Dmarc 2006-Cd2 v. Bush Realty ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DMARC 2006-CD2 INDIAN SCHOOL, LLC, an Arizona limited liability
company, Plaintiff/Appellee,
v.
BUSH REALTY AT STEELE PARK, LLC, a Delaware limited liability
company; SAMUEL WEISS, an individual, Defendants/Appellants.
No. 1 CA-CV 14-0603
FILED 12-13-2016
Appeal from the Superior Court in Maricopa County
No. CV2011-008974
The Honorable Katherine M. Cooper, Judge
AFFIRMED
COUNSEL
Snell & Wilmer, LLP, Phoenix
By Robert R. Kinas, Mark E. Konrad, Courtney Leigh Henson
Counsel for Plaintiff/Appellee
Hymson Goldstein & Pantiliat, PLLC, Scottsdale
By Lori N. Brown, John L. Lohr, Jr.
Counsel for Defendants/Appellants
DMARC 2006-CD2 v. BUSH REALTY et al.
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.
K E S S L E R, Judge:
¶1 Appellants Bush Realty at Steele Park, LLC (“Bush Realty”)
and Samuel Weiss (“Weiss”) appeal from the superior court’s granting of
Appellee DMARC 2006-CD2 Indian School, LLC’s (“DMARC”) motions for
summary judgment.1 Weiss argues on appeal that: (1) the superior court
lacked personal jurisdiction; (2) service was improper; (3) the case should
have been transferred to New York; (4) the superior court should have
granted Weiss’s motion for summary judgment on liability and denied
DMARC’s; (5) nothing supported the award of damages; and (6) DMARC
received a double recovery. For the following reasons, we affirm the
superior court’s judgment.
FACTUAL AND PROCEDURAL HISTORY
¶2 Ezra Beyman (“Beyman”) was a longtime business associate
of Weiss. Beyman was the principal of Empirian at Steele Park, LLC
(“Empirian”). In 2004, Beyman and Weiss invested in an Arizona apartment
complex, the Empirian at Steele Park Apartments (“Property”), through
their respective LLCs. In November 2005, they refinanced the Property with
a $38.5 million loan from DMARC’s predecessor. Beyman and Weiss signed
the loan documents, including a personal “Guaranty and Indemnity”
(“Guaranty”) for $4.8 million.
¶3 Weiss signed the Guaranty at the Drier law firm in New York.
Weiss was presented with only the signature pages of the Guaranty and
signed them without inquiring about the rest of the document. The
1 Although both Bush Realty and Weiss have appealed, the arguments
on appeal relate only to the judgment against Weiss. Furthermore, Bush
Realty stipulated to DMARC’s motion for summary judgment on liability.
Thus, because Appellants do not contest the validity of Bush Realty’s
stipulation or the award of damages against Bush Realty, we will not
consider these issues on appeal as to Bush Realty and affirm the judgment
as to Bush Realty.
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Decision of the Court
signature pages bear the footer “Guaranty and Indemnity” and contain
Weiss’s signature under the header “Guarantor” and above the name
“SAMUEL WEISS, individually.”
¶4 Empirian and Bush Realty defaulted on the loan, and the
Property was sold at a trustee’s sale in April 2011. DMARC was the
successful bidder at the trustee’s sale, purchasing the Property for $30.8
million. The parties stipulated the fair market value of the Property at the
time of the trustee’s sale was $34.35 million. DMARC later resold the
Property for approximately $36 million.
¶5 DMARC filed suit in April 2011 for a deficiency judgment for
amounts owed. After repeated failed attempts to serve Weiss, the superior
court authorized DMARC to serve Weiss by U.S. mail and posting at his
residence. DMARC mailed a copy of the pleadings by certified mail, but
they were returned marked “refused.” DMARC’s process server confirmed
with Weiss’s wife that the residence was in fact his home, but she refused
to accept service on his behalf. Ultimately, a copy of the pleadings was
posted on the residence, and Weiss’s wife was informed that a copy had
also been mailed to that address.
¶6 Weiss appeared specially and sought dismissal of the claims
against him based on defective service of process and lack of personal
jurisdiction. In the alternative, Weiss requested that the case be transferred
to New York as a more convenient forum. The superior court denied his
motion, finding that service was proper pursuant to the court’s earlier order
permitting service by mail and posting. However, the court held that
material issues of fact as to personal jurisdiction precluded dismissal or
summary judgment on that issue. Weiss then filed a general answer to the
complaint and did not assert either that the court lacked personal
jurisdiction over him or that service of process was insufficient.2
¶7 DMARC and Weiss both moved for summary judgment
regarding liability. Beyman, Empirian, and Bush Realty stipulated to
DMARC’s motion for summary judgment on liability. The superior court
granted DMARC’s motion for summary judgment and denied Weiss’s
motion. DMARC then moved for summary judgment on damages, which
2 Nor did either of the parties again raise the issue of personal
jurisdiction over Weiss.
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Decision of the Court
the superior court also granted. The court awarded DMARC $4.15 million,
plus interest, against Weiss personally.
¶8 Weiss timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) sections 12-2101(A) (2016) and 12-120.21(A)(1)
(2016).3
DISCUSSION
I. Motions for Summary Judgment
¶9 Because many of Weiss’s arguments on appeal hinge on the
validity of the underlying contract, we will address the motions for
summary judgment first. We review a grant of summary judgment de novo,
viewing the facts and reasonable inferences in the light most favorable to
the non-prevailing party. First Am. Title Ins. Co. v. Johnson Bank, 239 Ariz.
348, 350, ¶ 8 (2016) (citations omitted).
A. Liability
¶10 The superior court granted DMARC’s motion for summary
judgment on liability. The court found Weiss personally guaranteed the
loan and was not excused from his obligations because he did not read the
agreement. Weiss argues summary judgment should not have been granted
because he did not review the Guaranty before signing it and therefore
never assented to its terms.
¶11 Construction and enforcement of a guaranty is governed by
general contract principles. See Pi’Ikea, LLC v. Williamson, 234 Ariz. 284, 287,
¶ 10 (App. 2014). As with any question of contract interpretation, the
appellate court’s goal is to effectuate the parties’ intent, giving effect to the
guaranty contract in its entirety. Tenet Healthsystem TGH, Inc. v. Silver, 203
Ariz. 217, 220, ¶ 7 (App. 2002) (citation omitted). “The determination of the
parties’ intent must be based on objective evidence, not the hidden intent
of the parties.” Tabler v. Indus. Comm’n, 202 Ariz. 518, 521, ¶ 13 (App. 2002)
(citation omitted). In the absence of fraud, a court must give effect to the
contract as it is written, and the clear and unambiguous terms or provisions
of the contract will be applied as written. Bender v. Bender, 123 Ariz. 90, 93
(App. 1979) (citation omitted).
3 We cite to the most recent version of statutes unless changes material
to this decision have occurred.
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Decision of the Court
¶12 Weiss’s primary argument is that the superior court erred in
granting summary judgment on liability because he was never provided a
copy of the Guaranty before signing the signature pages and did not know
what the terms were before he signed. We hold the court did not err. The
Guaranty states “Samuel Weiss, an individual . . . hereby unconditionally
and irrevocably guarantees up to $4,800,000 of the principal balance of the
Loan.” Weiss does not dispute that he signed the Guaranty or claim that he
was defrauded.
¶13 A party’s failure to read a contract that he has signed is not in
and of itself grounds to invalidate the writing. See In re Henry’s Estate, 6
Ariz. App. 183, 186 (1967). Arizona law on this issue is clear:
When a person bound by a writing has carelessly signed the
same without reading it, the mere fact that he believed it to be
something else than what it was, when such belief was not
brought about by the misconduct of the other party, furnishes
no ground for the admission of parol evidence that he did not
mean to execute it, for courts are not under the duty of
relieving parties of the consequences of their own gross
negligence.
Bradley v. Indus. Comm’n, 51 Ariz. 291, 299 (1938). As a matter of law, a
competent person is held to know the contents of an agreement he signs.
Henry’s Estate, 6 Ariz. App. at 186 (citation omitted).
¶14 Weiss’s failure to read or understand the Guaranty does not
excuse him from liability.4 He signed a $38.5 million loan and the personal
4 At oral argument and in his brief, Weiss asserted that “Appellee’s
Rule 30(b)(6) witness, Dmitry Sulsky, admitted in his deposition that
[Weiss] would have needed to review the actual Guaranty document, and
not just the signature page, to know what he was guaranteeing and for it to
be enforceable.” However, the deposition testimony supports the opposite
argument. The relevant testimony is as follows:
Q: To the best of your knowledge from reviewing the books
and records, did anyone tell Samuel Weiss he was personally
guaranteeing a loan? . . .
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Decision of the Court
guaranty without asking for or reading the documents. Weiss admits he
signed the Guaranty. His signature appears under the title “Guarantor” and
above “Samuel Weiss, individually.” He does not say that he asked to see
the documents before signing them and that someone refused to show them
to him. Although Weiss frequently notes the legal troubles faced by the
now-defunct Drier law firm that represented the lender and the alleged
insignificant inconsistencies in the format of the documents, he does not
claim he was defrauded into signing the Guaranty or misled about its
content. See Hofmann Co. v. Meisner, 17 Ariz. App. 263, 267 (1972) (finding
guarantor who did not read application was still bound to personal
A: Right above his signature, it says “Guarantor.” And then
at the bottom, it says “Guaranty and Indemnity.” It sounds
like, based on this alone, it’s crystal clear that he was signing
as a guarantor for the loan.
Q: So it’s your position that, based on the word “guarantor”
at the top above his signature and the words “Guaranty and
Indemnity” at the bottom, that that’s notice to the person that
they are guaranteeing—what?
A: He had a chance to review the entire document, so I’m not
sure. Are you just saying that he signed it without reading the
whole document?
Q: Well, what you just told me is the word “guarantor” is at
the top above his signature.
A: That would give you a good idea that it’s probably a
guaranty if it says guarantor on it. . . .
Q: But does this page tell you anything besides you’re
guaranteeing something?
A: If you’re looking at that page by itself, then probably not.
Q: How would you know what you are guaranteeing? What
would you have to do?
A: You have to review the document. . . . And the other
documents that he signed that have references to . . . the
guaranty. So it’s—I guess it’s up to him to determine what he
is signing right next to his title where it says “guarantor.”
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DMARC 2006-CD2 v. BUSH REALTY et al.
Decision of the Court
guarantee because no evidence showed that the plaintiff directly or
indirectly misrepresented the contents).
¶15 Moreover, Weiss has not demonstrated that any party had a
duty to ensure he read the Guaranty or to explain the specific contents of
the document to him before signing. Even viewing the facts in the light most
favorable to Weiss, at worst no one showed him the full text of the Guaranty
or told him what was contained within. There were no misrepresentations
by DMARC and no allegations that—had Weiss asked for them—he would
not have been able to review the documents. Weiss was responsible for
knowing what he signed.
¶16 Weiss also contends the Guaranty did not bind him because
he believed it was not a personal guaranty but was instead a “bad boy”
guaranty. Even if this was Weiss’s understanding, it does not control over
the written Guaranty’s unambiguous language. Weiss presented no
evidence any party misrepresented the Guaranty’s terms to lead him to this
understanding. He is bound by the unambiguous provisions of the contract
as written, not his unstated subjective intent. See Tabler, 202 Ariz. at 521, ¶
13.
¶17 We affirm the superior court’s grant of summary judgment on
liability for DMARC.
B. Damages
¶18 Weiss argues the superior court erred in granting DMARC’s
motion for summary judgment on damages for three reasons: (1) the facts
on which the summary judgment relied were in dispute; (2) insufficient
evidence supported the damage calculations; and (3) the damage award
resulted in DMARC receiving a double recovery.
¶19 Weiss’s first argument fails. The superior court had already
granted summary judgment as to Weiss’s liability. The Guaranty is clear
and unambiguous. Although Weiss continued to assert the Guaranty did
not bind him, these facts were no longer in dispute for purposes of the
motion on damages.
¶20 Secondly, Weiss cites several cases, including Wells Fargo
Bank, N.A. v. Allen, 231 Ariz. 209 (App. 2012) and Trimble Cattle Co. v. Henry
& Horne, 122 Ariz. 44 (App. 1979), to argue DMARC did not provide
sufficient evidence and affidavits to support the damages calculation.
However, these cases deal with “open accounts” and not promissory notes.
Whereas a promissory note, such as the one at issue here, is a single note
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with plain and unambiguous terms, “an open account is one where there
are running or concurrent dealings between the parties, which are kept
unclosed with the expectation of further transactions.” Cont’l Cas. Co. v.
Grabe Brick Co., 1 Ariz. App. 214, 217 (1965) (citation omitted). DMARC was
not required to provide affidavits to prove an amount unambiguously
asserted in the Guaranty.
¶21 Weiss also disputes the sufficiency of the evidence supporting
the finding that no payments were made on the principal of the loan,
thereby making the original amount of the loan the total amount remaining
owed. The Guaranty provides the original loan amount was $38.5 million.
Beyman and Empirian admitted that no payments were made on the loan
after November 1, 2009. The loan also states that payments were interest
only until December 1, 2010 and principal payments began January 1, 2011.
Payment of a loan is an affirmative defense and the defendant has the
burden to prove the defense with some affirmative evidence. B&R Materials,
Inc. v. U.S. Fid. & Guar. Co., 132 Ariz. 122, 124 (App. 1982) (citation omitted).
Weiss provided no evidence principal payments were ever made on the
loan and simply asserted DMARC did not prove payments were not made.
The superior court correctly found the total amount owed was the original
principal, $38.5 million.
¶22 The superior court made its damage calculation according to
A.R.S. § 33-814(1). The statute states
the deficiency judgment shall be for an amount equal to the
sum of the total amount owed the beneficiary as of the date of
the sale . . . less the fair market value of the trust property on
the date of the sale . . . or the sale price at the trustee’s sale,
whichever is higher.
A.R.S. § 33-814(1) (2014). The initial loan amount was $38.5 million and no
payments were ever made on the principal. DMARC was the successful
bidder at the trustee’s sale, purchasing the Property for $30.8 million. The
parties stipulated the fair market value of the Property at the time of the
trustee’s sale was $34.35 million. Thus, the deficiency judgment is
calculated according to A.R.S. § 33-814(1) by subtracting the fair market
value at the time of the trustee’s sale from the total amount of the loan. The
result is a deficiency of $4.15 million, the amount the superior court found.
¶23 Finally, Weiss’s claim that DMARC enjoyed a double
recovery misinterprets A.R.S. § 33-814(1). The statute states the value is
calculated as of the date of the trustee’s sale. As the superior court correctly
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Decision of the Court
noted, the plain language of the statute does not provide for alternative
valuations based on later events or other contingencies. That DMARC later
sold the property for $36 million does not alter the calculation date specified
by the Legislature. Thus, Weiss’s assertions of a double recovery by
DMARC are baseless.
II. Jurisdiction
¶24 The superior court denied Weiss’s motion to dismiss based on
personal jurisdiction. Weiss asserts the superior court did not have
jurisdiction and incorrectly denied his motion. We disagree.
¶25 Jurisdiction is a question of law subject to de novo review.
Ader v. Estate of Felger, 240 Ariz. 32, 43, ¶ 37 (App. 2016) (citation omitted).
Forum selection clauses are a valid method by which a defendant may
consent to a particular court’s exercise of personal jurisdiction. Desarrollo
Immobiliario y Negocios Industriales De Alta Tecnologia De Hermosillo, S.A. De
C.V. v. Kader Holdings Co. Ltd., 229 Ariz. 367, 371, ¶ 11 (App. 2012) (citation
omitted) (finding forum selection clause applied to nonresident guarantor).
A “forum selection clause that is fairly bargained for and not the result of
fraud will be enforced so long as to do so is reasonable at the time of
litigation and does not deprive a litigant of his day in court.” Societe Jean
Nicolas Et Fils v. Mousseux, 123 Ariz. 59, 61 (1979). The burden of showing
unreasonableness or deprivation of a day in court falls upon the party
challenging the validity of the clause. Id. Weiss has not carried that burden.
¶26 As discussed above, supra I.A., Weiss is bound by the
Guaranty, regardless of whether he read it or understood its contents. The
Guaranty states—in all capitals—that each signor
knowingly, intentionally and voluntarily . . . (a) submits to
personal jurisdiction in the state in which the property is
located over any suit, action or proceeding by any person
arising from or relating to this Guaranty, (b) agrees that any
such action, suit or proceeding may be brought in any state or
federal court of competent jurisdiction sitting in the county
and state, in which the property is located, (c) submits to the
jurisdiction of such courts, and (d) agrees that neither of them
will bring any action, suit or proceeding in any other forum.
Failure to read this clause does not excuse Weiss from its terms. Weiss has
not demonstrated that jurisdiction in Arizona is unreasonable or that he
was deprived of a day in court. The language is unambiguous.
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¶27 Even if the forum selection clause did not bind Weiss, he had
sufficient contacts with Arizona to provide jurisdiction. Weiss attempts to
distinguish Hamada v. Valley Nat. Bank, 27 Ariz. App. 433 (1976), in which
the execution of a guarantee letter for an Arizona transaction by the
nonresident defendant was sufficient minimal contact with Arizona for
jurisdiction. Id. at 436. Weiss argues Hamada does not apply because, unlike
the defendant in that case, Weiss did not know his signature would be used
for a transaction in Arizona. We are unpersuaded. Weiss does not claim he
was unaware that the Property is in Arizona or that the documents he was
signing were related to the Arizona Property. Weiss purposefully directed
his activities into Arizona by guaranteeing a loan made to his company for
purchasing real estate in the state. The litigation resulted from an injury
arising out of that activity. See Armstrong v. Aramco Servs. Co., 155 Ariz. 345,
349 (App. 1987) (clarifying that a state may assert specific jurisdiction in
“suits arising out of or related to the defendant’s contacts with the forum”).
This is sufficient to provide Arizona courts with jurisdiction, even without
the forum selection clause.
III. Service of Process
¶28 Weiss argues the case should have been dismissed for
insufficiency of service of process. He asserts that service of process was
invalid because it did not comply with Arizona Rule of Civil Procedure 4.2,
outlining the requirements for service outside the state. We disagree.
¶29 Service of process was sufficient because Weiss was served in
accordance with the terms of the Guaranty. A party may contract away his
right to personal service. Coffee v. Nat’l Equip. Rental, Ltd., 9 Ariz. App. 249,
252 (1969) (citation omitted). The Guaranty states:
All notices, demands, requests or other communications to be
sent by one party to the other hereunder or required by law
shall be in writing and shall be deemed to have been validly
given by . . . depositing the same in the United States mail,
postage prepaid, registered or certified mail, return receipt
requested, addressed to the intended addressee at its address
set forth on the first page of this Guaranty . . . . Rejection or
other refusal to accept or the inability to deliver because of
changed address of which no notice was given as herein
required shall be deemed to be receipt of the notice, demand
or request sent.
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DMARC served Weiss via certified mail at the address provided in the
Guaranty. That the envelope was returned marked “refused” does not
negate the effectiveness of service under the terms of the Guaranty.
¶30 DMARC filed affidavits showing repeated attempts to serve
Weiss in person and a “refused” certified mailing. Having demonstrated
the required due diligence, DMARC petitioned the superior court to allow
service by publication under Rule 4.2(f). The superior court declined to rule
on the appropriateness of service by publication, but it authorized DMARC
to serve process by certified mail and by posting at Weiss’s residence.
Efforts at serving Weiss through personal service at his residence and on
his wife were refused. As Weiss received actual, timely notice of the action
consistent with the Guaranty and had the opportunity to be heard, we find
service was proper.
IV. Forum Non-Conveniens
¶31 Forum non-conveniens is “an exceptional tool to be employed
sparingly” rather than “a doctrine that compels plaintiffs to choose the
optimal forum for their claim.” Parra v. Cont’l Tire N. Am., Inc., 222 Ariz.
212, 214, ¶ 8 (App. 2009) (citation omitted). Because a decision on forum
non-conveniens requires a “weighing of imponderables,” Cal Fed Partners
v. Heers, 156 Ariz. 245, 247 (App. 1987) (citation omitted), we “will not
overturn the trial court’s ruling on the application of forum non conveniens
absent an abuse of discretion,” Coonley & Coonley v. Turck, 173 Ariz. 527, 531
(App. 1993) (citation omitted). The court abuses its discretion “when it fails
to balance the relevant factors.” Parra, 222 Ariz. at 215, ¶ 8 (citation
omitted). “Where factors of convenience are closely balanced, the plaintiff
is entitled to its choice of forum.” Cal Fed, 156 Ariz. at 248.
¶32 Weiss argues that because both Weiss and Beyman, as well as
many witnesses, were located in New York, the case should have been tried
there. He also notes the inconvenience and additional cost of travel and
hiring Arizona counsel. Even assuming the Guaranty’s Arizona forum
selection clause was invalid, the superior court did not err in refusing to
transfer the case to New York. Although New York may have been a more
convenient forum in some regards, the superior court did not abuse its
discretion in keeping the action in Arizona. There is nothing patently unjust
in allowing an action in Arizona to enforce contract provisions, to be
construed under Arizona law, regarding the trustee’s sale of an Arizona
property. Therefore, we affirm.
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CONCLUSION
¶33 For the foregoing reasons, we affirm all aspects of the superior
court’s judgment.
¶34 Weiss has requested attorneys’ fees and costs on appeal,
which we deny. DMARC did not request attorneys’ fees, but we grant
DMARC all taxable costs on appeal upon timely compliance with Arizona
Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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