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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                RASOOL ADNAN KASHKOOL, Appellant,

                                        v.

       ROSE ANDONYAN and GEORGE ANDONYAN, Appellees.

                             No. 1 CA-CV 14-0268
                                FILED 3-24-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-006870
                The Honorable J. Richard Gama, Judge

                                  AFFIRMED


                                   COUNSEL

Rasool Adnan Kashkool, Phoenix
Appellant in Propria Persona

Law Office of Kevin F. Finn, Phoenix
By Kevin F. Finn
Counsel for Appellees
                        KASHKOOL v. ANDONYAN
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Randall M. Howe joined.


N O R R I S, Judge:

¶1            Rasool Kashkool appeals from the superior court’s order
finding that Rose and George Andonyan were entitled to the excess
proceeds from a trustee’s sale pursuant to Arizona Revised Statutes
(“A.R.S.”) section 33-812 (2014).1 On appeal, Kashkool argues the
Andonyans were not entitled to the proceeds because they assigned their
ownership in two judgments to Thunderbird Collection Specialists and/or
its President Steven Kay (collectively, “Thunderbird”). We disagree, and
for the reasons stated below, affirm the superior court’s order.

                                DISCUSSION

¶2           Rose obtained a judgment against Kashkool on March 31,
2004 in Maricopa County Superior Court Cause No. CV2003-014816 (“816
judgment”), and on June 22, 2006 Rose and George obtained a second
judgment against him in Maricopa County Superior Court Cause No.
CV2003-018882 (“882 judgment”).

¶3             The superior court conducted an evidentiary hearing to
determine who owned the judgments and whether the owner(s) had a right
to the excess proceeds. Based on the evidence presented, the court found
the Andonyans owned the judgments and were entitled to the excess
proceeds. We will not disturb the superior court’s factual findings unless
they are clearly erroneous. Moore v. Title Ins. Co. of Minn., 148 Ariz. 408, 413,
714 P.2d 1303, 1308 (App. 1985).

¶4            On appeal, Kashkool takes issue with the superior court’s
finding that the Andonyans owned the judgments because they retained
Thunderbird to maintain and collect the judgments as their assignee — an
arrangement he argues constituted a transfer of ownership. The superior


              1Although   the Arizona Legislature amended certain statutes
cited in this decision after the Andonyans originally recorded their
judgments, the revisions are immaterial to the resolution of this appeal.
Thus, we cite to the current version of these statutes.


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                      KASHKOOL v. ANDONYAN
                         Decision of the Court
court found the agreement between the Andonyans and Thunderbird
created a “limited assignment” of their rights to collect and maintain the
judgments, but the arrangement never divested the Andonyans of their
ownership of the judgments.

¶5             The record amply supports the superior court’s findings.
George testified he owned the 882 judgment jointly with Rose and neither
of them sold or transferred the 882 judgment to Thunderbird. George
further explained that even though he was not a party to the 816 judgment,
he had assisted Rose in retaining Thunderbird, and she had never sold or
transferred her ownership rights in the 816 judgment to it and had only
used it to help her collect the judgment.           George characterized
Thunderbird’s role as, “Just collecting the debt. And if they collected
anything, they would get paid some percentage.” Kay also testified that
neither he nor Thunderbird purchased or owned either judgment. Instead,
the Andonyans had “just assigned [Thunderbird] a right to maintain and
collect those accounts.” The parties stipulated Rose would not need to
testify since she would give the same account as George and Kay.

¶6             In addition to the evidence summarized above, the March
2009 renewal affidavit listed Rose as Plaintiff and stated “plaintiff is the
present owner of this judgment, having been assigned all right, title and
interest in said judgment . . . .” Kay signed the affidavit as “assignee for
ROSE ANDONYAN.”

¶7            Despite this evidence, Kashkool argues that this court’s
characterization of Kay as Andonyan’s “assignee” in a 2013 memorandum
decision, Andonyan v. Kashkool, 1 CA-CV 12-0064, 2013 WL 123676 at *2, ¶ 7
(App. Jan. 10, 2013) (mem. decision), is conclusive evidence that Rose no
longer owned the 816 judgment. We reject this argument. In that appeal,
we affirmed an order amending the 816 judgment to reflect the correct
outstanding balance after a partial satisfaction. Id. at ¶ 9. In so doing, we
upheld the propriety of an affidavit of judgment renewal filed by
Thunderbird with the superior court, rejecting Kashkool’s argument Kay
had to be a member of the State Bar of Arizona to file the renewal affidavit.
Id. at ¶ 7. We stated “Kay was Andonyan’s assignee and the affidavit of
renewal complied with A.R.S. § 12-1612(B).” Id.

¶8              “Assignee” is not defined in the renewal of judgment statute
and we did not describe the scope of Rose’s assignment in our decision,
although we did explain Rose had “contracted with Steve Kay of
Thunderbird . . . to collect the remainder of the judgment on her behalf.”
Id. at ¶ 3. Black’s Law Dictionary defines “assignee” as “[s]omeone to whom



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                           Decision of the Court
property rights or powers are transferred by another.” (10th ed. 2014),
available at Westlaw BLACKS. Black’s further explains, however, that:

              Use of the term is so widespread that it is
              difficult to ascribe positive meaning to it with
              any specificity. Courts recognize the protean
              nature of the term and are therefore often forced
              to look to the intent of the assignor and assignee
              in making the assignment — rather than to the
              formality of the use of the term assignee — in
              defining rights and responsibilities.

Id.

¶9              Weltsch v. O’Brien, 25 Ariz. App. 50, 540 P.2d 1269 (1975),
illustrates the importance of the parties’ intent in any “assignment.” There,
a judgment debtor challenged a renewal affidavit for failing to list the
judgment’s proper owners. Id. at 53, 540 P.2d at 1272. In upholding the
validity of the affidavit, the court observed that the owners of the judgment
had entered into an agreement whereby they transferred legal title to the
judgment to a third party for purposes of collection only, and the owners
still held their beneficial, or ownership, interest. Id. at 54, 540 P.2d at 1273.
Here, we are presented with a similar case.

¶10          Accordingly, what Rose and Thunderbird actually intended
with respect to the judgment controls the ownership issue. And, as
discussed above, they intended for Rose to remain as the owner of the 816
judgment with Thunderbird attempting to collect it on her behalf.

¶11           The renewal of judgment by affidavit statute states, “The
judgment creditor or his personal representative or assignee may . . . make
and file an affidavit” which “shall renew and revive the judgment to the
extent of the balance shown due in the affidavit.” A.R.S. § 12-1612(B), (D)
(Supp. 2014). Thunderbird—having complied with the renewal of
judgment by affidavit statute as limited assignee of Rose—properly
renewed the 816 judgment, but in doing so, it did not become the 816
judgment’s owner. Thus, because there is substantial evidence to support
it, we affirm the superior court’s order finding that the Andonyans were
the owners of the judgments and entitled to the excess proceeds. See Moore,
148 Ariz. at 413, 714 P.2d at 1308.

¶12          Kashkool next argues the 816 judgment is “dead and expired”
because it was not renewed and, thus, expired in March 2014. Although the
Andonyans assert in their answering brief that the 816 judgment was timely


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                       KASHKOOL v. ANDONYAN
                          Decision of the Court
renewed on March 7, 2014, Kashkool’s argument is not properly before us
because he did not raise it in the superior court. See State ex rel. Ariz. Dep’t
of Econ. Sec. v. Lee, 217 Ariz. 427, 431, ¶ 22, 175 P.3d 85, 89 (App. 2008)
(appellate court will not consider arguments not first presented to superior
court).

¶13         Finally, Kashkool requests a new trial so he can be awarded
punitive damages. That argument is frivolous.

                               CONCLUSION

¶14            For the foregoing reasons, we affirm the superior court’s
order finding the Andonyans are the owners of the judgments and are
entitled to the trustee’s sale excess proceeds. In addition, we agree with the
Andonyans that this appeal was frivolous. Kashkool’s arguments on
appeal were without merit or legal support, and he pursued this appeal
without substantial justification or for the purpose of delay or harassment.
Therefore, pursuant to A.R.S. § 12-349 (Supp. 2014) and Arizona Rule of
Civil Appellate Procedure 25, we grant the Andonyans their reasonable fees
and costs on appeal contingent upon their compliance with Arizona Rule
of Civil Appellate Procedure 21.




                                    :ama




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