                         NOTICE: NOT FOR PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


     CITY OF PHOENIX, a municipal corporation, Plaintiff/Appellee,

                                        v.

                   EDWIN CORTES, Defendant/Appellant.

                             No. 1 CA-CV 13-0694
                               FILED 1-15-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-012336
                The Honorable Douglas Gerlach, Judge

             JURISDICTION ACCEPTED; RELIEF DENIED


                                   COUNSEL

Phoenix City Attorney’s Office, Phoenix
By Janis M. Haug
Counsel for Plaintiff/Appellee

Edwin Cortes, Phoenix
Defendant/Appellant



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
                            PHOENIX v. CORTES
                            Decision of the Court

J O N E S, Judge:

¶1             Edwin Cortes appeals from a jury verdict finding him guilty
of forcible detainer and awarding the City of Phoenix (City) damages and
costs related to the proceeding, as well as the trial court’s subsequent denial
of his motion for new trial. For the following reasons and in our discretion,
we treat Cortes’ appeal as a petition for special action, accept jurisdiction,
and deny relief.

              FACTS AND PROCEDURAL BACKGROUND

¶2            In September 2013, the City filed a complaint for forcible
detainer to evict Cortes from its residential facility, alleging Cortes
materially breached the lease agreement by verbally harassing City staff
and other residents. The City claimed Cortes displayed threatening and
aggressive behavior on at least twenty-one occasions during his eighteen-
month tenancy. Cortes answered the complaint, denying the allegations
and asserting defenses under the Arizona Residential Landlord Tenant Act
(ARLTA), Arizona Revised Statutes (A.R.S.) sections 33-13011 to -1381,
including unconscionability, retaliatory conduct, discrimination, and
failure to maintain the premises.

¶3             On October 14, 2013, following Cortes’ extensive motion
practice, a jury found in favor of the City, determining it was “entitled to
possession of the rental property,” and awarded damages of $334. Cortes
filed a notice of appeal the following day. Prior to entry of the signed
judgment on November 13, 2013, Cortes also filed multiple post-trial
motions.2 The trial court denied Cortes’ post-trial motions in signed minute
entry orders entered November 13 and November 27, 2013.



1     Absent material revisions after the relevant dates, we cite a statute’s
current version.

2       Cortes’ post-trial motions are not clearly labeled as such. However,
the motions allege improper admission of evidence, sufficiency of evidence
to support the verdict, prosecutorial misconduct, and other irregularities
typically addressed in a motion for new trial, and the trial court treated at
least one of the documents as a timely-filed motion for new trial. Ariz. R.
Civ. P. 59(a) (enumerating bases of a motion for new trial). We therefore
accept the court’s conclusion, and likewise treat the post-trial submissions,
collectively, as a motion for new trial. See Ariz. R. Civ. P. 8(e) (“No technical



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                           PHOENIX v. CORTES
                           Decision of the Court

                              JURISDICTION

¶4             Although not raised by either party, as a preliminary matter,
we have an independent duty to determine whether we have subject matter
jurisdiction over the appeal. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz.
464, 465, 957 P.2d 1007, 1008 (App. 1997) (citing Davis v. Cessna Aircraft
Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991)). Our jurisdiction
is generally limited to issues arising from final judgments disposing of all
claims and all parties. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90
(1981). A notice of appeal filed prior to entry of a signed final judgment or
resolution of a time-extending motion is a nullity. See Smith v. Ariz. Citizens
Clean Elections Comm’n, 212 Ariz. 407, 415, ¶ 39, 132 P.3d 1187, 1195 (2006).

¶5             Here, Cortes filed his notice of appeal before entry of the final
judgment, and before a decision on his time-extending motions. Although
the first issue could be remedied, the second cannot. Compare Barassi v.
Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981) (holding a premature
appeal taken from an unsigned minute entry order ruling on post-trial
motion need not be dismissed where “no appellee was prejudiced and . . .
a subsequent final judgment was entered over which jurisdiction may be
exercised”), with Baumann v. Tuton, 180 Ariz. 370, 372, 884 P.2d 256, 258
(App. 1994) (concluding appellate court lacked jurisdiction over appeal
filed while a motion for new trial was still pending). Accordingly, we lack
appellate jurisdiction over this appeal.

¶6            “Although we do not have appellate jurisdiction . . . , it is
within our discretion to consider the matter as a special action.” State v.
Perez, 172 Ariz. 290, 292, 836 P.2d 1000, 1002 (App. 1992) (citing Brown v.
State, 117 Ariz. 476, 477, 573 P.2d 876, 877 (1978)); see also A.R.S. § 12–
120.21(A)(4) (granting court of appeals jurisdiction to hear special actions
“without regard to its appellate jurisdiction”). “Special action jurisdiction
is proper when the party has no plain, adequate or speedy remedy by
appeal, and justice cannot be obtained by other means.” Luis A. v. Bayham-
Lesselyong ex rel. Cnty. of Maricopa, 197 Ariz. 451, 453, ¶ 2, 4 P.3d 994, 996
(App. 2000) (citing Nataros v. Superior Court, 113 Ariz. 498, 499, 557 P.2d
1055, 1056 (1976)). Given the circumstances, Cortes no longer has the ability
to obtain a remedy through an appeal. Not wanting to elevate form over



forms of pleading or motions are required.”); Rodriguez v. Williams, 104
Ariz. 280, 283, 451 P.2d 609, 612 (1969) (looking “to substance rather than to
form” in determining intended effect of pleading).



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                           PHOENIX v. CORTES
                           Decision of the Court

substance, we exercise our discretion to treat this appeal as a petition for
special action, accept jurisdiction, but deny relief.3

                               DISCUSSION

¶7             On appeal, Cortes argues the City failed to provide sufficient
evidence to support the jury’s verdict, and re-urges his defenses under
ARLTA. We do not independently review the jury’s finding, but instead
will affirm the judgment if, viewing the evidence in the light most favorable
to upholding the jury verdict, “any substantial evidence could lead
reasonable persons to find the ultimate facts sufficient to support the
verdict.” Gonzales v. City of Phx., 203 Ariz. 152, 153, ¶ 2, 52 P.3d 184, 185
(2002) (citing Hutcherson v. City of Phx., 192 Ariz. 51, 53, ¶ 13, 961 P.2d 449,
451 (1998)). We also review the denial of post-trial motions for an abuse of
discretion, “recognizing that [the trial court] ha[s] significant latitude in
deciding whether to upset the [jury’s] verdict.” Hutcherson, 192 Ariz. at 53,
¶ 12, 961 P.2d at 451 (citing Creamer v. Troiano, 108 Ariz. 573, 577, 503 P.2d
794, 798 (1972), and Mammo v. State, 138 Ariz. 528, 533-34, 675 P.2d 1347,
1352-53 (App. 1983)).

¶8             This appeal requires a review of the record to determine
whether the jury’s verdict was justified by the evidence, or the trial court
erred in denying the motion for new trial. As the appellant, Cortes “is
responsible for making certain the record on appeal contains all transcripts
or other documents necessary for [this Court] to consider the issues raised
on appeal.” Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995);
see also ARCAP 11(b) (explaining duty of appellant to order certified
transcripts). If he fails to do so, we must assume the record would support
the jury’s verdict and the trial court’s conclusions. See Renner v. Kehl, 150
Ariz. 94, 97 n.1, 722 P.2d 262, 265 n.1 (1986) (“Without a record we must
presume that the trial court properly exercised its discretion and that there
was substantial evidence in the complete record to support the findings of
the trial court.”) (citing Auman v. Auman, 134 Ariz. 40, 42-43, 653 P.2d 688,

3      We note that effective January 15, 2015, because of the adopted rule
changes to the Arizona Rules of Civil Appellate Procedure, this situation
will no longer defeat our jurisdiction. Under the new Arizona Rule of Civil
Appellate Procedure 9, a notice of appeal filed prior to entry of formal
judgment will be treated as filed “on the date of, and after the entry of, the
judgment,” ARCAP 9(c) (2015), and a notice of appeal filed prior to
resolution of a time-extending motion will be suspended “until the last such
motion is decided.” ARCAP 9(e)(2) (2015).



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                           PHOENIX v. CORTES
                           Decision of the Court

690-91 (1982), and Visco v. Universal Refuse Removal Co., 11 Ariz. App. 73, 76,
462 P.2d 90, 93 (1969)).

¶9            We have not been provided any transcripts on appeal.
Therefore, we presume that the evidence and testimony presented at trial
supported the jury’s verdict and rejection of Cortes’ defenses. Applying
that principle, we simply have nothing in the record before us to indicate
the evidence presented was insufficient, the jury’s verdict was erroneous or
that the denial of Cortes’ post-trial motions was inappropriate.

                              CONCLUSION

¶10           For these reasons, we accept jurisdiction and deny relief.

¶11           The City requests an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. §§ 12-341.01(A) and -1178(A). While A.R.S. § 12-
341.01 permits an award of fees in the court’s discretion, fees and costs are
mandatory under A.R.S. §§ 12-341 and -1178(A). Compare A.R.S. § 12-
341.01(A) (“In any contested action arising out of a contract . . . the court
may award the successful party reasonable attorney fees.”) (emphasis
added), with A.R.S. § 12-341 (“The successful party to a civil action shall
recover from his adversary all costs expended or incurred therein unless
otherwise provided by law.”) (emphasis added), and A.R.S. § 12-1178(A)
(“If the defendant is found guilty of forcible entry and detainer or forcible
detainer, the court shall give judgment for the plaintiff for . . . damages,
attorney fees, court and other costs . . . .”) (emphasis added). We therefore
award the City its reasonable attorneys’ fees and costs on appeal upon
compliance with ARCAP 21.




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