VT Motors v. Sakthiveil

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE VT MOTORS, INC., an Arizona corporation dba VAN CHEVROLET, Plaintiff/CounterDefendant/Appellee, v. T. SHOSUN SHONI SAKTHIVEIL and JANE DOE SAKTHIVEIL, husband and wife, Defendants/CounterClaimants/Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 02/11/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0043 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2007-050767 The Honorable Brian R. Hauser, Judge AFFIRMED T. Shosun Shoni Sakthiveil Defendant/Counterclaimant/Appellant In Propria Persona Clark Hill PLC by Darrell E. Davis Lisa M. Bliss Attorneys for Plaintiff/Counterdefendant/Appellee Phoenix Scottsdale P O R T L E Y, Judge ¶1 summary Defendant judgment T. Shosun granted to Shoni Sakthiveil Plaintiff subsequent award of attorneys fees. VT appeals Motors the and the For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 This action arose from a June 26, 2006 contract to purchase an automobile between Plaintiff and Defendant. After Defendant took possession of the vehicle, but failed to remit valid payment, Plaintiff filed the action on March 13, 2007, and asserted claims for breach of contract, fraud, conversion, and violation of Arizona s bad check statute, Ariz. Rev. Stat. ( A.R.S. ) § 12-671(A) (2003). Defendant answered and asserted counterclaims for bad faith, abuse of process, and violation of the Act. ¶3 Plaintiff subsequently withdrew all but its breach of contract claim Defendant s and moved counterclaims for on summary February judgment 29, on 2008. it and After on oral argument, the court granted Plaintiff s motion and found that there [were] no genuine issues of material fact regarding [] Defendant s breach of the purchase contract. Plaintiff then successfully requested attorneys fees pursuant to the parties contract and A.R.S. § 12-341.01 (2003). 2 ¶4 Defendant appeals, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21 (2003) and -2101(B) (2003). DISCUSSION ¶5 Defendant argues that the trial court erred by granting Plaintiff summary judgment on its breach of contract claim. 1 He contends that there is simply no ground for Plaintiff s claim. ¶6 We review a grant of summary judgment de novo and view the facts in the light most favorable to the non-moving party. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). A court may grant summary judgment if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. 56(c)(1). The determination of whether a Ariz. R. Civ. P. genuine issue of material fact exists is based on the record made in the trial court. Phoenix Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292, 877 P.2d 1345, 1348 (App. 1994). 1 Defendant also argues that the motion for summary judgment was premature and improper because a trial date was already set by [the] court. Arizona Rule of Civil Procedure 56(a), however, permits a party seeking to recover on a claim to file a motion for summary judgment no later than 90 days prior to the date set for trial. Because Plaintiff timely filed its motion, Defendant s argument has no merit. 3 ¶7 In an action on a contract[,] plaintiff has the burden of proof to show, 1) a contract, 2) a breach, and 3) damages. Thunderbird Metallurgical, Inc. v. Ariz. Testing Labs., 5 Ariz. App. 48, 50, 423 P.2d 124, 126 (1967) (citing Clark v. Compania Ganadera de Cananea, S.A., 95 Ariz. 90, 387 P.2d 235 (1963)). At summary judgment, however, the plaintiff is not required to present evidence negating the non-moving party s . . . defense[s] when the non-moving party bears the burden of proof on th[ose] . . . defense[s] at trial. Nat l Bank of Ariz. v. Thruston, 218 Ariz. 112, 117, ¶ 22, 180 P.3d 977, 982 (App. 2008). ¶8 With its provided evidence motion of an for summary agreement judgment, executed by the Plaintiff parties involving the sale of a 2005 Chrysler PT Cruiser in exchange for two trade-in vehicles and $10,000.01. It also provided evidence that Defendant twice remitted payment in the form of a check, but subsequently contacted his bank to stop the payments. Plaintiff consequently argued that no genuine issues of material fact existed on any of the elements of the breach of contract claim and that it was entitled to judgment as a matter of law. ¶9 Defendant did not dispute that he entered into the purchase agreement with Plaintiff, or that he failed to remit payment for the balance due. Rather, he argued that the contract was revocable because: (1) Plaintiff was not truthful 4 and defrauded [him] ; (2) he lacked capacity to contract because he did not have [his] reading glasses and because he was taking pain medication at the time; and (3) the salesmen were very aggressive and pushy and he was hypnotized by the[] different managers and [] was not in the right state of mind. See U.S. Insulation, Inc. v. Hilro Constr. Co., 146 Ariz. 250, 253, 705 P.2d 490, 493 (App. 1985) ( Grounds in equity or law for revocation of a contract include an allegation that the contract is void for lack of mutual consent, consideration or capacity or voidable for mistake, or violation fraud, of a duress, public lack of purpose. ). capacity, Although Defendant claimed that he had evidence to support his contract defense allegations, he failed to present anything more than self-serving motion. 2 unsworn Because statements Defendant bore in response the burden to of Plaintiff s proving his defenses at trial, he cannot defeat [a] motion [for summary judgment] by a simple contention that an issue of fact exists; he must show that evidence is available that would justify a trial. W.J. Kroeger Co. v. Travelers Indem. Co., 112 Ariz. 285, 286, 541 P.2d 385, 386 (1975); see also Ariz. R. Civ. P. 2 In his reply brief, Defendant states that he honestly and truthfully did not know and didn t know that [he] should have filed sworn statements. However, pro se litigants are held to the same familiarity with required procedures and the same notice of statutes and local rules as would be attributed to a qualified member of the bar. Copper State Bank v. Saggio, 139 Ariz. 438, 441, 679 P.2d 84, 87 (App. 1983). 5 56(e) (stating that when a motion for summary judgment is made and properly supported, an adverse party may not rest upon the mere allegations or denials of the adverse party s pleading, but the adverse party s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial ). Defendant produced no evidence to support even an inference that any of his alleged defenses would apply. Thus, there are no genuine issues of fact that require a trial, and summary judgment on the breach of contract claim was properly granted. 3 ¶10 Defendant attorneys fees next asks because, that we during arbitrator s invalid. decision does the compulsory Plaintiff s request for fees was denied. the vacate not award of arbitration, Plaintiff argues that render the fee award Because compulsory arbitration pursuant to Arizona Rule of Civil Procedure 72 is not binding, Graf v. Whitaker, 192 Ariz. 403, 405, ¶ 6, 966 P.2d 1007, 1009 (App. 1998); see also Ariz. R. Civ. P. 77, the court 3 was free to independently Although Defendant appears to confine his appeal to challenging the grant of judgment on Plaintiff s breach of contract claim, we nevertheless review the summary judgment against Defendant on his counterclaims. First, his counterclaim alleging a violation of the Act fails to state a claim upon which relief can be granted. Second, although his counterclaims for breach of the duty of good faith and fair dealing and abuse of process state permissible causes of action, Defendant failed to present any evidence supporting the claims. Because he fails to raise any issues of fact, we likewise affirm summary judgment on the counterclaims. 6 consider and resolve the attorneys fees issue. Consequently, the trial court did not err in awarding fees to Plaintiff. ¶11 fees Finally, and 341.01. costs Plaintiff incurred Plaintiff has on requests appeal prevailed an award pursuant on all of to issues attorneys A.R.S. § 12- raised, and therefore, we grant its request for reasonable attorneys fees on appeal subject to its compliance with Arizona Rule of Civil Appellate Procedure 21. We also award Plaintiff its costs on appeal to likewise be determined upon its compliance with Rule 21. CONCLUSION ¶12 For the foregoing reasons, we affirm the judgment entered in favor of Plaintiff. /s/_____________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ LAWRENCE F. WINTHROP, Judge /s/ ______________________________ MARGARET H. DOWNIE, Judge 7

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