Keith v. Keith Porperties

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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 THE ESTATE OF ELMO R. KEITH, by and through its personal representative; DOROTHY E. KEITH, an individual, ) ) ) ) ) Plaintiffs/Appellants, ) ) v. ) ) E. R. KEITH PROPERTIES, an ) Arizona limited liability ) company; ALEC KEITH and KAY ) KEITH, husband and wife, ) ) Defendants/Appellees. ) ) No. DIVISION ONE FILED: 07-13-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0236 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2006-050568 The Honorable Michael D. Jones, Judge The Honorable Eddward Ballinger, Jr., Judge AFFIRMED Ayers & Brown, P.C. By Harvey S. Brown Melinda A. Bird Attorneys for Appellants Phoenix Quarles & Brady LLP By James A. Ryan Edward A. Salanga Lauren Elliot Stine Attorneys for Appellees Phoenix J O H N S E N, Judge ¶1 Dorothy ( Appellants ) dismissing favor of Keith appeal their E.R. E. from complaint Keith and the the and Estate superior granting Properties, of Alec Elmo R. court s summary Keith ( Appellees ) on the third amended complaint. Keith orders judgment and Kay in Keith For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Brothers Alec Keith and Elmo Keith were members of Keith Properties, LLC, residential development. an entity that purchased land for A separate entity, Keith Homes, run by Elmo and his son Forrest Keith, developed the land purchased by Keith Properties. On January 1, 1999, Elmo and his wife, Dorothy Keith, entered into a written agreement (the Redemption Agreement ) with Keith Properties, by which Elmo and Dorothy agreed to transfer to Keith Properties their membership interest in Keith Properties and also agreed to convey to Keith Properties a parcel of real property in Maricopa County (the South Mountain Property ). In exchange, the Redemption Agreement provided that Keith Properties would transfer to Elmo and Dorothy a parcel of real property in Pinal County (the Eloy Property ) and also would release and indemnify Elmo and Dorothy from certain debts. According to the contract, the respective 2 property transfers were to take place immediately following the execution of the Redemption Agreement. ¶3 Elmo had been the manager of Keith Properties prior to the Redemption Agreement and continued in that role after the agreement. Pursuant to the Redemption Agreement, Elmo conveyed the South Mountain Property to Keith Properties on May 19, 1999. Unknown to Dorothy or Alec, however, Elmo, in his role as manager of Keith Properties, did not immediately transfer the Eloy Property to Dorothy and himself. Instead, through Keith Homes, Elmo built homes on various individual lots on the Eloy Property. transfer When a home was completed, Elmo had Keith Properties title to Keith Homes; Keith Homes then sold the completed home and retained the proceeds. ¶4 In a December 2001 telephone conversation, Elmo explained to Alec he had decided on his own not to transfer the entire Eloy Property at once to himself and Dorothy. Elmo said he did not make the transfer because he did not trust Dorothy and he did not feel justified taking ownership of the property until Keith Homes developed it. Alec agreed to Elmo s practice of taking title to individual lots on the property only after building homes on them, telling Elmo, That s a deal. ¶5 Elmo died on November 12, 2004. Only after his death did Dorothy learn that not all of the Eloy Property had been conveyed to her and Elmo pursuant to the Redemption Agreement. 3 In February 2005, Dorothy also learned that Keith Properties had sold an apartment property in Pinal County (the Toltec Property ); she asked Alec about the sale and he allegedly told her not to worry, that he would handle matters. In July 2005, Alec sent Dorothy a letter offering $301,560 to conclude any business between Keith Properties and Keith Homes. the same 2005, Keith Properties had sold the remainder of the Eloy Property. When Dorothy time, Dorothy questioned Alec learned about that Keith in May At around Properties failure to transfer the Eloy Property to her and Elmo, he allegedly told her to trust him and that they would settle the matter amicably. ¶6 On February 13, 2006, Appellants filed suit against Appellees, superior alleging court breach dismissed of the contract and complaint conversion. without prejudice barred by limitations but granted leave to amend. The as Appellants filed an amended complaint alleging breach of contract based on a modification to the Redemption Agreement, conversion and unjust enrichment; later, in a third amended complaint, they added a claim alleging fraud. The superior court summary judgment in favor of Appellees, stating: If this case involved an equitable claim by plaintiff against her deceased husband, the court believes her claim would probably prevail based upon the undisputed facts. And if Judge Jones [the judge previously 4 entered assigned to the case] had not previously ruled that the statute of limitations barred her claims based upon the parties 1999 redemption agreement, even plaintiff s counsel acknowledges her likely success on the merits. However, Judge Jones ruling and applicable Arizona law, applied to the undisputed facts, serve as a bar to plaintiff s current claims. The superior court also awarded Appellees their attorney s fees and costs in the amount of $373,291.00. ¶7 Appellants pursuant to Arizona timely appealed. Revised We Statutes have ( A.R.S. ) jurisdiction section 12- 2101(B) (2003). DISCUSSION A. ¶8 Dismissal of the Original Complaint. Appellants first argue the superior court erred in dismissing their original complaint as time-barred.1 ¶9 We review de novo the superior court s dismissal of a complaint based on limitations. Dube v. Likins, 216 Ariz. 406, 411, ¶ 5, 167 P.3d 93, 98 (App. 2007). 1 A claim for breach of a Appellees argue Appellants are precluded from seeking review of this issue because they failed to re-assert the dismissed claims in their amended complaints. A party does not waive review of the dismissal of a claim by failing to re-allege the claim in an amended complaint, however, if, as here, the superior court has conclusively dismissed the claim. See Davis v. TXO Prod. Corp., 929 F.2d 1515, 1518 (10th Cir. 1991) ( We believe that a rule requiring plaintiffs who file amended complaints to replead claims previously dismissed on their merits in order to preserve those claims merely sets a trap for unsuspecting plaintiffs with no concomitant benefit to the opposing party. ) (footnotes omitted). 5 written contract must be commenced within six years, A.R.S. § 12-548 (2003); the limitations period applicable to a claim for conversion is two years, id. § 12-542(5) (2003). cause of action commences, when accrues, one party and is the able statute to sue Generally, a of limitations another. Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588, 898 P.2d 964, 966 (1995). however, a plaintiff s cause of Under the discovery rule, action accrues when the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause. Id. The discovery rule applies when the plaintiff s injury or the conduct causing it is not easily detected by the plaintiff. Id. at 590, 898 P.2d at 968. ¶10 Appellants filed their complaint on February 13, 2006, a little more than seven years after execution of the Redemption Agreement on January 1, 1999. and could transfer not the December 2001. not accrue have Eloy They argue Dorothy did not know known of Keith Property to her Properties and Elmo failure until at to least Appellants contend their conversion claim did until 2005, when Keith Properties sold the Eloy Property and kept the proceeds. ¶11 We first conclude the discovery rule does not toll the running of limitations on the claims at issue in this case. As to Elmo s estate, Elmo was the person at Keith Properties who 6 executed the transfers. Thus, Elmo was aware of any breach of the agreement at the time of its occurrence. ¶12 As to Dorothy, the failure to convey real property, at least under the circumstances presented, is not the type of conduct that is difficult for [a] plaintiff to detect. (discovery rule applied to breach of most favored Id. nations clause in contract where breach occurred in private transaction between defendant and third party); see also Walk v. Ring, 202 Ariz. 310, 318-19, ¶ 33, 44 P.3d 990, 998-99 (2002) (dental malpractice claim; fact-finder to decide whether plaintiff had reason to know adverse effects were due to fault of defendant); Tom Reed Gold Mines Co. v. United E. Mining Co., 39 Ariz. 533, 535, 8 P.2d 449, 450 (1932) (when defendant secretly removed ore from mine, limitations commenced when plaintiff learned of trespass and conversion). ¶13 public In Arizona, conveyance of real property is a matter of record. A.R.S. § 33-411.01 (2007) ( Any document evidencing the sale, or other transfer of real estate . . . shall be recorded by the transferor in the county in which the property is located and within sixty days of the transfer. ). Thus, the transfer of the Eloy Property to Elmo and Dorothy would have Recorder. been recorded Because a in search the office of the 7 of Pinal the Pinal County County Recorder s records would have revealed that the parcel had not been transferred, the discovery rule does not apply. ¶14 Dorothy also argues, however, that limitations should be tolled due to Appellees alleged fraudulent concealment. She contends Alec knew she was unaware of Keith Properties failure to transfer the Eloy Property and that he and Elmo agreed to conceal that fact from her. ¶15 To toll the statute of limitations, the defendant must have engaged in a positive act designed to prevent detection of the cause of action. Cooney v. Phoenix Newspapers, Inc., 160 Ariz. 139, 141, 770 P.2d 1185, 1187 (App. 1989); Jackson v. Am. Credit Bureau, Inc., 23 Ariz. App. 199, 202, 531 P.2d 932, 935 (1975). on Appellants base their fraudulent concealment argument Alec s telephone deposition call testimony between Alec regarding and Elmo, a Alec s December statement 2001 to Dorothy that she could trust him and Alec s July 2005 letter offering to settle the business between Keith Properties and Keith Homes. According to Alec s account of the telephone call, Elmo told Alec that he decided not to transfer the Eloy Property pursuant to the Redemption Agreement because Elmo did not trust Dorothy, should the remote chance occur that he would die before Dorothy. Alec also testified conversation with Dorothy. 8 that he never discussed the ¶16 We conclude that none of the acts that Appellants allege constitute fraudulent concealment reasonably could have prevented Dorothy from discovering that Keith Properties had not conveyed the Eloy Property, nor have Appellants offered evidence that Alec intended to prevent Dorothy s detection of her claims. Alec s testimony does not establish that he and Elmo affirmatively conspired to conceal Elmo s decision to transfer the Eloy Property only in increments. Additionally, given that real estate transfers require a public filing, Alec s assurances to Dorothy and his offer to settle the business between the two companies could not have prevented her from discovering that the transfer had not occurred. Accordingly, the statute of limitations was not tolled.2 ¶17 Having concluded the discovery rule does not apply and the statute of limitations was not tolled, we next determine when Appellants causes of action accrued. The Redemption Agreement, dated January 1, 1999, required that the property 2 Appellants argue the statute of limitations on the claims of Elmo s estate should be tolled between his death and the appointment of Dorothy as personal representative of his estate. Because they did not raise this argument in the superior court, and raised it on appeal for the first time in their reply brief, we deem it waived. Maher v. Urman, 211 Ariz. 543, 548, ¶ 13, 124 P.3d 770, 775 (App. 2005) (arguments not raised in superior court waived on appeal); Ness v. W. Sec. Life Ins. Co., 174 Ariz. 497, 502, 851 P.2d 122, 127 (App. 1992) (arguments raised for first time in reply brief waived). Nonetheless, because Elmo controlled the property transfers at issue, we do not comprehend how a claim could be brought on behalf of his estate for failure to transfer property. 9 transfer occur immediately Agreement. Although following the the execution agreement did of not this define immediately, Elmo transferred the South Mountain Property to Keith Properties in May 1999. Thus, even had the parties intended immediately to mean up to four months later, when the South Mountain transfer occurred, Appellants breach of contract claim fell outside the six-year statute of limitations because it was not filed until February 13, 2006. As a result, the superior court correctly dismissed the claim. ¶18 Appellants 2005, when Property Keith and argue their Properties retained the conversion sold what proceeds. claim remained accrued of the Conversion in Eloy is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. Miller v. Hehlen, 209 Ariz. 462, 472, ¶ 34, 104 P.3d 193, 203 (App. 2005) (quoting Restatement (Second) of Torts § 222A(1) (1965)). A cause of action for conversion accrues at the time of the wrongful taking. Jackson, 23 Ariz. App. at 201, 531 P.2d at 934. ¶19 the Appellants right to the Eloy Property was created by Redemption immediately wrongful Agreement s transfer taking the occurred requirement parcel when to Keith 10 that them. Keith Properties Therefore, Properties continued any to exercise dominion and control over the property instead transferring it to Appellants pursuant to the agreement. of As a result, Appellants cause of action for conversion accrued at the same time as their cause of action for breach of contract. Because the two-year statute of limitations expired long before they filed their complaint in 2006, the superior court correctly dismissed the action as time-barred. B. Summary Judgment on the Third Amended Complaint. ¶20 Appellants next argue the superior court erred in granting summary judgment in favor of Appellees on all claims in their third amended complaint. Summary judgment is appropriate when the pleadings, deposition[s], 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. Ariz. R. Civ. P. 56(c)(1). Viewing the facts in the light most favorable to the non-moving party, we review de novo whether an issue of genuine material fact exists and whether the superior court correctly applied the law. Green v. Garriott, 221 Ariz. 404, 417, ¶ 51, 212 P.3d 96, 109 (App. 2009). An appellate court may affirm the superior court s entry of summary judgment if it is correct for any reason. See Mutschler v. City of Phoenix, 212 Ariz. 160, 162, ¶ 8, 129 P.3d 71, 73 (App. 2006). 11 1. ¶21 Breach of contract. In their third amended complaint, Appellants alleged Elmo and Alec agreed to modify the Redemption Agreement, either orally or by their course of conduct. According to Appellants, Appellees breached the amended Redemption Agreement by selling the remaining Eloy Property and the Toltec Property and failing to divide the proceeds with Appellants. a. ¶22 from We which The Eloy Property. conclude the trier Appellants of fact provided could sufficient conclude agreed to amend the Redemption Agreement. Alec evidence and Keith In his deposition, Alec testified that in a telephone conversation between himself and Elmo in December 2001 or January 2002: [Elmo] said essentially two things: One was that he did not feel justified in selling the land of Picacho Heights [the Eloy Property] that was undeveloped because I had purchased it. He also said that he did not trust Dorothy, should the remote chance occur that he would die before Dorothy. He also said that as he built a home he would feel justified in then taking ownership of the home in Eloy or in Picacho Heights and selling it and taking the proceeds. That s - and I agreed with Elmo, and I think about all I said was, That s a deal. Alec also testified that Keith Properties received none of the proceeds of the developed lots sold by Elmo. Additionally, Alec explained why Elmo wanted to have Keith Homes take title to the 12 Eloy property only lot-by-lot, rather than take the entire parcel at once: I think it was Elmo s morality and sense of right that when he had put energy and work and had actually done some [con]struction, then he had earned the home, and that was consistent with our original understanding. And he felt justified in then taking the property, and I was in complete agreement with him. Elmo and I did not have any argument. ¶23 Viewed Alec s in testimony the is light evidence most that favorable he and to Elmo Appellants, amended the Redemption Agreement regarding how and when Keith Properties was to convey the Eloy Property to Appellants. Though the original Redemption Agreement required Keith Properties to transfer the Eloy Property to Appellants immediately, Alec s testimony shows that he and Elmo agreed instead that Keith Properties would transfer individual lots to Appellants only after Keith Homes had constructed homes on the lots. ¶24 Appellees argue, however, that Appellants failed to provide any evidence of a breach of Agreement respecting the Eloy Property. the amended Redemption They argue that (1) under the modified agreement, Keith Properties was obligated to transfer the Eloy Property to Elmo and Dorothy only on a lot-bylot basis, as Keith Homes completed construction of homes; and (2) Appellants offered breached that agreement. no evidence We agree. 13 that Keith Properties We have searched the record and find no evidence that would support the contention that Keith Properties breached its obligation to transfer to Elmo and Dorothy any lot within the Eloy Property on which Keith Homes had built a home for sale. b. ¶25 The Toltec Property. Appellants Redemption Agreement also by alleged selling Appellees two breached apartment the complexes (together, the Toltec Property ) and retaining the proceeds. ¶26 Appellants, however, concede the written Agreement did not encompass the Toltec Property. her deposition, Dorothy testified simply that Redemption Instead, in she understood from Elmo that Keith Homes was to own the property in Pinal County: Elmo said the Pinal County and the properties down there were - belonged to Keith Homes. Asked when Elmo made that statement to her, Dorothy testified Elmo told her that [f]rom the time that they decided that they were no longer going to - that Alec got the properties in Maricopa County. Thus, Dorothy s testimony, if taken as true, is that Elmo told her that their original agreement with Appellees was that Keith Properties Dorothy. would transfer the Toltec Property to Elmo and That testimony, however, is insufficient to create a genuine issue of material fact because it is contrary to the express terms of the Redemption Agreement. See Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 478, ¶ 52, 224 P.3d 960, 975 14 (App. 2010) ( the parol evidence rule bars admission of extrinsic evidence that varies or contradicts the terms of a written contract ). ¶27 In short, no evidence in the record suggests the parties considered the Toltec Property to be subject to the Redemption court s Agreement. entry of Accordingly, summary judgment we on affirm the Appellants superior breach of contract claim as to the Toltec Property. 2. ¶28 Conversion. Appellants third amended complaint also alleged Appellees committed conversion by retaining the proceeds of the sales of the Eloy Property and Toltec Property that occurred after Elmo s death. Conversion is defined as the intentional exercise over of control property of another that interferes with the other s right to control it. seriously See Miller, 209 Ariz. at 472, ¶ 34, 104 P.3d at 203. ¶29 of Appellants alleged right to the proceeds of the sale the Because, properties as we arose have only held, from the Appellants Redemption cannot Agreement. establish any contractual right to the Eloy or Toltec Properties, their claim for conversion fails. 3. ¶30 Unjust enrichment. Appellants third amended complaint alleges Appellees were unjustly enriched by their retention of the sale proceeds 15 from the Eloy and Toltec Properties. According to Appellants, Appellees were required to transfer to Appellants the properties as consideration for Elmo s transfer to Keith Properties of the South Mountain Property; they assert that Appellees failure to convey the Eloy and Toltec Properties and subsequent retention of the sale proceeds from those properties left Appellants unjustly enriched. ¶31 When a specific contract . . . governs the relationship of the parties, the doctrine of unjust enrichment has no application. Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 542, ¶ 34, 48 P.3d 485, 492 (App. 2002) (quoting Brooks v. Valley Nat l Bank, 113 Ariz. 169, 174, 548 P.2d 1166, 1171 (1976)). Redemption The Agreement Redemption are Agreement specific contracts and that the amended govern the relationship between the parties respecting the Eloy Property. Because Appellants right to the Eloy Property exists only by virtue of the contract, they may not recover on a claim for unjust enrichment arising from the Eloy Property. ¶32 the As we have held, neither the Redemption Agreement nor amended Property. Redemption Agreement encompasses the Toltec Thus, the rule articulated in Trustmark does not bar Appellants from asserting a right to unjust enrichment relating to the Toltec Property. 16 ¶33 A claim for unjust enrichment requires proof of (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) absence of justification for the enrichment and the impoverishment and (5) an absence of a remedy provided by law. City of Sierra Vista v. Cochise Enters., Inc., 144 Ariz. 375, 381, 697 P.2d 1125, 1131 (App. 1984). ¶34 Although Appellants argue they incurred substantial expenditures in developing the Toltec Property, they provide no citation to the record for that assertion, and our review of the record reveals no evidence that they suffered an impoverishment in connection with the Toltec Property.3 Accordingly, the superior court properly entered summary judgment on the claim. 4. ¶35 Fraud. Finally, Appellants third amended complaint alleged fraud, arising from Alec s failure to inform Dorothy of the amendment to the Redemption Agreement, Alec s alleged statement to Dorothy not to worry about the Toltec Property s sale and that he would handle matters, Alec s July 8, 2005 offer to settle any claims between Keith 3 Homes and Appellants for At oral argument, Appellants counsel argued that it was not disputed that Alec had no role in developing the Toltec Property and argued that as a result, it must have been Elmo who developed the property. But the record discloses that Elmo developed properties through Keith Homes, and that entity is not a party to this lawsuit. 17 $301,560.00 and Alec s alleged statement to Dorothy to trust him when she attempted to discuss the Eloy Property. ¶36 A claim for fraud requires proof of (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 a manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the right to rely on it; [and] (9) his consequent and proximate injury. Enyart v. Transamerica Ins. Co., 195 Ariz. 71, 77, ¶ 18, 985 P.2d 556, 562 (App. 1998) (citation omitted). The misrepresentation element may be satisfied by an omission when the defendant has a legal or equitable obligation to reveal material information. Haisch v. Allstate Ins. Co., 197 Ariz. 606, 610, ¶ 14, 5 P.3d 940, 944 (App. 2000). ¶37 Appellants argue Alec owed Dorothy a fiduciary duty to reveal the amendment to the Redemption Agreement because both were members of a limited liability company. Without addressing whether members of a limited liability company owe one another fiduciary duties under Arizona law, we conclude that at the relevant time, Alec and Dorothy were not members of the same limited liability company. ¶38 The only evidence in the record suggesting Dorothy was a member of Keith Properties is the Redemption Agreement, which 18 defines Keith as Elmo R. Keith and Dorothy Keith, a married couple dealing with community property, and states that Keith is the owner of a Membership Interest in [Keith Properties]. But even if Properties, Dorothy the was agreement at one time terminated a that member of interest, Keith stating, [Keith Properties] hereby purchases and redeems from Keith, and Keith hereby sells to the Company, [the membership interest]. Appellants argue that after the Redemption Agreement was amended, the parties continued to intermingle the businesses. But Appellants offer no evidence suggesting that the amended agreement reinstated Properties. Elmo and Dorothy as members of Keith As a result, after execution of the Redemption Agreement, Alec owed Dorothy no duty as fellow members of a limited liability company. Without a legal or equitable obligation to reveal material information, Alec s failure to inform Dorothy of the amendment cannot satisfy misrepresentation element of Appellants fraud claim. ¶39 Appellants also assert that Alec made the See id. affirmative fraudulent representations; they assert he told Dorothy not to worry, letter. told her to trust him, and sent her the settlement They do not argue and it is not apparent from the record, however, that Dorothy relied on the statements or that any reliance injury. was the consequent and proximate cause of her Without addressing the other elements of fraud, we 19 conclude create Appellants a genuine representations. failed issue to of produce fact that sufficient she evidence relied on to Alec s See Dawson v. Withycombe, 216 Ariz. 84, 97, ¶ 33, 163 P.3d 1034, 1047 (App. 2007) ( Reliance is an essential element of a claim for fraud. ). ¶40 For example, Dorothy learned in February 2004 that Keith Properties had not transferred the entire Eloy Property to her and Elmo. All of Alec s allegedly representations, however, came after that date. knew that Alec sold part of the Toltec fraudulent Also, Dorothy Property before he purportedly told her not [to] worry about it [and that] he would handle matters. Likewise, Dorothy apparently learned of the Eloy Property s sale at approximately the same time Alec wrote to her offering a payment to settle the business between Appellants and Keith Properties and before she contends Alec told her to trust him and asserted that the parties could resolve the matter amicably. ¶41 that On this record, the trier of fact could not conclude Dorothy relied on Alec s representations. Furthermore, because Alec s statements occurred after Dorothy learned Keith Properties had sold the properties and presumably kept the proceeds, the representations cannot have been the consequent and proximate cause of Dorothy s injury even if she had relied on them. As a result, we affirm the superior court s entry of 20 summary judgment on Appellants fraud claim. See Mutschler, 212 Ariz. at 162, ¶ 8, 129 P.3d at 73 (appeals court may affirm superior court s order if correct for any reason). C. Award of Attorney s Fee against Appellants. ¶42 After granting summary judgment in favor of Appellees, the superior court awarded Appellees their attorney s fees and costs, pursuant requested an to award A.R.S. of § 12-341.01 $418,050.50; the $371,793 in fees and $1,498 in costs. court abused Appellees and its discretion that the (2003). court Appellees awarded them Appellants argue the in awarding amount awarded attorney s was fees excessive to and unreasonable. ¶43 The superior court may award the successful party its attorney s fees in an action arising out of contract. 12-341.01(A). We review the superior court s A.R.S. § award of attorney s fees and costs for an abuse of discretion and uphold the award if supported by any reasonable basis. Maleki v. Desert Palms Prof l Props., L.L.C., 222 Ariz. 327, 333-34, ¶ 32, 214 P.3d 415, 421-22 (App. 2009) (citation omitted). We look not to whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason. We cannot discretion for that of the trial judge. 21 substitute our Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985) (quoting Davis v. Davis, 78 Ariz. 174, 179, 277 P.2d 261, 265 (1954) (Windes, J., specially concurring)). ¶44 Although the amount of fees awarded in this case is substantial, we cannot conclude the superior court abused its discretion. Appellees successfully obtained favorable judgments on all of Appellants contract-based claims; the superior court granted Appellees motion to dismiss Appellants original complaint and granted Appellees motion for summary judgment on all claims in Appellants third amended complaint. a reasonable basis existed to support the As a result, superior court s conclusion that Appellees were the successful party. ¶45 Furthermore, awarded with was their we unreasonable application cannot or for conclude unsupported. attorney s the amount Appellees fees an of fees provided affidavit of counsel indicating the type of legal services provided, the date the service was provided, the attorney providing the service . . . , and the time spent in providing the service. Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 188, 673 P.2d 927, 932 (App. 1983). ¶46 Rather than presenting specific objections to the fee award, Appellants contend Appellees did not exclude fees for motions on which they did not prevail and that the amount of fees Appellees sought was approximately four times that which 22 Appellants incurred in the litigation. Once a party has met the minimum requirements in the affidavit, the opposing party bears the burden to demonstrate its unreasonableness, and such broad challenges may be insufficient unreasonableness of a fee award. to demonstrate the See Nolan v. Starlight Pines Homeowners Ass n, 216 Ariz. 482, 490-91, ¶ 38, 167 P.3d 1277, 1285-86 (App. 2007). Moreover, the amount of attorney s fees the superior court awarded was approximately $45,000 less than sought by Appellees. As a result, Appellants have failed to demonstrate that the amount of fees awarded was unreasonable. CONCLUSION ¶47 For the reasons stated above, we affirm the superior court s orders. In our discretion, we grant Appellees request for attorney s reasonable fees pursuant to A.R.S. § 12- 341.01(A), and also grant Appellees their costs on appeal, both contingent on compliance with Arizona Rule of Civil Appellate Procedure 21. /s/______________________________ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/__________________________ PHILIP HALL, Judge /s/__________________________ LAWRENCE F. WINTHROP, Judge 23

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