FISHER v. AJ

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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 DIVISION ONE FILED: 7/25/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE FISHER INDUSTRIES, INC., an Arizona corporation and division of FISHER SAND & GRAVEL CO., a North Dakota corporation, ) ) ) ) ) Plaintiff/Appellee, ) ) v. ) ) AJ CONSTRUCTORS, INC., a Nevada ) corporation, ) ) Defendant/Appellant. ) __________________________________) No. 1 CA-CV 12-0641 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2009-022038 The Honorable Colleen L. French, Judge Pro Tempore AFFIRMED Lewis and Roca LLP by Frances J. Haynes Kimberly A. Demarchi Cindy Villanueva Attorneys for Plaintiff/Appellee Phoenix Douglas M. Schumacher Attorney for Defendant/Appellant Fountain Hills S W A N N, Judge ¶1 In this breach of contract case, AJ Constructors, Inc. appeals the superior court s grant of summary judgment in favor of Fisher Industries, Inc. The superior court properly concluded that a contract existed, that Fisher performed, and that AJ Constructors failed to pay Fisher. It further concluded that no other party was responsible for the payment. Finding no error, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 A.R. contractor Mays for a Construction, commercial Arizona (the Project ). the Project, entered Inc. development Fisher would the project in general Peoria, AJ Constructors, a subcontractor on into a Materials Quote, Supplement (the Contract ) with Fisher. that was supply two sizes Scope of Work The Contract provided of rock - 1¼ minus aggregate and 3 minus aggregate -- to be crushed on-site at the Project. Fisher provided materials pursuant to the Contract. Fisher repeatedly demanded payment from both A.R. Mays and AJ Constructors, but $116,535.50 remained unpaid. ¶3 Fisher filed a complaint against AJ Constructors and A.R. Mays, alleging that AJ Constructors breached the Contract and that both AJ Constructors and A.R. Mays were unjustly enriched in the amount of the remaining payment owed to Fisher. AJ Constructors then filed an answer and cross-claim. AJ Constructors alleged that it had paid all amounts due and owing to Fisher with respect to AJ Constructors obligations[,] and while it had not been unjustly enriched, A.R. Mays had been. 2 For its part, A.R. Mays admitted unjust-enrichment liability to Fisher for $34,000 worth of 1¼ minus aggregate for which AJ Constructors never applied for payment, but otherwise denied all material allegations set forth in Fisher s complaint and AJ Constructors cross-claim. ¶4 Fisher filed a motion for both AJ Constructors and A.R. Mays. response to Fisher s motion. summary judgment against AJ Constructors filed a AJ Constructors contended that A.R. Mays was responsible for paying a portion of the Contract sum because the 3 minus aggregate was provided for A.R. Mays s use and A.R. Mays had directed the crushing of the 3 minus aggregate. and filed A.R. Mays also filed a response to Fisher s motion, its own motion for summary judgment. A.R. Mays contended that it had paid AJ Constructors the full amount of their subcontract. In support of this contention, A.R. Mays provided a copy of an Unconditional Waiver and Release on Final Payment, in which AJ Constructors stated that it had been paid in full for its work on the Project and expressly waived and released any right to any claim for payment from A.R. Mays. ¶5 After hearing oral argument, the court granted Fisher s motion for summary judgment regarding the 1¼ minus aggregate, denied it as to the 3 minus aggregate, and took the remainder of the motion under advisement. The next month, the court granted A.R. Mays s motion for summary judgment, finding 3 that [t]here was no contract between A.R. Mays and Fisher and A.R. Mays has paid AJ Constructors for the work performed by AJ Constructors under the contract between A.R. Mays and AJ Constructors[,] as evidence[d] by the unconditional waiver and release signed by AJ Constructors indicating that it had been paid in full by A.R. Mays. Mays its attorney s fees The summary judgment awarded A.R. and costs, and awarded Fisher the $34,000 for which A.R. Mays admitted liability. ¶6 Fisher against AJ filed a Constructors second on motion its breach concerning the 3 minus aggregate. respond, but filed an Emergency for of summary judgment contract claim AJ Constructors did not Motion to Extend Deadlines because of a medical emergency of AJ Constructors counsel. superior court granted the motion and extended the The response deadline for 45 days. But AJ Constructors never responded, and the granted court judgment. ultimately the second motion for summary The court entered judgment for Fisher against AJ Constructors for the full $116,535.50 sought by the complaint, interest on that amount, and attorney s fees and costs. ¶7 AJ Constructors timely appeals. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1). DISCUSSION ¶8 AJ Constructors first contends that the superior court erred by granting Fisher s second motion for summary judgment 4 solely upon the belief that AJ Constructors had not filed a response and opposition. AJ Constructors further contends that because one of the claims that Fisher asserted was for unjust enrichment, an equitable remedy, the court should have awarded Fisher only those contract claim. attorney s fees related to the breach of We address these arguments in turn. I. THE SUPERIOR COURT DID NOT ERR BY GRANTING FISHER S SECOND MOTION FOR SUMMARY JUDGMENT. ¶9 We review the grant of summary judgment in favor of Fisher de novo, viewing the facts in the light most favorable to AJ Constructors. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). We determine de novo whether there are any genuine issues of material fact and whether the superior court erred in applying the law. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App. 1997). ¶10 seeks To carry its burden of persuasion, a plaintiff who summary judgment must submit undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of its claim. Comerica Bank v. Mahmoodi, 224 Ariz. 289, 293, ¶ 20, 229 P.3d 1031, 1035 (App. 2010). A failure to respond to the motion with a written memorandum or opposing affidavits cannot, by itself, entitle the movant to a summary judgment. A party who fails to respond to 5 a motion for summary judgment, however, does so at his peril because uncontroverted evidence favorable to the movant, and from which only one inference can be drawn, will be presumed to be true. Rudinsky v. Harris, 231 Ariz. 95, 99, ¶ 14, 290 P.3d 1218, 1222 (App. 2012) (citation omitted). ¶11 AJ Constructors contends on appeal that the superior court s granting of Fisher s second motion for summary judgment was based solely upon the belief that AJ Constructors had not filed a response and summary judgment.] 1 opposition to the [second motion for It further argues that there are clearly questions of fact as to the material terms and conditions of the agreement and payment obligations as between Fisher, AR Mays and AJ Constructors[,] and that the court erred by not considering any of the facts and argument of AJ Constructors in granting a Summary Judgment motion by default. ¶12 In response, Fisher contends that [t]he determinations made by the trial court in the ruling on A.R. Mays s motion for summary judgment are law of the case, binding on all parties. We disagree. [A]t the trial court level, the 1 The court s belief that AJ Constructors had not filed a response was entirely correct -- the only response that AJ Constructors ever filed in this case was a response to Fisher s first motion for summary judgment. But we do not read the superior court s order as granting summary judgment solely because of the lack of a response. As we explain, the record supports the entry of summary judgment in Fisher s favor as a matter of law. 6 doctrine of the law of the case is merely a practice that protects the ability of the court to build to its final judgment by cumulative rulings, with reconsideration or review postponed until after the judgment is entered. Zimmerman v. Shakman, 204 Ariz. 231, 236, ¶ 15, 62 P.3d 976, 981 (App. 2003) (citation omitted). This case involved multiple claims for relief and multiple parties, and the court s interlocutory order granting summary judgment for A.R. Mays was not made final under Ariz. R. Civ. P. 54(b). The law of the case doctrine therefore does not apply. ¶13 But while the court s earlier ruling may not have had preclusive effect, it was nonetheless sound and the superior court was under no obligation to revisit it. argues, in effect, that Fisher s second AJ Constructors motion for summary judgment should have caused the court to dig through the record and sua sponte reconsider its earlier ruling on the basis of AJ Constructors earlier response. We are aware of no authority that would require the court to engage in such an exercise, and decline to adopt such a rule here. ¶14 fact Our review of the record reveals no genuine dispute of as Contract. to the material terms and conditions of the AJ Constructors sole defense was that even though it owed Fisher for the 1¼ minus aggregate, a separate obligation existed between Fisher and A.R. Mays for the 3 minus aggregate. 7 There is no evidence that such a contract existed. Contract between AJ Constructors and Indeed, the Fisher expressly encompassed both 1¼ minus aggregate and 3 minus aggregate. The superior contract court between properly A.R. Mays determined and Fisher, that and there AJ was no Constructors unconditionally released all claims for payment from A.R. Mays.2 ¶15 Fisher pursuant to reasonable the juror is still owed Contract. could for the work it Because conclude found have we that Fisher performed that had no not established the elements of its breach of contract claim against AJ Constructors, we conclude that the superior court did not err by granting Fisher s second motion for summary judgment. We do not address AJ Constructors contention that the judgment amount should have been offset by the $34,000 judgment against A.R. Mays because AJ Constructors failed to make this argument in the superior court proceedings or in its opening brief. Wasserman, 143 Ariz. at 9 n.4, 691 P.2d at 721 n.4. II. ¶16 of ATTORNEY S FEES A.R.S. § 12-341.01(A) authorizes a discretionary award reasonable attorney s fees to 2 the successful party in a AJ Constructors argues in its reply brief that the court erred because it did not address whether the lien waiver in favor of AR Mays applied to Fisher. This issue was not presented in the opening brief as required by ARCAP 13(a). We will not consider an issue first raised in a reply brief on appeal. Wasserman v. Low, 143 Ariz. 4, 9 n.4, 691 P.2d 716, 721 n.4 (App. 1984). 8 contested superior action arising court s discretion. award out of contract. attorney s fees We for review an the abuse of Dooley v. O'Brien, 226 Ariz. 149, 152, ¶ 9, 244 P.3d 586, 589 (App. 2010). reasonable of basis for the We will affirm unless there is no award. Orfaly v. Tucson Symphony Soc y, 209 Ariz. 260, 265, ¶ 18, 99 P.3d 1030, 1035 (App. 2004). ¶17 After considering Fisher s fee applications, AJ Constructors response, and oral argument, the superior court awarded attorney s fees in the amount of $36,913. ¶18 We reject AJ Constructors argument that because Fisher made two claims - one for breach of contract and one for the equitable remedy of unjust enrichment - the court erred by failing to allocate attorney s fees for each claim and reduce the award by the amount attributable to the unjust enrichment claim. A circumvent party express cannot use an contractual unjust enrichment limitations on its claim to recovery. Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 542 43, ¶¶ 35 37, 48 P.3d 485, 492 93 (App. 2002). But if the existence of a contract is disputed, a party is permitted to argue unjust enrichment as an alternative claim. Id. there a is no dispute regarding the existence of Here, contract between AJ Constructors and Fisher, and the unjust enrichment claim did not circumvent any contractual limitations on Fisher s 9 recovery.3 We conclude that the superior court did not abuse its discretion by awarding Fisher the full amount of its attorney s fees. CONCLUSION ¶19 For the following reasons, we affirm the superior court s granting of Fisher s second motion for summary judgment against AJ Constructors and the award of reasonable attorney s fees to Fisher. ¶20 As the prevailing party, Fisher is entitled to its costs on appeal. In the exercise of our discretion, we award Fisher its reasonable attorney s fees on appeal upon compliance with ARCAP 21. /s/ __________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ DIANE M. JOHNSEN, Judge /s/ ____________________________________ RANDALL M. HOWE, Judge 3 We note that even if Fisher had a claim for unjust enrichment, Fisher would still be entitled to attorney s fees because the unjust enrichment claim arose from the contractual claim. See Sparks v. Republic Nat l Life Ins. Co., 132 Ariz. 529, 543, 647 P.2d 1127, 1141 (1982). 10

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