson
By Scott M. Baker
Counsel for Defendant/Appellant
STANGE v. JOHNS, JR. et al.
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Samuel A. Thumma joined.
T H O M P S O N, Judge:
¶1 Robert Dennis Johns, Jr., on behalf of himself and his wife,
Susan Rowena Johns, (collectively “Johns”) appeal the superior court’s
judgment vacating a sheriff’s sale of residential property owned by Casey
Anthony Stange (“Stange”) and upholding the validity of Stange’s
homestead exemption for the property. For the following reasons we affirm
the superior court’s rulings.
FACTUAL AND PROCEDURAL HISTORY
¶2 Stange owns residential real property in Yuma that he
purchased and moved into in October 2008 (the “property”). In March
2011, Stange recklessly caused a car accident in which his childhood friend,
Johns’ son, was killed. Stange pled guilty to manslaughter in 2012 and was
sentenced to a multi-year prison term. While in prison, Stange continued
to coordinate payment of water, electric, and tax bills for the property.
Following his release from prison in September 2017, Stange returned to the
property and continued to reside there.
¶3 In May 2015, Johns obtained a $1,204,000 wrongful death
judgment (the “judgment”) against Stange. In November 2015, Johns
instructed the Yuma County Sheriff, through a writ of special execution, to
sell the property at public auction in order to collect on the judgment.
¶4 In January 2016 the sheriff issued a notice of sheriff’s sale
(“notice”) that stated the sheriff would be selling the property to the highest
bidder for cash. Thereafter, Stange filed a claim of homestead declaration
in order to protect the property. Stange also informed the sheriff that he
had a homestead interest in the property and that the homestead exemption
would necessarily require cash payment. On February 17, 2016 the sheriff
conducted the auction and Johns offered a credit bid of $190,000 which the
sheriff accepted.
¶5 Stange filed a complaint in the superior court against Johns
and the sheriff requesting the court void the sheriff’s sale and find that
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STANGE v. JOHNS, JR. et al.
Decision of the Court
Stange had a valid homestead exemption in the property. Johns moved,
and Stange cross-moved, for summary judgment. Following full briefing
and oral arguments, the court found the sale was improper and ordered
that the sale be vacated. After an evidentiary hearing, the court found that
Stange held a valid homestead exemption. Following entry of a final
judgment, Johns timely appealed. We have jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) section 12-2101(A)(1) (2018).
DISCUSSION
¶6 Under A.R.S. § 33-1101(A) (2018), any person who resides in
the state may hold as a homestead exempt from execution sale their interest
in real property not exceeding $150,000. This exemption automatically
attaches to the person’s interest in identifiable cash proceeds from the
voluntary or involuntary sale of the property. A.R.S. § 13-1101(C). A
homestead may be abandoned by “a permanent removal of the claimant
from the residence or the state. A claimant may remove from the
homestead for up to two years without an abandonment or a waiver of the
exemption.” A.R.S. § 33-1104(A)(3) (2018). However, this statute does not
“create an absolute temporal bar, that on the second anniversary of [a
debtor’s] removal from homestead, debtors automatically are deemed to
have abandoned their homesteads for exemption purposes.” Calderon v.
Lang (In re Calderon), 507 B.R. 724, 731 (B.A.P. 9th Cir. 2014). “[T]he
temporal aspect of the statute simply was meant to aid courts in
determining the intended permanency of the removal from the residence.”
Id.
¶7 In this case, it is apparent that Stange never intended his
removal from the residence to be permanent. Indeed, he instructed his
family to care for the property while he was incarcerated and upon release
from prison immediately returned to the property and continued to reside
there. As such, the trial court did not err in finding Stange had a valid
homestead exemption and we therefore affirm that finding.
¶8 We next determine if the execution sale was valid. Generally,
a homestead is exempt from process and sale under a judgment or lien,
unless the sale falls under certain enumerated exceptions. See A.R.S. § 33-
1103(A) (2018). A sale that does not comply with this directive “is invalid
and does not convey an interest in the homestead.” A.R.S. § 33-1103(B).
Under A.R.S. § 33-1105 (2018), “A bid shall not be accepted by the officer in
charge of a sale . . . which does not exceed the amount of the judgment
debtor’s homestead.” Additionally, under the statute, “the officer shall first
pay the amount of the homestead to the judgment debtor.” Id.
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STANGE v. JOHNS, JR. et al.
Decision of the Court
¶9 In this instance, the sheriff’s sale does not fall under any of the
exceptions enumerated in A.R.S. § 33-1103 and is therefore subject to the
homestead exemption. Because the sale was subject to the homestead
exemption, the sheriff should have required a cash bid that exceeded the
judgement debtor’s homestead exemption, in this instance $150,000, and
then the sheriff should have paid $150,000 to Stange. Instead the sheriff
accepted a credit bid and did not pay the homestead exemption. Thus, the
sale was invalid. Because the sale was invalid, we affirm the trial court’s
granting of summary judgment in favor of Stange.
CONCLUSION
¶10 For the foregoing reasons we affirm the trial court’s ruling
finding a valid homestead exemption and voiding the execution sale.
AMY M. WOOD • Clerk of the Court
FILED: AA
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