Copper State v. Espiritu

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

COPPER STATE FINANCIAL MANAGEMENT, LLC, Plaintiff/Appellee,

v.

MARIA T. ESPIRITU and REDENTOR ESPIRITU, husband and wife,
Defendants/Appellants.

No. 1 CA-CV 15-0275
FILED 5-24-2016

Appeal from the Superior Court in Maricopa County
No. CV2012-093531
The Honorable David King Udall, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

The Hameroff Law Group, P.C., Tucson
By David E. Hameroff, Garrett M. Culver
Counsel for Plaintiff/Appellee

Law Offices of Kenneth P. Bemis, Phoenix
By Kenneth P. Bemis
Counsel for Defendants/Appellants
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MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.

J O N E S, Judge:

¶1 Maria and Redentor Espiritu challenge the trial court’s grant
of summary judgment to Copper State Financial Management, L.L.C.
(Copper State) on a past-due credit card account balance. For the following
reasons, we affirm the summary judgment ruling but vacate the court’s
award of attorneys’ fees and costs to Copper State.

FACTS1 AND PROCEDURAL HISTORY

¶2 In May 2012, Copper State filed suit to collect the outstanding
balance on a credit card issued to Maria Espiritu2 and Maria Paoletti.3
Copper State moved for summary judgment against the Espiritus based
upon an affidavit from Ivan S. Lavinksy, who averred he was employed as
Copper State’s “authorized agent” and acted as a custodian of Copper
State’s records. The Lavinsky affidavit referenced and attached copies of
the following documents:

1 We view the evidence and all reasonable inferences to be drawn
therefrom in the light most favorable to the party opposing a motion for
summary judgment. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003) (citing
Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395
Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13 (2002)).

2 Although Redentor Espiritu was not named on the account, Copper
State sued both Maria and Redentor in order to obtain a judgment
enforceable against the Espiritus’ marital community. On appeal, the
Espiritus do not challenge Redentor’s inclusion as a defendant.

3 Copper State also named Paoletti in the suit, but she was dismissed
prior to entry of judgment and is not a party to this appeal.

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 An unsigned form of a Wells Fargo “Consumer Credit Card
Customer Agreement & Disclosure Statement” (the Agreement),
dated May 2010;

 Billing statements addressed by Wells Fargo Card Services to Maria
Espiritu between March 11, 2009 and April 30, 2010, the final
statement of which reported an unpaid balance of $15,936.85 and
included a charge off4 of the account principal of $14,600.74 plus
account finance charges of $1,336.11;

 Several bills of sale reflecting assignments of accounts from Wells
Fargo through various third parties to Copper State; and

 An “Affidavit of Indebtedness” in which Lavinsky attested Copper
State purchased the Espiritus’ account, the account was assigned to
Copper State, and the amount due was $15,936.85 as of April 30,
2010.

¶3 In his affidavit, Lavinsky testified these documents were
“true and accurate representations of the data maintained in the normal
course of business by the Wells Fargo Bank NA” and the intermediate
creditors and sellers identified in the bills of sale, and that the documents
were incorporated into Copper State’s general business records. Lavinsky
averred that he kept and maintained Copper State records, was familiar
with “the scope and maintenance of the records kept in the normal course
of business by the financial institutions, including Wells Fargo,” and
therefore knew Wells Fargo “would have entered all transactions relating
to the account at or about the time they occurred,” and “in the normal
course of its business, [Wells Fargo] would have sent monthly billing
statements to the cardholder[s].”

¶4 In response, the Espiritus argued Lavinsky’s affidavit and the
accompanying records were inadmissible. The only evidence they
proffered was their own responses to Copper State’s requests for admission
generally denying responsibility for the account. The trial court granted
summary judgment in Copper State’s favor and awarded Copper State
$3,506.11 in attorneys’ fees and $753.00 in costs. The Espiritus timely

4 To “charge off” is to “treat (an account receivable) as a loss or
expense because payment is unlikely.” Black’s Law Dictionary (10th ed.
2014).

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appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1)5 and -2101(A)(1).

DISCUSSION

¶5 We review a grant of summary judgment de novo to determine
whether there is any genuine issue of material fact that would preclude
entry of judgment as a matter of law. Russell Piccoli P.L.C. v. O’Donnell, 237
Ariz. 43, 46-47, ¶ 10 (App. 2015) (citing Ariz. R. Civ. P. 56(a), and Chalpin v.
Snyder, 220 Ariz. 413, 418, ¶ 17 (App. 2008)). Summary judgment is
appropriate where “the facts produced in support of the claim or defense
have so little probative value, given the quantum of evidence required, that
reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309
(1990).

I. The Trial Court Did Not Err in Considering Copper State’s
Evidence.

¶6 On appeal, the Espiritus renew their objections to the trial
court’s consideration of the Lavinsky affidavit and accompanying records.
We review the trial court’s rulings on the admissibility of evidence in
summary judgment proceedings for an abuse of discretion. Mohave Elec.
Coop., Inc. v. Byers, 189 Ariz. 292, 301 (App. 1997) (citing Gasiorowski v. Hose, 182 Ariz. 376, 382 (App. 1994)).

A. The Trial Court Did Not Abuse its Discretion in
Considering the Lavinsky Affidavit.

¶7 The Espiritus first argue the Lavinsky affidavit should have
been excluded because it does not “set forth [Lavinsky’s] qualifications to
serve as a custodian/foundational witness for the subject credit card
account with Wells Fargo.” We disagree.

¶8 Records of regularly conducted activity are admissible if
sufficient foundation is provided by the custodian of the records or other
qualified witness. Ariz. R. Evid. 803(6)(D). Here, Lavinsky testified, under
oath, that he was familiar with the creation and maintenance of the business
records kept at Copper State as well as those Copper State received from
previous assignees — including the Wells Fargo records at issue here. The
Espiritus accept these avowals, but argue Lavinsky was not an

5 Absent material changes from the relevant date, we cite a statute’s
current version.

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appropriately qualified witness because he did not personally participate
in the preparation of the records. But, “courts regularly admit business
records even when the testifying witness did not assemble the complete
record.” State v. Parker, 231 Ariz. 391, 401, ¶ 33 (2013) (citations omitted).
A person is qualified to authenticate records originally created by another
entity if he or his principal “regularly relies on the information that third
parties submit as part of their ordinary course of business.” Id. at 402, ¶ 33
(citing United States v. Adefehinti, 510 F.3d 319, 326 (D.C. Cir. 2007)); see also
MRT Constr. Inc. v. Hardrives, Inc., 158 F.3d 478, 483 (9th Cir. 1998)
(“[R]ecords a business receives from others are admissible . . . when those
records are kept in the regular course of that business, relied upon by that
business, and where that business has a substantial interest in the accuracy
of the records.”) (citing Fed. R. Evid. 803(6), and United States v. Childs, 5
F.3d 1328, 1333-34 (9th Cir. 1993)); Cont’l Tel. Co. of the W. v. Blazzard, 149
Ariz. 1, 5 (App. 1986) (finding sufficient foundation for admission of
business records where an employee testified regarding how the
documents were prepared and maintained by the company’s predecessor).

¶9 Here, Lavinsky averred that “it is standard in [the] industry
for the financial institution to make the documentation available to the
purchaser, and [Copper State] rel[ies] on that documentation to be true and
accurate.” The Espiritus do not otherwise challenge the trustworthiness or
reliability of the documents. Thus, we conclude Lavinsky was qualified to
authenticate the records created and maintained by both Wells Fargo and
Copper State.

¶10 The Espiritus also contend that Lavinsky, an attorney, cannot
act as a custodian of records because attorneys “may not vouch for the
credibility of [their] witnesses.” But, the Espiritus conflate Lavinsky’s being
a licensed attorney with his employment as Copper State’s custodian of
records. Lavinsky did not serve as Copper State’s legal counsel in this
matter and did not vouch for any witness’ credibility in his affidavit; there
were no witnesses for whom he could vouch. He simply laid foundation
for the admission of the documents. We therefore find no error.

B. The Trial Court Did Not Abuse its Discretion in
Considering the Records Attached to the Lavinsky
Affidavit.

¶11 The Espiritus next contend the records attached to the
Lavinsky affidavit were inadmissible hearsay. Although the records at
issue were hearsay, they are nonetheless admissible if they fit within one of
the many exceptions to the rule against hearsay. See Ariz. R. Evid. 802, 803,

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804; State v. Tucker, 205 Ariz. 157, 165, ¶ 41 (2003) (citing State v. Bass, 198
Ariz. 571, 577, ¶ 20 (2000)).

¶12 A statement may be admissible as an exception to the hearsay
rule if it is a “record of a regularly conducted activity.” Ariz. R. Evid. 803(6).
The exception is satisfied if:

[T]he custodian of records or “other qualified witness”
testif[ies] that the record was made [(]1) contemporaneously,
or nearly so, with the underlying event; [(]2) “by, or from
information transmitted by, a person with first hand
knowledge acquired in the course of a regularly conducted
business activity”; [(]3) completely in the course of that
activity; and [(]4) as a regular practice for that activity.

State v. McCurdy, 216 Ariz. 567, 571-72, ¶ 9 (App. 2007) (quoting Ariz. R.
Evid. 803(6)). The trial court has broad discretion to determine whether
business records are sufficiently reliable to satisfy the required elements of
Rule 803(6). Id. at 571, ¶ 7 (citing Larsen v. Decker, 196 Ariz. 239, 243, ¶ 19
(App. 2000), and State v. Petzoldt, 172 Ariz. 272, 275 (App. 1991)).

¶13 The Espiritus are correct that a mere recitation of the required
elements of Rule 803(6) is insufficient to establish the admissibility of
records kept in the course of business; the affidavit must substantively
address the accompanying evidence so a court may review its accuracy.
Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 214, ¶¶ 18-20 (App. 2012). In
Allen, this Court rejected as insufficient evidence submitted in support of a
motion for summary judgment because: (1) the affiant only made “a general
avowal that he [was] the custodian of records and that he personally
reviewed records that established the amount of the [defendants’]
indebtedness,” but “never claimed to have reviewed any specific
documents or to know the manner in which they were prepared and kept,”
and (2) the referenced records “were neither described nor attached, nor
was there anything in the affidavit to provide a reviewing court with the
means to evaluate the accuracy of the paralegal’s calculation of the amount
claimed to be due.” Id. at 214, ¶¶ 18-19.

¶14 The Lavinsky affidavit does not contain those deficiencies.
Lavinsky attached the relevant Wells Fargo and Copper State records and
described how those records related to the Espiritus’ account. He also
attached numerous billing statements that identified specific purchases,
balances owed, payments made, due dates, and interest charges incurred
by the Espiritus. This was sufficient information for the trial court to

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evaluate whether the source of the documents or the method or
circumstances of preparation were sufficiently trustworthy to warrant
admission under Rule 803(6). Having determined Lavinsky was qualified
to lay foundation for the documents, we find no abuse of discretion.

II. There is No Disputed Issue of Material Fact Regarding the
Espiritus’ Liability for the Credit Card Debt.

¶15 The Espiritus contend Copper State failed to prove “what
legal relationship the Espiritus had with this account.” However, each
billing statement Copper State provided in support of its motion was
addressed to Maria, indicating she was the cardholder and therefore legally
responsible for the charges. Cf. A.R.S. §§ 44-7801(2) (defining “cardholder”
to include “the named person who applies for or accepts the credit card
account”), -7802 (stating a cardholder accepts the terms and conditions of a
credit card account upon any authorized use of the account), -7803 (stating
a cardholder is personally liable for all charges incurred by any authorized
user).

¶16 The Espiritus also argue summary judgment was
inappropriate because Paoletti could have been responsible for some, if not
all of the debt. However, this fact is immaterial; a cardholder is personally
liable for all charges and interest accrued by any authorized user. See A.R.S.
§ 44-7803. Thus, even assuming the entirety of the debt was accrued by
Paoletti, the Espiritus remain liable, and Copper State is entitled to
judgment as a matter of law.

¶17 The Espiritus did not dispute the substance of Lavinsky’s
affidavit and did not create a factual dispute through their general denial
of responsibility. See United Servs. Auto. Ass’n v. DeValencia, 190 Ariz. 436,
441 (App. 1997) (“When confronted with a motion for summary judgment,
the responding party has the burden of presenting evidence that justifies a
trial.”); Bible v. First Nat’l Bank of Rawlins, 21 Ariz. App. 54, 56 (1973) (“[I]n
responding to a motion for summary judgment it is the duty of counsel to
bring to the attention of the trial court those portions of the record (in the
absence of controverting affidavits) which will support his position that a
disputed issue of material fact exists.”). On the evidence presented, there
is no genuine issue of material fact regarding the Espiritus’ liability for the
account, and we find no error in the entry of summary judgment in favor
of Copper State.

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III. The Statute of Frauds Does Not Apply.

¶18 The Espiritus argue the statute of frauds bars Copper State’s
claim as a matter of law because the Agreement between the Espiritus and
Wells Fargo did not contain Maria’s signature. Under the statute of frauds,
certain actions are barred “unless the promise or agreement upon which the
action is brought, or some memorandum thereof, is in writing and signed
by the party to be charged.” A.R.S. § 44-101(2).

¶19 The Espiritus argue the present action is “to charge a person
upon a promise to answer for the debt, default or miscarriage of another.”
A.R.S. § 44-101(2). But, this action was brought against the Espiritus to
answer for their own debt. Therefore, even disregarding A.R.S. § 44-7802(2)
(stating a cardholder’s acceptance of the terms and conditions of a credit
card account may be established as binding and enforceable simply
through authorized use of the account), the action is properly classified as
one brought “upon a contract, promise, undertaking or commitment to loan
money or to grant or extend credit,” which is only barred by the statute of
frauds if it “involve[s] both an amount greater than two hundred fifty
thousand dollars and [is] not made or extended primarily for personal,
family or household purposes.” A.R.S. § 44-101(9). Neither condition
applies here. Accordingly, Copper State’s suit is not barred by the statute
of frauds.

IV. Copper State Impliedly Concedes Error in the Trial Court’s Award
of Attorneys’ Fees and Costs.

¶20 Finally, the Espiritus challenge the trial court’s award of
attorneys’ fees and costs to Copper State, renewing their objection that
Copper State did not provide adequate support for the award as required
by Arizona Rule of Civil Procedure 54(g). We generally review an award
of attorneys’ fees and costs for an abuse of discretion. See In re Estate of
Ganoni, 238 Ariz. 144, 147 (App. 2015) (citing Bennett Blum, M.D., Inc. v.
Cowan, 235 Ariz. 204, 205, ¶ 5 (App. 2015)). But, Copper State did not
address the Espiritus’ challenge to the award of attorneys’ fees and costs in
its answering brief. We take this omission as a confession of reversible
error. See Bulova Watch Co. v. Super City Dep’t Stores of Ariz., Inc., 4 Ariz.
App. 553, 556 (1967) (“It is well settled in this jurisdiction that an appellee’s
failure to [f]ile an answering brief where there are debatable issues
constitutes a confession of reversible error. We believe the principle is
equally applicable when an appellee does in fact file a brief which fails to
respond to the issues presented.”) (citations omitted). We therefore vacate
the award of attorneys’ fees and costs to Copper State.

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CONCLUSION

¶21 For the reasons set forth above, we affirm the trial court’s
grant of summary judgment in favor of Copper State but vacate the
attorneys’ fees and costs award below.

¶22 Copper State requests attorneys’ fees and costs on appeal
pursuant to the Agreement and A.R.S. § 12-341.01(A), and the Espiritus
request attorneys’ fees under A.R.S. § 12-341.01(A). Because the record does
not contain any agreement signed by the Espiritus authorizing an award of
attorneys’ fees and costs, the allocation of fees is governed only by statute.
In our discretion, we decline to make such an award. See Munger Chadwick,
P.L.C. v. Farwest Dev. & Constr. of the Sw., L.L.C., 235 Ariz. 125, 128, ¶ 14
(App. 2014) (“[A]n award of fees under A.R.S. § 12-341.01 is discretionary;
it is not an entitlement.”) (citing Assoc. Indem. Corp. v. Warner, 143 Ariz. 567,
570 (1985)).

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