28692 Exhibit Packet.pdf

24F-LTA017-ADH · Arizona State Department of Housing - LTA · 2024-09-06

Table of Contents:

Exhibit 1 Rental Agreement.................................................................................................... 001 - 005

Exhibit 2 Rules and Regulations.............................................................................................. 006 -021

Exhibit 3 Superior Court Civil Complaint............................................................................. 022- 035

Exhibit 4 Motion to Dismiss SC Complaint ..........................................................................036 - 041

Exhibit 5 Nonpayment Notice..................................................................................................042 - 043

Exhibit 6 Eviction Judgment.................................................................................................... 044 - 045

Exhibit 7 Termination of Tenancy.......................................................................................... 046 - 047

Exhibit 8 Notice of Sale............................................................................................................. 048 - 049 001

EXHIBIT 1 002 003 004 005 006

EXHIBIT 2 007 008 009 010 011 012 013 014 015 016 017 018 019 020 021 022

EXHIBIT 3 023 024 025 026 027 028 029 030 031 032 033 034 035 036

EXHIBIT 4 037

ZONA LAW GROUP P.C. 7701 East Indian School Road Suite J Scottsdale, Arizona 85251 (480) 949-1400 Scott E. Williams, #012417 Mark B. Zinman, #024028 Tatianna F. Dunne, #036776 Scott A. Baluha, #029957 [email redacted] Attorneys for Defendant IN THE MARICOPA COUNTY SUPERIOR COURT THE STATE OF ARIZONA

STEPHANIE HERRINGTON, CASE NO. CV2024-015450 Plaintiffs, MOTION TO DISMISS WITH PREJUDICE v. RUDY MARISCAL, Defendant. Defendant, Rudy Mariscal Defendant ), by and through undersigned

counsel, hereby moves this Court pursuant to the Arizona Rule of Civil Procedure 12(b)(6) , to dismiss with prejudice the claims against him for failure to state a claim. Defendant Manager is the property manager and has no liability. Plaintiff, Stephanie Herrington has filed suit for recovery of monies allegedly owed to her

by the landlord of the manufactured home community that is managed by the Defendant. As Defendant Manager is an agent of the principal, he has no personal liability for claims arising out of the lease and rental property. See Ferrarell v. Robinson, 11 Ariz.App.

473, 475 (Ariz. Ct. App. 1970). Plaintiff sued for recover of monies allegedly owed to 038

him by the landlord and for unknown reasons sued the property manager which has no liability. This is a lawsuit between the landlord/owner and the tenant, and Defendant

Manager is improperly included. Defendant Manager acts on behalf of the landlord/owner, and does not have personal liability. Plaintiff alleges she is owed compensation for the disposition of a manufactured home she previously owned in the manufactured home community which Defendant

manages. Regardless of the merits of such claims, which Defendant Manager disputes, it is inappropriate and without a legal basis to sue the property manager that acts as an agent of the landlord/owner. The claims against Defendant Manager must be dismissed with prejudice for failure ZONA LAW GROUP P.C.

7701 E. Indian School Road, S uite J

to state a claim upon which relief can be granted. Further, Defendant is entitled to an Scotts dale, AZ 85 251 (48 0) 949 -1400

award of his he has prevailed on the basis that there is no contract between the parties. I. LEGAL ARGUMENT

A. DEFENDANT IS AN AGENT OF THE PRINCIPLE AND HAS NO LIABILITY AS A MATTER OF LAW AND CONTRACT. Regardless of the merits of Plaintiff s Complaint, Defendant Manager should be dismissed as he (the manager) was an agent of the landlord/owner and all actions were taken on behalf of the landlord/owner. If there is a problem, then a dispute between the landlord/owner and the tenant, not Defendant Manager who is not personally involved in the lease. Defendant Manager merely acts on behalf of the landlord/owner, and has no personal stake in the matter. Whether the landlord/owner owes money to the Plaintiff does not create liability for the property manager. Defendant Manager is not liable to Plaintiff

039

as a contract with Plaintiff. Plaintiff has a contract with the landlord/owner.

Plaintiff s privity is with the landlord/owner. Plaintiff originally entered into a lease agreement with the owner of the property, Grand Missouri. The lease is absolutely clear: Plaintiff and the landlord/owner. As an agent, Defendant Manager is not a party to the lease, and thus cannot liable for any alleged

breaches thereof. See Ferrarell v. Robinson, 11 Ariz.App. 473, 475 (Ariz Ct. App. 1970). The Court of Appeals has held [o]ne who signs an agreement as the agent of a fully disclosed principal is not a party to that agreement and thus incurs no personal liability Id. (citation omitted). ZONA LAW GROUP P.C.

7701 E. Indian School Road, S uite J

This unambiguous language is controlling in the present action. Plaintiff entered Scotts dale, AZ 85 251 (48 0) 949 -1400

into a lease with the landlord/owner of the property. Defendant Manager is an agent of the principal and thus not liable for any alleged breaches. See Ferrarell v. Robinson, 11 Ariz.App. 473, 475 (Ariz Ct. App. 1970). Legal privity, which is required to bring a claim, can be diagramed as follows: Privity: Lease and LL/T Act (A.R.S. § 33-1310 et seq.) Privity through Lease Landlord/Owner Tenants Privity: Order XXX - No privity b/w Tenant Privity through Property Management Agreement and Agent - XXX Property Manager/Agent

040

Since Defendant Manager is merely an agent, and not the landlord/owner, he does not have privity with the Plaintiff. Privity is the connection or relationship existing

between two or more contracting parties. See Samsel v. Allstate Ins. Co., 199 Ariz. 480, 484 (Ariz. Ct. Samsel v. Allstate Ins. Co., Id. (citing 13 SAMUEL WILLISTON & RICHARD A. LORD, WILLISTON ON

[P]rivity of contract must exist before one may Id. (citing Stratton v. Inspiration Consol. Copper Co., 140 Ariz. 528 (Ariz. Ct. App. 1984) (lack or privity precluded breach of contract claim); Hatton v. Greenberg, 9 Ariz.App. 327 (Ariz. Ct. App. 1969) (usury defense not ZONA LAW GROUP P.C. 7701 E. Indian School Road, S uite J

ordinarily available to noncontracting party)). Defendant Manager is not a party to the Scotts dale, AZ 85 251 (48 0) 949 -1400

lease and has no privity with Plaintiff. Thus, this case must be dismissed with prejudice. II. Defendant Manager is seeking costs and attorneys fees on the basis that it does not

have a contract with Plaintiff. An award of attorneys fees is appropriate even when the Defendant Manager proves the non-existence of a contractual relationship. Mullins v. Southern Pacific Transportation Co., 174 Ariz. 540, 543 (Ariz. Ct. App. 1992). Defendant Manager is entitled to its he is not a party to the contract.

Therefore, an award of attorneys fees is still proper where Defendant Manager has proven an agent, and therefore not a party to the contract. Additionally, Defendant Manager requests its costs and attorneys fees pursuant to A.R.S. § 12-341 and A.R.S. § 12-341.01.

041

III. CONCLUSION Based on the foregoing, Defendant Manager seeks to be dismissed from this case

with prejudice, as he is an agent of the landlord/owner and has no liability under the lease between the Plaintiff and landlord/owner. Plaintiff has failed to state a claim against Defendant Manager upon which relief can be granted. Thus, this case must be dismissed with prejudice.

RESPECTFULLY SUBMITTED this 16th day of July, 2024. ZONA LAW GROUP P.C. By: /s/Scott A. Baluha ZONA LAW GROUP P.C.

Scott A. Baluha 7701 E. Indian School Rd., Suite J 7701 E. Indian School Road, S uite J

Scottsdale, AZ 85251 Scotts dale, AZ 85 251

Attorneys for Defendant (48 0) 949 -1400

CERTIFICATE OF MAILING

Copy of the foregoing mailed this 16th day of July, 2024 to: Stephanie Herrington 4400 W. Missouri Ave., Unit 125 Glendale, AZ 85301 Plaintiff Pro Per /s/ SAB

042

EXHIBIT 5 043 044

EXHIBIT 6 045 046

EXHIBIT 7 047

[number redacted] 28198 048

EXHIBIT 8 049

NOTICE OF SALE OF MOBILE HOME NOTICE IS HEREBY GIVEN that the following item of personal property will be sold at public sale to the highest bidder, to satisfy a landlord's lien:

Vehicle/Mobile Home (“Personal Property”) Make: GOLD STAR Body Style: 12 X 68 MH Model Year: 1972 VIN: 194472

Date and Time of Sale: 4/5/24 10:00:00 AM Location of Sale: Space No. 125 BREIT GRAND MISSOURI MHC LLC DBA GRAND MISSOURI 4400 W MISSOURI AVENUE GLENDALE, AZ 85301

Name of landlord: BREIT GRAND MISSOURI MHC LLC

Amount of Claimed Lien: $5,417.00 as of April 5, 2024 The Personal Property will be sold “as is,” where is, with all faults and no warranties. No one may enter the Vehicle/Mobile Home. Buyer purchases the Personal Property subject to any liens with priority over the Landlord’s Lien and at their own risk. To bid, bidder must provide valid government-issued identification and must deposit with the auctioneer a $5,000.00 cashier's check payable to the Landlord named above and sign and agree to the terms of sale. Terms of Sale will be provided upon request and/or at the sale. High bidder is responsible for space rent from and after date of sale and must either qualify to reside in the mobile home park in which the Personal Property is located and sign a Rental Agreement, or sign a storage agreement and pay monthly space rent to store the Personal Property in the park.

Date of Rental Agreement: August 8, 2018 Name(s) of Owner(s): JOEL RICHARD HERRINGTON, STEPHANIE D HERRINGTON

Said Personal Property is located at the address shown above as the Location of Sale. The above-described Personal Property shall be offered for sale pursuant to A.R.S. § 33-1023. Proceeds from the sale will be applied to costs of sale and to the Landlord’s Lien, and any remaining money will be disposed of as provided in A.R.S. § 33-1023.

BREIT GRAND MISSOURI MHC LLC

By:______________________________ Dated: February 29, 2024 Park Manager 28198