                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                         BMO HARRIS BANK, N.A.,
                             Plaintiff/Appellee,

                                        v.

             MORGEN THRUSTON; HOWARD THRUSTON,
                      Defendants/Appellants.

                             No. 1 CA-CV 13-0372
                              FILED 12-04-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-003138
                The Honorable Michael J. Herrod, Judge

                                  AFFIRMED


                                   COUNSEL

Quarles & Brady, LLP, Phoenix
By John M. O'Neal, Krystal Aspey Fleischmann
Counsel for Plaintiff/Appellee

Morgen Thruston and Howard Thruston, Mesa
Defendants/Appellants
                       BMO HARRIS v. THRUSTON
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1            Morgen and Howard Thruston (collectively the Thrustons)
appeal from a preliminary injunction prohibiting them from damaging real
property owned by BMO Harris Bank, N.A. (BMO).1 Finding no abuse of
discretion, we affirm.

             FACTS AND PROCEDURAL BACKGROUND2

¶2             The Thrustons purchased real property (the Property) in
Mesa and partially completed the construction of a home. They failed to
make payments due under a deed of trust, and BMO subsequently obtained
title to the Property at a trustee’s sale. Despite BMO’s three forcible entry
and detainer actions, the Thrustons continue to occupy the Property.3 In its
complaint, BMO alleged the Thrustons have not maintained the Property
and have allowed significant deterioration to occur.

¶3           BMO also learned that the Thrustons allowed three
unidentified individuals to move into the Property’s unfinished guest




1      BMO is the successor by merger of Marshall & Ilsley Bank, FSB. For
ease of reference, we refer to BMO throughout.

2      Because the Thrustons fail to cite to the record in their Opening Brief
in violation of Arizona Rule of Civil Appellate Procedure 13(a)(4) , we rely
on our independent review of the record. See Clemens v. Clark, 101 Ariz. 413,
414, 420 P.2d 284, 285 (1966).

3      Multiple bankruptcy filings, among other issues, thwarted previous
forcible entry and detainer actions. See BMO Harris Bank, N.A. v. Thruston,
1 CA-CV 12-0003, 2013 WL 182732 (Ariz. App. Jan. 17, 2013) (mem.
decision).



                                      2
                        BMO HARRIS v. THRUSTON
                           Decision of the Court

house. BMO then posted a “demand to vacate” at the Property.                     A
“bulldozer/earth mover” appeared on the Property two days later.

¶4             In an effort to obtain assurances that the Thrustons would not
damage the Property, BMO’s attorney called Howard Thruston’s cell phone
and left a voice mail message. After the Thrustons failed to respond, BMO
filed an application for a temporary restraining order (TRO) without notice
and a verified complaint for forcible entry and detainer (The FED action)
asserting claims of trespass and property destruction and seeking
injunctive relief. See Arizona Revised Statutes (A.R.S.) sections 12-1171 to -
1183 (West 2014).4 The trial court granted the temporary restraining order.

¶5            The Thrustons did not respond to the TRO or BMO’s filings
before the trial court’s order to show cause hearing on the preliminary
injunction.5 Howard Thruston appeared at that hearing, testified, and
presented evidence. At the close of the hearing, the trial court granted BMO
a preliminary injunction, stating that “Defendants, and any other person
acting on their behalf, shall be restrained from damaging the real property
and improvements and structures thereon . . . .”

¶6             This timely appeal followed. We have jurisdiction pursuant
to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21.A
and -2101.A.5(b) (West 2014).

                                 DISCUSSION

¶7             We review the grant of the preliminary injunction for abuse
of discretion. Valley Med. Specialists v. Farber, 194 Ariz. 363, 366, ¶ 9, 982 P.2d
1277, 1280 (1999). A party seeking a preliminary injunction must establish:
(1) a strong likelihood of success on the merits; (2) the possibility of
irreparable injury not remediable by damages if the injunction is not
granted; and (3) the balance of hardships favors the party seeking the
injunction and (4) public policy favors the injunction. Shoen v. Shoen, 167
Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990). As a result, “[a]n injunction may
serve to undo accomplished wrongs, or to prevent future wrongs that are
likely to occur.” TP Racing, L.L.L.P. v. Simms, 232 Ariz. 489, 495, ¶ 21, 307


4     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

5       The Thrustons filed their unverified answer to the FED Action after
the trial court had entered its judgment.



                                        3
                        BMO HARRIS v. THRUSTON
                           Decision of the Court

P.3d 56, 62 (App. 2013); see A.R.S. § 12-1801 (West 2014). The court may
apply these requirements on a “sliding scale.” Ariz. Ass’n of Providers for
Persons with Disabilities v. State, 223 Ariz. 6, 12, ¶ 12, 219 P.3d 216, 222 (App.
2009).

¶8             The underlying facts support issuing the preliminary
injunction. Injunctive relief is appropriate when evidence of possible
irreparable injury to interests in real property exists “not remediable by
damages.” See IB Property Holdings, LLC v. Rancho Del Mar Apartments Ltd.
P’ship, 228 Ariz. 61, 65, ¶ 10, 263 P.3d 69, 73 (App. 2011) (internal citations
omitted); see also Sun Village Farms v. Bowery Sav. Bank, 735 F. Supp. 945, 949
(D. Ariz. 1990) (ruling that injunctive relief was appropriate when the
movant stood to lose interests in real property, and that such a loss is
irreparable); cf. Financial Associates, Inc. v. Hub Properties, Inc., 143 Ariz. 543,
546, 694 P.2d 831, 834 (App. 1984) (affirming a denial of injunctive relief
when the alleged intrusion onto real property “is of relatively short
duration” and “the property will be returned to its prior condition”). The
trustee’s deed established that BMO owned the Property, a fact Howard
Thruston confirmed at the hearing. The evidence demonstrated a threat to
BMO’s interest in the Property, which it was entitled to protect from
irreparable harm. That evidence included notice that additional persons
occupied the Property, an earth mover was parked out front, and Howard
Thruston was not responding to BMO’s voicemail message requesting
assurances that no damage would occur.

¶9            The Thrustons contend, however, that an injunction was
unnecessary. Howard Thruston introduced an affidavit from Corey Allen
             6

in which Allen stated he had parked the earth mover on the Property after
doing some work for another homeowner nearby to avoid parking it on the
street and possibly being in the way of neighbors. Moreover, the Allen
affidavit explained that Allen had removed his earth mover approximately
two days later after completing the job, and disavowed any intent to
damage the Property. As a result, Howard Thruston denied having
“anything to do with the backhoe”.

¶10         Although the trial court acknowledged that no evidence of
actual damage was presented, it found that granting BMO an injunction

6       The Thrustons assert the trial court entered the TRO without notice,
however they fail to develop a legal argument. Consequently, we will not
address this issue. See Polanco v. Indus. Comm’n of Ariz., 214 Ariz. 489, 491
n.2, ¶ 6, 154 P.3d 391, 394 n.2 (App. 2007); ARCAP 13(a)(6).



                                         4
                        BMO HARRIS v. THRUSTON
                           Decision of the Court

would cause only nominal harm to the Thrustons. Accordingly, it enjoined
the Thrustons from damaging the Property and its improvements.

¶11            The trial court was in the best position to evaluate the
evidence presented and the credibility of witnesses. See Gutierrez v.
Gutierrez, 193 Ariz. 343, 347-48, ¶ 13, 972 P.2d 676, 680-81 (App. 1998). The
trial court was not required to accept Allen’s affidavit or Howard
Thruston’s testimony. See Hamilton v. Municipal Court of City of Mesa, 163
Ariz. 374, 377, 788 P.2d 107, 110 (App. 1989). Because the earth mover
appeared less than forty-eight hours after BMO had posted its demand to
vacate and given the unwillingness of the Thrustons to relinquish
possession, their conduct raised questions about their likely future conduct.
See TP Racing, 232 Ariz. at 496 ¶ 24, 307 P.3d at 63 (holding that past attempt
to remove a general partner provided reasonable grounds for preliminary
injunction); see alsoState ex rel. Babbitt v. Goodyear Tire & Rubber Co., 128 Ariz.
483, 486-87, 626 P.2d 1115, 1118-19 (App. 1981) (explaining that an inquiry
into a party’s past conduct is relevant to the likelihood that a party could
engage in similar future conduct). Accordingly, the evidence supports the
court’s decision to issue the preliminary injunction to “maintain the status
quo.” See Cracchiolo v. State, 135 Ariz. 243, 247, 660 P.2d 494, 498 (App. 1983)
(observing that an injunction to protect real property, if sought by a party
entitled to possession, may be appropriate if it preserves the status quo).
Consequently, the trial court did not abuse its discretion by issuing the
preliminary injunction.

                                CONCLUSION

¶12            We affirm the issuance of the preliminary injunction. BMO is
entitled to costs on appeal contingent upon its compliance with ARCAP 21.




                                   :gsh




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