McGoniGal v. Fullwood

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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 ) ) ) ) Plaintiff/Appellee) Cross Appellant, ) ) v. ) ) TROY A. FULLWOOD and JULIE A. ) FULLWOOD, husband and wife, ) Defendants/Appellants- ) ) Cross Appellees. _______________________________________ ) MICHAEL MCGONIGAL dba ON-SITE BUILDERS, DIVISION ONE FILED: 05-04-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CV 09-0219 DEPARTMENT B MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2007-015393 The Honorable Richard J. Trujillo, Judge AFFIRMED Dohn M. Rosenthal, P.C. By Dohn M. Rosenthal Attorneys for Plaintiff/Appellee-Cross Appellant Scottsdale Troy A. Fullwood, In Propria Persona Chandler Julie C. Fullwood, In Propria Persona Chandler N O R R I S, Judge ¶1 This appeal arises out of the superior court s judgment in favor of plaintiff/appellee Michael McGonigal on a breach of contract claim against Troy and Julie Fullwood. The Fullwoods appeal the superior court s judgment on the merits; McGonigal cross-appeals its determination he was not an employee for purposes of Arizona Revised Statutes ( A.R.S. ) section 23355 (Supp. 2009), 1 which would have made him eligible for an award of treble damages; and both parties appeal the partial award of attorneys fees in favor of McGonigal. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 into McGonigal, doing business as On-Site Builders, entered a one-page agreement with the Fullwoods in which he promised to supply building consultation on the construction of a new home. McGonigal agreed to help with subcontractors, and help to obtain [the] final inspection certificate. The Fullwoods agreed to take all responsibilities of construction [of the] property and agreed McGonigal would not be responsible for any debt, to any subcontractor or held liable in any way. The agreement called for a total contract price of $30,000, with payment after various stages of project completion. 1 Although certain statutes cited in this decision were amended after the date the Fullwoods breached the contract, the revisions are immaterial. Thus, we cite to the current versions of these statutes. 2 ¶3 The Fullwoods withheld the final $19,000 payment to McGonigal, alleging they had fired prior to completion of the house. him for poor performance McGonigal sued the Fullwoods to collect the final payment; he also argued he was entitled to treble damages under A.R.S. § 23-355 because he was an employee of the Fullwoods. The Fullwoods counterclaimed for damages they allegedly incurred because of McGonigal s poor performance. ¶4 After a three-day bench trial, the superior court found McGonigal had [c]learly met his burden of proving the Fullwoods had breached the contract; it also found McGonigal was not an employee under A.R.S. § 23-350 (1995), entitled to treble damages under A.R.S. § 23-355. and thus not The superior court awarded McGonigal his final $19,000 payment plus interest, costs, and roughly one-half of his attorneys fees. The Fullwoods appealed; McGonigal cross-appealed. DISCUSSION ¶5 We are bound by the superior court s findings of fact unless clearly erroneous, but review conclusions of law de novo. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 47, ¶ 9, 156 P.3d 1149, 1152 (App. 2007). We view the evidence and all reasonable inferences in the light most favorable to sustaining the superior court s ruling. 136, 859 P.2d 755, 759 Inch v. McPherson, 176 Ariz. 132, (App. 3 1992). We do not reweigh conflicting evidence. evidence affirm the supports it. I. redetermine the preponderance of the Hurd v. Hurd, 223 Ariz. 48, __, ¶ 16, 219 P.3d 258, 262 (App. 2009). we or Even though conflicting evidence may exist, trial court s ruling if substantial evidence Id. The Fullwoods Appeal A. Sufficiency of the Evidence ¶6 The support the Fullwoods contend the court s superior first evidence factual findings failed McGonigal to had sufficiently performed the contract and was, thus, entitled to the final $19,000 installment. ¶7 The parties We disagree. differing interpretations of the nonspecific requirement in the contract requiring McGonigal to help with subcontractors, and help to obtain [the] final inspection certificate are at the center of this issue. The Fullwoods contend the contract required McGonigal to oversee and manage all of the sub-contractors throughout the construction of their house. (emphasis added) McGonigal testified he was to consult, help the subs and to help obtain a final inspection ; acting as but the his duties general price for the home. were contractor, limited [and] because wasn t he wasn t getting full Supporting McGonigal s vision of a highly limited role was Troy Fullwood s testimony he sought McGonigal s 4 help to build the house because he had [a]bout 85% of it figured out, and thus, needed assistance with the remaining 15%. Implicit in the superior court s finding McGonigal fully performed is a finding the definition of help comported with his interpretation. Thus, the issue becomes whether he provided this help. ¶8 The superior court found McGonigal helped the Fullwoods as required under the contract, and thus explicitly rejected their argument they canceled McGonigal s contract in February 2006 remedial. and any work he did afterwards was merely In its ruling, the superior court cited nine e-mails, stipulated into evidence, demonstrating the Fullwoods relied upon McGonigal beyond the alleged termination in February 2006 until almost Occupancy -- October the 2006, end of issued in August, 2006. even though McGonigal s the Certificate responsibility -- of was Numerous other e-mails over the same period in which McGonigal updated the Fullwoods on construction progress example supported of the the superior Fullwoods court s continuing conclusion. reliance, As an testimony at trial revealed Troy Fullwood asked McGonigal to stop by [the construction site] every now and again to just make sure everything was okay while he and his family were out of town on vacation, nearly four months after 5 the Fullwoods allegedly fired him. During one of these visits, McGonigal spotted a problem with installation of kitchen cabinets, photographed it and e-mailed it to Troy Fullwood, who instructed McGonigal to [h]ave the cabinents [sic] guys hold off on the Crown Molding [sic] until I get back. Thus, ample evidence supported the superior court s finding McGonigal helped the Fullwoods through the completion of the house, and even beyond. B. Trial Scheduling ¶9 The Fullwoods next contend the superior court improperly managed the trial scheduling, allowing McGonigal to use up 90% of the time, and thus deprived them of a fair trial. We disagree. ¶10 A management superior of a court trial, and has may broad discretion over place limitations on proceedings that are reasonable under the circumstances. the trial Gamboa v. Metzler, 223 Ariz. 399, __, ¶ 13, 224 P.3d 215, 218 (App. 2010). We will not disturb the superior court s discretionary imposition of time limits absent an abuse of discretion and a showing of prejudice. Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 91, ¶ 30, 977 P.2d 807, 813 (App. 1998). ¶11 The superior court noted McGonigal s counsel wasted a lot of time, but took measures throughout trial to rein him in, including reminding him of time limits, ending a lengthy 6 examination, and questioning witnesses sua sponte. The Fullwoods counsel thoroughly examined witnesses called during McGonigal s Fullwood. 2 case-in-chief, including both McGonigal and Troy Moreover, the Fullwoods counsel raised no objection that he was precluded from calling additional witnesses. Thus, we see no abuse of discretion. C. ¶12 Attorneys Fees and Costs The Fullwoods argue the superior court should not have awarded attorneys fees and costs to McGonigal, but should have instead awarded them fees and costs. The Fullwoods have failed to develop this argument as to how the superior court abused its discretion, and we therefore deem it waived. See A Tumbling-T Ranch v. Flood Control Dist. of Maricopa County, 222 Ariz. 515, 540-41, ¶ 85, 217 P.3d 1220, 1245-46 (App. 2009). D. ¶13 the Counterclaim Finally, the Fullwoods argue, in a passing reference, superior breach of court improperly contract. This denied their argument, too, undeveloped, and we therefore deem it waived. 2 counterclaim is for completely See id. Approximately 201 pages of the trial transcript is devoted to the Fullwoods counsel s examination of witnesses, opening statement, and closing argument; approximately 219 pages is devoted to McGonigal s presentation of his case. 7 II. McGonigal s Cross-Appeal A. ¶14 Treble Damage Claim McGonigal argues the superior court mistakenly ruled A.R.S. § 23-350 did not apply to the employment relationship between himself and the Fullwoods, and thus he was entitled to treble damages under A.R.S. § 23-355. ¶15 McGonigal first We disagree. challenges the superior court s finding he was an independent contractor under the analysis set forth in Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 794 P.2d 138 (1990). Under Santiago, the fact-finder must evaluate several criteria to determine if an employer-employee relationship exists. Id. at 509, 794 P.2d at 142. Here, McGonigal exercised great control over the details of his own work, showing up onsite at his discretion. other jobs independent Fullwoods in addition enterprise hired him to the while only for He also maintained Fullwoods ; working this for he the discrete promoted his Fullwoods; 3 the project; and the evidence supports an inference the parties did not contemplate an employer-employee relationship at the time they entered the contract. See id. 3 Thus, ample evidence supports the superior McGonigal testified he had placed a sign, identifying himself as a general contractor, in the Fullwoods yard during construction to try to get some perspective [sic] clients. 8 court s factual finding McGonigal was an independent contractor and not an employee. ¶16 McGonigal also contends that even if he was an independent contractor under Santiago, a personal injury case, Santiago does not apply to the wage-payment statutes. McGonigal argues that under the plain language of A.R.S. § 23-350(2), an [e]mployee means any person who performs services for an employer under a contract of employment . . . made in this state, and thus, he was entitled to treble damages under A.R.S. § 23-355. ¶17 We reject this argument. Statutory review de novo. Ariz. __, __, McGonigal s interpretation is a question of law we Dreamland Villa Cmty. Club, Inc. v. Raimey, __ ¶ 17, 226 P.3d interpretation, 411, 416 conceivably (App. 2010). doctors, Under lawyers, barbers, auto mechanics, and most service providers would be eligible to recover treble damages unreasonably withhold payment. from their customers who When read in context with the other wage-payment statutes, the employer-employee relationship under A.R.S. § 23-350 is consistent with the Santiago analysis whereby the employer has, inter alia, great control over the details of an employee s work. See A.R.S. §§ 23-350 to -361; Santiago, 164 Ariz. at 508-09, 794 P.2d at 141-42. As discussed supra ¶ 15, the evidence supports the superior court s finding 9 no such relationship existed here. Moreover, the Arizona legislature originally enacted A.R.S. § 23-355 in conjunction with various amendments to Arizona s workers compensation law, supporting our traditional employer-employee for H.B. interpretation 2098, McGonigal was 31st not Leg., an this statute relationship. applies 1st employee Reg. House and Sess. the to Fact the Sheet (1973). Fullwoods Thus, were not employers for purposes of A.R.S. §§ 23-350 and -355. 4 B. ¶18 Fees McGonigal also argues the superior court abused its discretion when it attorneys fees. ¶19 him less than one-half of his We disagree. We review the award of attorneys fees for an abuse of discretion. 972 awarded P.2d Gutierrez v. Gutierrez, 193 Ariz. 343, 351, ¶ 32, 676, requested 684 nearly dispute. The contentious 4 (App. $37,000 superior (from the 1998). in court Here, attorneys noted litigators McGonigal originally fees a $19,000 was highly this on case perspective), and, as Even if the Fullwoods contract with McGonigal created an employer-employee relationship under A.R.S. § 23-350, the nonspecific terms of the contract and the evidence at trial demonstrated they had a good faith dispute with McGonigal over his work, and should not have been subjected to a discretionary imposition of treble damages. See A.R.S. § 23-352(3) (1995); Apache East, Inc. v. Wiegand, 119 Ariz. 308, 312-13, 580 P.2d 769, 773-74 (App. 1978). 10 discussed supra ¶ 11, McGonigal s counsel wasted a lot of time during trial. Thus, we see no abuse of discretion. III. Fees and Costs on Appeal ¶20 Both parties request attorneys fees and costs on appeal. Because the Fullwoods represented themselves in this appeal, they are not entitled to an award of attorneys fees. See Connor v. Cal-Az Properties, Inc., 137 Ariz. 53, 56, 668 P.2d 896, 899 (App. 1983). 341.01 (2003), and McGonigal cites to A.R.S. §§ 12- 32-1129.01(M) award to the successful party. 5 (2008), which permit a fee Because neither McGonigal nor the Fullwoods -- even if the Fullwoods had been entitled to a fee award -- improved their respective positions on appeal by obtaining greater or different relief, neither party successful party for an award of fees and costs. is the See Kaman Aerospace Corp. v. Ariz. Bd. of Regents, 217 Ariz. 148, 158, ¶ 37, 171 P.3d 599, 609 (App. 2007). Thus, we direct the parties to bear their own fees and costs on appeal. 5 McGonigal also cites to A.R.S. § 12-349(A) (2003), which permits the award of attorneys fees for [u]njustified actions. Although the Fullwoods did not prevail in this appeal, we cannot say their actions were unjustified as defined under A.R.S. § 12-349(A). 11 CONCLUSION ¶21 For the foregoing reasons, we affirm the superior court s judgment. /s/ ___________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ __________________________ DANIEL A. BARKER, Judge /s/ __________________________ PETER B. SWANN, Judge 12

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