Lakeside v. Meyers

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LAKESIDE LUMBER PRODUCTS, INC., an Arizona corporation,
Plaintiff/Counterdefendant/Appellee,
v.
BENJAMIN R. MEYERS and ELSIE MEYERS, husband and wife,
individually and dba Northwest Reload,
Defendants/Counterclaimants/Appellants.
_______________________________
BENJAMIN R. MEYERS, an individual,
Cross-Complainant/Appellant
v.
JOHN BUSS, an individual; KATHLEEN JAN BUSS, an individual; and
KEVIN KEATING, an individual,
Cross-Defendants/Appellees
No. 1 CA-CV 15-0521
FILED 3-30-2017
Appeal from the Superior Court in Maricopa County
No. CV2011-015296
The Honorable John C. Rea, Judge
AFFIRMED
APPEARANCES
The Keating Law Firm, PLC, Scottsdale
By Kevin R. Keating
Counsel for Plaintiff/Counterdefendant/Appellee
Benjamin Meyers and Elsie Meyers, Eugene, OR
Defendants/Counterclaimants/Appellants
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Maurice Portley1 joined.
B R O W N, Chief Judge:
¶1 Benjamin and Elsie Meyers2 appeal the trial court’s judgment
for breach of contract damages and attorney fees in favor of Lakeside
Lumber Products, Inc. For the following reasons, we affirm.
BACKGROUND
¶2 This litigation stems from a series of lumber sale transactions
between Lakeside and Benjamin (doing business as Northwest Reload).
The transactions involved an intermediary manufacturer, Whitsell
Manufacturing, Inc., located in Oregon. In 2009, Whitsell filed for Chapter
11 bankruptcy protection. To allow Whitsell to continue its lumber
remanufacturing operations, the bankruptcy court permitted Whitsell to
operate as a debtor-in-possession and to enter into a business arrangement
with Lakeside, which provided that Lakeside would finance Whitsell’s
operations by supplying raw lumber to Whitsell on credit. Whitsell would
then remanufacture the lumber and use the product to fill orders placed by
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 VI, Section 3 of the Arizona Constitution.
2 For ease of reference, we refer to Benjamin Meyers as “Benjamin,”
Elsie Meyers as “Elsie,” and to both as “the Meyers.” Elsie Meyers was
dismissed as a defendant in the trial court. She does have an interest on
appeal, however, in issues relating to the dismissal of her counterclaims.
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its customers. Under the agreement, Lakeside retained ownership of the
lumber until it received full payment for each shipment, and also assumed
Whitsell’s invoicing and payment collection rights. This arrangement was
facilitated by Benjamin, who had a prior relationship with both Whitsell
and Lakeside. In exchange for his work, Lakeside paid Benjamin
commissions on many of the sales it made through Whitsell.
¶3 During 2011, Benjamin made more than twenty purchases of
lumber products from Whitsell, as evidenced by invoices issued by and
paid to Lakeside. In September 2011, Lakeside filed a complaint in
Maricopa County Superior Court alleging Benjamin had failed to pay four
of the most recent invoices, totaling $41,207.98.3 Counsel for the Meyers
sought dismissal based on lack of personal jurisdiction, asserting the
physical transactions were conducted between Northwest Reload and
Whitsell exclusively within the state of Oregon. After briefing and oral
argument, the trial court denied the motion, finding that Lakeside’s “factual
presentation [was] more credible” and the “record establishes that
Defendants have engaged in regular and systematic business transactions
with Plaintiff for nearly 18 years.” The court concluded “[t]he facts
support[ed] the assertion of both general and specific jurisdiction.”
¶4 After the trial court permitted counsel for the Meyers to
withdraw, Lakeside sought summary judgment on its claim for breach of
contract for nonpayment of the four invoices. In response, Benjamin filed
an “Answer With Defenses and Counterclaims,” including an allegation he
was entitled to an offset of more than $180,000 in commissions Lakeside
owed to him. Elsie filed a separate answer and counterclaim against
Lakeside alleging intentional infliction of emotional distress based on
Lakeside naming her and the Silvers in the lawsuit. The trial court denied
Lakeside’s summary judgment motion, stating it could not find as a matter
of law that the four invoices cited by Lakeside were “unrelated to the
broader financial relationship between the parties.”
¶5 Benjamin filed a motion to join Lakeside’s principal, John
Buss, his wife Kathleen Buss, and Lakeside’s attorney, Kevin Keating, to the
lawsuit. The court granted Benjamin’s motion and he then filed a “cross-
complaint” against Lakeside and the three newly-named parties. Lakeside,
3 The complaint also named Sanford Silver and his wife based on their
alleged involvement in these transactions on behalf of Benjamin. Mr. and
Mrs. Silver were eventually dismissed from the lawsuit and are not parties
to this appeal.
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the Busses, and Keating each filed motions for summary judgment on all of
the claims contained in Benjamin’s cross-complaint and in the Meyers’
counterclaims. Following briefing and oral argument, the trial court
granted each of the motions for summary judgment.
¶6 Following a one-day bench trial at which Benjamin
represented himself, the trial court ruled in favor of Lakeside, reasoning
that Benjamin acknowledged he made the lumber orders, they were
delivered, he received payment from his buyer, but he did not pay for the
ordered lumber. The court also found that Benjamin had failed to prove his
affirmative defense, that he and Lakeside had entered into an agreement
for payment of commissions on all transactions involving Whitsell.
Benjamin then filed several other post-trial motions, including a motion for
new trial, and Elsie filed a motion for sanctions. The court denied the
motions. The court entered judgment in favor of Lakeside in the amount of
$41,207.98, and awarded prejudgment interest (compounded quarterly) in
the amount of $51,337, plus $71,552 in attorneys’ fees and $959 in taxable
costs. The Meyers timely appealed.
DISCUSSION
¶7 In their appellate briefs, the Meyers attempt to raise a
significant number of errors committed by the trial court. The briefing is
deficient, however, in that it does not identify with any clarity the issues the
Meyers intend to raise on appeal, nor does it include any meaningful
citations to the record or arguments that are supported by relevant
authorities. See Ariz. R. Civ. App. Proc. (“ARCAP”) 13(a). Based on our
review of the opening brief, we discern that the Meyers raise the following
issues: (1) the court was biased against the Meyers; (2) the court erred in
denying the jurisdictional motion; (3) the court erred in dismissing their
counterclaims and Benjamin’s crossclaims; and (4) the court made errors in
the final judgment and improperly denied a motion for new trial. As best
we can tell from the briefing, Elsie joins in her husband’s arguments relating
to bias and dismissal of her counterclaims.
I. Bias
¶8 The Meyers argue the trial judge was biased against them as
out-of-state litigants and thus unfairly ruled in Lakeside’s favor throughout
the litigation. Arizona Rule of Civil Procedure 42.2 provides that a litigant
may file an affidavit requesting a change of judge for cause. A litigant may
request a change of judge for bias when the party “has cause to believe and
does believe that on account of the bias, prejudice, or interest of the judge
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he cannot obtain a fair and impartial trial.” Ariz. Rev. Stat. (“A.R.S.”) § 12-
409. On the filing of the affidavit, the judge must “at once transfer the action
to another division of the court . . . to preside at the trial of the action.”
A.R.S. § 12-409(A). The Meyers do not allege, and the record does not show,
that they filed any such affidavit.
¶9 Moreover, the portions of the record the Meyers cite in
support of their bias claim are merely instances where the court ruled in the
appellees’ favor or found their evidence more credible. These are functions
properly within the trial court’s discretion and do not show actual bias
against the Meyers. See Pima Cty. Juv. Action, No. 63212-1, 129 Ariz. 371, 375
(1981) (“The deference which appellate courts accord to the trier of fact . . .
to make determinations based on assessments of the credibility of witnesses
is elementary.”); Conkling v. Crosby, 29 Ariz. 60, 77 (1925) (stating a party
attempting to show a judge is biased must do more than “prove facts which
in his opinion merely . . . show bias and prejudice, and must prove the actual
fact of bias, hostility, or ill will of such a character as would prevent impartial
justice being done”) (emphasis added). Further, the record shows the trial
judge was patient, tolerant and accommodating toward Benjamin’s
voluminous filings and arguments, with the judge ruling in the Meyers
favor a number of times during the course of this extensive litigation. We
therefore reject the Meyers’ claim that the trial judge was biased.4
II. Jurisdiction
¶10 Benjamin argues the trial court lacked personal jurisdiction
over him and should have granted his motion to dismiss the complaint on
that basis. We review the trial court’s ruling on the matter of personal
jurisdiction de novo. Duckstein v. Wolf, 230 Ariz. 227, 233, ¶ 19 (App. 2012).
“When a defendant challenges the existence of personal jurisdiction, the
plaintiff must come forward with facts establishing a prima facie showing
of jurisdiction, at which time the burden shifts to the defendant to rebut the
showing.” Arizona Tile, L.L.C. v. Berger, 223 Ariz. 491, 493, ¶ 8 (App. 2010).
The court should resolve any conflict in the evidence or filings in the
4 The Meyers also assert the trial court erred in denying Elsie’s request
for sanctions against Lakeside and its attorney for maliciously naming her
in the complaint. Whether to impose sanctions against a party is a function
within the discretion of the trial court. Ariz. R. Civ. P. 11(C). The Meyers
have not shown the court abused its discretion in declining to impose
sanctions against Lakeside.
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plaintiff’s favor, and we defer to the court’s determinations of credibility.
Id.; see also Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998).
¶11 Arizona courts may exercise personal jurisdiction over a non-
resident defendant to the fullest extent allowed under the United States
Constitution. Ariz. R. Civ. P. 4.2(a). Constitutional due process requires
that a trial court determine the defendant has “minimum contacts” with the
forum state before it can assert personal jurisdiction. World–Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). There is no
mechanical test or formula to follow in deciding whether personal
jurisdiction exists; instead we must weigh the specific facts of each case to
determine whether exercising personal jurisdiction would comport with
notions of “fair play and substantial justice.” Williams v. Lakeview Co., 199
Ariz. 1, 3-4, ¶ 8 (2000) (internal quotations and citation omitted). Our
jurisdictional analysis must examine the relationship among the defendant,
Arizona, and the plaintiff’s claim. Id. at 6, ¶ 17. Our inquiry is focused on
whether the “defendant’s conduct and connection with the forum State are
such that he should reasonably anticipate being haled into court there.”
World-Wide Volkswagen Corp., 444 U.S. at 297. “[C]asual or accidental
contacts by a defendant with the forum state, particularly those not directly
related to the asserted cause of action, cannot sustain the exercise of specific
jurisdiction.” Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral
Props., Ltd., 226 Ariz. 262, 266, ¶ 16 (2011).
¶12 Although the physical ordering and delivery of goods
between Benjamin and Whitsell took place in Oregon, the evidence shows
the financial side of the transaction was substantially between Benjamin
and Lakeside. See Williams, 199 Ariz. at 3, ¶ 7 (noting “jurisdiction may
arise without the defendant ever setting foot in the forum state”). Benjamin
did not merely purchase goods from Whitsell ignorant of its relationship
with Lakeside. To the contrary, Benjamin admitted in his motion to dismiss
that he “coordinated” that relationship and even stood to financially benefit
from it by receiving a fee from Lakeside for each sale it made of Whitsell
lumber products. Benjamin’s acts of facilitating that arrangement and
negotiating his fee show purposeful, directed contact by Benjamin toward
Lakeside in Arizona. See Planning Grp. of Scottsdale, L.L.C., 226 Ariz. at 269,
¶ 32 (finding “purposeful direction” of business negotiations toward the
forum state as a basis for personal jurisdiction).
¶13 Further, the exhibits Lakeside presented to rebut the motion
to dismiss show a history of payments and direct communications between
Benjamin and John Buss regarding the 2011 invoices. And John Buss
explained in his affidavit that he began doing regular business with
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Benjamin when Benjamin visited Arizona in 1994. Those business dealings
resulted in Lakeside suing Benjamin in Arizona in 1996. Buss further
asserted that Lakeside continued doing “a substantial amount of
continuous business” with Benjamin “[d]uring the years between 1994 and
the present,” in hopes that Lakeside “could recoup some of the losses that
it suffered when Benjamin and his businesses defaulted” on the 1994
payments.
¶14 Lakeside filed with the trial court “terms and conditions” that
designated Arizona as the agreed-upon forum for legal action relating to
the invoices. Lakeside asserted it presented these terms to Benjamin as
recently as July 29, 2011. The terms are also referenced in every purchase
order at issue in this case, which all occurred within a few months after
Benjamin is said to have received the terms. This, coupled with the fact
Benjamin had been successfully sued by Lakeside in an Arizona court in
1996, further shows he plainly understood that doing business with
Lakeside could reasonably subject him to Arizona’s jurisdiction again if he
continued and/or resumed a similar business relationship. Even with that
knowledge, according to John Buss, Benjamin continued his relationship
with Lakeside for many years after the 1996 lawsuit, leading up to the
instant case. Therefore, viewing the totality of the relationship between
Lakeside and Benjamin, there were sufficient minimum contacts to
establish general and specific personal jurisdiction. See Planning Grp. of
Scottsdale, L.L.C., 226 Ariz. at 269, ¶ 29 (stating “jurisdictional contacts are
to be analyzed not in isolation, but rather in totality”); see also Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 482 (finding contract’s choice-of-law
provision sufficient to confer jurisdiction when reinforced by party’s 20-
year independent relationship with the forum state).
III. Dismissal of Counterclaims and Cross-Claims
¶15 In their respective answers and cross-complaint, the Meyers
made claims against Lakeside, John Buss, Kathleen Buss, and Kevin
Keating. The Meyers argue the court erred in granting the appellees’
motions for summary judgment on these claims. Summary judgment
should be granted when 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). “In reviewing a trial court’s grant of summary judgment, we
view the evidence most favorably to the party opposing summary
judgment and determine de novo whether there are any genuine issues of
material fact and whether the trial court erred in its application of the law.”
United Servs. Auto. Ass’n v. DeValencia, 190 Ariz. 436, 438 (App. 1997)
(internal quotations and citation omitted). We will uphold the trial court’s
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ruling if it is correct for any reason. Logerquist v. Danforth, 188 Ariz. 16, 18
(App. 1996).
a. Oral Contract, Fraud and Unfair Competition
¶16 Claims one, two, three, eight, and ten of Benjamin’s
counterclaim against Lakeside, as well as counts four and six of the cross-
complaint against the Busses, arise out of the alleged oral agreement
between Benjamin and Lakeside concerning commissions for sales of
Whitsell lumber products. The trial court properly concluded that these
claims were barred by the statute of frauds. Arizona’s statute of frauds
provides that a party may not bring an action “[u]pon an agreement which
is not to be performed within one year from the making thereof” unless it
is memorialized in a signed writing. A.R.S. § 44-101(5). An oral contract
that creates a permanent arrangement is necessarily incapable of being
performed within one year. Rudinsky v. Harris, 231 Ariz. 95, 99, ¶ 18 (App.
2012).
¶17 In Benjamin’s “declaration” in opposition to the motion for
summary judgment, he stated the oral contract was to continue for as long
as Lakeside was “doing business” with Whitsell, with commission
payments to Benjamin’s wife continuing “in the unfortunate event [he]
died.” Even in his brief on appeal, Benjamin asserts his oral commission
agreement with Lakeside was to continue “even after [his] death.”
Benjamin did not present to the trial court any signed written agreement,
but instead urged the court to accept as proof his email to John Buss, which
he alleges states the terms of their agreement. This evidence is inadequate
under the statute, however, as it is not “signed by the party to be charged.”
See A.R.S. § 44-101. Thus, the court properly determined the alleged oral
agreement was barred by the statute of frauds.
¶18 Despite finding the oral contract unenforceable, the trial court
nevertheless allowed Benjamin to present evidence of the agreement at the
trial as an affirmative defense that Lakeside owed him more money than he
owed on the invoices. Consistent with the testimony presented, the court
found:
Mr. Buss acknowledged the general nature of the commission
arrangement with Mr. Meyers and a series of payments from
Lakeside to Mr. Meyers. He differed significantly on the
precise terms of the arrangement. Mr. Buss testified that any
commission due Mr. Meyers was contingent on the
profitability of the transaction to Lakeside and that Whitsell
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became in default to Lakeside. The Court finds Mr. Buss’s
testimony to be credible.
We defer to the court’s determination concerning the credibility of
witnesses. 63212-1, 129 Ariz. at 375. We therefore affirm the court’s ruling
as to Benjamin’s breach of contract claims and requests for “accounting.”
¶19 Count five of the cross-complaint alleged common law fraud
against the Busses for failing to perform on their promises in the alleged
oral agreement. For such a claim, a party must allege facts which, when
taken as true, show:
(1) a representation; (2) its falsity; (3) its materiality; (4) the
speaker’s knowledge of its falsity or ignorance of its truth; (5)
the speaker’s intent that it be acted upon by the recipient in
the manner reasonably contemplated; (6) the hearer’s
ignorance of its falsity; (7) the hearer’s reliance on its truth; (8)
the hearer’s right to rely on it; and (9) the hearer’s consequent
and proximate injury.
Comerica Bank v. Mahmoodi, 224 Ariz. 289, 291-92, ¶ 14 (App. 2010).
¶20 Although Benjamin generally alleged the Busses made false
promises regarding the alleged oral commission agreement, he failed to
specifically state facts satisfying each of the elements of fraud. See Ariz. R.
Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.”). For
example, he did not plead facts that would show the Busses had knowledge
that the statements were false.
¶21 Claim nine of the counterclaim, titled “Fraud, with
Intentional Harm,” similarly fails to state a claim under the elements of the
tort. This claim alleges John Buss asked Whitsell to falsify its records to
“reflect all sales are a ‘custom run’ service and not factoring,” thereby
“cheating” Benjamin out of commissions that would have been owed to
him on the factoring orders. These bare allegations do not meet each of the
elements of fraud. See Comerica Bank, 224 Ariz. at 291-92, ¶ 14.
¶22 Count three of the cross-complaint is titled “Unfair
Competition” and repeats the facts alleged in the fraud allegation discussed
above. As the trial court properly noted, the tort of unfair competition
encompasses theories such as “trademark infringement, false advertising .
. . and misappropriation.” Fairway Constructors v. Ahern, 193 Ariz. 122, ¶ 9
(App. 1999). Such claims typically involve a company using a similar or
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previous name of another company in order to confuse the public. See
Taylor v. Quebedeaux, 126 Ariz. 515, 517 (1980). Benjamin did not allege any
facts which would meet the requirements of this tort.
b. Defamation and Wrongful Interference with Contract
¶23 Count one of Benjamin’s cross-claim and claim six of his
counterclaim alleged defamation based on a letter Keating sent to Stimson
Lumber and another vendor with whom Benjamin had a business
relationship. The September 13, 2011 letter states that Benjamin owed
money to Lakeside both on a past judgment and on recent business
dealings. Benjamin’s defamation claim centered on his argument that
Keating and the Busses knew the prior judgment referenced in the letter
had been paid in 2000 and expired in 2001. Benjamin asserted he suffered
damages because this alleged misrepresentation caused him to lose
business with the companies that received the letters.
¶24 We agree with the trial court’s well-reasoned determination
that Keating’s letter to Stimson Lumber is subject to absolute privilege. “An
attorney at law is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to a proposed judicial
proceeding[.]” Restatement (Second) of Torts § 586 (1977). To qualify for
the privilege, an allegedly defamatory publication “must relate to, bear on
or be connected with the proceeding.” Green Acres Trust v. London, 141 Ariz.
609, 613 (1984). “The defamatory content of the communication need not
be ‘strictly relevant,’ but need only have ‘some reference to the subject
matter of the proposed or pending litigation . . . .’” Id. (quoting Restatement
(Second) of Torts § 586, cmt. c (1977)).
¶25 Here, the letter to Stimson Lumber is dated just six days
before Lakeside filed its complaint on the amounts it alleged Benjamin
owed on the unpaid invoices. The letter encouraged Stimson to withhold
payment to Benjamin in anticipation of “garnishment or attachment
proceedings” which may become “necessary against [Benjamin’s] accounts
receivables and other assets . . . in the near future.” The letter was written
in good faith in contemplation of the instant litigation and thus qualifies for
the absolute privilege. See Restatement (Second) of Torts § 586, cmt. e (1977)
(stating the privilege applies “only when the communication has some
relation to a proceeding that is contemplated in good faith and under
serious consideration”). Therefore, the trial court correctly granted
summary judgment on Benjamin’s defamation claim.
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¶26 The September 13, 2011 letter also formed the basis for claims
four and five of Benjamin’s counterclaim and count two of the cross-
complaint alleging wrongful interference with a contract. Because Keating
committed no improper action in sending the letter to Benjamin’s vendors,
the court properly disposed of these claims. See Bar J Bar Cattle Co. v. Pace,
158 Ariz. 481, 483 (App. 1988) (listing “improper action on the part of the
defendant” as required element of the tort of intentional interference with
a contract).
c. Intentional Infliction of Emotional Distress
¶27 In their respective counterclaims, Benjamin and Elsie each
alleged a claim for intentional infliction of emotional distress against
Lakeside for causing stress in their marriage and in their relationship with
the Silvers by filing complaints against them. This tort requires extreme
and outrageous conduct by the defendant, with the intent of causing
emotional harm, and the actual manifestation of severe emotional distress.
Ford v. Revlon, Inc., 153 Ariz. 38, 43 (1987). Extreme and outrageous conduct
is conduct that exceeds the bounds of social decency or expectation.
Rowland v. Union Hills Country Club, 157 Ariz. 301, 304 (App. 1988). The
Meyers have not pled any facts showing Lakeside’s actions were
outrageous or extreme. Further, neither Benjamin or Elsie presented any
evidence of severe emotional distress. See Ford, 153 Ariz. at 43. The court
properly granted summary judgment on these claims.
IV. Final Judgment
¶28 Benjamin disputes the trial court’s final judgment on
Lakeside’s complaint, claiming it rewarded Lakeside for “using false
declarations and statements.” Benjamin appears to repeat the defense he
asserted during trial, that his dealings were strictly with Whitsell and not
with Lakeside. When reviewing a judgment, we view the evidence in the
light most favorable to sustaining the court’s decision. Castro v. Ballesteros-
Suarez, 222 Ariz. 48, 51, ¶ 11 (App. 2009). “We will not reweigh the evidence
or substitute our evaluation of the facts,” but will uphold the court’s ruling
unless it is clearly erroneous and unsupported by substantial evidence in
the record. Id. at 51-52.
¶29 Lakeside’s complaint, filed in September 2011, made a single
claim for breach of contract based on four invoices for lumber products it
alleged Benjamin received but never paid for, totaling $41,207.98. “[I]n an
action based on breach of contract, the plaintiff has the burden of proving
the existence of a contract, breach of the contract, and resulting damages.”
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Chartone, Inc. v. Bernini, 207 Ariz. 162, 170, ¶ 30 (App. 2004). Lakeside
presented to the trial court the unpaid invoices and John Buss’ testimony
that Benjamin had received the product but had failed to pay the amounts
owed. Buss further testified that, although Benjamin placed his orders with
Whitsell, Benjamin knew from their prior dealings that ordering from
Whitsell meant buying from Lakeside. Lakeside presented as evidence of
these prior dealings several earlier invoices, copies of checks from Benjamin
to Lakeside, and email communications between Benjamin and Buss
regarding the payments. Thus, substantial evidence supports the court’s
judgment on Lakeside’s contract claim.
¶30 Benjamin also claims the trial court’s award of attorneys’ fees
to Lakeside was “excessive” because Lakeside’s attorney “never charges
over $150.00 per hour for his legal service.” Whether to award attorneys’
fees is “left to the sound discretion of the trial court and will not be reversed
on appeal absent an abuse of discretion.” Orfaly v. Tucson Symphony Soc’y,
209 Ariz. 260, 265, ¶ 18 (App. 2004); A.R.S. § 12-341.01(A) (“In any contested
action arising out of a contract . . . the court may award the successful party
reasonable attorney fees.”). We will not disturb a fee award unless there is
no reasonable basis for it. Orfaly, 209 Ariz. at 265, ¶ 18. Here, Lakeside
prevailed on the underlying judgment following more than three years of
litigation. Moreover, Benjamin’s assertion regarding Lakeside’s attorneys’
rate for services is completely unsupported. Also, the court noted it had
expected to see a much larger fee request from Lakeside, given that
Benjamin had so “expanded the scope of the litigation” with his “massive
amount” of unsuccessful pleadings. The court acted well within its
discretion in determining the amount of the fee award.
¶31 Benjamin also challenges the court’s award of prejudgment
interest. “A creditor is entitled to interest on his claim prior to judgment,
provided the sum demanded is liquidated.” Costanzo v. Stewart Title &
Trust of Phoenix, 23 Ariz. App. 313, 317 (1975). A claim of interest is
liquidated “if the evidence furnishes data which, if believed, makes it
possible to compute the amount with exactness[.]” Id. A prevailing party’s
award of prejudgment interest is not a matter of discretion, but a matter of
right. Id. Here, the terms and conditions referenced in the Lakeside
invoices specified the “service charge” on unpaid balances is “2 percent per
month,” which is consistent with the court’s award. We therefore find no
error.
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V. Motion for New Trial
¶32 Benjamin argues the court erred in denying his motion for
new trial. Whether to grant or deny a motion for new trial is a decision
within the discretion of the trial court. Thompson v. Quandt, 83 Ariz. 343,
346 (1958). Benjamin asserts the court “forced” him to rest his case despite
the fact he had told the court he had more evidence he wanted to present.
The record before us does not reveal any request from Benjamin to extend
the trial another day or to call further witnesses from his witness list. Also,
when the court inquired at the end of the trial whether Benjamin had “any
more evidence,” he simply replied “I think you’ve heard a lot today.”
Benjamin also argues the court denied his motion out of “bias” but as noted
above he has failed to establish any viable claim of bias. See supra ¶¶ 8-9.
Finally, Benjamin has made no showing on appeal as to what the additional
witnesses would have presented that could have changed the outcome of
the trial. We find no abuse of discretion in the court’s decision to deny the
motion for new trial.
VI. Attorneys’ Fees and Sanctions
¶33 The Meyers request sanctions, costs, and “legal expenses”
against Lakeside. Because they have not prevailed on appeal, we deny this
request. Lakeside also requests its attorneys’ fees and costs under the
contract and under A.R.S. § 12-341.01, as well as sanctions against the
Meyers pursuant to ARCAP 25 for filing a frivolous appeal. In our
discretion, we award Lakeside its reasonable attorneys’ fees under A.R.S. §
12-341.01, plus taxable costs, subject to compliance with ARCAP 21. We
deny Lakeside’s request to impose sanctions against the Meyers.
CONCLUSION
¶34 For the foregoing reasons, we affirm the trial court’s final
judgment and all rulings related thereto.
AMY M. WOOD • Clerk of the Court
FILED: AA
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