                    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       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


                   JAMES HACKETT, Plaintiff/Appellant,

                                       v.

                DONALD HACKETT, Defendant/Appellee.


  DONALD HACKETT; DENNIS HACKETT; LARRY HACKETT; and
           TERRY HACKETT, Plaintiffs/Appellees,

                                       v.

                 JAMES HACKETT, Defendant/Appellant.


                            No. 1 CA-CV 15-0263
                                1 CA-CV 15-0384
                                 (Consolidated)
                              FILED 10-6-2016

           Appeal from the Superior Court in Yavapai County
                       No. V1300CV201480437
                             V1300CV201380282
          The Honorable Jeffrey G. Paupore, Judge Pro Tempore

1 CA-CV 15-0384: APPEAL DISMISSED IN PART; VACATED IN PART
             AND REMANDED; 1 CA-CV 15-0263: AFFIRMED


                                  COUNSEL

James Hackett, Boise, ID
Appellant
H. Rudy C. Stadelman PC, Cottonwood
By H. Rudy C. Stadelman
Co-Counsel for Appellee Donald Hackett

Musgrove Drutz Kack & Flack, PC, Prescott
By Mark W. Drutz, Jeffrey Gautreaux
Co-Counsel for Appellee Donald Hackett



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Chief Judge Michael J. Brown joined.


T H O M P S O N, Judge:

¶1            This consolidated appeal involves litigation among brothers
regarding a parcel of real property in Yavapai County (the Property).1 In 1
CA-CV 15-0384 (Hackett I), James appeals the superior court’s order
denying his motion for new trial. In 1 CA-CV 15-0263 (Hackett II), James
appeals the superior court’s order dismissing his complaint with prejudice.
For the reasons that follow, we dismiss the appeal in part, affirm in part,
vacate in part and remand for further proceedings consistent with this
decision.

                  FACTS AND PROCEDURAL HISTORY

I.    Hackett I

¶2             In August 2013, Donald filed an action against James seeking
partition of the Property and distribution of the proceeds to the brothers in
equal shares (the partition action).2 James filed an answer and a separate

1       The parties are Donald Hackett, Dennis Hackett, Larry Hackett,
Terry Hackett, and James Hackett. For clarity, we refer to them by their
first names.

2      The action was nominally brought by Donald, Dennis, Larry, and
Terry, but it was pursued largely by Donald, who was the only party
represented by counsel. The complaint actually alleges the five brothers
each own “an undivided one-fourth interest” in the Property. The superior



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                         HACKETT v. HACKETT
                          Decision of the Court

counterclaim seeking legal document preparation fees and costs. In his
answer, James denied that either Donald or Terry had an ownership interest
in the Property because Donald had orally agreed to sell his share to James
for $30,000 ($22,000 of which James had already paid) and Terry had given
up his share. James moved to amend his counterclaim, seeking an order
directing Donald to accept $8,000 and quitclaim his interest in the Property
to James. The superior court denied the motion.

¶3             After an evidentiary hearing on July 1, 2014, the superior
court found the Property was subject to partition, with the proceeds to be
distributed after a trial to determine the owners’ respective interests. On
September 16, the court appointed a commissioner to sell the Property and
return the net proceeds to the court “to be divided among the persons
entitled thereto according to their respective interests as determined by the
Court.”

¶4            The partition action was tried on December 1, 2014. After
hearing testimony and receiving evidence on the parties’ respective
ownership interests, the superior court held the parties had stipulated in
court “that the shares in the property are split 1/5 for each brother” and
ordered, pursuant to the stipulation, “that the proceeds from the sale of the
property shall be split 5 ways between (sic) the parties.” On December 3,
the court signed and entered an order to this effect.

¶5           On April 3, 2015, James filed a Request for Signed Entry of
Judgment and a Notice of Intention to Move for New Trial. On April 21,
the superior court entered a final judgment pursuant to Arizona Rule of
Civil Procedure (Rule) 54(c). The judgment did not address James’s
counterclaim for breach of contract, but impliedly dismissed it when it
found that no further matters were pending. On April 28, the court issued
an order treating James’s Notice of Intention to Move for New Trial as a
motion for new trial and denying it as time-barred. See Ariz. R. Civ. P.
59(d). On May 12, James filed a notice of appeal from the order denying his
motion for new trial.

II.    Hackett II

¶6            On November 25, 2014, James filed an action against Donald
alleging (i) Donald was in breach of an oral contract to sell his share of the


court denied Donald’s motion for judgment on the pleadings based on this
pleading “defect.”


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                           HACKETT v. HACKETT
                            Decision of the Court

Property to James and (ii) Terry had given up his share of the Property (the
contract action). James requested the superior court direct Donald to
transfer his interest to James and declare (i) Terry has no interest in the
Property and (ii) James “has ½ (50%) interest in the Property.”

¶7            On December 18, 2014, Donald moved to dismiss, arguing the
contract claim constituted a compulsory counterclaim that should have
been asserted in the partition action. See Ariz. R. Civ. P. 13(a). On
December 23, the superior court agreed, granting the motion and
dismissing James’s complaint with prejudice. The court entered a final
judgment pursuant to Rule 54(c) dismissing James’s complaint with
prejudice and awarding Donald attorneys’ fees and taxable costs. James
timely appealed.

¶8           We do not have jurisdiction over Donald’s claim for partition
in Hackett I. We have jurisdiction as to James’s breach of contract
counterclaim and Hackett II pursuant to Arizona Revised Statute (A.R.S.) §
12-2101(A) (2016).3

                                DISCUSSION

I. Hackett I

          A.     Donald’s claim for partition

¶9             This court’s appellate jurisdiction is purely statutory. Ariz.
Const. art. 6, § 9; Garza v. Swift Transp. Co., 222 Ariz. 281, 283–84, ¶ 12, 213
P.3d 1008, 1110-11 (2009) (quoting Eaton v. Unified Sch. Dist. No. 1, 122 Ariz.
391, 392, 595 P.2d 183, 184 (App. 1979)). Accordingly, we have an
independent duty to determine whether we have jurisdiction over an
appeal. Baker v. Bradley, 231 Ariz. 475, 478-79, ¶ 8, 296 P.3d 1011, 1014-15
(App. 2013). “[W]e must dismiss an appeal over which we lack
jurisdiction.” Id. (citing Robinson v. Kay, 225 Ariz. 191, 192, ¶ 4, 236 P.3d 418,
419 (App. 2010)).

¶10          The superior court’s December 3, 2014 order was in writing
and signed by a judge, and it determined the rights and interests of the
parties and directed partition to be made. Thus, the order was appealable


3     Absent material changes from the relevant date, we cite a statute’s
current version.



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                          HACKETT v. HACKETT
                           Decision of the Court

pursuant to A.R.S. § 12-2101(A)(7).4 See Brumett v. MGA Home Healthcare,
L.L.C., 744 Ariz. Adv. Rep. 11, 15-16, ¶¶ 16-17 (App. Aug. 9, 2016).
However, because James did not file a notice of appeal within 30 days after
entry of that order, see Ariz. R. Civ. App. P. 9(a), we lack jurisdiction over
the appeal from the partition, see Santee v. Mesa Airlines, Inc., 229 Ariz. 88,
89, ¶¶ 3, 5, 270 P.3d 915, 916 (App. 2012).

         B.      James’s counterclaim for the alleged breach of contract

¶11            Although the superior court ostensibly denied James’s
motion to amend his counterclaim, James’s claim that Donald had breached
an oral contract to sell his interest in the Property to James was tried by the
parties without objection. On this basis, we find the counterclaim was
amended to conform to the evidence. See Ariz. R. Civ. P. 15(b); Bujanda v.
Montgomery Ward & Co., Inc., 125 Ariz. 314, 315-16, 609 P.2d 584, 585-86
(App. 1980) (stating that amendment of pleading to conform to the evidence
permitted unless amendment would cause prejudice); see also Parker v. City
of Tucson, 233 Ariz. 422, 439, ¶¶ 51-52, 314 P.3d 100, 117 (App. 2013) (finding
no prejudice when amendment did nothing to change the theory of the case
and the issue had been raised and addressed by the parties).

¶12           The superior court did not enter a final judgment on the
counterclaim until April 21, 2015. See Ariz. R. Civ. P. 54(c); Brumett, 744
Ariz. Adv. Rep. at 15, ¶ 12 (discussing appeal from a final judgment under
A.R.S. § 12-2101(A)). Nevertheless, James’s April 3 “motion for new trial”
was timely filed. See Ariz. R. Civ. P. 59(d). Thus, we have jurisdiction
pursuant to A.R.S. § 12-2101(A)(5)(a). See Farmers Ins. Co. of Ariz. v.
Vagnozzi, 132 Ariz. 219, 221-22, 644 P.2d 1305, 1307-08 (1982) (motion for
rehearing extended time for appeal even though it did not refer to Rule 59
because the judge treated the motion as one for new trial).

¶13           We review a decision denying a motion for new trial for an
abuse of discretion. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10, 222 P.3d 909,
912 (App. 2009) (internal quotation and citations omitted). “An abuse of
discretion occurs when there is no evidence to support a holding or the
court commits an error of law when reaching a discretionary decision.”
Dowling v. Stapley, 221 Ariz. 251, 266, ¶ 45, 211 P.3d 1235, 1250 (App. 2009).




4     We cite the current version of all applicable statutes unless revisions
material to this decision have occurred since the relevant events.


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                          HACKETT v. HACKETT
                           Decision of the Court

¶14           On appeal, Donald suggests that James cannot complain of
the five-way division to which he stipulated. Donald reads the record too
broadly. James did not stipulate that Donald was entitled to a 20% share of
the sales proceeds. Although James agreed that “at one point in time” the
parties were entitled to equal shares, he was conceding the brothers’
respective interests in the Property (in particular, Terry’s), prior to and
detached from any separate right under his alleged contract with Donald.

               THE COURT: I’m not talking about the side deal. I’m
       not talking about the side deal between [James] and Donald.
       I’m talking about the overall agreement that at one point in
       time all five of you were in 100 percent agreement that [the
       proceeds were] going to be split equally. That’s the general
       thrust of what I’m hearing. And everybody agrees to that. Am
       I right, James?

            MR. JAMES HACKETT: Yes, if you needed a simple
       answer.

In fact, following this exchange, James continued to urge that Donald no
longer owned a share because he had sold it to James pursuant to an oral
contract, which James had partly performed. The enforceability of that
alleged contract remains for the superior court to decide. Accordingly, we
remand this matter to the superior court to rule on James’s breach of
contract counterclaim.

II.    Hackett II

¶15           James argues the superior court erred in dismissing his
complaint. We review de novo the court’s dismissal of a complaint under
Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863,
866 (2012).

¶16           “Compulsory counterclaims arise from the same transaction
or occurrence that was the subject matter of the opposing party’s claim; and
if such claims are not pled in the first action, they are waived and barred in
any subsequent action under the doctrine of claim preclusion.”
Mirchandani v. BMO Harris Bank, N.A., 235 Ariz. 68, 70, ¶ 8, 326 P.3d 335,
337 (App. 2014) (citing Lansford v. Harris, 174 Ariz. 413, 418-19 (App. 1992)).
The “same transaction or occurrence” standard is a flexible one “that is met
when a logical relationship exists between the current cause of action and
the previous one.” Id. (citing Technical Air Prods., Inc. v. Sheridan-Gray, Inc.,
103 Ariz. 450, 452, 445 P.2d 426, 428 (1968)).


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                          HACKETT v. HACKETT
                           Decision of the Court

¶17             Clearly there was a “logical relationship” between Donald’s
claim for partition and James’s claim against Donald for breach of contract
involving the same property. We agree with the superior court that James’s
claim was a compulsory counterclaim that should have been (and in fact
was) asserted in the partition action.5 Thus, we find no error in the
dismissal of the action. Because this issue is dispositive, we need not
address the other issues James raises on appeal.6 See Sw. Non-Profit Hous.
Corp. v. Nowak, 234 Ariz. 387, 391, ¶ 10, 322 P.3d 204, 208 (App. 2014); KZPZ
Broad., Inc. v. Black Canyon City Concerned Citizens, 199 Ariz. 30, 38, ¶ 28, 13
P.3d 772, 780 (App. 2000).




5       A partition action is an equitable proceeding governed by statute.
McCready v. McCready, 168 Ariz. 1, 3, 810 P.2d 624, 626 (App. 1991). If the
superior court determines a partition by sale is appropriate, the court may
appoint a commissioner to make the sale “and return the proceeds into
court to be divided between the persons entitled thereto according to their
respective interests.” A.R.S. § 12-1218(C) (2016) (emphasis added).
6      James argues that the superior court erred when it ruled on Donald’s
motion without waiting for a response. See Ariz. R. Civ. P. 7.1(a). To the
extent he urges a denial of due process, such a claim fails because he cannot
show prejudice. See Brown v. Ariz. Dep't of Real Estate, 181 Ariz. 320, 324,
890 P.2d 615, 619 (App. 1995).


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                         HACKETT v. HACKETT
                          Decision of the Court

                              CONCLUSION

¶18           In 1 CA-CV 15-0384, we dismiss the appeal as to issues arising
from Donald’s claim for partition and we vacate the judgment as to James’s
counterclaim and remand that claim to the superior court. In 1 CA-CV 15-
0263, we affirm the order granting Donald’s motion to dismiss.

¶19          In 1 CA-CV 15-0384, Donald requests an award of attorneys’
fees pursuant to A.R.S. § 12-349(A)(1), (3) (2016). In 1 CA-CV 15-0263,
Donald requests an award of attorneys’ fees pursuant to A.R.S. § 12-341.01
(2016). In both appeals, James requests an award of legal document
preparation fees on appeal. See A.R.S. § 12-341.02 (2016).

¶20           In 1 CA-CV 15-0263, in our discretion, we deny both requests.
We deny both requests in 1 CA-CV 15-0384 without prejudice; on remand,
the parties may renew their requests in the superior court. Because Donald
is the successful party in 1 CA-CV 15-0263, he is awarded costs on appeal
upon compliance with Arizona Rule of Civil Appellate Procedure 21.




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




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