TABLE OF CONTENTS

I. INTRODUCTION .......................................................................................... 1

II. ISSUES PRESENTED .................................................................................... 3

1. THE COURT ERRED IN FINDING

DEFENDANT/APPELLANT IN BREACH OF CONTRACT

(a) The Final Invoice Did Not Include Credits Due to

Defendant /Appellant for Work Plaintiff Did Not Perform

(b) Plaintiff Failed to Meet Contractual Requirements and

Perform Work in a Timely Manner

2. THE COURT ERRED IN FINDING THE MECHANIC’S

LIEN
WAS VALID FOR FORECLOSURE

(a) The Preliminary 20 Day Notice Was Untimely and

Contained Invalid Amounts (A.R.S. 33-992.01(C))

(b) Notice of Lis Pendens Was Not Filed and Invalidates

Lien Foreclosure (A.R.S. 33-998(A))

3. THE COURT ERRED IN ALLOWING

PLAINTIFF/APPELLEE’S
HEARSAY EVIDENCE/TESTIMONY

(a) The Court Permitted Dan Edwards to Testify

Telephonically Without Prior Notice (E.R. Rule 802)

(b) The Court Would Not Consider the Affidavit of Kevin

Stumph Which Was Filed with Defendant /Appellant
/Appellant’s Cross Motion for Summary Judgment (Rule
105)

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 (c) The Court Allowed Plaintiff to Present Unauthenticated
Evidence to Witness on Direct Examination (Rule 901)

(d) The Court Would Not Allow Defendant /Appellant

/Appellant to Present Authenticated Evidence for Cross
Examination
(e) The Court Would Not Consider Defendant/Appellant’s
Post-Trial Notices with Evidence Showing Perjury and
Forgery by Plaintiff’s witnesses (EIR#247-266).

III. STATEMENT OF JURISDICTION .............................................................. 4

IV. STATEMENT OF THE CASE ....................................................................... 5

V. STATEMENT OF FACTS .............................................................................. 6

VI. STANDARD FOR REVIEW ......................................................................... 7

VII. ARGUMENT .................................................................................................. 6

VIII. CONCLUSION ............................................................................................... 6

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 TABLE OF AUTHORITIES

Cases

Pence v. Glacy, 207 Ariz. 426, 428 ¶ 10 (App. 2004).) ........................................ 10

Schwab v. Ames Constr., 207 Ariz. 56, 60 ¶ 17 (App. 2004). ............................... 10
Allstate Indem. Co. v. Ridgely, 214 Ariz. 440, 441¶ 2 (App. 2007). ..................... 10
Scottsdale Mem’l Health Sys., Inc. v. Clark, 157 Ariz. 461, 463 (1988) ............... 17
Power Co., 45 Ariz. 434, 450–51, 45 P.2d 656, 662–63 (1935) ................................
Cypress on Sunland Homeowners Ass'n v. Orlandini, 227 Ariz. 288, 299, ¶ 42, 257
P.3d 1168, 1179 (App.2011) ................................................................................... 18
Gordon v. Gordon, 35 Ariz. 357, 364–65, 278 P. 375, 3......................................... 18
Franzi v. Superior Court (Livermore), 139 Ariz. 556, 564, 679 P.2d 1043, 1051
(1984) ...................................................................................................................... 18
Performance Funding, L.L.C. v. Ariz. Pipe Trade Trust Funds, 203 Ariz. 21, 24, ¶
10, 49 P.3d 293, 296 (App. 2002) ........................................................................... 19
MLM Constr. Co. v. Pace Corp., 172 Ariz. 226, 229, 836 P.2d 439, 442 (App.
1992). ...................................................................................................................... 20
Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 263 P.3d 683 (App.2011). 21
Dockery v. Cent. Ariz. Light & Power Co., 45 Ariz. 434, 450–51, 45 P.2d 656,
662–63 (1935) ......................................................................................................... 22

Statutes and Rules

A.R.S. §12-2101(A)(1) and (2). ) ............................................................................. 5
A.R.S. §33-998(A) .................................................................................................. 17
A.R.S. §§33-992.01.................................................................................................. 18
A.R.S. §33-993(B). .................................................................................................18
A.R.S §33-1129.01(D)(1) ....................................................................................... 18
A.R.S. §13-2702(A) 77–78 (1929) ........................................................................... 5
Arizona Rules of Civil Procedure Rule 59 ................................................................ 2
Arizona Rules of Civil Procedure Rule 60 ................................................................ 2
Arizona Rules of Evidence Rule 105 ...................................................................... 19

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I. INTRODUCTION

KENNETH DEE BROWN (“Defendant /Appellant”) appeals the final

Judgment entered on January 14, 2019, by Honorable David Palmer of the Maricopa

County Superior Court in Case No. CV2016-096820 in favor of GORILLA

BUILDERS, L.L.C. (“Plaintiff/Appellee”) following a two (2) day bench trial on

September 21, 2018 and October 25, 2018. Plaintiff filed its Complaint against

Defendant/Appellant for Breach of Contract, Breach of Covenant of Good Faith and

Fair Dealings, Violations of Arizona’s Prompt Pay Act, Conversion, Quantum

Meruit, and Judicial Foreclosure of Mechanic’s Lien [EIR#1] and

Defendant/Appellant’s filed his Answer and Counterclaim for Invalid Mechanic’s

Lien, Breach of Contract, and Specific Performance. [EIR#23]

Plaintiff/Appellee’s presented no evidence to prove Defendant was in material

breach and instead attacked Defendant/Appellant’s character by making false and

defamatory statements which included that he engaged in unethical and illegal

business practices, which was apparently done to falsely discredit him in the eyes of

the Court. Further, Plaintiff/Appellee called a hostile witness and former tenant of

Defendant /Appellant whose testimony was “hearsay” and the Court allowed despite

Defendant/Appellant’s objection as the matters which occurred after the Contract

had been terminated are irrelevant. Defendant/Appellant could not have anticipated
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Plaintiff/Appellee’s reliance on false testimony and was not able to effectively cross

examine Plaintiff/Appellee’s witnesses to prove the misrepresentations at trial. The

Court took Plaintiff/Appellee’s testimony as true and rendered a Judgment that is

contrary to the law.

Defendant/Appellant sought post-trial relief through his Rule 59 and Rule 60

Motion and his Complete Post Trial Notice/Report of Perjured Testimony by

Plaintiff’s Witnesses, and provided the Court detailed accounts of Plaintiff’s

misrepresentations with evidence to support them, but the Court did not review all

the parts of the Motion, declined to review the Notice and affirmed the Judgment.

Accordingly, Defendant /Appellant seeks Appellate Court review on the issues

presented to the Superior Court and find that the Judgment was entered in error and

contrary to the law.

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II. ISSUES PRESENTED

1. THE COURT ERRED IN FINDING

DEFENDANT/APPELLANT IN BREACH OF CONTRACT

(a) The Final Invoice Did Not Include Credits Due to

Defendant /Appellant for Work Plaintiff Did Not Perform

(b) Plaintiff Failed to Meet Contractual Requirements and

Perform Work in a Timely Manner

2. THE COURT ERRED IN FINDING THE MECHANIC’S

LIEN
WAS VALID FOR FORECLOSURE

(a) The Preliminary 20 Day Notice Was Untimely and

Contained Invalid Amounts (A.R.S. 33-992.01(C))

(b) Notice of Lis Pendens Was Not Filed and Invalidates

Lien Foreclosure (A.R.S. 33-998(A))

3. THE COURT ERRED IN ALLOWING

PLAINTIFF/APPELLEE’S
HEARSAY EVIDENCE/TESTIMONY

(a) The Court Permitted Dan Edwards to Testify

Telephonically Without Prior Notice (E.R. Rule 802)

(b) The Court Would Not Consider the Affidavit of Kevin

Stumph Which Was Filed with Defendant /Appellant
/Appellant’s Cross Motion for Summary Judgment (Rule
105)

(c) The Court Allowed Plaintiff to Present Unauthenticated

Evidence to Witness on Direct Examination (Rule 901)

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 (d) The Court Would Not Allow Defendant /Appellant
/Appellant to Present Authenticated Evidence for Cross
Examination

(e) The Court Would Not Consider Defendant/Appellant’s

Post-Trial Notices with Evidence Showing Perjury and
Forgery by Plaintiff’s witnesses (EIR#247-266).

(f) The Court Denied Defendant /Appellant’s Notice of

Errata to Defendant /Appellant’s Amended Rule 59
motion to Amend and correct Errata (EIR# 235-244)

4. THE COURT ERRED IN DENYING DEFENDANT

/APPELLANT RULE 59 RELIEF

(a) The Court Denied Defendant /Appellant’s Rule

59(a)(1)(F) Motion supported with Evidence that shows
that the amount of the Judgment was either greatly
overstated or completely invalid and also requested that
the acts of perjury and forgery committed by Plaintiff’s
Witnesses be referred to legal authorities for review.

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III. STATEMENT OF JURISDICTION

The Court entered a final Judgment1 against Defendant/Appellant in a signed

minute entry on January 14, 2019, after a two (2) day bench trial held on

September 21, 2018, and October 25, 2018, and Defendant/Appellant filed a timely

Notice of Appeal on February 13, 2019 and a Rule 59 Motion to Amend the

Judgment or alternatively a Rule 60 Motion for Reconsideration on January 27,

2019, corrected by Notice of Errata on February 15, 2019. On April 13, 2019,

2019, the Superior Court issued a minute entry denying Defendant /Appellant’s

Rule 59 Motion. Defendant /Appellant filed an Amended Notice of Appeal on

April 13, 2019. The Court has jurisdiction over the appeal pursuant to A.R.S. §12-

2101(A)(1) and (2).

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IV. STATEMENT OF THE CASE

Plaintiff/Appellee was granted a Judgment by the Court on the claim for

breach of contract and the judicial foreclosure on the mechanic’s lien not because

of strong supportive evidence or compelling legal argument but rather because of

Defendant /Appellant’s lack of trial experience. The Court certainly showed no

leniency to the Defendant /Appellant appearing “pro se” and did not even offer the

most basic instructions to Defendant /Appellant to his detriment.

The Court found Defendant /Appellant in breach of the Contract for failing

to pay Appellee but failed to consider the Contractual requirement to apply credits

Defendant /Appellant was due for work Plaintiff/Appellee failed to perform or

were otherwise agreed between the parties. Further, it granted Plaintiff/Appellee a

Judgment on the judicial foreclosure despite Plaintiff/Appellee failed to meet the

statutory requirements required to perfect the Mechanic’s Lien and further failed to

file a Notice of Lis Pendens both of which are necessary in a foreclosure action.

Plaintiff/Appellee’s presentation of the case and the testimony by witnesses

Jeff Suer and Dan Edwards included statements that Defendant /Appellant

concluded were acts of Perjury and were shown in his Rule 59 Motion by trial

exhibits or part of the written record of communications between the parties. In

Defendant /Appellant’s Notice he referred to specific fifteen (15) statements by

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Plaintiff/Appellee’s witnesses at the trial of what he concluded were Perjury and

one altered document, a forgery. Defendant /Appellant then asked the Court to

refer the acts of Perjury and forgery to the Maricopa County Prosecutor's office for

consideration of charges against Plaintiff/Appellee’s Witnesses. The Court

accepted Plaintiff/Appellee’s Motion to Strike which claimed it was an attempt to

rehash the case. The Court accepted that argument stating that it had not read the

text in detail. The comments included: “Defendant seeks what amounts to legal

advice in asking the court for direction on the initiation of an investigation by the

proper authorities. Such a request is likewise a matter upon which, it is

inappropriate for this court to comment.”

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V. STATEMENT OF FACTS

Plaintiff’s Complaint is based on a Contract consisting of three parts for

work at the residential property owned by Defendant /Appellant located at 3349 W.

Wethersfield Road in Phoenix, Arizona. The first, entered into between

Plaintiff/Appellee and Defendant /Appellant on or about June 30, 2014, (“Base

Contract”) was for restoration work after an accidental fire. The second was an

Addendum for addition of a second story to the property. A further Addendum was

signed on December 20, 2014 in the amount of $9,151.68, primarily for building

code upgrades that were not included in the Base Contract or Addendum ("Second

Addendum").

The Base Contract in the amount of $125,722.89 signed on or about June 30,

2014 (as corrected on or about December 19, 2014); the Addendum signed on

August 11, 2014, for an additional cost of up to $47,775.00 which would be

reduced by amounts Defendant /Appellant declined or Plaintiff/Appellee did not

complete. The second Addendum was signed on December 20, 2014 in the

amount of $9,151.68, primarily for building code upgrades that were not included

in the Base Contract or Addendum ("Second Addendum").

Plaintiff/Appellee stated in the Complaint that Base Contract was timely

started and work on it was substantially completed in the summer of 2016 and that
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Defendant /Appellant paid for the goods and services required under the Base

Contract.

Plaintiff/Appellee stated that he advanced the costs for materials and labor

for the construction of the second story. Following termination of the Contract

before completion, Defendant /Appellant refused to pay Plaintiff when invoiced for

the work completed. Plaintiff/Appellee stated Defendant /Appellant was in breach

by failing to pay the final amount due that it stated was $44,708.55, allowing for

all credits and offsets.

Plaintiff also alleged Defendant /Appellant hired an unlicensed handyman

and allowed him to occupy the Property constituting an illegal residential tenant

and to complete work and obtain a Certificate of Occupancy from the City of

Phoenix.

Defendant /Appellant’s Counterclaim alleged Plaintiff did not complete all

of the work (materials and labor) for completion of either the Base Contract or the

Addendum and by Defendant /Appellant’s analysis, Plaintiff owed Defendant

/Appellant $43,820.96 for the amount overpaid for work not completed on the

Base Contract. Defendant /Appellant denied he retained any other contactors and

did not retain tenant Dan Edwards to do any work on the Property and evicted him

for failure to pay Rent.

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 Brown terminated the Contract on or about July 20, 2016, 750 days after the

Base Contract was signed and at least 249 days after the Building Permit was

issued.

Plaintiff failed to perform work in a timely manner as evidenced by the lack

of progress, including failure to obtain the building permit until October 21, 2015,

more than 16 months after the Base Contract was signed.

The only evidence Plaintiff/Appellee provided to prove the amount claimed

in Gorilla’s Final Revised Invoice (EIR 220) for work on the Addendum was the

testimony of Witness Jeff Suer. who said that based on his experience 80% of the

Contracted work was completed. The invoice stated that the 80% was a ‘draw,’ a

method used to estimate the percentage of work completed on a contract to justify

an interim payment with a final payment when 100% of the work is complete. The

final amount due upon termination of a partially completed contract should be

based on accounting records, not a Contractor’s estimate. There were neither any

corroborating documents nor any other testimony to support Suer’s opinion. for

example, that could have included the ‘draw’ schedule to show what work was

included in an 80% draw; expert testimony would have been appropriate.

The Final Revised Invoice is, however, fraudulent because the statement of

work completed includes ‘paint’ of the entire interior and exterior, but an email
i
from Suer to Brown (EIR 219) states that only limited preparation for painting was

completed on part of the interior, none on the exterior. Other items not completed

included installation of plumbing fixtures. The invoice states work to be completed

includes ‘plumbing trim’ meaning faucets, shower heads, towel bars, etc. implying

that all fixtures were installed, but that was not true. Of the plumbing fixtures, at

least the jetted tub (“Jacuzzi”) and steam shower were not installed.

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VI. STANDARD OF REVIEW

The Court should review de novo the trial court’s conclusions of law and its

interpretation of the pertinent statutes. Pence v. Glacy, 207 Ariz. 426, 428 ¶ 10

(App. 2004). The Court should also review de novo whether the trial court’s “entry

of [summary] judgment was proper.” Schwab v. Ames Constr., 207 Ariz. 56, 60 ¶

17 (App. 2004). On review, the Court “view[s] the evidence and reasonable

inferences from it in the light most favorable to the non-moving party.” Allstate

Indem. Co. v. Ridgely, 214 Ariz. 440, 441¶ 2 (App. 2007).

VII. LEGAL ARGUMENT

1. PLAINTIFF, NOT DEFENDANT BREACHED THE CONTRACT

(a) Plaintiff’s Final Invoice Did Not Include Credits Due

Defendant/Appellant for Work Declined or Not Performed

The only evidence Plaintiff/Appellee provided to prove the amount in the

Final Revised Invoice (EIR 220) for work on the Addendum was the testimony of

Witness Jeff Suer who said that based on his opinion, he estimated that at least

80% of the Contracted work was completed. The invoice described the 80% as a

‘draw,’ a method used to estimate the percentage of work completed on a contract

to justify an interim payment with a final payment to make the total 100% when all

i
of the work is complete. The final amount upon termination of a partially

completed contract should be based on accounting records, not a Contractor’s

estimate of percent completion. There were neither any corroborating documents

nor any other testimony to support Suer’s opinion. As examples, that could have

included the ‘draw’ schedule to show what work was included in an 80% draw;

expert testimony would have been appropriate.

The Final Revised Invoice for the Addendum describes work completed as:

‘80% draw for the two-story addition as of today we have completion of the plans,

permits, demo, concrete, framing, electrical, HVAC, Plumbing, insulation,

Windows, roof, stucco, drywall, doors, trim and paint’, resulting in an amount

payable, with sales tax, of $40,281.96. The Invoice is fraudulent because the

statement of work completed includes ‘paint’ of the entire interior and exterior, but

an email from Suer to Brown (EIR 219) states that only limited preparation for

painting was completed on part of the interior, none on the exterior. Other items

not completed included installation of plumbing fixtures. The invoice states work

to be completed includes ‘plumbing trim’ meaning faucets, shower heads, towel

bars, etc. implying that all fixtures were installed, but that was not true. Of the

plumbing fixtures, at least the jetted tub (“Jacuzzi”) and steam shower were not

installed.
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 Plaintiff/Appellee stated in the Complaint that “after Gorilla invoiced Brown

for the goods and services provided for the Second Story addition, Brown ordered

Gorilla to stop work and has refused to pay” which is not true. The stop work order

was issued on July 18, 2016. Gorilla emailed the invoice to Brown on August 12,

2016.

(b) Plaintiff Failed to Meet Contract Requirements and

Perform Work in a Timely Manner

Plaintiff/Appellee breached the Contract because it failed to perform the work

in a “timely manner” which was a requirement of the Base Contract that included

the following:

“17. Starting, and Completion Dates:

Construction is deemed commenced when on the date that the

concrete forms are set on the building site for homes using all
required permit are received. Homeowners stock home plans.
Construction is typically completed about 120-150 days it is
commenced….”

“Time is of the essence” in the Contract is not limited to the construction, but

includes the process of obtaining the building permit required for Construction to

begin. Although there is no specific timeline specified in the Contract, Gorilla’s lack

of diligence is apparent from the incredibly long elapsed time from the time the Base

Contract was signed to initiation of construction. It took Plaintiff 392 days from the
i
date the Base Contract was signed to submit the application for the Building Permit

and 86 additional days to obtain approval. It was 494 days before construction began,

which is more than three times the 120-150 days expected for completion of

construction as stated in the Contract. The 102 days it took Plaintiff to obtain

approval of the permit application from the City of Phoenix and initiate construction

was due to no fault of Defendant /Appellant.

In addition, Plaintiff/Appellee failed to provide the requested weekly progress

reports in Excel files which Defendant/Appellant specifically required to be included

in the Addendum in order to track the timeliness of the work. Brown insisted on

regular reports because he lived out of state and was unable to personally track the

progress. Thus, they were of critical importance but Gorilla only provided seven (7)

reports to Defendant /Appellant instead of the 104 weekly reports required over the

two (2) year period. Plaintiff’s failure to provide the reports and failure to complete

the work in a timely manner were material breaches of the contract.

2. THE MECHANIC’S LIEN WAS INVALID FOR A JUDICIAL

FORECLOSURE

The Mechanic’s Lien had at least five (5) major defects, each of which is

sufficient to remove the Lien, including:

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 The preliminary 20-day notice was dated November 20, 2015 but should

have been issued within 20 days after the work first commenced. Plaintiff

commenced work on the demolition and planning for the restoration and new

construction shortly after the Base Contract was signed on or about June 30, 2014,

almost 17 months earlier.

The Amended Preliminary 20-Day Notice dated April 13, 2016 states an

amount of $210,000, which is considerably more than the total of all of the

Contracted work together.

The Mechanic’s Lien (EIR 221) includes on Page 3, paragraph 5 the date of

completion ‘unknown and/or ongoing’ but the latest date would have been on or

about August 4, 2016, the date the final work on the HVAC system was completed.

On Page 4: Paragraph 8 ‘the gross amount of the contract is $54,779.05 the

Lienor's demand for all unpaid invoices after deducting all just credits and offsets

is $ 44,708.55, the lien amount is $ 44,708.55 plus $350 collection costs which

constitute a Total lien of $45,058.50. There is no statement of how that amount

was computed. The total amount of the Lien is invalid because it includes the

amount of at least six identified invoices or receipts totaling $4,768.25 (EIR 259-

264) for work completed and/or invoiced more than 20 days prior to November 21,

2016, the date of the Preliminary 20-day Notice.

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 Documents included within the lien are: the Preliminary 20-Day Notice in

the amount of $42,000 dated November 20, 2015, an Amended Preliminary 20-

Day Notice dated April 13, 2016 in the amount of $210,000; an invoice called

Home Remodel Overages dated August 17, 2016 which appears to total

$14,004.68 (There is no basis in the Contract for most of the items in this invoice)

and a final invoice dated August 17, 2016 in the total amount of $40,281.96 for

work on the Addendum. The invoice describes work completed as: ‘80% draw two

for the two-story addition as of today we have completion of the plans, permits,

demo, concrete, framing, electrical, HVAC, Plumbing, insulation, Windows, roof,

stucco, drywall, doors, trim and paint’, resulting in an amount payable, with sales

tax, of $40,281.96. The fifth document is the Addendum with a total of $47,775

plus tax before adjustments: for work charged elsewhere in whole or in part; (items

numbered 11 Front door $1,000, 14-16 totaling $3,050); declined (item 18 $650)

and/or not completed (item number 17 added kitchen island cabinet cabinets and

countertop $1,000). The total of those reductions is $5,700, reducing the total value

of work that could have been completed on the Addendum to $47,775- $5,700=

$42,075. An 80% draw would be $33,660 plus 5.39% sales tax, a total of $35,474.

Thus, the maximum due on the Invoice would be $35,474 less the value of the

painting not completed and the installation of the plumbing fixtures, which would
ii
have to be determined. There would also have to be an adjustment for ‘all just

credits and offsets’, which would also have to be determined.

Plaintiff/Appellee did not provide any statement of ‘all just credits and

offsets’. In the following sentences, Defendant /Appellant/Appellant identifies

some of the credits and offsets due only to demonstrate that the lien does not

appear to be deducting ‘all just credits and offsets.’ These are a general credit of

$4,000 (EIR 223) and one associated with the Addendum ($17,125-$11,707 credit

for floor tile in the Base Contract =$5,418.09) (EIR 225) as stated in paragraph 8

on page 4. The total of credits and offsets due from these two sources is $5,418.09

+ $4,000 = $9,418.09.

The amount due Defendant /Appellant/Appellant for overpayment for work

not completed on the Base Contract is significantly larger. (Trial Exhibit 211)

3. PLAINTIFF’S MECHANIC’S LIEN INVALID DUE TO

UNTIMELY 120 DAY PRELIMINARY NOTICE

a) The Preliminary 20 Day Notice Was Untimely and

Contained Invalid Amounts (A.R.S. §33-992.01(C))

Pursuant to A.R.S. §§33-992.01 Plaintiff/Appellant executed the Base

Contract on June 30, 2015 and commenced work shortly thereafter on demolition

and planning of the renovations. Brown was served with the twenty-day notice of

the intent to file a mechanic’s lien on November 20, 2015, more than 16 months
i
after work commenced. Scottsdale Mem’l Health Sys., Inc. v. Clark, 157 Ariz.

461, 463 (1988) (holding that under A.R.S. § 33-992 the priority date for a

mechanic’s lien is “determined by the date on which [the contractor] commenced

work, rather than the date on which the lien was recorded.”); Id. notice shall be

given no later than twenty days after claimant first furnishes labor, professional

services, materials, machinery, fixtures or tools to the jobsite….” Further, the work

on the addition under the Addendum was not a separate contract as defined under

A.R.S. §33-993(B). Further, Plaintiff’s Second 120 Day Notice is also invalid

because the amount stated $210,000.00 and in excess of the all the total Contracted

work.

Therefore, the Notice of Claim of Mechanic’s Lien is invalid for the above

stated reasons and Brown was entitled to withhold a progress payment pursuant to

A.R.S §33-1129.01(D)(1) because he did not approve Gorilla’s invoice amount and

provided a timely objection within 14 days by email to Gorilla. Gorilla clearly failed

to follow the statutory requirement and Courts enforce and recognize that mechanics'

lien claimants are required to strictly comply or lien-based recovery is barred. See,

e.g., Scottsdale Mem'l Health Sys. v. Clark, 157 Ariz. 461, 470, 759 P.2d 607, 616

(1988); Arizona's lien statutes are remedial in nature and should be liberally

construed to primarily protect laborers and materialmen who enhance the value of
ii
another's property. Performance Funding, L.L.C. v. Ariz. Pipe Trade Trust Funds,

203 Ariz. 21, 24, ¶ 10, 49 P.3d 293, 296 (App. 2002). At the same time, the statutory

requirements for perfecting a mechanic's lien must be strictly followed. MLM

Constr. Co. v. Pace Corp., 172 Ariz. 226, 229, 836 P.2d 439, 442 (App. 1992). These

seemingly inconsistent principles are harmonized by requiring that all the statutory

steps for perfecting a lien be followed, but permitting substantial compliance with

any particular step so long as the purposes of the mechanic's lien statutes are

achieved. Id.

b) Notice of Lis Pendens Was Not Filed and Invalidates

Lien Foreclosure (A.R.S. 33-998(A))

Plaintiff’s Notice of Claim of Mechanic’s Lien was not valid which is a

requirement for a foreclosure action and further failed to record a Lis Pendens

required pursuant to A.R.S. §33-998(A) which requires the lien claimant to file a

notice of pendency of action within five days of filing the action or raising the

defense. “The amendment to the requirement in 1996 mandates that it is mandatory

and not discretionary. The requirement being added in 1996 serves two purposes: to

provide notice of the pending litigation to anyone interested in the property and to

prevent third persons from acquiring an interest in the property during the pendency

of the litigation that would interfere with the court's ability to grant suitable and
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equitable relief”. Hatch Cos. Contracting, Inc. v. Arizona Bank, 170 Ariz. 553, 556,

826 P.2d 1179, 1182 (App. 1992). The amendment established a bright line

prerequisite to foreclosure actions on mechanics' liens and failure to file a Lis

pendens within the time period prescribed by A.R.S. §333-998(A) and §312-

1191(A) resulted in the extinguishment of its lien and the right of action to which it

was attached.

Finally, Plaintiff knew at the time it recorded its invalid Notice of Claim of

Mechanic’s Lien that the twenty-day notice was untimely and deficient and should

be ordered to pay Defendant /Appellant $5,000.00 or treble his damages. See,

A.R.S. § 33-420(A). "When the party's ignorance of the invalidity of a lien arose

from the party's own failure to take basic steps to assure its validity." Delmastro &

Eells v. Taco Bell Corp., 228 Ariz. 134, 263 P.3d 683 (App.2011).

4. DAN EDWARDS AND JEFF SUER’S TESTIMONY IS

FRAUD ON THE COURT AND CONTRARY TO RULES
OF EVIDENCE

The Court ruled that the signature page of a contract was a different

document than the full text of signed contract (Allowing Plaintiff/Appellee to use

Exhibits consisting of 1-2 pages of contracts and testify on the complete

documents but denying Defendant /Appellant use of the entire Contracts. [A.R.E.

Rule 1006 states if a party introduces all or part of a writing or recorded statement,
ii
an adverse party may require the introduction, at that time, of any other part--or

any other writing or recorded statement--that in fairness ought to be considered at

the same time]. Further, the Court ruled that the signature page of the Base

Contract was a different document than the full text of the document.

Defendant /Appellant/Appellant was denied the use of an Affidavit by Kevin

Stumpf which Defendant /Appellant had listed as an exhibit in the Pretrial

Statement and which was submitted on the record in support of Defendant

/Appellant’s Statement of Facts in Support for Defendant /Appellant’s Cross

Motion for Summary Judgment. The Affidavit describes the work he did on the

Property and the status of completion when he became involved. However, the

Court told Defendant /Appellant he would give the “Affidavit the weight it

deserves” and Defendant /Appellant concluded that weight would be small.

5. DEFENDANT /APPELLANT WAS ENTITLED TO RELIEF

UNDER RULE 59

The evidence presented to the Court through the Rule 59 Motion and Overall

Notice show Plaintiff’s witnesses committed perjury by giving false testimony is

fraud upon the Court and justifies relief under A.R.C.P. Rule 59(a)(1)(2). Fraud on

the court is a variety of extrinsic fraud. See, e.g., Dockery v. Cent. Ariz. Light &

Power Co., 45 Ariz. 434, 450–51, 45 P.2d 656, 662–63 (1935). The doctrine may
i
allow relief when, by fraud, a party has prevented “a real contest before the court

of the subject matter of the suit or put differently, has committed “some intentional

act or conduct ... [that] has prevented the unsuccessful party from having a fair

submission of the controversy.” Bates v. Bates, 1 Ariz.App. 165, 169, 400 P.2d

593, 597 (1965). The court has the power to set aside a judgment “[w]hen a party

obtains a judgment by concealing material facts and suppressing the truth with the

intent to mislead the court.” Cypress on Sunland Homeowners Ass'n v. Orlandini,

227 Ariz. 288, 299, ¶ 42, 257 P.3d 1168, 1179 (App.2011) (complaint contained

false statements and material omissions, and counsel made false statements in ex

parte hearing); see also Gordon v. Gordon, 35 Ariz. 357, 364–65, 278 P. 375, 377–

78 (1929) (wife lied in affidavit about where husband lived to excuse her failure to

provide notice).

A judgment resulting from a fraud upon the court may be set aside by

motion or by an independent action. Cypress, 227 Ariz. at 299, ¶ 42, 257 P.3d at

1179. Bates, 1 Ariz.App. at 168, 400 P.2d at 596 (when judgment is the product of

extrinsic fraud, “equity will act to prevent a failure of justice, for fraud is the arch

enemy of equity”). In addition, perjury is a violation of A.R.S. §13-2702(A) that

states "A person commits perjury by making a false sworn statement in regard to a

material issue, believing it to be false," Franzi v. Superior Court (Livermore), 139

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Ariz. 556, 564, 679 P.2d 1043, 1051 (1984) (the relevant requirements being that

the statement (1) be made in the course of an official proceeding, (2) while under

oath, (3) is false, (4) believed by the speaker to be false, and (5) a material

statement (the distinction between perjury and a false statement is it must be

material to the case). In this case both witnesses committed perjury during trial

and while under oath which the Court relied upon for his findings. Therefore, the

Court is required to disregard the perjured testimony.

VIII. CONCLUSION

The precise relief requested by Defendant /Appellant

• Reverse Judgment against Defendant /Appellant/Appellant OR Alternatively

Significantly reduce the amount of the Judgment based on an accurate

accounting of the amount actually due on the invoice less all credits and

offsets due Defendant/Appellant.

• Cancel Award of Plaintiff/Appellee’s attorney’s fees

• Award Defendant /Appellant/Appellant his legal expenses and costs

• Remove the Fraudulent Lien recorded against Defendant/Appellant and

invoke Penalties and Defendant /Appellant’s costs and expenses resulting

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 from the Lien, including the amount of the Judgment and attorney's fees

awarded to Plaintiff/Appellee.

• Award Defendant/Appellant any other amount due under the Contract or

otherwise claimed.

• Order Plaintiff/Appellee to provide window screens that were to be installed

with all windows purchased, but were never provided.

DATED this 15th day of July, 2019.

/s/ Kenneth Dee Brown

KENNETH DEE BROWN, Pro Se
4994 McGill Way
San Diego, CA 92130
Appellant

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