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Nieto v. Nieto

Court of Appeals of Arizona, First Division

November 21, 2013

SANTOS C. NIETO, Plaintiff/Appellee,
v.
JUAN C. NIETO; DANIEL C. NIETO; LINDA N. GARCIA; ANDREA N. MOLINA; JUANITA M. NIETO; and CELESTE M. NIETO, Defendants/Appellants

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2010-027838 The Honorable Hugh Hegyi, Judge The Honorable Randall Warner, Judge

Martinez Law, P.L.C., Mesa By Adam D. Martinez Counsel for Plaintiff/Appellee

Community Legal Services, Phoenix By David Vandeventer Counsel for Defendants/Appellants

Presiding Judge Maurice Portley delivered the decision of the Court, in which Judge John C. Gemmill and Judge Kent E. Cattani joined.

MEMORANDUM DECISION

PORTLEY, Judge:

¶1 Juan Nieto, Daniel Nieto, Linda Garcia, Andrea Molina, Juanita Nieto and Celeste Nieto ("Defendants") appeal the summary judgment granted to Santos C. Nieto ("Santos"). Defendants argue that they presented evidence demonstrating a genuine issue of material fact sufficient to withstand the motion for summary judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 This dispute concerns the ownership of two lots, Lots 27 and 28, Solares Addition, Guadalupe, Arizona ("the Property"). Santos is the uncle of Defendants, who are the children of Santos's deceased brother Juan C. Nieto Senior ("Juan Senior"). Santos acquired title to Lot 27 in approximately 1960 and title to Lot 28 in July 1971 from his mother and stepfather.

¶3 After their mother died intestate in 1974, Santos, Juan Senior, and a third brother, Gumero, inherited three parcels of property, Lots 23 and 24, and Lot 7. Juan Senior quitclaimed all his interest in Lots 23 and 24 to Santos in August 1984. Three days later, Santos quitclaimed all his interest in Lot 7 to Juan Senior.

¶4 The quitclaims did not, however, resolve ownership of the lots and the three brothers ended up in litigation in CV87-13053. The judgment issued by the superior court in 1989 determined that title to Lots 23 and 24 were quieted in Santos and Gumero was granted title to Lot 7 by adverse possession. The judgment also noted that Juan Senior had moved to Lot 27 in 1964 where he continued to live for more that twenty-five years, that the Property was titled in Santos's name, and that Santos had testified that he intended to deed the Property to Juan Senior at the conclusion of the litigation.

¶5 Juan Senior died in October 2009. Santos filed an action to quiet title to Lots 27 and 28 on September 24, 2010. In his complaint, Santos alleged that he owned the Property and had leased it to Juan Senior. The complaint further alleged that Santos had allowed Defendants to occupy Lot 27 as paying tenants after Juan Senior died, but Defendants refused to pay rent, refused to vacate when requested, and claimed to be the owners of the Property. Attached to the complaint were copies of the warranty deed and quitclaim deed for Lots 27 and 28, respectively, conveying the properties to Santos. The complaint was served on Defendants six days later.

¶6 Defendants had filed a lawsuit in July 2010, but did not serve it on Santos until November 2010. They later moved to consolidate their case, CV2010-095055, with Santos's lawsuit.

¶7 Santos filed a motion for summary judgment on December 15, 2010. He argued that Defendants had not alleged a viable theory by which they held title. Santos attached to the accompanying statement of facts his affidavit and avowed that he held title to the property, that he had leased the property to Juan Senior, that he sometimes allowed Juan Senior to live on the property rent free, that he always paid the property ...


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