Opinion
1 CA-CV 11-0830
01-24-2013
ENRIQUE MEDINA and MATILDE MEDINA, Plaintiffs/Appellants, v. OCOTILLO DESERT SALES, LLC; OCOTILLO DESERT CONSTRUCTION, LLC; OCOTILLO DESERT DEVELOPMENT, LLC; BRIAN L. HALL; MAX A. HALL and FRED T. HALL, Defendants/Appellees.
Don B. Engler, P.C. Attorney for Appellants John A. Weil Attorney for Appellees
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Yuma County
Cause No. S1400CV200500643
The Honorable John P. Plante, Judge
AFFIRMED
Don B. Engler, P.C.
Attorney for Appellants
Yuma
John A. Weil
Attorney for Appellees
Yuma
THUMMA, Judge ¶1 Enrique and Matilde Medina appeal from the superior court's judgment in favor of defendants Ocotillo Desert Sales, LLC, (Ocotillo) and related individuals and entities on the Medinas' claims arising out of a failed attempt to purchase a house. The Medinas argue the superior court erred by granting summary judgment in favor of Ocotillo on the Medinas' promissory fraud claim, by granting a motion to dismiss the Medinas' fraud claim and by granting Ocotillo's motion in limine to preclude certain evidence in the trial on the Medinas' unjust enrichment claim. For the reasons that follow, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal from an order granting summary judgment, this court views the facts and inferences in the light most favorable to the non-moving party. Colorado Cas. Ins. Co. v. Safety Control Co., 230 Ariz. 560, 565, ¶ 7, 288 P.3d 764, 769 (App. 2012). On review of a dismissal for failure to state a claim under Arizona Rule of Civil Procedure 12(b)(6), this court "assume[s] the truth of the [complaint's] well-pled factual allegations and indulge[s] all reasonable inferences therefrom." Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008).
¶2 In March 2005, the Medinas entered into a purchase contract with Ocotillo for a tract home in Yuma with a purchase price of $164,275. After the home was built, a dispute arose over "punch list" items the Medinas identified. On July 5, 2005, Ocotillo cancelled the purchase contract (as it had a right to do) and refunded to the Medinas the moneys they had paid Ocotillo. Unsatisfied, the Medinas filed this case two days later. That comparatively straightforward dispute has resulted in protracted litigation over the past seven and one half years, resulting in hundreds of superior court docket entries, substantial motion practice before the superior court, a special action with this court, a prior appeal decided by this court and a seven-day advisory-jury trial resulting in a defense verdict. A more detailed recitation of the first four years of this case is set forth in this court's prior decision on appeal regarding arbitration and will not be repeated. See Medina v. Ocotillo Desert Sales, LLC, 2010 WL 2541058, at *1-3, ¶¶ 2-11 (Ariz. App. Jun. 24, 2010). Only those facts necessary to resolve the issues currently on appeal are included here. ¶3 The Medinas entered a purchase contract with Ocotillo in March 2005 for the purchase of a specific lot, "together with completed house" to be constructed according to agreed specifications, in the Ocotillo Desert subdivision in Yuma. The one-page agreement provided that "Seller [Ocotillo] shall use reasonable efforts to cause construction to be completed within 120 days." ¶4 A paragraph titled "Workmanship Standards" acknowledged "that the residence shall be constructed as a production tract home" and allowed the Medinas to inspect the residence prior to closing and to provide Ocotillo "with written notice of any claim ('Punch List') that the residence has not been constructed in accordance with the Workmanship Standards." Ocotillo agreed to "make those repairs or corrections Seller determines are necessary to meet the Workmanship Standards." In a paragraph labeled "Limitation of Claims," with the exception of limited warranties not applicable here, the Medinas waived certain remedies "from the Seller, the builder, the builder's subcontractor's, [sic] agents," and others. ¶5 After construction was completed, the Medinas conducted their walk-through inspection and provided Ocotillo with a punch list of numerous items the Medinas alleged did not meet the Workmanship Standards. Brian L. Hall, manager of Ocotillo, reviewed the punch list and concluded that many items on the Medinas' punch list complied with the Workmanship Standards. Considering this to indicate a dispute between Ocotillo and the Medinas, Hall canceled escrow and instructed the escrow company to return all earnest money to the Medinas. ¶6 The Medinas filed suit in superior court seeking specific performance of the purchase contract, damages on a theory of promissory fraud and a constructive trust on the property on an unjust enrichment theory. On the Medinas' motion, the superior court found the purchase contract to be "illusory and [] void ab initio for lack of mutuality of obligation." The court thereafter allowed the Medinas to amend the complaint to remove the contract claim and, over Ocotillo's objection, add a fraud claim. As relevant here, the amended complaint asserted (1) a claim for damages based on a claim of promissory fraud, (2) a claim for a constructive trust to convey the property to the Medinas based on a claimed unjust enrichment and (3) a claim for damages based on common law fraud. ¶7 In October 2009, while the prior appeal regarding arbitration was pending in this court, Ocotillo filed a motion for summary judgment on the promissory fraud claim; a motion to dismiss the unjust enrichment claim and a motion to dismiss the fraud claim. After the mandate issued from this court, the superior court set Ocotillo's motions for briefing and hearing on February 11, 2011. The Medinas filed responses to Ocotillo's motions on January 4, and Ocotillo filed replies on February 2. ¶8 Before the hearing, the Medinas moved to strike all three of Ocotillo's motions, arguing Ocotillo's replies impermissibly included materials beyond the scope of the Medinas' responses and that the motions to dismiss improperly argued matters outside of the pleadings. At the hearing, the court denied the motion to strike and heard argument on the merits of Ocotillo's motions. Counsel for the Medinas, however, declined to argue any of Ocotillo's motions, maintaining that such argument would waive the Medinas' position that Ocotillo's motion for summary judgment on promissory fraud was an improper motion for reconsideration of an earlier summary judgment motion and that Ocotillo's motions to dismiss the unjust enrichment and fraud claims were converted into summary judgment motions by Ocotillo's reliance on matters outside the pleadings. ¶9 Finding no disputed material facts and that Ocotillo was entitled to judgment as a matter of law, the superior court granted Ocotillo summary judgment on the promissory fraud claim. The superior court also granted Ocotillo's motion to dismiss the common law fraud claim, reasoning both that the complaint failed to state a claim for fraud and that the fraud allegation was barred by the statute of limitations. The superior court denied Ocotillo's motion to dismiss the Medinas' claim for unjust enrichment. ¶10 Before trial, Ocotillo moved in limine to preclude evidence related to (1) contract or tort measures of damages and (2) the previously-resolved claims (contract, promissory fraud and fraud) as opposed to evidence relevant to the Medinas' unjust enrichment claim. At a hearing, the transcript of which is not included in the record on appeal, the superior court granted Ocotillo's motion in limine as to evidence and discussion of "constructive trust or equitable conversion, the use of the home as a spec home or course of conduct of signing agreements and later cancelling escrows in order to obtain financing, and violations of contractor licensing law." The court allowed the Medinas to "offer[] evidence or claim[] damages based on the amount of the purchase price." ¶11 After a seven-day trial, the advisory jury returned a unanimous verdict in favor of Ocotillo. Adopting that advisory verdict, the superior court entered judgment in favor of Ocotillo and against the Medinas, from which the Medinas timely appealed. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Dismissal of Common Law Fraud Claim.
¶12 The Medinas argue the superior court erred by granting the motion to dismiss the fraud claim. Dismissal for failure to state a claim is reviewed de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). Dismissal under Rule 12(b)(6) is appropriate "if as a matter of law [] plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof." Id. at 356, ¶ 8, 284 P.3d at 867 (alteration in original; citation omitted). ¶13 To state a claim for Arizona common law fraud, a plaintiff must allege
that the defendant made a false and material representation, with knowledge of its falsity or ignorance of its truth, with intent that the hearer would act upon the representation in a reasonably contemplated manner, and that the plaintiff, ignorant of the falsity of the representation, rightfully relied upon the representation and was thereby damaged.Lerner v. DMB Realty, LLC, 648 Ariz. Adv. Rep. 35, ¶ 12 (App. Nov. 27, 2012) (citation omitted); Comerica Bank v. Mahmoodi, 224 Ariz. 289, 291-92, ¶ 14, 229 P.3d 1031, 1033-34 (App. 2010) (nine elements of fraud - "(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the speaker's intent that it be acted upon by the recipient in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely on it; (9) the hearer's consequent and proximate injury" - must be proven by clear and convincing evidence). Although no "magic language" is necessary, the complaint read as a whole must plead all elements. Hall v. Romero, 141 Ariz. 120, 124, 685 P.2d 757, 761 (App. 1984). ¶14 The Medinas' complaint alleged that, through various statements in the purchase agreement, Ocotillo misrepresented itself as a licensed contractor by "[holding] itself out as authorized to construct the residence . . . and to make all repairs required under the Warranty offered therein." The Medinas point to provisions in the purchase contract that (1) Ocotillo agreed to sell property "together with completed house" according to specified plans, (2) Ocotillo "shall use reasonable efforts to cause construction to be completed within 120 days", (3) "the residence shall be constructed as a production tract home" and (4) Ocotillo "will make those repairs or corrections [Ocotillo] determines are necessary to meet the Workmanship Standards" after the Medinas' walk-through inspection. ¶15 None of these provisions, however, state that Ocotillo is a licensed contractor. By their terms, the first three statements merely represent that a house will be built, not that Ocotillo would build the house or that Ocotillo was licensed to do so. Indeed, the purchase contract elsewhere separately delineates "the Seller, the builder, the builder's subcontractor's, [and others]." This delineation indicates that "the builder" and "the Seller" [Ocotillo] were different entities and that "the builder" — not Ocotillo — was responsible for building the home. Indeed, nowhere does the contract state that Ocotillo was "the builder." ¶16 The statement that Ocotillo "will make those repairs or corrections . . . necessary" is closer but is insufficient in light of the agreement's distinction between seller and builder and the Medinas' claimed injuries discussed below. Because the Medinas failed to adequately allege any misrepresentation, a necessary element of a fraud claim, the court properly dismissed the claim. See Linder v. Brown & Herrick, 189 Ariz. 398, 404-05, 943 P.2d 758, 764-65 (App. 1997) (failure to plead all essential elements renders fraud claim "legally deficient"); see also Cullison v. Pride O'Texas Citrus Ass'n, 88 Ariz. 257, 259, 355 P.2d 898, 899 (1960) (actionable fraud requires concurrence of all elements, and failure to establish any one element is fatal to claim). ¶17 Apart from the lack of an actionable misrepresentation, the complaint also failed to allege any resulting compensable injury. The Medinas suggest misrepresentation as to licensure caused injury in the form of "diminution of the fair market value of all constructed improvements resulting from the required disclosure to any potential buyer that the residence and other improvements were not constructed in accordance with law as [Ocotillo] was not a licensed contractor." This claimed injury, however, depends not on whether Ocotillo held itself out as a licensed contractor but, rather, on whether the completed residence was in fact constructed by a licensed contractor. Nowhere do the Medinas allege or even reasonably imply that the construction of the home was not done by a licensed contractor. Moreover, neither the contract nor the complaint suggests any importance attached to who (Ocotillo as opposed to a licensed contractor) completed the construction as long as the finished residence was built by a licensed contractor and met an objective measure of Workmanship Standards. ¶18 The complaint suggests additional injury in that, as Ocotillo was not in fact licensed as a contractor, the Medinas could not seek an administrative remedy against Ocotillo for sub-standard workmanship before the Arizona Registrar of Contractors. Nothing in the complaint suggests the absence of an administrative remedy against any licensed contractor involved in the construction. Moreover, and again, any such claimed injury is premised on the assumption that Ocotillo itself, rather than a licensed contractor subject to discipline by the Registrar, performed the construction, which the Medinas did not allege. Similarly, even if the Medinas could not compel the unlicensed Ocotillo itself to complete the repairs contemplated by the purchase contract, Ocotillo's lack of a license would not have precluded (had the purchase contract been valid) compelling Ocotillo to provide required repairs through a licensed contractor. Because the Medinas' complaint failed to state a misrepresentation resulting in compensable injury, the court did not err by dismissing the fraud claim under Rule 12(b)(6). ¶19 On appeal, the Medinas argue Ocotillo impermissibly raised and the court impermissibly considered matters outside the pleadings. Rule 12(b)(6) motions are addressed on the basis of the complaint's well-pleaded factual allegations and reasonable inferences therefrom; consideration of matters outside the pleadings converts the motion into one for summary judgment, with resulting notice to the parties, unless those matters are excluded. Coleman, 230 Ariz. at 356, ¶ 9, 284 P.3d at 867; Young v. Rose, 230 Ariz. 433, 438, ¶ 28, 286 P.3d 518, 523 (App. 2012). Consideration of a contract central to the claim, however, does not convert a motion to dismiss to one for summary judgment. ELM Retirement Ctr., LP v. Callaway, 226 Ariz. 287, 289, ¶ 7, 246 P.3d 938, 940 (App. 2010). Should a party offer materials outside the pleadings, the court need not treat the motion as one for summary judgment if it "does not rely on the proffered extraneous materials." Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 63, ¶ 8, 226 P.3d 1046, 1049 (App. 2010). ¶20 In the motion to dismiss, Ocotillo included reference to two matters outside the pleadings: (1) that during his deposition, Enrique Medina admitted to knowing an associated licensed contractor rather than Ocotillo itself would complete the construction of the house and (2) that the Medinas were provided a list of the licensed contractors to be involved in the construction at the time they signed the purchase contract. Ocotillo's reply in further support of the motion to dismiss repeats the reference to Enrique Medina's deposition and, in its introduction although not in argument, includes factual assertions beyond those included in the complaint. ¶21 Although Ocotillo presented matters outside the pleadings, the record does not establish that the superior court in fact considered or relied on extraneous matters. Although the superior court denied the Medinas' motion to strike the filings that included such extraneous matters, the superior court's ruling on the motion to dismiss showed no sign of reference to matters outside the pleadings. Similarly, the court's minute entry recorded the ruling as "granting the 12B motion as to [the fraud claim]," not as a summary judgment. Accordingly, the record before this court suggests that the superior court likely did not rely upon matters outside of the pleadings and the parties' contract. ¶22 Recognizing some uncertainty whether the superior court relied upon extraneous matters, on de novo review, this court has considered only those matters presented in the complaint and the contract, which did not turn the motion to dismiss into one for summary judgment. As described above, based on the complaint and contract alone, the superior court's dismissal of the fraud claim under 12(b)(6) was proper. Accordingly, on these bases, the superior court's dismissal on the fraud claim was not error.
The Medinas claim Miller v. Superior Court, 8 Ariz. App. 420, 446 P.2d 699 (1968) mandates a contrary result. Miller, however, addressed a different question: "Is a subdivider-owner of real property who hires a licensed contractor to construct dwellings in a subdivision owned by him and who contracts with members of the general public for the sale of such dwellings required to be licensed as a contractor?" 8 Ariz. App. at 421, 446 P.2d at 700. Construing the then-current version of A.R.S. § 32-1101, which has since been amended, Miller found the seller met the statutory definition of a contractor, was not licensed and, accordingly, could not recover for construction costs (as opposed to the sale of real estate) under A.R.S. § 32-1153. Id. at 422-23, 446 P.2d at 701-02. In this case, among other things, Ocotillo is not seeking to recover construction costs from the Medinas and the Medinas' fraud claim turns on alleged misrepresentations in a contract (not the failure to comply with a licensing regimen). Accordingly, the Miller analysis does not apply and did not prevent the dismissal of the Medinas' fraud claim.
The superior court also dismissed the Medinas' fraud claim, added in the second amended complaint in June 2009, as barred by the statute of limitations. Because dismissal was proper under Rule 12(b)(6), this court need not and does not now decide whether the fraud claim related back to the original complaint so as to fall within the limitations period.
II. Summary Judgment on Promissory Fraud Claim.
¶23 The Medinas next argue the superior court erred by granting summary judgment to Ocotillo on the promissory fraud claim. This court reviews the superior court's order granting summary judgment de novo. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13, 38 P.3d 12, 20 (2002). ¶24 Summary judgment is proper if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1). If the moving party makes an initial showing of an absence of any genuine issues of material fact rendering judgment proper, the party opposing summary judgment must produce evidence showing some issue of material fact exists. GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App. 1990); see also Wells Fargo Bank, N.A. v. Allen, 649 Ariz. Adv. Rep. 17, ¶ 17 (App. Dec. 4, 2012). Should the opposing party fail to present controverting facts through affidavit or other competent evidence, the moving party's allegations of fact may be considered true. GM Dev. Corp. , 165 Ariz. at 5, 795 P.2d at 831. ¶25 Promissory fraud is a class of common law fraud in which the misrepresentation alleged is "the making of a promise without intent to perform." Trollope v. Koerner, 106 Ariz. 10, 19, 470 P.2d 91, 100 (1970); Caldwell v. Tilford, 90 Ariz. 202, 205, 367 P.2d 239, 241 (1961). To constitute promissory fraud, the promisor must have had a present intent not to perform at the time of entering the agreement. Waddell v. White, 56 Ariz. 420, 428, 108 P.2d 565, 569 (1940). As in the case of other common law fraud claims, all elements of fraud must be proven by clear and convincing evidence. See Comerica Bank, 224 Ariz. at 291-92, ¶ 14, 229 P.3d at 1033-34. The Medinas alleged Ocotillo committed promissory fraud in two ways: first, by entering the purchase agreement "solely for the purpose of obtaining construction financing" and "with the specific intent of wrongfully repudiating" the purchase agreement, rather than completing the sale as promised (the financing theory); second, as Ocotillo is not a licensed contractor, by entering the agreement intending to avoid any obligation to conform to standards of workmanship, rather than conforming to the workmanship standards contemplated by the agreement (the workmanship theory). ¶26 In the motion for summary judgment, Ocotillo relied substantially on the affidavit of Brian Hall, manager of Ocotillo. Hall's affidavit squarely stated:
At the time I signed the Purchase Contract on behalf of Ocotillo Sales I considered the Medina Purchase Contract a normal transaction and expected it to close in the normal course of business. Ocotillo Sales intended to fully perform all of its obligations under the Purchase Contract, to construct the house under workmanship standards and to close the sale of the house to the Medina's [sic] under the terms set forth in the Purchase Contract. This was the sole reason that Ocotillo Sales entered into the Purchase Contract and there was no ulterior motive.This evidence negated both the Medinas' financing and workmanship theories of promissory fraud, supporting the argument that no genuine issue remained as to this element of the claim. ¶27 In response, the Medinas presented no controverting evidence. Instead, both in their written response and at oral argument, the Medinas' sole argument was that Ocotillo's motion for summary judgment was in fact an improper motion for reconsideration. Ocotillo's motion was properly supported, indicated an absence of evidence supporting the Medinas' claim and factually and affirmatively negated the Medinas' allegation of intent not to complete the promised performance, an essential element of the promissory fraud claim. Because the Medinas presented no controverting evidence creating a genuine issue of fact on this element, the court properly granted summary judgment in Ocotillo's favor. See Orme Sch. v. Reeves, 166 Ariz. 301, 310-11, 802 P.2d 1000, 1009-10 (1990). ¶28 On appeal, the Medinas again contend Ocotillo's motion for summary judgment was an improper motion for reconsideration, arguing that by rule the Medinas could not respond absent order of court and that by rule the court could not grant without giving an opportunity for response. See Ariz. R. Civ. P. 7.1(e). The Medinas do not explain how or why Ocotillo would seek reconsideration of a prior decision in Ocotillo's favor on a summary judgment motion previously filed by the Medinas without a cross-motion by Ocotillo. Additionally, in ruling on the Medinas' earlier summary judgment motion, the court did not (as argued by the Medinas) "clearly" find disputed material facts, but rather denied the motion "because [the Medinas] have not set forth undisputed facts" establishing promissory fraud. ¶29 Although the Medinas now obliquely argue the superior court could not properly grant Ocotillo's summary judgment motion without a response from the Medinas on the merits, the Medinas were entitled only to an opportunity to respond. The Medinas filed suit on July 7, 2005. Ocotillo filed its summary judgment motion more than three years later on October 26, 2008 and, after conclusion of an intervening appeal, the superior court reinstated the pending motions as of September 30, 2010 and continued the date for hearing on the motions until February 7, 2011. At the February 7 hearing, the court again continued the hearing until February 11, apparently (although the record on appeal contains no transcript) having determined Ocotillo's motion was not a motion for reconsideration. The Medinas had ample opportunity to respond to Ocotillo's summary judgment motion on its merits. The Medinas failed to do so. That the Medinas instead chose to rest on their reconsideration argument does not invalidate the superior court's conclusion that the record evidence established that Ocotillo was entitled to judgment as a matter of law. ¶30 The Medinas also raise on appeal several other arguments opposing summary judgment, each of which lacks merit. The Medinas claim Ocotillo's motion was not supported by a separate statement of facts. Although not filed in a separate document, Ocotillo's motion for summary judgment contained a "Statement of Uncontested Facts." The Medinas provide no authority for the proposition that filing a summary judgment motion and fact statement in a single document -- as opposed to two separate documents -- is grounds for reversal of an otherwise proper grant of summary judgment. The Medinas next claim Ocotillo mischaracterized Brian Hall's affidavit as statements in his personal capacity rather than as manager of Ocotillo. Both the affidavit and Ocotillo's statement of facts, however, clearly state that Brian Hall signed the purchase contract as Ocotillo's manager. ¶31 The Medinas also argue Ocotillo's reply improperly exceeded the scope of the Medinas' response to the motion. The Medinas raised this ground in a motion to strike, which the superior court denied. The Medinas' response to the summary judgment motion relied on construing Ocotillo's filing as a motion for reconsideration as well as pointing out the workmanship theory of promissory fraud. Ocotillo's reply reiterated the absence of disputed facts, noted the Medinas' failure to provide controverting evidence, addressed the Medinas' motion-for-reconsideration argument and argued that summary judgment was proper. As the reply raised no new issues to which the Medinas lacked an opportunity to respond, the superior court did not err by denying the motion to strike. ¶32 The superior court properly granted summary judgment to Ocotillo on the promissory fraud claim, and that judgment is now affirmed.
Two days before the February 11 hearing, the Medinas filed a notice of errata in which Enrique Medina verified the second amended complaint as either personally known to be true or believed to be true if alleged on information and belief. Enrique Medina's verification of Ocotillo's fraudulent intent is based only on information and belief, not on the personal knowledge stating admissible evidence necessary to oppose summary judgment. Accordingly, that verification of the pleading could not be used to create an issue of fact. See Ariz. R. Civ. P. 56(e); Tilley v. Delci, 220 Ariz. 233, 236, ¶ 9, 204 P.3d 1082, 1085 (App. 2009).
The Medinas similarly object to Ocotillo's reliance on affidavits filed in conjunction with a different motion, but provide no authority that this is improper, much less reversible.
III. Preclusion of Evidence.
¶33 The Medinas argue the court erred by granting Ocotillo's motion to preclude discussion of "constructive trust or equitable conversion, the use of the home as a spec home or course of conduct of signing agreements and later cancelling escrows in order to obtain financing, and violations of contractor licensing law." ¶34 The Medinas first claim reversible error because the superior court allowed Ocotillo to file a reply to the motions in limine contrary to Arizona Rule of Civil Procedure 7.2(c). Noting that the Medinas themselves filed a reply to their motion in limine, the record shows no objection to or attempt to strike Ocotillo's reply, as would be required to preserve the issue for appeal. See Regal Homes, Inc. v. CNA Ins., 217 Ariz. 159, 171, ¶ 52, 171 P.3d 610, 622 (App. 2007). ¶35 The Medinas next argue reversal is required because the superior court allowed and considered Ocotillo's supplemental memorandum on the motions in limine, which the Medinas construe as a motion for summary judgment. The superior court in fact ordered Ocotillo to file the supplemental "list of issues to be excluded," apparently to clarify the precise matters at issue in Ocotillo's motion in limine. Although the Medinas contend the supplemental filing was a thinly veiled request for summary judgment on certain issues, Ocotillo's list of issues did not seek judgment on any claims, but rather sought to preclude at trial evidence and argument unrelated to the remaining unjust enrichment claim. Nor did the superior court's resulting order summarily adjudicate any claims. The Medinas are not entitled to reversal on this ground. ¶36 The Medinas next argue on the merits that preclusion of the various topics was not warranted. This court reviews the superior court's rulings on evidentiary issues for an abuse of discretion and will reverse only for a clear abuse or legal error resulting in prejudice. Ryan v. S.F. Peaks Trucking Co., 228 Ariz. 42, 46, ¶ 12, 262 P.3d 863, 867 (App. 2011). Each matter precluded is addressed in turn. ¶37 The superior court first prohibited discussion of a constructive trust. As the Medinas acknowledge, a constructive trust is an equitable remedy used to correct a defendant's unjust enrichment. See, e.g., Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124, 130-31, ¶ 23, 272 P.3d 355, 361-62 (App. 2012). As such, the constructive trust remedy would only have become relevant if the Medinas prevailed on their unjust enrichment claim. Because the advisory jury returned a unanimous verdict for Ocotillo and the superior court adopted that verdict and entered judgment for Ocotillo, the Medinas cannot show any prejudice in precluding discussion of a constructive trust. The Medinas are not entitled to reversal on this ground. See Ryan, 228 Ariz. at 46, ¶ 12, 262 P.3d at 867. ¶38 The court next precluded discussion of equitable conversion, a doctrine that treats equitable title to real property as conveyed to the buyer as of the creation of a valid contract for sale. Passey v. Great W. Assocs. II, 174 Ariz. 420, 427, 850 P.2d 133, 140 (App. 1993). In the proper circumstances, equitable conversion could at least arguably have some relevance for an unjust enrichment claim. Equitable conversion, however, "applies only to real estate contracts that are capable of being specifically performed." Id. In 2007, the superior court granted summary judgment in favor of Ocotillo on the Medinas' specific performance claim because "both parties now agree that the contract previously ruled void and illusory cannot be the basis of specific performance." That ruling, which was affirmed in the prior appeal, means evidence of equitable conversion could not be relevant at trial on the unjust enrichment claim. ¶39 The superior court next prohibited discussion of "the use of the home as a spec home or course of conduct of signing agreements and later cancelling escrows in order to obtain financing." The Medinas agreed that, as the court had granted summary judgment in favor of Ocotillo on the promissory fraud claim premised on this alleged conduct, the Medinas would offer no such evidence. Because the Medinas did not object - and in fact agreed - to preclude this evidence, the Medinas have waived any such objection on appeal. See Regal Homes, 217 Ariz. at 171, ¶ 52, 171 P.3d at 622. ¶40 Finally, the superior court precluded discussion of "violations of contractor licensing law." The Medinas opposed preclusion of this evidence, arguing Ocotillo had "falsely misrepresent[ed] itself as a contractor" and that these representations in the purchase contract had "expressly represented that [Ocotillo] had the lawful authority to carry out the contractually required construction and warranty repair of the [Medinas'] residence, [was] a clearly sufficient equitable basis for the imposition of a constructive trust" under Arizona law. (Emphasis omitted.) This argument sought to restate, as a basis for imposition of a constructive trust, the Medinas' failed fraud claim that the superior court previously had dismissed. Given that the Medinas failed to allege the residence was actually built by an unlicensed contractor, the Medinas have shown no basis on which contractor licensing violations would be relevant to the unjust enrichment claim. Moreover, any marginal relevance would likely be substantially outweighed by a risk of confusing the issues or misleading the jury. See Ariz. R. Evid. 403. In any event, the Medinas have not included in the record on appeal transcripts of the hearings on these motions, and this court cannot presume the Medinas orally submitted a sufficient offer of proof that would undermine the superior court's decision. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). As the Medinas offered no theory of relevance to the sole remaining claim for unjust enrichment, the court did not err by precluding this evidence.
The Medinas do not claim error in the court's order "denying [Ocotillo's] Motion in Limine to prohibit the [Medinas] from offering evidence or claiming damages based on the amount of the purchase price."
--------
IV. Sanctions and Attorneys' Fees.
¶41 The Medinas request sanctions be imposed on Ocotillo under ARCAP 11(b)(9) for including and citing transcripts beyond those necessary for resolution of the issues on appeal. That request is denied. ¶42 Ocotillo's request for an award of attorneys' fees on appeal pursuant to A.R.S. § 12-341.01 is granted, subject to compliance with ARCAP 21. As the prevailing party on appeal, Ocotillo is also entitled to its costs upon compliance with ARCAP 21. A.R.S. § 12-341.
CONCLUSION
¶43 The judgment is affirmed.
_______________
SAMUEL A. THUMMA, Judge
CONCURRING: _______________
PHILIP HALL, Presiding Judge
_______________
PETER B. SWANN, Judge