Opinion
No. 1 CA-CV 13-0633
12-18-2014
JOSE C. VALDEZ and GRIZELDA MOLINA VALDEZ, husband and wife, Plain tiffs/Appellants, v. BAZTAN ELECTRIC, L.L.C., an Arizona limited liability company; ERARIO T. PINEDA; MARTIN R. SANDINO and JANE DOE SANDINO, husband and wife; ALBERTO PINEDA, Defendants/Appellees.
COUNSEL Jose C. Valdez and Grizelda Molina Valdez, Tempe Plaintiffs/Appellants Zapata Law PLLC, Phoenix By Julio M. Zapata Counsel for Defendants/Appellees Baztan Electric, L.L.C., Erario T. Pineda, and Alberto Pineda Gillespie Shields & Durrant, Phoenix By DeeAn Gillespie Strub Counsel for Defendant/Appellee Martin R. Sandino
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. CV2012094300
The Honorable David K. Udall, Judge
AFFIRMED
COUNSEL Jose C. Valdez and Grizelda Molina Valdez, Tempe
Plaintiffs/Appellants
Zapata Law PLLC, Phoenix
By Julio M. Zapata
Counsel for Defendants/Appellees Baztan Electric, L.L.C., Erario T. Pineda, and
Alberto Pineda
Gillespie Shields & Durrant, Phoenix
By DeeAn Gillespie Strub
Counsel for Defendant/Appellee Martin R. Sandino
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Kent E. Cattani joined. KESSLER, Judge:
¶1 Jose C. Valdez and Grizelda Molina Valdez (collectively "the Valdezes") appeal the trial court's grant of summary judgment in favor of Martin R. Sandino ("Sandino"), and confirmation of an arbitration award in favor of Baztan Electric, L.L.C., Erario T. Pineda, and Alberto Pineda (collectively "the Baztan defendants"). For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
I. The Complaint
¶2 The Valdezes brought a breach of contract and fraud complaint against the Baztan defendants and Sandino. The Valdezes alleged that they contracted with the Baztan defendants to construct improvements at their commercial facility ("the 2009 contract"). The Valdezes claimed the contract price for this work, which was to include the cost of obtaining permits and city approval, was $3,500, but the Baztan defendants subsequently demanded additional payment to obtain city approval, site plans, and architectural services.
¶3 At the recommendation of the Baztan defendants, the Valdezes hired Sandino for architectural services. According to the complaint, the "[s]aid defendants" failed to inform the Valdezes that Sandino was not licensed in Arizona. Prior to the Baztan defendants commencing construction per the contract with the Valdezes, the Arizona Registrar of Contractors revoked their contracting licenses. At the time the complaint was filed, construction had yet to begin and the Valdezes claimed they had paid a total of $13,435.
¶4 Based on these allegations, the Valdezes claimed the Baztan defendants breached the 2009 contract and that the Baztan defendants and Sandino committed fraud by making false representations regarding what was included in the contract price, as well as the defendants' ability, licensure status, and capability of carrying out the contract. II. Summary Judgment as to Sandino
¶5 In his answer to the complaint, Sandino included a motion for summary judgment. The motion indicated that the Valdezes failed to properly assert a breach of contract claim against Sandino because they had neither alleged Sandino was a signatory to any breached contract nor presented sufficient facts to demonstrate that Sandino was an associate, partner, or agent of the Baztan defendants. Sandino also asserted that he informed the Valdezes he was not licensed in Arizona and that his work would be overseen by his business partner, an Arizona licensed architect. To further verify that the Valdezes had received notice that he was not licensed in Arizona, Sandino attached the plan he drew up for the Valdezes. The plan included Sandino's partner's stamp, indication that the plan was the product of a joint venture, and specifically stated that Sandino was not registered in Arizona. The Valdezes failed to file a timely response to the motion for summary judgment. The trial court granted summary judgment in favor of Sandino.
A party has thirty days, plus five days for mailing, to respond to a motion for summary judgment. See Ariz. R. Civ. P. 56(c)(2); 6(e). The Valdezes filed their response three days after the trial court issued its decision on Sandino's motion, almost three months after the motion was originally filed.
¶6 The Valdezes filed a motion for reconsideration arguing as they had in their untimely response, that Sandino's motion for summary judgment failed to comply with the Arizona Rules of Civil Procedure because it was filed in conjunction with Sandino's answer to the complaint, did not include a separate statement of facts, and was not accompanied by an affidavit. As such, the Valdezes argued, the court should have stricken Sandino's motion for summary judgment. In response, Sandino argued that the court correctly granted summary judgment because the Valdezes failed to file a timely response and, even if the court considered their response, Sandino had demonstrated that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. Ultimately, the court denied the Valdezes' motion for reconsideration, affirming its grant of Sandino's motion for summary judgment. III. Arbitration
¶7 In their answer to the complaint, the Baztan defendants requested the matter be resolved through arbitration. The trial court appointed an arbitrator who properly noticed both parties as to the setting of an arbitration hearing. For the benefit of the Valdezes, the court also issued a minute entry ordering the appointment of a Spanish interpreter for the hearing. The day before the hearing, the Baztan defendants filed an expedited request for their own interpreter. The Baztan defendants attended the scheduled arbitration hearing, however the Valdezes failed to attend. The arbitrator found for the Baztan defendants.
Nearly two weeks after the arbitration hearing, the Valdezes filed a motion to continue the arbitration deadline.
¶8 The Valdezes timely filed an appeal from the arbitration award and a motion to set for trial. The Baztan defendants objected to such action in their response, however, arguing that because the Valdezes lacked good cause for failing to appear at the arbitration hearing, they had waived their right to appeal. In their reply, the Valdezes argued that good cause existed for their nonappearance because they believed the court had not yet ordered an interpreter for the arbitration hearing.
¶9 The trial court found that the Valdezes had good cause for failing to appear at the arbitration hearing, because no Spanish interpreter was provided. The court, therefore, granted the appeal and motion to set trial. The Baztan defendants filed a motion for reconsideration, which pointed out that the court had, in fact, appointed an interpreter to attend the arbitration hearing a month prior to the hearing and that an interpreter had, in fact, attended the arbitration hearing. Given this information, the court granted the Baztan defendants' motion for reconsideration. The court found that no good cause existed for the Valdezes' failure to appear at the arbitration hearing, as they were aware of the scheduled hearing, assumed that no interpreter would be available, even though one did attend the hearing, and made no attempt to contact the arbitrator, the court, or the offices of the court interpreter to determine if an interpreter would be provided for them at the arbitration hearing.
¶10 Shortly thereafter, the arbitrator filed an arbitration award, which the trial court confirmed in its entirety, granting judgment in favor of the Baztan defendants, dismissing the Valdezes' complaint with prejudice, and granting the Baztan defendants reasonable attorneys' fees in the amount of $7,459.
¶11 The Valdezes filed a timely appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (Supp. 2013).
The Valdezes originally filed their notice of appeal prematurely, after the arbitrator filed the arbitration award but prior to the trial court's confirmation of the award. However, the Valdezes appropriately amended their notice of appeal after the trial court's confirmation of the arbitration award.
DISCUSSION
I. The trial court did not err in granting Sandino summary judgment.
¶12 "[S]ummary judgment should be granted when the evidence presents no genuine issue of material fact." Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). "In reviewing a trial court's grant of summary judgment, we view the evidence most favorably to the party opposing summary judgment and determine de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law." United Servs. Auto. Ass'n v. DeValencia, 190 Ariz. 436, 438, 949 P.2d 525, 527 (App. 1997) (internal quotation marks and citation omitted).
¶13 The Valdezes first argue the trial court erred in granting summary judgment on the basis that the non-moving party failed to file a response to the motion for summary judgment. We need not reach this issue, however, because the court granted Sandino's motion for summary judgment "[f]or all of the reasons set forth in the [m]otion," not merely because the Valdezes failed to file a timely response.
Arizona Rule of Civil Procedure 56(e)(4) requires a trial court to enter summary judgment, if appropriate, when the opposing party does not respond. Although the opposing party need not respond "if a moving party's summary judgment motion fails to show an entitlement to judgment," Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 116, ¶ 18, 180 P.3d 977, 981 (App. 2008) (quoting Schwab v. Ames Constr., 207 Ariz. 56, 60, ¶ 16, 83 P.3d 56, 60 (App. 2004)), an opposing party's failure to respond or otherwise dispute the moving party's assertions of material facts can be considered by the trial court in determining whether a fact issue precludes summary judgment.
¶14 The trial court correctly granted Sandino's motion for summary judgment because the motion resolved any inference that the evidence would have presented a genuine issue of material fact in this case. In bringing a motion for summary judgment, "a moving party is not required to present evidence negating the non-moving party's claim . . . when the non-moving party bears the burden of proof on that claim." Thruston, 218 Ariz. at 117, ¶ 22, 180 P.3d at 982. Rather, the moving party must only identify the parts of the record that demonstrate the absence of a genuine issue of material fact. Id. at 118, ¶ 23, 180 P.3d at 983 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once the moving party shows the non-moving party lacks sufficient evidence "to carry its ultimate burden of proof at trial, the burden then shifts to the non-moving party to present sufficient evidence demonstrating the existence of a genuine factual dispute as to a material fact." Id. at 119, ¶ 26, 180 P.3d at 984. In fulfilling this burden, the non-moving party "may not rely merely on allegations or denials of its own pleading; rather, its response must, by affidavits or as otherwise provided . . . set forth specific facts showing a genuine issue for trial." Ariz. R. Civ. P. 56(e)(4); cf. Florez v. Sargeant, 185 Ariz. 521, 526, 917 P.2d 250, 255 (1996) (stating self-serving assertions that are not supported by the factual record are insufficient to defeat a motion for summary judgment); Margaret H. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 101, 104, ¶ 10, 148 P.3d 1174, 1177 (App. 2006) (stating that a party's conclusory affidavit is usually insufficient to defeat a motion for summary judgment).
¶15 The Valdezes' complaint asserted fraud by Sandino. "It is well settled that the party alleging fraud has the burden of proving it by clear and convincing evidence." Jackson v. Harmy Corp., 16 Ariz. App. 467, 468, 494 P.2d 72, 73 (1972). Therefore, the Valdezes had the burden of proving Sandino committed fraud with regard to his licensure status. In their complaint, the Valdezes allege that "[s]aid defendants did not inform [them] . . . that [Sandino] . . . was not licensed to do business in the state as an architect." In his motion for summary judgment, however, Sandino alleged he informed the Valdezes that he was not licensed in Arizona and that his work would be overseen by his business partner, an architect licensed in Arizona. In support of his contention that the Valdezes had notice that he was not licensed in Arizona, Sandino attached the plan he drew up for the Valdezes to his combined answer to the complaint and motion for summary judgment. This plan included Sandino's partner's stamp and specifically stated that Sandino was not registered in Arizona as an architect.
The complaint did not assert a breach of contract claim against Sandino. Although the complaint makes a general allegation that an agency or partnership relationship existed between all the defendants, it included no facts that would lead to the conclusion that such a relationship existed between Sandino and the Baztan defendants. Further, in their response to the motion for summary judgment below and in their opening brief on appeal, the Valdezes only specifically argue that the trial court erred in its grant of summary judgment because it was procedurally awkward, making general statements that issues of fact existed, but failing to point to any specific instance of a genuine issue of material fact. The Valdezes only raise the issue of Sandino's liability for breach of contract in their reply brief. As such, the Valdezes failed to properly argue they adequately asserted a breach of contract claim against Sandino based on an agency or partnership theory and have waived the issue on appeal. See Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91, 163 P.3d 1034, 1061 (App. 2007) ("We will not consider arguments made for the first time in a reply brief.").
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¶16 In their untimely response to the motion, the Valdezes' argued that the facts in Sandino's motion were "at odds" with the verified complaint. This was insufficient to establish a genuine issue of material fact under Arizona Rule of Civil Procedure 56(e)(4). The fraud allegations were pled in a conclusory manner and referred only to the Baztan defendants as making false representations. See Ariz. R. Civ. P. 9(b) ("In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity."); Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005) (stating this Court will "not accept as true allegations consisting of conclusions of law, inferences or deductions that are not necessarily implied by well-pleaded facts, unreasonable inferences or unsupported conclusions from such facts, or legal conclusions alleged as facts."); see also Ariz. R. Civ. P. 56(e)(1) ("An affidavit used to support or oppose a motion [for summary judgment] shall . . . set out facts that would be admissible in evidence . . . ."). Sandino's motion for summary judgment was sufficient to place the burden on the Valdezes to "present sufficient evidence demonstrating the existence of a genuine factual dispute as to a material fact," Thruston, 218 Ariz. at 119, ¶ 26, 180 P.3d at 984, with regard to fraud. Thus, the trial court did not err in granting summary judgment because there were no disputed issues of material facts to refuse Sandino a judgment as a matter of law.
¶17 The Valdezes also argue that because Sandino's motion for summary judgment was filed in conjunction with Sandino's answer to the complaint, the motion for summary judgment should not have been considered by the court in the first place, as it was improperly filed. The Valdezes maintain that because Arizona Rule of Civil Procedure 12(b) does not explicitly allow for a summary judgment motion to be combined with the answer to a complaint, Sandino's motion for summary judgment should have been stricken or ignored by the trial court. However, the Valdezes misconstrue Rule 12(b). Rule 12(b) lists those defenses that a litigant is not required to assert in a pleading responding to an adverse party's complaint. Litigants are permitted by Rule 12(b) to instead make those specific defenses by motion. However, Rule 12(b) does not bar litigants from including a motion for summary judgment as part of their response. Although Sandino's motion for summary judgment may have been procedurally awkward, the Arizona Rules of Civil Procedure do not explicitly prohibit the incorporation of a motion for summary judgment in an answer to a complaint.
¶18 The Valdezes also argue that because Sandino's motion for summary judgment included neither an affidavit nor a separate statement of facts, the motion was incomplete and the trial court erred in granting it. The Valdezes' argument is erroneous because Sandino attached to his motion a signed and notarized verification, which is the equivalent of an affidavit. See Ariz. R. Civ. P. 80(i) (permitting a written declaration made under penalty of perjury to be sufficient under any rule requiring a verification or affidavit).
¶19 Further, the trial court was not required to deny Sandino's request for summary judgment for lack of a separate statement of facts. "[A] trial court need not deny a motion for summary judgment for the sole reason [that] it is not supported by a statement of facts," as a statement of facts may be less useful "when a defendant seeks summary judgment on the ground the plaintiff has failed to comply with statutory requirements or establish a prima facie case." Gorney v. Meaney, 214 Ariz. 226, 232, ¶ 19, 150 P.3d 799, 805 (App. 2007). II. The trial court did not abuse its discretion in finding that good cause did not exist for the Valdezes' failure to appear at the scheduled arbitration hearing.
¶20 "Whether the facts of a particular case establish 'good cause' is a matter left to the sound discretion of the trial court." Ugalde v. Burke, 204 Ariz. 455, 458, ¶ 10, 65 P.3d 103, 106 (App. 2003). As such, we review a trial court's conclusion that a party failed to show good cause for failing to appear at an arbitration hearing for abuse of discretion. "A court abuses its discretion when it commits an error of law in reaching a discretionary conclusion, it reaches a conclusion without considering the evidence, it commits some other substantial error of law, or the record fails to provide substantial evidence to support the trial court's finding." Romer-Pollis v. Ada, 223 Ariz. 300, 302-03, ¶ 12, 222 P.3d 916, 918-19 (App. 2009) (internal quotation marks and citation omitted).
¶21 Arizona Rule of Civil Procedure 75(h) states that failing to appear or participate, in good faith, at an arbitration hearing "shall constitute a waiver of the right to appeal absent a showing of good cause." The Valdezes argue that the trial court should have found they had good cause for failing to attend and participate in the arbitration hearing because they did not know the trial court had appointed a Spanish interpreter for the hearing. We disagree.
¶22 In this case, the trial court issued a minute entry a month prior to the arbitration hearing, ordering an interpreter be present for the benefit of the Valdezes. The Valdezes claimed they had no notice of and did not receive this minute entry. Even given this information, however, the court found that the Valdezes lacked good cause because they had decided not to attend the arbitration hearing based on the assumption that no translator had been appointed, but made no attempt to contact the arbitrator, the court, or the offices of the court interpreter, to request an interpreter or to confirm that one had been appointed for them. Given these facts and the basis for the trial court's decision, we cannot find the court abused its discretion in finding the Valdezes lacked good cause for their failure to attend or participate in the hearing.
CONCLUSION
¶23 For all the foregoing reasons, the judgments in favor of Sandino and the Baztan defendants are affirmed. Because Sandino and the Baztan defendants are the successful parties on appeal, we grant their requests for reasonable attorneys' fees pursuant to A.R.S. § 12-341.01(A) (Supp. 2013). We will award Sandino and the Baztan defendants their costs on appeal and reasonable attorneys' fees upon timely compliance with Arizona Rule of Civil Appellate Procedure 21.