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Shaik v. Sapra

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 18, 2014
No. 1 CA-CV 13-0229 (Ariz. Ct. App. Feb. 18, 2014)

Opinion

No. 1 CA-CV 13-0229

02-18-2014

GAWUS JOHNNY SHAIK, Plaintiff/Counter-Defendant/Appellant, v. VENEET SAPRA, Defendant/Counter-Claimant/Appellee.

Gawus Johnny Shaik, Phoenix Plaintiff/Counter-Defendant/Appellant In Propria Persona Harper Law, PLC, Chandler By Kevin R. Harper Counsel for Defendant/Counter-Claimant/Appellee


NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.


Appeal from the Superior Court in Maricopa County

No. CV2011-090162

The Honorable Emmet Ronan, Judge

The Honorable Ruth H. Hilliard, Judge (Retired)


AFFIRMED


COUNSEL

Gawus Johnny Shaik, Phoenix
Plaintiff/Counter-Defendant/Appellant In Propria Persona

Harper Law, PLC, Chandler
By Kevin R. Harper
Counsel for Defendant/Counter-Claimant/Appellee

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined.

BROWN, Judge:

¶1 Gawus Shaik appeals the trial court's judgment in favor of Veneet Sapra arising from a contractual dispute. For the following reasons, we affirm.

BACKGROUND

¶2 In October 2010, Shaik and Sapra entered into an agreement that purportedly contemplated the sale and transfer of a 7-Eleven franchise store Sapra owned in exchange for Shaik's commitment to manage the store for two years. Shaik was given full responsibility for all inventory, supplies, equipment, and daily bank deposits. Shaik also agreed to maintain a $15,000 minimum "equity line" as required by the 7-Eleven Company.

¶3 A short time later, the 7-Eleven Company audited Shaik's store, finding there were inventory shortages and he had failed to maintain the required equity line. As a result of these deficiencies, Sapra removed Shaik from the store and assumed its operation. Shaik then filed a complaint alleging that he had paid Sapra for the purchase of the 7-Eleven franchise and that Sapra broke his promise to assist Shaik in becoming qualified as a franchisee. In response, Sapra asserted a counterclaim based on the inventory and equity line shortages.

¶4 The case proceeded to mandatory arbitration, where the arbitrator awarded damages to Sapra in the amount of $10,497.86, plus attorneys' fees. Shaik appealed and the case was tried to the court.

¶5 At trial, Shaik claimed that he paid Sapra $28,000 cash to purchase the 7-Eleven franchise. Sapra denied that Shaik ever paid him any money. Sapra, on the other hand, claimed that during the brief time Shaik operated the store it lost approximately $9,000 of equity and $6,400 in inventory. Sapra further asserted that Shaik failed to pay back those amounts within the time period required in the parties' contract.

¶6 After considering the testimony of the parties and several other witnesses, as well as a number of exhibits, the trial court found that Shaik had presented credible evidence he paid $28,000 to Sapra as part of their "business arrangement." The court then determined that Shaik breached his contract with Sapra by failing to pay back the amounts lost while he was operating the store. The court awarded damages to Sapra in the amount of $17,273.68, plus his attorneys' fees. In lieu of entering a specific award of attorneys' fees, however, the court found that the "judgment for damages and related attorney's fees awarded to [Sapra] has been satisfied by the money paid . . . by [Shaik] at the beginning of their short business relationship." Shaik timely appealed.

DISCUSSION

¶7 Shaik argues that the trial court's order is contrary to law and against the weight of the evidence. But Shaik has failed to provide us with the trial transcript and therefore we have no ability to evaluate Shaik's claimed factual errors. Thus, we must presume that the missing transcript would support the trial court's findings. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); ARCAP 11(b) (explaining an appellant is responsible for making certain that the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal).

¶8 Shaik suggests that the court erred when it found that Sapra presented credible evidence to support his counterclaim that Shaik breached the terms of their contract. This court, however, does not reweigh the evidence or evaluate the credibility of witnesses. See In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704, 709 (1999) ("In reviewing a trial court's findings of fact, we do not reweigh conflicting evidence or redetermine the preponderance of the evidence, but examine the record only to determine whether substantial evidence exists to support the trial court's action."); United California Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 264, 681 P.2d 390, 416 (App. 1983) (stating that a trial court's factual findings "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses"). Thus, on the slim record before us, we cannot say the court erred in finding that Shaik breached his contract with Sapra.

¶9 Shaik further argues that the trial court should not have believed Sapra's testimony. Shaik references an "application" he filed with the court several days after trial in which he asserted that if a "lie

detector or any biometric test [were given] then [Sapra] will give TRUE answers." Shaik requested that the court review the trial record to determine if such a test was appropriate. On appeal, Shaik seems to suggest that the court erred because it never specifically addressed his application.

¶10 When the court issued its final judgment, Shaik's motion was denied as a matter of law. See State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375, 1385 (1993) ("A motion that is not ruled on is deemed denied by operation of law."); see also Dowling v. Stapley, 221 Ariz. 251, 264, ¶ 39, 211 P.3d 1235, 1248 (App. 2009) (recognizing the rule that motions pending when the court enters a final order or judgment are deemed denied as a matter of law). Additionally, neither Shaik's application below nor his brief on appeal includes any authority supporting his request for a lie detector/biometric test. As such, we find no error by the trial court.

¶11 Finally, Shaik argues that the contract at issue is void because it was uncertain and a product of fraud. But nothing in the record before us indicates that Shaik raised this issue in the trial court. As a general rule, legal issues and arguments raised for the first time on appeal are waived. Lemons v. Showcase Motors, Inc., 207 Ariz. 537, 541 n.1, ¶ 17, 88 P.3d 1149, 1153 n.1 (App. 2004); McDowell Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 5, 945 P.2d 312, 316 (1997). Furthermore, the affirmative claim of fraud must be pled with specificity in the trial court. Ariz. R. Civ. P. 8(c); see also Uyleman v. D.S. Rentco, 194 Ariz. 300, 302, ¶ 10, 981 P.2d 1081, 1083 (App. 1999). Shaik has therefore waived this argument.

¶12 Sapra requests attorneys' fees and costs on appeal but has failed to cite any authority supporting his request. See ARCAP 21(a) (amended January 1, 2014) (requiring a party requesting fees on appeal to "state the statute, rule, decisional law, contract, or other provision authorizing an award of attorneys' fees"). Accordingly, we deny Sapra's request for attorneys' fees on appeal. However, as the prevailing party on appeal, we award Sapra his costs upon compliance with Rule 21(a).

CONCLUSION

¶13 The trial court did not err in awarding Sapra damages and attorneys' fees based on the court's finding that Shaik breached the terms of his contract with Sapra regarding the 7-Eleven franchise. We therefore affirm the trial court's judgment.


Summaries of

Shaik v. Sapra

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 18, 2014
No. 1 CA-CV 13-0229 (Ariz. Ct. App. Feb. 18, 2014)
Case details for

Shaik v. Sapra

Case Details

Full title:GAWUS JOHNNY SHAIK, Plaintiff/Counter-Defendant/Appellant, v. VENEET…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Feb 18, 2014

Citations

No. 1 CA-CV 13-0229 (Ariz. Ct. App. Feb. 18, 2014)