FENIMORE v. MCCOY'S
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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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE CHARLES FENIMORE, DIVISION ONE FILED: 06/28/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 11-0427 Plaintiff/Appellant, DEPARTMENT B v. MCCOY S M.H.P., L.L.C., an Arizona limited liability company dba MCCOY RANCH MOBILE HOME PARK; DAN MILLER and JANE DOE MILLER, husband and wife, MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Defendants/Appellees. Appeal from the Superior Court in Maricopa County Cause No. CV2010-008291 The Honorable George H. Foster, Jr., Judge AFFIRMED IN PART, REVERSED IN PART The Nathanson Law Firm, By Philip J. Nathanson Attorneys for Plaintiff/Appellant Law Offices of Ronald W. Meyer by Ronald W. Meyer Attorneys for Defendants/Appellees Scottsdale Phoenix G E M M I L L, Judge ¶1 Charles Fenimore appeals the trial court s grant of summary judgment dismissing his claims against McCoy s M.H.P., L.L.C. d/b/a McCoy Ranch Mobile Home Park and its manager, Dan Miller, and his wife (collectively, Defendants ) for conversion of awnings, steps, and a carport that were previously attached to a trailer court s home grant of he purchased. attorneys Fenimore fees to also appeals the For the Defendants. following reasons, we affirm the summary judgment in favor of Defendants but reverse the award of attorneys fees. FACTS AND PROCEDURAL HISTORY ¶2 In August 2009, Fenimore arranged to purchase a mobile home owned by Green Tree Financial ( Green Tree ). is not a party in this litigation. sell the profit. mobile home to Heather Green Tree Fenimore expected to then Burdett for a considerable The mobile home was located at McCoy Ranch Mobile Home Park ( Mobile Park ). When Fenimore first viewed the mobile home in June 2009, it had attached awnings, a porch and steps ( the accessories ). it before placing Two months later, when Fenimore inspected his bid with accessories had been removed. allegedly told Fenimore that Green Tree, he noticed the The manager of the Mobile Park he removed the accessories and would replace them after the sale if Fenimore found a suitable purchaser to live at the Mobile Park ¶3 $12,000. Fenimore purchased the mobile home from Green Tree for A week later, Defendants denied Heather Burdett s application to become a tenant of the Mobile Park because she had bad credit and previous evictions, and her co-applicant had 2 a criminal record. Consequently, Burdett did not purchase the mobile home. ¶4 Fenimore filed this lawsuit alleging that Defendants conversion of the accessories prevented him from selling the mobile home because the Mobile Park s rules required all mobile homes to have steps, carport and a patio. damages for lost profit from the expected Fenimore sought sale to Heather Burdett, additional damages of no less than $220,000 for park rental fees, utilities, and taxes, plus punitive damages and attorneys fees. 1 ¶5 Defendants filed a motion for summary judgment arguing that Fenimore never owned the accessories because the previous owner had conveyed unpaid rent. the accessories to them as settlement of Defendants further argued that Green Tree never intended to transfer the accessories to Fenimore because the mobile home was sold in as is condition. 1 They further argued Fenimore purchased the trailer for $12,000 intending to sell it to Heather Burdett for $28,000, to be paid in monthly installments over a period of twenty years at eighteen-percent interest. Fenimore alleged that Defendants interfered with that sale by refusing to approve Heather Burdett as a tenant for no reason, even though it had represented to him that Heather Burdett would qualify. Fenimore also argued the conversion of the accessories prevented him from selling the mobile home to anyone, thereby rendering the mobile home valueless. Fenimore s complaint claimed $103,710 as loss profit of the sale, and $220,000 for rents, utilities and taxes incurred for maintaining the trailer at the Mobile Park. In addition, Fenimore sought no less than $50,000 in punitive damages and $12,000 in attorneys fees for filing the complaint. 3 that Fenimore inspected the home before placing his bid and saw that the accessories had been removed, so he had purchased the mobile home without the accessories. ¶6 Fenimore opposed the motion for summary judgment and filed a separate Fenimore statement testified that of he facts. At believed the he contacted Ben Gubac, the longer manager employed who was the by Green field Tree, manager Tim mobile home, responded to the inquiry. of foreclosure Because Gubac was Barboza, representative were He further stated properties at Green Tree at the time of sale. no deposition, accessories included in the purchase of the mobile home. that his that the current inspected the By letter dated and signed July 21, 2010, Barboza stated: The home at the time came with steps, a carport and patio cover. These items were included in the purchase of the home at that time. The home at initial inspection in June 2009 showed these items were attached to the home but in August 2009, pictures show that they were removed. These items were part of the agreement made with you at the time. ¶7 At his deposition, Barboza stated that the letter was incorrect and the accessories were not part of the agreement. Barboza testified that he received Fenimore s inquiry about the accessories almost a year after the sale, so he prepared his response by comparing inspection reports and pictures from June 2009, when the bank took possession of the mobile home, with 4 those from August 2009, when Fenimore placed his bid. Because he only looked at those reports and pictures, Barboza stated that he incorrectly believed the accessories were part of the sale. ¶8 Barboza explained that he changed his mind because a foreclosed home is typically sold in as is condition, so the buyer has a chance to inspect the home before making a bid. Therefore, if the accessories are not attached to the mobile home at the time the buyer inspects it, they are usually not included in the purchase. Barboza also stated that when a sales agreement does not list the accessories, they are not part of the deal. ¶9 At his deposition, McCoy s owner, Geoffrey Gunsalus, testified that management removed the accessories because the prior owner conveyed them to him in exchange for unpaid rent. He explained that McCoy s policy was to remove awnings and patio covers when a trailer is abandoned, but to give them to the new owners as incentive to keep the mobile home in the Mobile Park. Gunsalus testified that he offered to give Fenimore accessories if Fenimore found a qualified tenant to purchase the home. The manager of the Mobile Park, Dan Miller, similarly testified that the prior owner sold the accessories to Defendants. ¶10 Based on this evidence and the sales contract, the trial court granted McCoy s motion for summary judgment. 5 With regard to the potential factual dispute about whether the accessories were included in Fenimore s purchase of the mobile home, the trial court stated as follows: Defendants have come forward with evidence to show that the Plaintiff did not have any right to own or possess the property in question. The purchase agreement indicates that the Plaintiff acquired only the trailer and nothing else. The purchase price for the trailer was only $12,000. In the complaint, Plaintiff alleges that it would cost far in excess of $12,000 to purchase the mobile home and the accessories. The Plaintiff s testimony indicates that when he inspected the mobile home in connection with the sale it did not have the awning, patio cover and stairs that are the subject of the dispute. He claims they were part of the contract, but the written agreement indicates otherwise. In addition, the seller did not have any interest in the accessories in question to be able to confer upon the Plaintiff any rights of ownership or use. In the absence of any evidence tending to prove the right of possession or ownership, the Plaintiff s claim for conversion must fail. Although the Plaintiff alleges material facts regarding the right to possession are in dispute, he has failed to come forward with any admissible evidence contradicting the record that indicates he was never conferred any right to possess the accessories at issue. ¶11 Fenimore timely appeals the adverse judgment entered against him. DISCUSSION ¶12 Fenimore argues the trial 6 court erred in granting summary judgment on his conversion claim. He argues he had a superior right of possession to the accessories because they were part of the purchase, and Defendants removed them without permission. He contends this evidence raises a genuine dispute of material fact. We disagree. ¶13 judgment Summary is warranted when there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. 56(c)(1). Ariz. R. Civ. P. We review the grant of summary judgment de novo. Hohokam Irr. & Drainage Dist. v. Ariz. Pub. Serv. Co., 204 Ariz. 394, 396, ¶ 5, 64 P.3d 836, 838 (2003). This court views the evidence and all reasonable inferences from the evidence in the light most favorable to the party opposing the motion. 396-97, ¶ 5, 64 P.3d at 838-39. In deciding a Id. at motion for summary judgment, we apply the same standards as used for a directed verdict. P.2d 1000, 1008 Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 (1990). Accordingly, summary judgment is appropriate 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. ¶14 Id. Conversion is an act of dominion or control exerted over another s personal property that seriously interferes with the other s right to control the property. 7 Universal Mktg. & Entm't, Inc. v. Bank. One of Ariz., 203 Ariz. 266, 268, ¶ 6, 53 P.3d 191, 193 (App. 2002) (citation omitted). right to immediate converted. possession of One must have the property for it to be Case Corp. v. Gehrke, 208 Ariz. 140, 143, ¶ 11, 91 P.3d 362, 365 (App. 2004). ¶15 Fenimore s conversion claim against Defendants fails because he cannot show that he ever became the owner of the accessories There is sometime or no otherwise dispute between acquired that Green a Defendants Tree s right to removed foreclosure possess the them. accessories against the prior owner and Fenimore s subsequent purchase of the mobile home. The trial Fenimore court gained found no possession admissible or evidence ownership through the purchase of the mobile home. of the that showed accessories Nothing in the written contract shows that the accessories were included in the sale of the mobile home, and nothing is listed on the contract in the space provided for accessories. ¶16 In addition, the accessories had already been removed when Fenimore inspected the mobile home before making his bid, and Barboza testified that the mobile home was sold in as is condition. Barboza s testimony is supported by the fact that Fenimore paid only $12,000 for the mobile home, yet claims the value of the accessories alone was $27,000. ¶17 Although Fenimore denies that the property was sold in 8 as is condition, he provided no admissible evidence to support his claim. Instead, Fenimore relies on the letter from Barboza stating that the accessories were included in the purchase of the mobile home. This letter at first blush lends support to Fenimore s testimony that he believed the purchase of the mobile home included the accessories. Barboza testified, however, that he was mistaken in the letter and that he reached his erroneous opinion almost a year after the sale by simply comparing inspection reports and pictures of the mobile home from before and after the sale. We therefore find no support in the record that the mobile home was not sold in as is condition. ¶18 We also find no merit to Fenimore s claim that Defendants had no right to possession of the accessories. Both Gunsalus and Miller testified that the prior owner conveyed the accessories to the Mobile Park in satisfaction of unpaid rent. Fenimore provides testimony. no reliable evidence to dispute this Although Fenimore cites to a signed statement from the prior owner that no such transfer occurred, the writing is unverified and fails to satisfy the requirements of an affidavit or sworn declaration. See Ariz. R. Civ. P. 56(c)(1) (stating summary judgment shall be based on the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any (emphasis added)). ¶19 Furthermore, regardless of whether Defendants had any 9 possessory rights to the accessories or who between Green Tree and Defendants had a superior right to possession, the accessories were not attached to the mobile home when Fenimore purchased it in as is condition. obtained possessory rights purchase from Tree, correctly Green granted to we Defendants Because the Fenimore accessories conclude summary that through the judgment never trial on his court Fenimore s conversion claim. ¶20 Next, Fenimore challenges the trial court s award of attorneys fees in favor of Defendants in the amount of $9600. Defendants requested fees pursuant to A.R.S. § 12-341.01(A) (2003) and A.R.S. § 33-1408(C) (2007). ¶21 Fenimore argues Defendants are not entitled to the award under § 12-341.01(A) because conversion is a tort claim that does not arise out of contract. We agree. In Sparks v. Republic Nat'l Life Ins. Co., 132 Ariz. 529, 543, 647 P.2d 1127, 1141 (1982), our supreme court held that fees may be awarded under A.R.S. § 12-341.01, as long as the cause of action in tort could not exist but for the breach of contract. Id. at 543, 647 P.2d at 1141. In determining whether a contract arises out of contract, the court should look to the fundamental nature of the action rather than the mere form of the pleadings. The existence of a contract that merely puts the parties within tortious striking range of each other does 10 not convert ensuing torts into contract claims. Rather, a tort claim will arise out of a contract only when the tort could not exist but for the breach or avoidance of contract. When the duty breached is one implied by law based on the relationship of the parties, that claim sounds fundamentally in tort, not contract. In such cases, it cannot be said that the plaintiff s claim would not exist but for the contract. The test is whether the defendant would have a duty of care under the circumstances even in the absence of a contract. Ramsey Air Meds., L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10, ¶ 27, 15-16, 6 P.3d 315, 320-21 (App. 2000). ¶22 Tree Here, merely striking the places range Defendants or violated underlying Fenimore each purchase and Defendants other. Id. duty not their agreement within Fenimore to with tortious alleges interfere Green that with the possessory rights that Fenimore obtained through that agreement. Because the duty not to interfere with the contract of another arises out of law, not contract, the Fenimore s complaint sounds in tort. fundamental nature of See Bar J Bar Cattle Co., Inc., v. Pace, 158 Ariz. 481, 486, 763 P.2d 545, 550 (App. 1988). We conclude, therefore, that attorneys fees should not have been awarded under A.R.S. § 12-341.01(A). ¶23 Defendants also sought fees on the basis of A.R.S. § 33-1408(C), a Residential Landlord applies actions to statute within the and Tenant arising out 11 Arizona Act of an Mobile ( Act ). agreement Home This Parks statute entered into pursuant to the Act or a violation of the Act. the claim nor defense arose under the rental Here, neither agreement with Defendants. See A.R.S. § 33-1406 (2007) (stating this chapter applies the to obligations and remedies under a rental agreement ). ¶24 For these reasons, we reverse the trial court s award of attorneys fees to Defendants. CONCLUSION ¶25 Defendants We affirm the grant of summary judgment in favor of and Defendants. the trial court s award of taxable costs to We reverse the trial court s award of attorneys fees to Defendants. We deny Defendants request for an award of attorneys fees on appeal. In accordance with A.R.S. § 12-342 (2003), Fenimore is entitled to an award of his taxable costs on appeal, upon compliance with Arizona Rule of Civil Appellate Procedure 21. ____/s/_________________________ JOHN C. GEMMILL, Judge CONCURRING: ____/s/______________________________ PATRICIA A. OROZCO, Presiding Judge ____/s/______________________________ JON W. THOMPSON, Judge 12
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