Best v. Fanniel

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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 GREGORY BEST, a single man, ) ) ) Plaintiff/Appellant, ) v. ) ) CHARLES R. FANNIEL and LUCILLE ) W. FANNIEL, husband and wife, ) ) Defendants/Appellees. ) ) No. 1 CA-CV 11-0181 DIVISION ONE FILED: 03/06/2012 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. CV2005-092924 The Honorable Karen A. Potts, Judge AFFIRMED Gregory Best Plaintiff/Appellant in propria persona Phoenix Charles R. Fanniel Phoenix Lucille W. Fanniel Defendants/Appellees in propria persona ________________________________________________________________ T I M M E R, Judge ¶1 Gregory Best appeals the summary judgment entered in his lawsuit asserting various claims against Charles and Lucille Fanniel arising property. out of an option contract to For the following reasons, we affirm. purchase real BACKGROUND ¶2 Phoenix Nathaniel Fanniel owned Lot 25 Center Grove Tract in ( the Thereafter, Property ) the court before appointed his death Robert in Warrick January to 2002. serve as personal representative for Nathaniel s estate. ¶3 On February 16, 2004, Charles Fanniel entered in a contract with Warrick to purchase the Property from the estate. A checked box on the standard form contract indicated Charles would take title as a joint tenant with right of survivorship, but the contract did not identify the other prospective owner. The sale closed two-and-one-half months later, and a warranty deed to the property was recorded in the names of Charles and Lucille as joint tenants with rights of survivorship. ¶4 On March 9, 2004, Charles entered in an Exclusive Purchase Option Contract with Gregory Best, by which Charles gave Best $75,000, the exclusive expiration provided date of option Best March to purchase exercised 23, 2009. the the option The Property for before its contract reflects Charles s acknowledgement he received $50 earnest money at the time he entered the contract. ¶5 After taking title to received a purchase offer for it. the Property, the Fanniels Charles asked Best to either purchase the Property or release the option, but Best declined. 2 Regardless, the Fanniels sold the Property to Foresight Investment Group ( Foresight ) in October 2004. ¶6 In August 2005, Best initiated this lawsuit against the Fanniels, Foresight, and eventually others. claims against the Fanniels for breach Best alleged of contract, racketeering, and consumer fraud. The Fanniels ultimately moved for trial summary judgment, which the court granted. This appeal followed. 1 ¶7 The trial court properly granted summary judgment if there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law. Ariz. R. Civ. P. 56(c)(1). In reviewing the court s ruling, we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law. Best Choice Fund, LLC v. Low & Childers, P.C., 624 Ariz. Adv. Rep. 24, ¶ 10 (App. Jan. 6, 2012) (as amended). facts and inferences favorable to entered. Id. Best as arising the from party them against in We view the the whom light most judgment was We will affirm if the court was correct for any 1 Best filed a premature appeal, which was made final and appealable by the filing of a subsequent judgment on June 29, 2011, with language entered pursuant to Rule 54(b), Arizona Rules of Civil Procedure. See Snell v. McCarty, 130 Ariz. 315, 317, 636 P.2d 93, 95 (1981) (recognizing appellate jurisdiction when premature appeal in multi-party case is followed by subsequent Rule 54(b) determination and entry of judgment over which court has jurisdiction). 3 reason. City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985). DISCUSSION I. ¶8 Validity of the option contract The trial court ruled as a matter of law that the option contract is invalid because the Fanniels did not own the Property at the time Charles entered contract lacked consideration. the contract, and the Best argues the court erred in this ruling because Charles had a fee simple ownership interest in the Property as of February 16, 2004, in light of his purchase contract with the estate, and he therefore possessed the ability contends to the consideration. enter earnest in the option money paid contract. Best constituted further sufficient Unsurprisingly, the Fanniels support the court s ruling and additionally argue the ruling was justified because Lucille was not a signatory to the option contract as required by Arizona Revised Statutes ( A.R.S. ) section 25-214(c) (West 2012). 2 ¶9 The February 16 purchase contract Charles owned the Property as of that date. is not evidence It shows only that the parties entered in an agreement for Charles to purchase the Property contingent on him qualifying for financing; he did not 2 Absent material revision after the date of the events at issue, we cite a statute s current Westlaw version. 4 obtain any possessory interest in the Property at that time. Mining Inv. Group, LLC v. Roberts, 217 Ariz. 635, 639, ¶ 13, 177 P.3d 1207, 1211 (App. 2008) ( It is well-established that [a] contract for the sale of realty does not effect a transfer of legal title, which remains in the seller s name until the close of escrow. (citation omitted)). Best s argument that the court For this reason, we reject erred in its ruling because Charles actually owned the Property at the time he executed the option contract. ¶10 In his reply brief, Best additionally argues the court erred because Charles held an equitable interest in the Property from the date he executed the purchase contract with Warrick, and therefore he had authority to enter in the option contract. Even assuming Best properly raised this argument in his opening brief, he has waived the issue by failing to raise it to the trial court. Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, 109-10, ¶ 17, 158 P.3d 232, 238-39 (App. 2007) (holding party waives argument raised for first time on appeal when the trial court had no opportunity to address the issue on its merits). ¶11 For these reasons, we reject Best s challenge to the trial court s ruling that the option contract was invalid due to the Fanniels lack of ownership of the Property at the time the option contract was executed. In light of our decision, we need 5 not address consideration the and parties the remaining failure of arguments Lucille to sign concerning the option on Best s contract. II. The ¶12 Consumer Fraud Act and racketeering trial court entered summary judgment claims for a violation of the Consumer Fraud Act ( CFA ), A.R.S. §§ 44-1521 to 44-1534, and the racketeering statutes ( RICO ), A.R.S. §§ 13-2301 to 13-2323. The court reasoned the CFA does not apply to an option purchase contract. It additionally ruled the RICO claim fails because it does not involve a pattern of conduct. ¶13 Best argues the trial court erred because after entry of its ruling, the court struck Foresight s answer, deemed the allegations of the complaint against it admitted, and entered default judgment against it. 3 seems to contend that Although somewhat unclear, Best because he obtained judgment against Foresight and the Fanniels assisted it in committing wrongdoing against Best, the court acted prematurely by entering summary judgment for the Fanniels. Best does not cite any authority to support this contention, and we are not aware of any. When a default is entered, the well-pleaded factual allegations of a complaint are deemed admitted by the defaulted party. 3 Moran v. Best also asserts he obtained similar relief against Jackson, but the portion of the record cited for this assertion does not reflect this fact. 6 Moran, 188 Ariz. 139, 146, 933 P.2d 1207, 1214 (App. 1996). admissions, however, do not apply to co-defendants. The Clugston v. Moore, 134 Ariz. 205, 207-08, 655 P.2d 29, 31-32 (App. 1982). Thus, the Fanniels had no need to oppose the entry of default judgment against Foresight, as Best implies, Foresight s admissions cannot bind the Fanniels, and entry of the default judgment had no bearing on the summary judgment already entered in the Fanniels favor. ¶14 court In his reply brief, Best argues extensively that the erred contracts. by ruling the CFA is inapplicable to option But Best waived these arguments by failing to raise them in his opening brief. Romero v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 7 n.3, 119 P.3d 467, 471 n.3 (App. 2005) (holding arguments raised for first time in reply brief on appeal are waived); see also Meiners v. Indus. Comm n, 213 Ariz. 536, 538, ¶ 8 n.2, 145 P.3d 633, 635 n.2 (App. 2006) (noting waiver policy avoids surprise and allows input from parties). We do not address this argument further. III. Common law fraud ¶15 Best also argues the trial court erred by not awarding him damages because its ruling permits the Fanniels to commit fraud against him without consequence. Specifically, he asserts that if the court s ruling stands, he relied to his detriment on Charles representations he could 7 enter a binding option contract. But the consequence of the court s ruling neither makes the ruling unsound nor requires the court to award damages to Best alleges for fraud. Charles Although made Best s first misrepresentations, it amended did complaint so in the context of the CFA and RICO; he did not allege common law fraud against Charles as he could have done. IV. ¶16 We do not discern error. Acceptance of the Fanniels testimony and pleadings Best finally asserts the court erred by permitting the Fanniels to defend this lawsuit with testimony and pleadings once the court dismissed with prejudice the State s case against Best in CV2006-016293. He contends Charles committed perjury in that case, which resulted in that case going forward and Best s lawsuit against the Fanniels being delayed. contends the court should have entered Apparently, Best judgment against the Fanniels in light of Charles actions in the other lawsuit. But Best provides no authority for such punitive action, and we are unaware of any. pleadings the And Best neglects to identify the testimony and court should have excluded demonstrating Best asked for such relief. or cite the record Consequently, he has waived this argument, and we do not address it further. See ARCAP 13(a)(6) ( An argument . . . shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes 8 and parts of the record relied on. ); Polanco v. Indus. Comm n, 214 Ariz. 489, 491, ¶ 6 n.2, 154 P.3d 391, 393 n.2 (App. 2007) (concluding appellant s failure to develop and support argument waives issue on appeal). REQUEST FOR FEES ON APPEAL ¶17 on We deny Best s request for an award of attorneys fees appeal himself because on he appeal. Rule has We not prevailed, award compliance with 21, Procedure. the Arizona and Fanniels Rules of he represented their Civil See A.R.S. § 12-341. CONCLUSION ¶18 For the foregoing reasons, we affirm. /s/ Ann A. Scott Timmer, Judge CONCURRING: /s/ Maurice Portley, Presiding Judge /s/ Andrew W. Gould, Judge 9 costs upon Appellate

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