Borowsky v. Brooks ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TODD ERIC BOROWSKY,
Plaintiff/Appellant,
v.
ALEXIS BROOKS, et al.,
Defendants/Appellees.
No. 1 CA-CV 20-0535
FILED 12-7-2021
Appeal from the Superior Court in Maricopa County
No. CV2018-015307
The Honorable Daniel G. Martin, Judge
AFFIRMED
COUNSEL
Wilenchik & Bartness, P.C., Phoenix
By Dennis I. Wilenchik, K. McKay Worthington
Counsel for Plaintiff/Appellant
Simbro & Stanley, PLC., Scottsdale
By Edwin B. Stanley
Counsel for Defendant/Appellee David Hurowitz
Lang & Klain, P.C., Scottsdale
By William G. Klain, Michelle Hibbert Swann, Brian J. Pouderoyen
Counsel for Defendant/Appellee Alexis J. Brooks
BOROWSKY v. BROOKS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Judge Maurice Portley1 and Judge David B. Gass joined.
T H U M M A, Judge:
¶1 Plaintiff Todd Eric Borowsky appeals from the entry of partial
final judgments for defendants Alexis Brooks and David Hurowitz.
Borowsky claims the superior court erred in granting dispositive motions
on all counts he made against Hurowitz and Ms. Brooks. Because Borowsky
has shown no error, the judgments are affirmed.
FACTS AND PROCEDURAL HISTORY
A. The Loans.
¶2 This case involves two loans, totaling $140,000, between
Borowsky and Mark Brooks (Brooks), who is a defendant but not involved
in this appeal. In a May 2016 loan, Borowsky received $100,000, posting as
security a 2005 Lamborghini Gallardo and a bulletproof 2007 GMC Denali.
In an August 2016 loan, Borowsky received $40,000, posting as security a
collectible 1971 Chevelle convertible. Both loans were evidenced by a single
page form Installment Loan Security Agreement, with an integration
clause. The loans charged 48 and 36 percent annual rates of interest and
were signed by “Mark H. Brooks hereby known as Lender and Todd
Borowsky known as the borrower.”2
1 The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
6, Section 3, of the Arizona Constitution.
2Although not at issue here, Borowsky’s operative pleading (a second
amended complaint) also lists a third loan, for $50,000, with a 48 percent
annual interest rate that was secured by a liquor license.
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BOROWSKY v. BROOKS, et al.
Decision of the Court
¶3 In February 2018, after a dispute arose about Borowsky
repaying the loans, Brooks apparently took possession of the collateral and
demanded payment. Ten months later, Borowsky filed this case, alleging
various claims against Brooks, Hurowitz, Ms. Brooks and others.
B. Borowsky’s Claims Against Hurowitz.
¶4 Borowsky alleges Hurowitz was a partner with Brooks in the
loans and that Hurowitz funded at least a portion of the loans. Borowsky
attempts to support this allegation with a 2015 Facebook message, posted
about a year before the first loan, and Hurowitz’ alleged statement,
“anytime,” when Borowsky thanked him for either the first loan or both
loans.
¶5 As to Hurowitz, Borowsky originally alleged: (1) breach of
contract; (2) breach of the covenant of good faith and fair dealing; (3) aiding
and abetting tortious conduct; (4) civil conspiracy; and (5) Arizona Revised
Statutes (A.R.S.) Title 13, Chapter 23 (2021).3 Hurowitz answered and
moved for judgment on the pleadings. In August 2019, the court granted
the motion on the non-contract counts, noting Borowsky “does not allege
an underlying tort that would support either the claim for aiding and
abetting tortious conduct or the claim for civil conspiracy” and that he
failed to properly allege an A.R.S. Title 13, Chapter 23 claim. The court
denied the motion as to the contract and good faith claims, however, noting
resolution would “await the development of a more complete evidentiary
record.”
¶6 Borowsky then amended his complaint, adding counts that
Hurowitz breached A.R.S. § 44-291 (Motor Vehicle Time Sales Disclosure
Act) and Title 47, Chapter 9 (Secured Transactions portion of the Uniform
Commercial Code). In January 2020, Hurowitz moved for summary
judgment on all remaining counts against him, arguing Borowsky
produced no evidence that Hurowitz was a party to any agreement. After
full briefing and oral argument, in May 2020, the court granted Hurowitz’
motion for summary judgment. In July 2020, the court entered partial final
judgment, see Ariz. R. Civ. P. 54(b), in favor of Hurowitz on all of
Borowsky’s claims against Hurowitz, and awarded Hurowitz more than
$57,500 in attorneys’ fees and costs.
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current versions unless otherwise indicated.
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BOROWSKY v. BROOKS, et al.
Decision of the Court
C. Borowsky’s Claims Against Ms. Brooks.
¶7 Borowsky alleges Ms. Brooks is Brooks’ daughter and that she
was complicit in or facilitated alleged improprieties by her father.
Borowsky asserted two counts against Ms. Brooks: (1) aiding and
abetting/facilitation under A.R.S. § 13-1004 and (2) A.R.S. Title 13, Chapter
23. In December 2019, Ms. Brooks moved for summary judgment, arguing
no evidence supported Borowsky’s claims against her. In response,
Borowsky conceded that a July 2019 ruling on his claims against Brooks
indirectly found his claims against Ms. Brooks “are no longer viable.”
Although Borowsky referenced Rule 56(d) (allowing for additional
discovery when needed to respond to a motion for summary judgment), he
did not invoke the rule, adding “that seems pointless and a waste of judicial
recourses.” Borowsky “concede[d] that” Ms. Brooks “may be dismissed
from this case based on the Court’s prior ruling on the legality of the loans
at issue,” but “requests that this Court issue no ruling directing dismissal”
of her “based upon lack of evidence of her wrongdoing.” In May 2020, the
court granted Ms. Brooks’ motion for summary judgment. In July 2020, the
court entered a Rule 54(b) partial final judgment for Ms. Brooks, awarding
her nearly $38,000 in attorneys’ fees and costs as well as $5,000 in sanctions
against Borowsky.
D. Borowsky’s Rule 59 Motion for New Trial.
¶8 Borowsky filed a timely Rule 59 motion for new trial
following entry of the Rule 54(b) judgments. The motion, however, did not
directly address the Rule 54(b) judgments. Instead, it sought to challenge a
July 2019 ruling dismissing, for failure to state a claim, Borowsky’s claim
against Brooks under A.R.S. § 44-291, the Motor Vehicle Time Sales
Disclosure Act. In that July 2019 ruling, the court found (1) the Act provided
for no private cause of action; (2) Borowsky’s claim was time-barred; and
(3) the Act did not apply to the loans. After more briefing, the court denied
the motion for new trial. Borowsky filed timely notices of appeal
challenging the denial of his motion for new trial and the Rule 54(b)
judgments.
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Decision of the Court
DISCUSSION
I. Borowsky Has Shown No Abuse of Discretion in the Denial of His
Motion for New Trial.
¶9 Borowsky’s Rule 59 motion for new trial sought to challenge
the July 2019 ruling dismissing, for failure to state a claim, his claim against
Brooks under A.R.S. § 44-291, the Motor Vehicle Time Sales Disclosure Act.
When Borowsky’s opening brief on appeal sought to challenge that July
2019 ruling, Brooks moved to dismiss for lack of appellate jurisdiction.
Borowsky agreed, moving to dismiss those issues from the appeal. This
court granted the motions and Borowsky filed a new opening brief
removing arguments on those issues. Thus, this court lacks appellate
jurisdiction over the July 2019 ruling, the primary focus of Borowsky’s Rule
59 motion for new trial.
¶10 A superior court has significant discretion in deciding a
motion for new trial. See, e.g., City of Glendale v. Bradshaw, 114 Ariz. 236, 238
(1977) (citing cases). This court will not reverse a ruling on a motion for new
trial “absent a clear abuse of discretion.” Delbridge v. Salt River Project Agric.
Improvement & Power Dist., 182 Ariz. 46, 53 (App. 1994). Borowsky has
shown no such abuse of discretion here. Indeed, Borowsky’s revised brief
on appeal does not address the denial of his Rule 59 motion for new trial.
On the record presented, Borowsky has shown no abuse of discretion in the
denial of his Rule 59 motion for new trial.
¶11 For somewhat related reasons, Ms. Brooks suggests in her
answering brief that the Rule 59 motion for new trial did not extend the
time Borowsky had to appeal, meaning this court lacks appellate
jurisdiction and should dismiss this appeal. Although the focus of the Rule
59 motion and this court’s prior orders limit the scope of the appeal, they
do not mean this court lacks appellate jurisdiction. For these reasons, this
court will not dismiss this appeal.
II. Borowsky Has Not Shown the Superior Court Erred in Granting
Summary Judgment in Hurowitz’ Favor.
¶12 Borowsky alleged the following counts against Hurowitz: (1)
breach of contract; (2) breach of the covenant of good faith and fair dealing;
(3) aiding and abetting tortious conduct; (4) civil conspiracy; (5) A.R.S. Title
13, Chapter 23; (6) A.R.S. § 44-291 (Motor Vehicle Time Sales Disclosure
Act); and (7) Title 47, Chapter 9 (Secured Transactions). The superior court
found all these claims failed, either on the pleadings or a motion for
summary judgment. On appeal, Borowsky limits his argument to asserting
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BOROWSKY v. BROOKS, et al.
Decision of the Court
there “were disputed issues of material fact, not law. Specifically, whether
Hurowitz was a party to the agreement to loan Borowsky money is a
disputed material fact.”
¶13 Borowsky’s argument implicates his breach of contract and
good faith claims. It does not, however, address the grant of the motion for
judgment on the pleadings rejecting Borowsky’s claims for aiding and
abetting tortious conduct, civil conspiracy and A.R.S. Title 13, Chapter 23.
Although mentioning the grant of Hurowitz’ motion for judgment on the
pleadings on those counts, Borowsky does not challenge that ruling. Thus,
any such challenge is abandoned and waived. See, e.g., MacMillan v.
Schwartz, 226 Ariz. 584, 591 ¶ 33 (App. 2011). Similarly, although Borowsky
states in a footnote that he “added” the claim under A.R.S. § 44-291 (Motor
Vehicle Time Sales Disclosure Act) and Title 47, Chapter 9 (Secured
Transactions) against Hurowitz in the second amended complaint,
Borowsky does not challenge the summary judgment ruling rejecting those
claims. Thus, any such challenge is abandoned and waived. See MT Builders
L.L.C. v. Fisher Roofing Inc., 219 Ariz. 297, 304 ¶ 19 n.7 (App. 2008) (finding
argument presented on appeal in a one-sentence footnote, without
substantive analysis, was waived).
¶14 Turning to the breach of contract and good faith counts,
Borowsky challenges the superior court’s conclusion that there were no
disputed issues of material fact precluding summary judgment for
Hurowitz. Borowsky concedes that Hurowitz is not listed on the loan
agreements. Indeed, Hurowitz did not sign the loan agreements and is not
mentioned in the loan agreements. Borowsky also admits he knew, at the
time of signing, the loan agreements were with Brooks.
¶15 Summary judgment is proper when the moving party “shows
that there is no genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). The court
“view[s] the evidence and reasonable inferences in the light most favorable
to the party opposing the motion,” Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12
(2003), to determine “whether any genuine issues of material fact exist,”
Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55 ¶ 8 (App. 2007). A party
opposing a properly supported motion for summary judgment cannot rest
on the pleadings, but “must . . . set forth specific facts showing a genuine
issue for trial.” Ariz. R. Civ. P. 56(e). Entry of summary judgment is proper,
even if the opposing party has raised a “scintilla” of evidence or a slight
doubt, if no reasonable juror could find for the nonmoving party at trial and
the court would have to enter a directed verdict. Orme School v. Reeves, 166
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Decision of the Court
Ariz. 301 (1990). A ruling granting summary judgment is reviewed de novo.
Greenwood v. State, 217 Ariz. 438, 442 ¶ 13 (App. 2008).
¶16 After Hurowitz filed a properly supported motion for
summary judgment, including a separate statement of uncontested material
facts, Borowsky needed to file an opposing statement listing “the numbered
paragraphs in the moving party’s statement that are disputed” and “those
facts that establish a genuine dispute.” See Ariz. R. Civ. P. 56(c)(3)(B)(i) &
(ii). Borowsky failed to do so. Although he purported to file his own
statement of facts, Borowsky failed to dispute Hurowitz’ separate statement
of facts. Hurowitz timely raised this objection with the superior court,
adding that Borowsky’s separate statement “is largely a recitation of
unsupported allegations.” Having failed to properly oppose the motion,
Borowsky cannot now challenge the court’s summary judgment ruling
against him. See Ariz. R. Civ. P. 56(e) (“If the opposing party does not
[properly] respond [to a proper motion for summary judgment], summary
judgment, if appropriate, shall be entered against that party.”).
¶17 Along with failing to properly dispute Hurowitz’ separate
statement of facts, Borowsky has shown no disputed issue of material fact
precluding summary judgment. Borowsky did not sign his “Rule 80(c)
Declaration” that is attached to his statement of facts. In fact, no one did.
Instead, the declaration contains initials and a handwritten note “original
email on file” with Borowsky’s then-attorney, adding “client did not have
a scanner.” But no copy of that signed declaration -- either signed by
Borowsky or anyone else -- was ever provided to the court. As a result, the
superior court could properly reject Borowsky’s declaration. See Ariz. R.
Civ. P. 80(c) (requiring the person under penalty of perjury to sign an
unsworn declaration and declare the statement is true and correct). For this
reason, as well, Borowsky failed to properly oppose the motion for
summary judgment.
¶18 To the extent that Borowsky relies on pre-loan statements to
claim Hurowitz was a party to the loan (including the 2015 Facebook post
where Hurowitz purportedly wrote he and Brooks “are partners in the Title
Loan business”) such evidence is barred by the parol evidence rule. That
rule “’renders inadmissible any evidence of prior or contemporaneous oral
understandings and of prior written understandings, which would
contradict, vary or add to a written contract which was intended as the final
and complete statement or integration of the parties’ agreement.’” Pinnacle
Peak Devs. v. TRW Inv. Corp., 129 Ariz. 385, 389 (App. 1980) (citation
omitted). Here, the loan agreements are integrated, stating “[n]o exception
changes or deviations to this contract will be considered unless agreed to
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BOROWSKY v. BROOKS, et al.
Decision of the Court
by both parties, placed in writing and signed by both parties. No oral
Agreements shall be valid (must be in writing)!!” Accordingly, the superior
court properly could determine that the parol evidence rule precluded
consideration of the 2015 Facebook posting or any other pre-loan
“representation of partnership” purportedly made by Hurowitz when the
loan was made. Id.; see also Ness v. Greater Ariz. Realty, Inc., 117 Ariz. 357,
362 (App. 1977) (stating the parol evidence rule excludes the use of extrinsic
evidence “to add to, subtract from, vary or contradict the terms of a
complete and unambiguous written contract.”)
¶19 Arguing the superior court misapplied the parol evidence
rule, Borowsky cites Formento v. Encanto Bus. Park, 154 Ariz. 495 (App. 1987).
Formento, however, holds that “the parol evidence rule does not bar
evidence of fraud in the inducement of a contract” even when the contract
has an integration clause. 154 Ariz. at 499 (citing cases). Borowsky has not
claimed fraud in the inducement but, instead, seeks to enforce the loan
agreements. Thus, Formento’s limitation of the parol evidence rule does not
apply. Similarly, and given the integration clause, Borowsky has not shown
how any representations made to him “in making the loan” would be
relevant to whether Hurowitz was, in fact, a party to the loan agreements.
¶20 Borowsky’s citation of Republic Ins. Co. v. Feilder, 178 Ariz.
528, 534 (App. 1993) also is misplaced. Feilder considered whether an
extremely intoxicated individual was “capable of forming an intent to
injure” in determining insurance coverage. 178 Ariz. at 534. Because the
record had conflicting evidence about that relevant “mental capacity,” the
court found a genuine issue of material fact. Id. That finding, however, is
different than the objective question of whether Hurowitz was a party to
the loan agreements between Borowsky and Brooks. Nor is this case akin to
United Bank of Ariz. v. Allyn, 167 Ariz. 191, 193 (App. 1990), on which
Borowsky also relies, where the motion for summary judgment “revealed
on its face that summary judgment was not warranted.” 167 Ariz. at 193.
¶21 Borowsky’s reliance on purported statements made after he
signed the loan agreements similarly fail to show a disputed genuine issue
of material fact. Borowsky points to purported statements, at a post-loan
celebratory meal, in which Hurowitz allegedly “acknowledged he was the
source of the money for the loans and Hurowitz offered to loan [Borowsky]
additional money if he needed it.” Borowsky argues the statements created
a genuine issue of material fact as to whether Hurowitz was a party to the
loan, thereby precluding summary judgment. To the extent Borowsky relies
on his statement of facts filed in response to Hurowitz’ motion for summary
judgment, his argument fails for the reasons set forth above.
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BOROWSKY v. BROOKS, et al.
Decision of the Court
¶22 Borowsky did sign the verification for his second amended
complaint. That pleading alleges that “[s]ometime after” the loans were
signed, he met with Brooks and Hurowitz and “[d]uring the meeting
Hurowitz acknowledged he was the source of the money for the loans and
Hurowitz offered to loan [Borowsky] additional money if he needed it.” At
most, these statements show how Brooks funded the loans, and that
Hurowitz offered to lend additional money. They do not, however, suggest
that Hurowitz was a party to the loan. They therefore did not create a
genuine issue of material fact as to whether Hurowitz was a party to the
loan agreements.
¶23 Nor do any of these statements purport to show a general
partnership between Brooks and Hurowitz for the loans here. None of the
purported evidence Borowsky relies on shows an agreement between
Brooks and Hurowitz to carry on a business for profit, a community of
interest or power in administration as a partnership. See Myrland v. Myrland,
19 Ariz. App. 498, 502-03 (1973) (fundamental requisites of a partnership
were “intention, co-ownership of the business, community of interest, and
community of power in administration.”). The Facebook message predates
the loan by nearly a year and does not attempt to establish a general
partnership for all future transactions. The vague purported “anytime”
statement, that post-dates the loans, does not establish the requisite assent
to prove the existence or ratification of a partnership. See United Bank, 121
Ariz. at 440. Nor did Borowsky seek reformation of the loan agreements to
add Hurowitz as a party or argue that the contracts included Hurowitz as
a party.
¶24 Considering the evidence in a light most favorable to the
nonmoving party, the superior court did not err in granting summary
judgment for Hurowitz because Hurowitz was not a party to the loan
agreement. See Goodman v. Physical Res. Eng’g, Inc., 229 Ariz. 25, 30 ¶ 16
(App. 2011) (privity of contract must exist before a party may seek to
enforce a contract). Borowsky failed to provide sufficient admissible
evidence in response to Hurowitz’ proper motion for summary judgment.
Summary judgment was proper.
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III. Borowsky Has Shown No Error in Granting the Rule 54(b)
Judgment in Favor of Ms. Brooks.
¶25 In response to Ms. Brooks’ motion for summary judgment,
Borowsky conceded that the July 2019 ruling meant that his claims against
Ms. Brooks “are no longer viable.” Although noting he could seek more
discovery or invoke Rule 56(d), he did not do so, adding “that seems
pointless and a waste of judicial recourses.” Borowsky then “concede[d]
that” Ms. Brooks “may be dismissed from this case based on the Court’s
prior ruling on the legality of the loans at issue.” Because that July 2019
ruling remains in place, and because Borowsky concedes this court lacks
jurisdiction to address that ruling, this waiver remains. Odom v. Farmers Ins.
Co. of Ariz., 216 Ariz. 530, 535 ¶ 18 (App. 2007) (noting arguments raised for
the first time on appeal may be found waived).4
¶26 Although Borowsky claims on appeal that there are disputed
issues of material fact precluding summary judgment for Ms. Brooks, the
time to present any such disputed facts was in his response to the motion
for summary judgment. Failing to do so, “by affidavits or as otherwise
provided in” Rule 56 when opposing Ms. Brooks’ motion, the court
properly could enter summary judgment against him. Ariz. R. Civ. P. 56(e).
Similarly, Borowsky’s speculation that the court granted summary
judgment for Ms. Brooks based on credibility determinations is
unsupported by the record. Finally, Borowsky has not shown that,
procedurally, he can now change his position on appeal, having conceded
the point in superior court when he had the chance to dispute it. Romero v.
Sw. Ambulance, 211 Ariz. 200, 204 ¶ 7 (App. 2005) (arguments not presented
to the superior court are waived on appeal).5 Borowsky has shown no error
in the court granting summary judgment for Ms. Brooks.
4 These concessions negate Borowsky’s statement, in his reply brief on
appeal, that State ex rel. Corbin v. Sabel, 138 Ariz. 253 (App. 1983) relieved
him of any requirement “to submit a sworn declaration in order to avoid
summary judgment” because his complaint was verified. See also Nelson v.
Rice, 198 Ariz. 563, 567 ¶ 11 n.3 (App. 2000) (noting arguments not raised in
opening brief are waived and cannot be raised for the first time in reply
brief).
5 Borowsky has been represented by at least three different law firms
during
this matter, with his counsel on appeal first appearing after the superior
court proceedings relevant here and after Borowsky filed his notices of
appeal.
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CONCLUSION
¶27 The judgments in favor of Hurowitz and Ms. Brooks are
affirmed. Borowsky requests his attorneys’ fees and costs on appeal under
A.R.S. §§ 12-341.01 and 12-341. Hurowitz requests his attorneys’ fees and
costs on appeal under A.R.S. §§ 12-341.01 and 13-2314(A). Ms. Brooks
requests her attorneys’ fees and costs on appeal under A.R.S. §§ 12-349 and
13-2314(A). Borowsky’s request is denied; Hurowitz’ and Ms. Brooks’
requests are granted, and they are awarded their reasonable attorneys’ fees
incurred on appeal, under A.R.S. § 13-2314(A), and their taxable costs
incurred on appeal, all contingent upon their compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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