BEST v. WARRICK

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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. ) ) ROBERT WARRICK, ) ) Defendant/Appellee. ) ________________________________) DIVISION ONE FILED: 12/11/2012 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CV 11-0678 DEPARTMENT T MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. CV2006-090128 The Honorable Karen A. Potts, Judge AFFIRMED Gregory Best In Propria Persona Plaintiff/Appellant Phoenix Gary M. Sundberg Attorney for Defendant/Appellee Phoenix G E M M I L L, Judge ¶1 Plaintiff/appellant Gregory Best appeals the superior court s grant of summary judgment in favor of defendant/appellee Robert Warrick Nathaniel Best as Fanniel asserts personal representative (hereinafter several claims, referred including to of the as Warrick breach of Estate of PR ). contract, breach of implied covenant of good faith and fair dealing, and consumer fraud. 1 For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 was Nathaniel Fanniel died in January 2002, and Warrick appointed February 2002. located on Property ). as personal representative of his Estate in Fanniel s Estate included a parcel of property South 13th Street in Phoenix, Arizona ( the On March 22, 2004, Best and Warrick entered into an exclusive purchase option contract purporting to convey to Best a right to purchase the Property. That option was terminated by the parties on November 8, 2004, and on the same day the same parties entered into a new option contract for the sale of the Property to Best. On November 30, 2004, however, Warrick sold the Property to Foresight Investment Group. ¶3 Best filed a lawsuit on August 19, 2005 against Warrick individually, not as personal representative, alleging breach of the subject option contracts, breach of the covenant 1 On appeal, Best also asserts RICO violations and equitable estoppel against Warrick PR. These claims, however, were not asserted in the superior court against Warrick PR. We generally do not consider, on appeal from summary judgment, new legal claims or factual theories not raised in superior court. See Schoenfelder v. Ariz. Bank, 165 Ariz. 79, 90, 796 P.2d 881, 892 (1990) (citation omitted); Regal Homes, Inc. v. CNA Ins., 217 Ariz. 159, 171, ¶ 52, 171 P.3d 610, 622 (App. 2007) (waiving claim on appeal that was not argued at the trial court level). The RICO and equitable estoppel claims are therefore waived against Warrick PR. 2 of good faith and fair dealing, and fraud. This lawsuit was subsequently dismissed on February 14, 2006 for lack of service. ¶4 Best filed a second lawsuit on January 18, 2006 containing identical claims to the first lawsuit against Warrick individually. Best s complaint was amended, however, in May 2010 to add Warrick PR, in addition to other parties. ¶5 Warrick judgment based PR on against the Estate. subsequently Best s filed failure to a motion present a for summary timely claim On July 7, 2011, the superior court granted summary judgment in favor of Warrick PR on all claims in the amended complaint. Although the superior court allowed the date of Best s claim against Warrick PR to relate back to January 18, 2006, the court found that Best s lawsuit against Warrick PR was asserted after Therefore, the expiration court of granted the allowable summary judgment time in period. favor of Warrick PR and dismissed Best s claims against the Estate in a judgment containing language of finality in accordance with Rule 54(b), Arizona Rules of Civil Procedure. ¶6 Arizona Best timely appeals, and we have jurisdiction under Revised Statutes ( A.R.S. ) § 12-2101(A)(1) (Supp. 2012). 2 2 Unless otherwise specified, we cite the current versions of statutes when no material revisions have been enacted since the events in question. 3 ANALYSIS ¶7 Best judgment on argues all the claims to court erred Warrick PR. in granting Summary summary judgment is proper 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 or defense. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). no When the moving party makes a prima facie showing that genuine issue of material fact exists, the burden then shifts to the non-moving party to produce sufficient competent evidence to show there is an issue, and it must demonstrate that evidence is available to justify trial on the issue. Nat'l Hous. Indus., Inc. v. E.L. Jones Dev. Co., 118 Ariz. 374, 377, 576 P.2d 1374, 1377 (App. 1978) (citation omitted). ¶8 In reviewing an order granting summary judgment, we determine de novo whether any genuine issues of material fact exist. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App. 1997). We also review the superior court s interpretation and application of a statute de novo. Schwarz v. City of Glendale, 190 Ariz. 508, 510, 950 P.2d 167, 169 (App. 1997). Our review is limited to the record before the superior court at the time it considered the motion, see GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 4 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990), and we view the facts in the light most favorable to the party against whom summary judgment was entered, giving that party the benefit favorable inferences fairly arising from the evidence. of all Harvey, 189 Ariz. at 180, 939 P.2d at 813. ¶9 To resolve this appeal, we must determine whether the superior court appropriately concluded that A.R.S. (2012) barred Best s claims against Warrick PR. § 14-3803 Subsection (C) provides: All claims against a decedent's estate that arise at or after the death of the decedent, including claims of the state and any political subdivision, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort or other legal basis, are barred against the estate, the personal representative and the heirs and devisees of the decedent, unless presented as either of the following: 1. A claim based on a contract with the personal representative, within four months after performance by the personal representative is due. 2. Any other claim, within the later of four months after it arises or the time specified in subsection A, paragraph 1 of this section. A.R.S. § 14-3803(C). ¶10 The superior court concluded that Best discovered the basis for his claims by August 19, 2005 regarding the Property because he filed a lawsuit on 5 that date against Warrick (individually) alleging breach of contract, breach of implied covenant of good faith and fair dealing, and fraud. the By August 19, 2005, Best was aware that Fanniel s Estate had owned the Property and it had been sold to a third party. The superior court reasoned that under the doctrine of anticipatory repudiation and the discovery rule, Best had four months after August 19, 2005 to file his claims against Warrick PR pursuant § 14-3803(C). until Best, however, did not file a claim or lawsuit January 18, 2006; thus, Best s claims were time-barred. ¶11 the superior court determined We agree. Contract claims against an estate that arise after the death of the decedent must be brought within four months after performance by the personal representative is due. 3803(C)(1). A.R.S. § 14- All other claims arising after the death of the decedent must be brought within four months after they arise. A.R.S. § 14-3803(C)(2), (A)(1). This court has affirmed a bar to both the right and remedy of a claimant who fails to comply with the requisite timeframes described in § 14-3803. In re Estate of Levine, 145 Ariz. 185, 188, 700 P.2d 883, 886 (App. 1985); see also Fernandez v. Garza, 88 Ariz. 214, 217-18, 354 P.2d 260, 262-63 (1960) (recognizing bar against party who does not present claim against estate within the time and manner prescribed by statute); In re Elerick s Estate, 11 Ariz. App. 559, 562-63, 466 P.2d 778, 780-81 (1970) (upholding four month 6 time limitation to bring claims against an estate). ¶12 Best argues the breach of contract claim is valid and the option contract was not breached as of August 19, 2005. Best explains that anticipatory repudiation does not apply because the sale of the Property to the third party in November 2004 did not constitute an unequivocal manifestation because performance of the option was still possible. We agree that before an anticipatory repudiation will be found, there must be a positive and unequivocal manifestation on the part of the repudiating party that he performance when it is due. will not render the required Rancho Pescado, Inc. v. Nw. Mut. Life Ins. Co., 140 Ariz. 174, 186, 680 P.2d 1235, 1247 (App. 1984) (quoting McMahon v. Fiberglass Fabricators, Inc., 17 Ariz. App. 190, 192, 496 P.2d 616, 618 (1972)). We conclude, however, that the sale of the Property to a third party was a sufficient action to constitute anticipatory repudiation and therefore a breach. ¶13 in Even if the sale of the Property by Warrick was not, and of itself, sufficient to constitute anticipatory repudiation, Best s August 19, 2005 lawsuit against Warrick was sufficient to establish a breach. Food Prods. Corp., 175 P.2d 861, See Crown Prods. Co. v. Cal. 865 (Cal. Ct. App. 1947) (finding it is well-settled law that the bringing of suit by the injured party is sufficient to treat the repudiation as a breach 7 and prevent its retraction). Therefore, the statutory time period for Best to make a claim against Fanniel s Estate began no later than the filing date of the original lawsuit, August 19, 2005. Because the breach of contract claim, however, was not brought against Warrick PR until January 18, 2006 after the requisite four month period the breach of contract claim is barred. ¶14 Best also contests the superior court s summary judgment in favor of Warrick PR regarding the implied covenant of good implied faith and covenant fair was dealing. breached by Best generally Warrick acting claims in a the manner contrary to his contractual promise in the option agreement. Because Best alleged a breach of contract claim, we assume he alleges the breach of this implied covenant as a tort claim. We do not reach the merits of this claim, however, because it is also time-barred. ¶15 the A tort claim arises when the injured party knows or in exercise of reasonable defendant s negligent conduct. diligence should know of the Angus Med. Co. v. Digital Equip. Corp., 173 Ariz. 159, 162, 840 P.2d 1024, 1027 (App. 1992). Under § 14-3803(C)(2), a tort claim arising after the death of the decedent must be brought within four months after it arises. As described previously, Best was aware by August 19, 2005 of the alleged breach of contract and his potential claim under an 8 implied covenant of good faith and fair dealing. Therefore, because the claim was not brought within four months, it is barred as against the Estate. ¶16 The superior court also entered summary judgment on Best s claim regarding Warrick PR s alleged violation of the Consumer Fraud Act ( CFA ), A.R.S. §§ 44-1521 to -1534. explanation, the superior court determined apply to option purchase contracts. the CFA In its does not On appeal, Best argues that the court erred factually and legally. As with Best s other two claims on appeal, we do not reach the merits of the CFA claim because Best did not bring this claim within the requisite time period. A CFA claim arises when the defrauded party discovers or reasonable with diligence should have discovered fraud. Alaface v. Nat l Inv. Co., 181 Ariz. 586, 591, 892 P.2d 1375, 1380 (App. 1994). Under § 14-3803(C)(2), Best s CFA claim against Warrick PR must have been asserted within four months after August 19, 2005. It was not. ¶17 note Finally, we that Best, in his opening brief, describes a common law fraud claim but does not develop this argument in the argument section of his brief. This claim is waived, therefore; and, even if not waived, a common law fraud claim would also be barred by A.R.S. § 14-3803(C)(2). CONCLUSION ¶18 We affirm the superior court s judgment in favor of 9 Warrick PR. Best requests an award of attorneys fees on appeal, but we deny the request because he is not the successful party on appeal, he did not cite any substantive authority in support of an award of fees, see Arizona Rule of Civil Appellate Procedure 21(c), and he was self-represented on appeal. See Connor v. Cal-Az Props., Inc., 137 Ariz. 53, 56, 668 P.2d 896, 899 (App. 1983) (denying attorneys fees when requesting party not represented by attorney). Warrick PR, however, as the prevailing party is entitled to reimbursement of his taxable costs upon compliance with Arizona Rule of Civil Appellate Procedure 21(a). ______/s/________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ____/s/__________________________ MARGARET H. DOWNIE, Judge ____/s/__________________________ LAWRENCE F. WINTHROP, Chief Judge 10

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