Opinion
No. 1 CA-CV 10-0637
12-20-2011
JOSEPH D. "SONNY" VITAGLIANO, Plaintiff/Appellant, v. LAURENCE ALAN STUSSER and LORI STUSSER, husband and wife, Defendants/Appellees.
Miller Law Firm By Raymond L. Miller Attorney for Plaintiff/Appellant Chandler Kelhoffer, Manolio & Firestone P.L.C. By Merrick B. Firestone and John C. Shorb Attorneys for Defendants/Appellees Scottsdale
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
MEMORANDUM DECISION
(Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2009-090840
The Honorable Karen A. Potts, Judge
AFFIRMED
Miller Law Firm
By Raymond L. Miller
Attorney for Plaintiff/Appellant
Chandler
Kelhoffer, Manolio & Firestone P.L.C.
By Merrick B. Firestone and John C. Shorb
Attorneys for Defendants/Appellees
Scottsdale BROWN, Judge
¶1 Joseph D. "Sonny" Vitagliano appeals from the trial court's order granting summary judgment in favor of Appellees, Laurence Alan Stusser ("Laurence") and Lori Stusser (collectively "the Stussers"). For the following reasons, we affirm.
BACKGROUND
We view the facts and the inferences to be drawn from them in the light most favorable to Vitagliano as the non-moving party. Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App. 1996).
¶2 In March 2009, Vitagliano sued Michael Guzman ("Guzman"), the Stussers, and eight other defendants for breach of contract, breach of the duty of good faith and fair dealing, fraud, and breach of fiduciary duty. The lawsuit arose out of Guzman's failure to repay various loans he had received from Vitagliano for development of real property. One loan was intended to be secured by a deed of trust, which was never recorded, on a house later purchased by the Stussers. Vitagliano eventually pursued his claims solely against the Stussers as the only "collectible" defendants. Vitagliano's claims against the Stussers are based on his belief that Laurence was Guzman's business partner.
The breach of fiduciary duty claim was directed against Transnation Title Insurance Company and Diane West, neither of whom are parties to this appeal.
According to Vitagliano, the corporate defendants are now defunct, and Guzman is in prison for an unrelated crime.
¶3 In April 2009, the Stussers moved to dismiss and alternatively sought a more definite statement of the complaint. The trial court denied the motion to dismiss, but granted the motion for a more definite statement. The court directed Vitagliano to file an amended complaint "setting forth the dates and identity of the contract which Plaintiff alleges recit[es] any borrowing of monies, the dates and identity of any contract which Plaintiff alleges Defendants breached[,] and the circumstances constituting fraud and/or misrepresentation with particularity." After Vitagliano filed his amended complaint, the Stussers conducted written discovery on Vitagliano's claims and then moved for summary judgment. Following oral argument, the trial court granted the motion and later entered judgment in favor of the Stussers, including an award of $14,407 in attorneys' fees. This timely appeal followed.
DISCUSSION
¶4 Summary judgment may be granted when "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). Summary judgment is appropriate "if the facts produced in support of the claim . . . have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the [claim's] proponent." Brookover v. Robert Enters., Inc., 215 Ariz. 52, 55, ¶ 8, 156 P.3d 1157, 1160 (App. 2007) (citation omitted). In reviewing a motion for summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the superior court properly applied the law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App. 2000).
¶5 Vitagliano asserts the trial court erred in granting summary judgment because factual disputes exist concerning the existence of a business relationship between Guzman and Laurence. Specifically, Vitagliano asserts that Laurence had a partnership and/or a joint venture with Guzman and the Stussers are therefore liable for Guzman's failure to repay the loans. In addition, Vitagliano argues that Guzman's knowledge of the unrecorded lien on the house the Stussers later purchased should be imputed to the Stussers based on the partnership.
¶6 In support of his assertion that Laurence and Guzman were partners, Vitagliano's verified amended complaint alleges that Vitagliano encountered Laurence twice in Guzman's office. On one occasion, he observed Laurence "sitting at Guzman's desk or computer," and when Vitagliano said to Laurence, "Oh you're [Guzman's] LLC partner," Laurence stated that he was. On the other occasion, Laurence asked Vitagliano, "Hey, you are a real estate guy right?" Vitagliano said he was, and Laurence asked, "Can you do some real estate work for us, we need some research done on the sale value of some single family lots in our project [?]" Vitagliano also alleges that the unrecorded lien was typed on Guzman's office computer and that Laurence had worked on that computer when he met Vitagliano.
¶7 In their motion for summary judgment, the Stussers asserted that Vitagliano failed to allege sufficient facts to support the existence of a partnership that would render the Stussers liable to Vitagliano. In support of the motion, Laurence avowed by affidavit that the Stussers did not borrow any money from Vitagliano or agree to repay him any money; Laurence met Vitagliano twice but made no representations about any business he was doing with Guzman; the Stussers had no knowledge of any lien on the house when they bought it; Laurence had no ownership interest in any entity with Guzman; and while Guzman put Laurence's name on San Tan Vista, L.L.C., Laurence never agreed to have any interest in that entity and has since removed his name from it. The Stussers also attached Vitagliano's answers to their requests for admissions and non-uniform interrogatories, in which Vitagliano admitted that the Stussers did not borrow any money from him, the Stussers never agreed to repay him any money, and the Stussers never defrauded him.
¶8 "When the party moving for summary judgment makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the opposing party to produce sufficient competent evidence to show that an issue exists." Kelly v. Nationsbanc Mortg. Corp. , 199 Ariz. 284, 287, ¶ 14, 17 P.3d 790, 793 (App. 2000). Thus, to defeat the Stussers' motion for summary judgment, Vitagliano was required to call the court's attention to evidence overlooked or ignored by the Stussers, or to explain why the motion should otherwise be denied. Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 118, ¶ 26, 180 P.3d 977, 984 (App. 2008).
¶9 However, Vitagliano failed to meet this burden. Vitagliano responded to the Stussers' motion for summary judgment with an affidavit merely stating that he had "read the RESPONSE SEPARATE STATEMENT OF FACTS IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT and the RESPONSE TO THE MOTION FOR SUMMARY JUDGMENT" and that "[a]ll of the facts set forth by him in both documents are true and correct." See State v. Mecham, 173 Ariz. 474, 478, 844 P.2d 641, 645 (App. 1992) (concluding summary judgment was proper where the non-moving party did not produce admissible evidence in the form of an affidavit or other means that controverted testimony offered by the moving party; unsworn and unproven assertions are not "facts"). Vitagliano's response to the Stussers' statement of facts is merely a conclusory assertion that denies many of the Stussers' specific factual assertions and is unsupported by any specific evidence or documentation. Vitagliano merely repeats allegations from his complaint that Laurence and Guzman formed a "partnership and/or joint venture"; Laurence borrowed money from and agreed to repay money to Vitagliano in the form of the partnership and/or joint venture; and the fact "[t]hat Guzman knew [of the unrecorded lien] is enough [to] render Stusser liable." See Kelly, 199 Ariz. at 287, ¶ 15, 17 P.2d at 793 ("[A] party opposing a motion for summary judgment may not rest on the pleadings; it must respond with specific facts showing a genuine issue for trial.").
¶10 The Stussers therefore assert they are entitled to judgment as a matter of law on Vitagliano's claims against them. They correctly note that even if Laurence was a member of a limited liability company with Guzman as Vitagliano's complaint alleges, that fact does not establish the existence of a partnership under Arizona law. See Ariz. Rev. Stat. ("A.R.S.") § 29-1012(B) (1998) ("An association formed under a statute other than this chapter . . . is not a partnership under this chapter."). And Vitagliano's other factual assertions—that he saw Laurence in Guzman's office twice, and once Laurence was sitting at Guzman's computer—are likewise insufficient as a matter of law to establish the existence of either a partnership or a joint venture between Laurence and Guzman. See Brookover, 215 Ariz at 55, ¶ 8, 156 P.3d at 1160 (concluding summary judgment is appropriate "if the facts produced in support of the claim . . . have so little probative value . . . that reasonable people could not agree with the conclusion advanced by the [claim's] proponent"); Martin v. Schroeder, 209 Ariz. 531, 534, ¶ 12, 105 P.3d 577, 580 (App. 2005) ("A 'genuine' issue is one that a reasonable trier of fact could decide in favor of the party adverse to summary judgment on the available evidentiary record.").
A joint venture is "a special relationship between two or more parties to engage in and carry out a single business venture for joint profit without any actual partnership or corporation designation." Helfenbein v. Barae Inv. Co., 19 Ariz. App. 436, 439, 508 P.2d 101, 104 (1973). Similar to his partnership allegation, Vitagliano fails to provide any facts establishing the existence of a joint venture between Laurence and Guzman.
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¶11 Because Vitagliano failed to present sufficient facts to support the existence of a partnership or joint venture between Laurence and Guzman, the trial court properly granted summary judgment on Vitagliano's claims against the Stussers. In the absence of a partnership or joint venture, no reasonable juror could find in favor of Vitagliano on his breach of contract and fraud claims when he admitted in his responses to the Stussers' requests for admission that the Stussers did not borrow any money from him, promise to repay any money to him, or defraud him. See Orme Sch. v. Reeves, 166 Ariz. 301, 311, 802 P.2d 1000, 1010 (1990) (holding that summary judgment is appropriate if, on the state of the record, no reasonable juror could find in favor of the non-moving party). And Vitagliano's claim for breach of the implied covenant of good faith and fair dealing against the Stussers is necessarily tied to his breach of contract claims. See Maleki v. Desert Palms Prof'l Props., 222 Ariz. 327, 333, ¶ 28, 214 P.3d 415, 421 (App. 2009) (noting that all contracts include an implied covenant of good faith and fair dealing). Because Vitagliano admitted that there was no contract between him and the Stussers, no reasonable juror could find in Vitagliano's favor on his claim for breach of the covenant of good faith and fair dealing. See Orme, 166 Ariz. at 311, 802 P.2d at 1010.
¶12 Vitagliano also argues that summary judgment was premature because it "was granted here before any discovery was done." However, "[w]here parties have had an ample opportunity to request a continuance until discovery is completed but fail to make such a request, summary judgment will not be reversed on the grounds that it was granted prematurely." Wells Fargo Credit Corp. v. Smith, 166 Ariz. 489, 493, 803 P.2d 900, 904 (App. 1990) (citation omitted). Here, the record reflects that Vitagliano had ample time to conduct discovery. In addition, Vitagliano could have requested relief pursuant to Rule 56(f), but he evidently chose not to. See Orme, 166 Ariz. at 309 n.10, 802 P.2d at 1008 n.10 (noting that "[d]iscovery is complete when the parties have completed all the discovery they intend").
CONCLUSION
¶13 For the foregoing reasons, we affirm the trial court's order granting summary judgment in favor of the Stussers. In addition, subject to compliance with Arizona Rule of Civil Appellate Procedure 21, we grant the Stussers' request for attorneys' fees and costs incurred on appeal pursuant to A.R.S. § 12-341.01 (2003).
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MICHAEL J. BROWN, Presiding Judge
CONCURRING:
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PATRICIA K. NORRIS, Judge
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PHILIP HALL, Judge