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5 IN THE WEST MESA JUSTICE COURT, MARICOPA COUNTY, ARIZONA

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Case No. CC 2020 056864
7 APPELLANT APPELLEE
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MARK JD PEARSON, Pro Se SHADOW MOUNTIAN LTD.
9 8780 E. McKellips Road, #122 DBA Shadow Mountain Village
Scottsdale, Arizona 85257 8780 E. McKellips Road
10 Scottsdale, Arizona 85257
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APPELLANT’S MEMORANDUM
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17 By _____________________
Mark JD Pearson, Pro Se
18 8780 E. McKellips Road, #122
Scottsdale, Arizona 85257
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Appellant
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 TABLE OF CONTENTS
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2 I. STATEMENT OF JURISDICTION...................................................................................

3 II. ISSUES TO BE PRESENTED ...........................................................................................

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III. STATEMENT OF FACTS AND CASE
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IV. ARGUMENT
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V. CONCLUSION

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I. STATEMENT OF JURISDICTION
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Appellant/Defendant, MARK “JD” PEARSON (“Appellant”) appearing “pro se”
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appeals the Judgment for Eviction entered against Appellant by Honorable A. Fritz of the West
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5 Mesa Justice Court on March 6, 2020, and a timely Notice of Appeal was filed on March 10,

6 2020, and jurisdiction with the Maricopa County Superior Court is proper pursuant to A.R.S.
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22-425(B).
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 II. ISSUES PRESENTED
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2 1. The Court Erred in Granting Judgment Against Appellant for Non-Payment of

3 Rent Despite Evidence Presented Confirming Payment in violation of A.R.S.

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§33-1476
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2. Appellant is entitled to relief and for damages due to the wrongful eviction and
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retaliatory conduct pursuant to A.R.S 33-1491;

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III. STATEMENT OF THE FACTS AND CASE
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On, or about January 23, 2020, Appellee filed a Complaint for Eviction against

11 Appellate in Case No. CC2020-016243 which was voluntarily dismissed by Appellee on

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January 28, 2020. (APP____)
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On, or about February 1, 2020, Appellant rendered his check #____ in the amount of
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$2,202.49 to Appellee which satisfied all amounts owed and rent for February for a $0.00
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16 balance. (APP____ and IR#1) 1 (check and payment ledger)

17 Thereafter, on, or about March 4, 2020, Appellant tendered check #____ for March rent
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in the amount of $668.11 and Appellee refused to accept stating the reason was that he was
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“suing” the mobile home park and the check failed to include an unknown amount for $303.00
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it claimed Appellant owed. (APP___)
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22 On, or about March 5, 2020, Appellee sent a Seven-Day Notice for Non Payment of

23 Rent which stated Appellant was in default of rent, utilities, late charges and the unknown
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amount of $303.00 (“past due amount”) totaling $968.11. (IR #1)
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28 1 Selected record items cited are included in the Appendix attached to this brief which are
cited by the document and page number (IR#1) and coincides with the record number on the
Clerk’s record on appeal.
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 On, or about March 19, 2020, Appellee filed a Complaint for Eviction stating on March
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2 18, 2020 Appellant was in default of the Rental Agreement and owed Appellee $591.00 for

3 rent; late fees of $85.00, Court costs and process server fees ($131.00), attorneys’ fees
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($175.00) and Utilities ($49.09) for total of $1,031.11. (IR#1).
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The eviction hearing was scheduled for March 31, 2020, and Appellee appeared and
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requested a postponement and the Court rescheduled to April 6, 2020 at 8:30 a.m.

8 On April 6, 2020, the Court held the hearing telephonically which commencing at 8:56
9 a.m. until 9:11 a.m. and then 9:40 a.m. to 10:06 a.m.2
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Appellant entered evidence but was restricted from testifying by Judge Fritz and
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Judgment was entered against Appellant for immediate possession of the premises and
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13 payment to Appellee in the amount of $1,187.13. 3 (APP___ ).

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IV. ARGUMENT
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16 A special detainer action is employed where "a landlord files an action to terminate a

17 tenant's lease for breach of a current, valid lease." Keenan v. Biles, 199 Ariz. 266, 267 n.1, ¶ 1,
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17 P.3d 111, 112 (App. 2001). A landlord may bring such an action where a tenant fails to pay
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the rent agreed. A.R.S. § 33-1368(B) (2007); Keenan, 199 Ariz. at 267, ¶ 5, 17 P.3d at 112. A
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special detainer action is a summary proceeding. RPEA 2. In this case, the Court erred in
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22 entering Judgment in this special detainer action for breach of the Rental Agreement for non-

23 payment of rent when it recognized at the hearing that Appellant made a timely payment for
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March rent and did not violate A.R.S. §33-1476 which provides:
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“33-1476. Termination or nonrenewal of rental agreement by landlord;
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2 Trial audio recording at 9:11 a.m. the Court recessed to allow Appellant to submit evidence of his
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The $303.00 amount included in the Seven Day Notice by Appellee as “previous balance” was not
included in the Judgment amount.

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A. The landlord shall specify the reason or reasons for the
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or reasons relied on for the termination or nonrenewal shall be stated in writing
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reason or reasons for termination or nonrenewal can be determined. Reference
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to or recital of the language of this chapter, or both, is not sufficient compliance
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6 B. The landlord may not terminate or refuse to renew a tenancy

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without good cause. "Good cause" means:

8 1. Noncompliance with any provision of the rental agreement.

9 2. Nonpayment of rent.
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3. Change in use of land.
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Appellee’s Complaint filed on March 19, 2020 excluded the $303.00 amount that
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13 Appellant refused to pay on the basis that it was not related to him and he was not obligated to

14 pay after he had made the payment on March 4, 2020, and prior to Appellee’s Seven Day
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Notice. In addition, Appellee’s Seven Day Notice for Non-Payment of Rent included the
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$303.00 amount stating a “previous balance” which was inconsistent with its payment ledger
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attached to the Complaint showing a $0.00 balance on February 1, 2020. , and, further
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19 excluded from the Complaint filed on March 19, 2020.

20 Further, Appellee’s refusal to accept the rent payment because of legal actions by
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Appellant constitutes “retaliatory conduct” which is prohibited and entitles Appellant to
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remedies and a proper defense to the eviction pursuant to A.R.S. §33-1491(B) which states:
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“B. If the landlord acts in violation of subsection A of this section,
the tenant is entitled to the remedies provided in section 33-1475 and
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the tenant, evidence of a complaint within six months prior to the alleged
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retaliation. The presumption does not arise if the tenant made the complaint
after notice of termination of the rental agreement. For the purpose of this
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 of the fact presumed unless and until evidence is introduced which would
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support a finding of its nonexistence.”
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At the hearing Appellant presented to the Court evidence of his payments to Appellee
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and the $0.00 balance and the payment for March rent made before the Seven Day Notice to
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5 show that the $303.00 amount was not enforceable under the Rental Agreement. Whereas,

6 Appellee testified that the $303.00 amount was for attorneys’ fees it had to incur in the eviction
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action that was voluntarily dismissed. However, Appellee was not entitled to attorneys’ fees
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pursuant to A.R.S. 12-1178(B) which contemplates a decision on the merits as a condition
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precedent to the award of fees. Cold Fusion v. Verde Wellness, 102 Ariz. 461, 464 (1967)

11 (explaining that a dismissal without prejudice is not an adjudication on the merits). Further,
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the Rental Agreement did not provide for attorneys’ fees in that case and states:
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“Article 1. Disputes
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13.1 ATTORNEY’S FEES. In the event Landlord or Tenant commences
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litigation to construe or enforce this Rental Agreement or to recover damages for
16 breach of this Rental Agreement, or to obtain possession of the Premises, the prevailing
party shall be entitled to recover his/her reasonable attorneys fees. This includes
17 attorneys’ fees incurred in administrative hearings under A.R.S. 41-2198.”
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Further, Appellee did not include the $303.00 amount in the Complaint and is barred
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from getting in the Judgment pursuant to A.R.S. 33-1476.
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In addition, Appellant attempted to argue he was not obligated to pay attorneys’ fees
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22 from the earlier action and Judge Fritz immediately cut him off and advised him that

23 Appellee’s attorneys were under an ethical obligation to ensure that all facts stated in the
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Complaint were true. When Appellant then attempted to refute her statement she again stopped
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him and immediately rendered her decision and entered Judgment against Appellant for
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immediate possession of the premises and payment in the amount of $1,182.04 which excluded

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 The special detainer action was insufficient as Appellee sought possession of the
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2 premises alleging breach of the Rental Agreement for non-payment of rent and the Judgment

3 should be reversed. Keenen v. Biles, 17. P. 3d 111(2001).

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IV. CONCLUSION
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Appellant requests a determination by the Court that Appellee breached the Rental
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Agreement by withholding the premises from Appellant and constructively evicting Appellant

8 and upon such determination Appellant requests award of two months’ rent, damages and
9 attorneys’ fees and costs pursuant to A.R.S. §33-1491(B).
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