                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                       In re the marriage of
                 ANTHONY MONTE, Petitioner/Appellant,

                                        v.

              KARA BERTSCH MONTE, Respondent/Appellee.

                              No. CV15-0814 FC
                               FILED 7-11-2017


           Appeal from the Superior Court in Maricopa County
                          No. DR2000-000598
              The Honorable Timothy J. Thomason, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Petitioner/Appellant

The Wilkins Law Firm, PLLC, Phoenix
By Amy M. Wilkins
Counsel for Respondent/Appellee
                     MONTE v. BERTSCH MONTE
                       Decision of the Court



                     MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop
joined.


T H O M P S O N, Judge:

¶1           Anthony Monte (father) appeals from the family court’s
post-decree determination that he owed Kara Bertsch Monte (mother)
damages for his failure to comply with a 2006 tenancy agreement.1
Finding no error, we affirm.

          FACTUAL AND PROCEDURAL BACKGRIOUND

¶2            The parties were married in 1998 and a year later had a
child. In 2001, father and mother entered into a consent decree for the
dissolution of their marriage. On or about 2006 the parties entered into a
one page notarized tenancy agreement in which father “agree[d] to
purchase the house at 3531 E. Tere Street, near Colina Elementary School,
for the exclusive residency of Kara Bertsch Monte and their son.” The
agreement provided that father would be responsible for the mortgage,
taxes, insurance and all major repairs and maintenance. Mother was
responsible for the Home Owners Association (HOA) dues, utilities, and
minor upkeep including landscaping. The tenancy agreement, by its
terms, was set to expire in June 2017 after the child turned eighteen.
Under the terms of the agreement mother had a right of first refusal to buy
the property at the amount father originally paid for it. The agreement
further provided that payments towards the house was “NOT IN LIEU
OF CHILD SUPPORT and will NOT be factored when calculating child
support obligation.”

¶3           Mother and son took up residence in the house. Over time
the house fell into disrepair. In 2012 mother filed a civil complaint in
Maricopa County Superior Court Case No. CV2012-093140 alleging


1Mother had previously filed a cross-appeal, however the cross-appeal
was dismissed.




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                        MONTE v. BERTSCH MONTE
                          Decision of the Court

father’s breach of the tenancy agreement, their 2009 parenting agreement,
and a car agreement.2 As part of that action, mother sought child support.
The trial court dismissed the complaint without prejudice with leave to
refile a complaint “that sets forth causes of action that do not require the
Court to conduct a Best Interest Analysis under Title 25.” Mother did not
refile.

¶4            Meanwhile, the parents engaged in family court litigation
regarding parenting time, decision-making, and residential custody of the
child. Eventually the parents consented to allow the family court to
decide the breach of contract claim under the tenancy agreement. Among
other issues, mother asserted father breached the agreement by failing to
complete major repairs and maintenance.

¶5           In approximately August or September 2014, the child began
to reside with father.3 Father sent mother a 30-day termination notice
approximately six months later. Mother did not vacate the residence.

¶6            The parties filed position statements on the damages issue
and a hearing was held. Father’s position was that the agreements were
invalid for lack of consideration and no longer applied because the child
did not live with mother. He also argued that he should have offsets for
an insurance payment mother received, for HOA payments she didn’t
make, and for child support she received after the child had moved out.
At the court’s request, mother submitted an itemized list of damages to
the home totaling $206,005.47. Father did not respond to her itemized
damages assessment. The trial court entered a $192,405.47 judgment in
mother’s favor for father’s failure to make repairs under the tenancy
agreement. Father requested, and the family court granted, a new trial.
Father then submitted a response to mother’s damages claim, in which he
asserted she was not entitled to any damages under any of her claims.
After a contested hearing, mother’s damages for repairs was reduced to
$45,923.15. Father filed a notice of appeal.

¶7            Shortly thereafter, mother filed a moved for new trial based
on newly discovered evidence, namely that father had allowed the house
to go into foreclosure unbeknownst to mother or the court. The trial court


2   Only the tenancy agreement is at issue here.

3Father was awarded primary residential custody in June 2015. Mother
continued to live in the house.



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                       MONTE v. BERTSCH MONTE
                         Decision of the Court

granted a new trial on damages. A new trial was held and the court again
ruled in mother’s favor and entered an amended judgment awarding
mother $33,600 in damages for the cost of mother obtaining a rental
property through June 2017. The court noted that because the home was
being foreclosed, mother’s damages now were that “she will not have a
place to live,” rather than the damages arising from the physical problems
with the home. The court chastised father, stating he “could have saved
everybody a lot of time and expense by simply fully disclosing the fact
that he allowed the mortgage to go into default. By concealing the fact, he
allowed one trial to be completed and necessitated a second trial.”
Mother was awarded $5000 in attorneys’ fees due to father’s failure to
disclose that the house was in foreclosure. Father filed a notice of appeal
from the amended judgment.

                                DISCUSSION

¶8            Father asserts that the family court erred in finding that he
breached the tenancy agreement. To this end, father first argues that
litigation of the tenancy agreement was precluded because mother
previously raised this contract action in a separate lawsuit.

¶9             Issue preclusion “binds a party to a decision on an issue
litigated in a previous lawsuit if the following factors are satisfied: (1) the
issue was actually litigated in the previous proceeding, (2) the parties had
a full and fair opportunity and motive to litigate the issue, (3) a valid and
final decision on the merits was entered, (4) resolution of the issue was
essential to the decision, and (5) there is common identity of the parties.”
Garcia v. Gen. Motors Corp., 195 Ariz. 510, 514, ¶ 9, 990 P.2d 1069, 1073
(App. 1999). Mother’s complaint was dismissed without prejudice with a
note by the judge indicating that it was an inappropriate venue for a
family law matter.4 There was no litigation. A dismissal without prejudice
is not an adjudication on the merits. See Union Interchange, Inc. v. Van
Aalsburg, 102 Ariz. 461, 464, 432 P.2d 589, 592 (1967) (“A dismissal without
prejudice does not go to the merits of the plaintiff's cause and does not bar
plaintiff from later filing on the same cause of action.”). For that reason,
issue preclusion does not apply here.




4Mother was granted “leave to re-file a complaint that sets forth causes of
action that do not require the court to conduct a Best Interest Analysis
under Title 25.”



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                      MONTE v. BERTSCH MONTE
                        Decision of the Court

¶10           Father alternatively asserts the tenancy agreement was
conditional upon the child’s residing with mother. When this defense was
raised with the family court, it found father signed a contract that
unconditionally obligated him to make the mortgage payments. It stated
that there was no language in the tenancy agreement that conditioned the
obligation to pay on the child residing in the house.

¶11           Contract interpretation is a question of law we review de
novo. Taylor v. Graham Cty. Chamber of Commerce, 201 Ariz. 184, 192 33
P.3d 518, 526 (App. 2001). A general principle of contract law is that
parties are bound by lawful contract terms of which are clear and
unambiguous, and this court must give effect to the contract as written.
See Estes Co. v. Aztec Constr., Inc., 139 Ariz. 166, 168, 677 P.2d 939, 941
(App. 1983).

¶12            The tenancy agreement is clear. Father “agrees to purchase
the house at 3531 E. Tere Street, near Colina Elementary School, for the
exclusive residency of Kara Bertsch Monte and their son.” The contract
goes on to list five “conditions” which mother must comply with:

      1. No non-related males will reside in house.
      2. She will not rent out rooms/ or have other adults residing
      in said house.
      3. Remarriage of Kara Monte dissolves contract.
      4. She will be responsible for all aesthetic maintenance and
      regular maintenance of property, including house,
      landscaping, and pool.
      5. She will be responsible for Home Owner’s Association
      fees and utilities.

¶13            It also lists another potential future condition, namely what
should occur if father lost his source of income. Nowhere in the
conditions is a requirement that the child must reside with mother for her
to have use of the house. We find no error in the family court’s ruling on
the tenancy agreement.

¶14           Next, father argues the family court erred in failing to offset
from the damages award monies he asserts that mother owes him. Father
includes a laundry list of items he believes should have been offset from
any damages claim. Father asserts that mother failed to pay the HOA fees
or for property landscaping and maintenance. He argues the court should
have offset monies he lost during the remodel of the pool, for child
support mother received after the child had moved out, for an auto


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                     MONTE v. BERTSCH MONTE
                       Decision of the Court

insurance settlement mother received, and for general unspecified
damages that mother did to the property.

¶15          The family court was aware of father’s assorted offset claims,
yet declined to award any offset. First, the court acknowledged that
mother failed to keep the property up. It said:

      Mr. Monte also argues that Ms. Monte did not comply with
      her obligation to be responsible for the regular maintenance
      of the property. While it may be true that Ms. Monte did not
      comply with this obligation, any damages suffered by Mr.
      Monte are impossible to calculate and are, in any case,
      unliquidated. The Court cannot and will not offset an
      unliquidated amount against Ms. Monte’s liquidated
      damages.

Second, it specifically declined to offset any HOA payments that mother
should have made, finding her damages in the amount of $2,100 for each
month she would be without housing was “reasonable.” Third, the court
had previously determined that the $50,000 insurance award was hers to
keep. Finally, the issue of child and spousal support came before the
court, after the child had moved in with father, and the court terminated
both. It did not, however, indicate that funds paid to mother resulted in
an overpayment. When father twice later raised the potential of a child
support overpayment of $25,000 as an offset to her repair claims, the
family court did not adopt father’s reasoning.

¶16           Mother asserts “[f]ather did not prove his damages with
reasonable certainty.” Father asserts that between the documents and the
testimony, the court could have fixed a sum of damages to be offset. The
standard of review for a damages award is an abuse of discretion. King v.
O’Rielly Motor Co., 16 Ariz. App. 518, 524, 494 P.2d 718, 724 (1972). The
court found father’s damages “impossible to calculate” and
“unliquidated.” The family court considered father’s offset arguments
and declined to adopt them. Evidence in the record supports the family
court’s damages ruling. Finding no abuse of discretion, we affirm.

                           ATTORNEYS’ FEES

¶17           Mother and father both seek an award of attorneys’ fees
pursuant to Arizona Revised Statutes (A.R.S.) § 25-324 (2017); father
additionally seeks attorneys’ fees pursuant to A.R.S. § 25-341.01 based on
a contract action. Mother, as the successful party on appeal on this



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                   MONTE v. BERTSCH MONTE
                     Decision of the Court

contract action, is awarded fees in an amount to be determined after
compliance with ARCAP 21.

                            CONCLUSION

¶18         For the above stated reasons, the family court is affirmed.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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