Opinion
No. 1 CA-CV 16-0619
11-28-2017
BEACH VENTURES INC., Plaintiff/Appellant, v. DWAYNE KETCHENS, et al., Defendants/Appellees.
COUNSEL Jackson White, PC, Mesa By Roger R. Foote Counsel for Plaintiff/Appellant Petrie & Venditti, PLC, Gilbert By Eric J. Petrie, Jason M. Venditti Counsel for Defendants/Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2009-094242
The Honorable David King Udall, Judge
REVERSED AND REMANDED
COUNSEL Jackson White, PC, Mesa
By Roger R. Foote
Counsel for Plaintiff/Appellant Petrie & Venditti, PLC, Gilbert
By Eric J. Petrie, Jason M. Venditti
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined. GEMMILL, Judge:
The Honorable John C. Gemmill, Retired Judge of the Arizona Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution.
¶1 Beach Ventures, Inc. (Beach Ventures) appeals the superior court's entry of summary judgment and award of attorneys' fees in favor of Dwayne and Cozetta Ketchens. For the following reasons, we reverse and remand for proceedings consistent with this decision.
FACTS AND PROCEDURAL HISTORY
We view the facts and inferences drawn therefrom in the light most favorable to Beach Ventures, the party against whom summary judgment was entered. See, e.g., The Weitz Co. L.L.C. v. Heth, 235 Ariz. 405, 408, ¶ 2 (2014) (citing Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003)).
¶2 In April 2009, the Ketchens' home was damaged by a hail storm, and they filed a claim with their insurer, Liberty Mutual Insurance Company (Liberty Mutual). Mark Smith, a loss specialist with Liberty Mutual, inspected the home and approved a total cost of repair of $14,772.06, which included a roof replacement and interior work.
¶3 The Ketchens hired Beach Ventures to replace their roof "at a price agreeable to" Liberty Mutual and Beach Ventures, with no cost to the Ketchens except for their deductible and any additional work.
The parties' agreement also provided:
SHOULD DEFAULT BE MADE IN PAYMENT OF THIS CONTRACT, CHARGES SHALL BE ADDED FROM THE DATE THEREOF AT A RATE OF ONE AND ONE HALF (1-1/2) PERCENT PER MONTH (18% PER ANNUM) WITH A MINIMUM CHARGE OF $2.00 PER MONTH, AND IF PLACED IN THE HANDS OF AN ATTORNEY FOR COLLECTION, ALL ATTORNEYS FEES AND LEGAL AND FILING FEES SHALL BE PAID BY CUSTOMER ACCEPTING SAID CONTRACT.
. . .
THE COMPANY WILL NOT BE RESPONSIBLE FOR THE SLIGHT SCRATCHING OR DENTING OF GUTTERS, OIL DROPLETS IN DRIVEWAYS, HAIRLINE FRACTURES IN CONCRETE OR PLANTS OR SHRUBBERY. IF EXCESSIVE DAMAGE IS CAUSED BY COMPANY, COMPANY WILL REPAIR OR REPLACE DAMAGED AREA ONLY AT COMPANY'S EXPENSE.
¶4 On October 1, 2009, the Ketchens, through Liberty Mutual, paid Beach Ventures $9,230.93. Pursuant to the agreement, the balance was "due upon completion of work."
¶5 Beach Ventures started working on the Ketchens' roof in early October 2009. On October 29, Beach Ventures' president, Zane Beach, emailed the Ketchens, informing them: "[w]e show pending for the roof a balance of: $1,684.98 and you have paid to date $9,230.93." Beach detailed $1,381.35 in additional work "which we did not charge for" but would be reflected on the final invoice "for warranty reasons." Finally, Beach attached a release form for the Ketchens to email to Liberty Mutual "so you can get the rest of your money and we can get paid on the rest of our work." The release was in the form of a letter to Liberty Mutual and stated:
We have been hired by the Ketchen's [sic] and have completed works for [their] roofing claim. We are requesting the recoverable depreciation to be sent in the amount of: $5,041.13.
¶6 Smith received the release on October 30, 2009 and thereafter authorized a check for $5,041.13 and mailed the funds to the Ketchens. Two days later, Beach Ventures invoiced the Ketchens the amount of $2,049.97.
¶7 The Ketchens cashed the Liberty Mutual check on November 16, 2009. In the meantime, they asked Smith to prepare a roof-only cost of repair. Smith sent a roof-only breakdown for $10,485.76, which included service charges and sales tax.
¶8 On December 1, 2009, Dwayne Ketchens emailed Beach, stating he was "unable to send . . . a final payment at this time" because Beach's "figures [were] incorrect" and Beach Ventures had "failed to clean my driveway to my standards [and] left paint on my front patio." Ketchens attached the roof-only cost of repair, pursuant to which he calculated a balance due to Beach Ventures of $944.83. Ketchens advised Beach he would "be more than happy to pay $944.83 to you if and when you clean up your mess." Beach replied:
The cost of repairing the roof, $10,485.76, minus the payments received, $9,230.93, and half the deductible, $250, equals $1,000.83. Ketchens later conceded this math error. --------
This was the first time I had heard from you in two weeks. Last I heard was you told me I would be paid on 11-16-09. As for your numbers, you do have a credit of the $250.00 for the deductible. As for the numbers you are reflecting off a different estimate than what was agreed upon by your insurance company.The following day, December 2, Beach emailed the Ketchens, confirming that "I expect prompt payment of: $1,833.13 after we clean the driveway and brick tiles on Friday [December 4]."
. . .
I hear the issues and we will resolve them as best we can. A[s] for the payment you can pay me the money you owe me after we address these two items on your home[.] I expect prompt payment [of] $1,833.13 by this Friday Dec. 4th 2009.
¶9 On December 15, 2009, Beach Ventures recorded a mechanic's lien against the Ketchens' home in the amount of $2,633.05. On December 29, Beach Ventures sued the Ketchens, ultimately seeking the principal sum of $2,700.42 (including $1,381.35 for additional work) as damages for the Ketchens' breach of contract.
¶10 On February 6, 2010, following a jobsite inspection by an investigator from the Arizona Registrar of Contractors, the Ketchens tendered to Beach Ventures a check for $1,004.83, marked "paid in full for roof repair." Beach Ventures did not cash the check, alleging the Ketchens also owed amounts paid by Beach Ventures as the "prime contractor" on the job (including taxes and haul-away charges), half the deductible, and the cost of the additional work, plus interest, attorneys' fees, and costs.
¶11 The matter proceeded to compulsory arbitration in August 2012. At arbitration, the dispute focused on the amount to be deducted from $14,772.06 to arrive at a roof-only cost of repair. The arbitrator awarded Beach Ventures $1,330.15, plus interest from October 29, 2009, and $28,246.22 in attorneys' fees and costs. The Ketchens appealed to the superior court. See Ariz. R. Civ. P. 77(a).
¶12 In the summer of 2015, the parties filed competing motions for summary judgment. In May 2016, the superior court granted summary judgment in favor of the Ketchens. In its order, the court made the following factual findings: (1) there was a valid contract between the parties; (2) Liberty Mutual agreed to pay $10,485.76 for roof repairs; (3) Liberty Mutual paid $9,230.93 on October 1, 2009; (4) the parties agreed to split the Ketchens' $500.00 deductible; (5) the balance owing from Ketchens to Beach Ventures was $1,004.83; (6) the Ketchens offered payment in full in that amount, but Beach Ventures rejected the payment. On these facts, the court concluded "The Ketchens are in complete compliance with the contract and, as a matter of law, they are not in violation or breach of the contract." The court thereafter awarded the Ketchens, as the successful party in a contract action, an additional $42,315 in attorneys' fees and $5,481.39 in costs. See Ariz. Rev. Stat. (A.R.S.) §§ 12-341, -341.01. The court entered a final judgment in September 2016, see Ariz. R. Civ. P. 54(c), and Beach Ventures timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
ANALYSIS
I. Summary Judgment
¶13 Beach Ventures argues that disputed issues of material fact precluded summary judgment regarding whether the Ketchens tendered the "balance due upon completion of work" in compliance with the contract. For purposes of this appeal, Beach Ventures accepts that the principal amount owing for the "repair of the roof" was $1,004.83. It argues, however, that the roofing work also included taxes and haul-away charges it incurred because the Ketchens did not hire a contractor to do the interior work described within the original estimate.
¶14 A motion for summary judgment should be granted "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990); see also Ariz. R. Civ. P. 56(a). The motion should be denied where the evidence or inferences therefrom could permit a factfinder to resolve a material issue in favor of the party opposing the motion. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195 (App. 1990). "Summary judgment is not intended to resolve factual disputes and is inappropriate if the court must determine the credibility of witnesses, weigh the quality of evidence, or choose among competing inferences." Taser Int'l, Inc. v. Ward, 224 Ariz. 389, 393, ¶ 12 (App. 2010) (citing Orme, 166 Ariz. at 308-09, and State Comp. Fund v. Yellow Cab Co., 197 Ariz. 120, 123, ¶ 11 (App. 1999)); accord Braillard v. Maricopa Cty., 224 Ariz. 481, 489, ¶ 19 (App. 2010). We review de novo whether there are any genuine issues of material fact and whether the superior court properly applied the law. See Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, 289, ¶ 10 (App. 2013) (citing L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180 (App. 1997)).
¶15 In an action for breach of contract, the plaintiff must prove "the existence of the contract, its breach and resulting damages." Thomas v. Montelucia Villas, L.L.C., 232 Ariz. 92, 96, ¶ 16 (2013) (quoting Graham v. Asbury, 112 Ariz. 184, 185 (1975)). In general, whether a party has breached a contract is a question of fact. Fehribach v. Smith, 200 Ariz. 69, 73, ¶ 16 (App. 2001) (citing Rudolph v. Ariz. B.A.S.S. Fed'n, 182 Ariz. 622, 626-27 (App. 1995)). This case is not an exception to the rule. On this record, a reasonable juror could conclude that, in addition to $1,004.83, the "balance due" under the agreement included $214.39 in taxes and $99.85 in haul-away charges that were approved by Liberty Mutual as part of the interior work but paid by Beach Ventures. Further, even if $1,004.83 constituted the "balance due," a reasonable juror could conclude the Ketchens' February 6, 2010 tender was made well after "completion of work," and therefore, not within the reasonable time to perform implied by law. See Zancanaro v. Cross, 85 Ariz. 394, 398 (1959) (citing United States v. Smith, 94 U.S. 214, 217 (1876), and Shimmon v. Moore, 232 P.2d 22, 25 (Cal. Dist. Ct. App. 1951)) ("Where no time is specified within which a promise must be performed, a reasonable time is implied."); cf. Coronado Co. v. Jacome's Dep't Store, Inc., 129 Ariz. 137, 140 (App. 1981) (citing Yeazell v. Copins, 98 Ariz. 109, 116 (1965)) ("A party cannot unilaterally alter the terms of a contract without the assent of the other party."). Accordingly, the superior court erred by granting summary judgment in favor of the Ketchens.
¶16 Beach Ventures also argues that summary judgment should have been entered in its favor based on the Ketchens' failure to unconditionally tender at least $1,004.83 no later than November 2009. See Pleasant v. Ariz. Storage & Distrib. Co., 34 Ariz. 68, 78-79 (1928) (quoting Moore v. Norman, 53 N.W. 809, 810 (Minn. 1892)) (explaining that the validity of a tender depends on whether there is a "bona fide dispute between a debtor and a creditor as to the amount due"). If we reverse a grant of summary judgment, we may direct entry of judgment in favor of a party filing a cross-motion for summary judgment if there is no genuine issue of material fact and the motion can be decided as a matter of law. Bentley v. Bldg. Our Future, 217 Ariz. 265, 270, ¶ 11 (App. 2007) (citing Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393, 400, ¶ 37 (App. 2004)); Roosevelt Sav. Bank of City of N.Y. v. State Farm Fire & Cas. Co., 27 Ariz. App. 522, 526 (1976). In this case, there are genuine issues of material fact as to whether the Ketchens tendered the "balance due upon completion of work," and therefore summary judgment is inappropriate for either party. See supra ¶ 15.
II. Attorneys' Fees
¶17 Because we reverse the superior court's grant of summary judgment in the Ketchens' favor, we vacate the award of attorneys' fees and costs to the Ketchens as the successful party. We defer the parties' competing requests for attorneys' fees and costs on appeal to the superior court pending its resolution of the case. See Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 204, ¶ 37 (App. 2007).
CONCLUSION
¶18 For the foregoing reasons, we reverse the superior court's order granting summary judgment in the Ketchens' favor and remand for proceedings consistent with this decision.