White v. 1st Choice

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LAURIE WHITE, Plaintiff/Appellant,

v.

1ST CHOICE SURFACES LLC, et al., Defendants/Appellees.

No. 1 CA-CV 19-0206
FILED 4-23-2020

Appeal from the Superior Court in Maricopa County
No. CV2017-006495
The Honorable Daniel J. Kiley, Judge

AFFIRMED

COUNSEL

Law Office of Timothy M. Collier PLLC, Scottsdale
By Timothy M. Collier, Krystle Delgado
Counsel for Plaintiff/Appellant

Brian A. Hatch PLLC, Scottsdale
By Brian A. Hatch
Counsel for Defendants/Appellees
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Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.

C A T T A N I, Judge:

¶1 Laurie White appeals a jury verdict in favor of 1st Choice
Surfaces LLC (“1st Choice”) and James Dimond (collectively, “Appellees”)
and the superior court’s denials of her motions for judgment as a matter of
law and motion for a new trial. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2016, White contracted with 1st Choice to perform tile
flooring, drywall, and cabinetwork at her home. At all relevant times, 1st
Choice held a CR60 license issued by the Arizona Registrar of Contractors
(“ROC”).

¶3 White was dissatisfied with 1st Choice’s work and filed a
complaint with the ROC. In July 2017, ROC investigator Jack Grimm wrote
1st Choice, stating that the company “may have operated beyond the scope
of [its] CR60 license” because the evidence “suggested that [1st Choice] bid
on, contracted for, or performed work that would require a CR-8 or CR48
[f]loor covering license.” The ROC later issued a directive requiring 1st
Choice to perform seven corrective work items.

¶4 Following a hearing on White’s ROC complaint, an
administrative law judge (“ALJ”) issued a final decision and order finding
that 1st Choice did not comply with the ROC directive. The ALJ stated that
“1st Choice was not licensed to install tile,” and that:

Both parties offered testimony regarding the issue of whether
[1st Choice] performed construction work outside the scope
of his license when he installed the tile. In this matter, the
Registrar issued a warning letter to [1st Choice] regarding the
performance of construction work outside the scope of his
license. However, the Registrar did not allege in its Citation
that [1st Choice] violated [A.R.S. §] 32-1154(A)(16). . . .
Therefore, the issue of performing work outside the scope of

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the license is not before the [ALJ] and the [ALJ] will not make
any findings of fact regarding the issue.

¶5 White then sued Appellees for breach of contract, negligence,
negligent misrepresentation, and other claims, alleging that they “were not,
and do not currently, hold a valid Arizona Contractor’s license to perform
the work contracted for.”1 Citing to ROC’s rulings, White moved for partial
summary judgment on this issue, which the superior court denied because
the ALJ “expressly stated . . . that the issue of whether 1st Choice performed
work outside the scope of its license was ‘not before’ the ALJ, and that the
ALJ would make no findings on that issue.”

¶6 The case proceeded to trial, and White twice moved for
judgment as a matter of law (“JMOL”) under Arizona Rule of Civil
Procedure (“Rule”) 50(a) on the license issue—once at the close of her case
and once at the close of evidence. The superior court denied both motions.
The jury returned a verdict in favor of Appellees on all claims, and the
superior court entered final judgment under Rule 54(c).

¶7 White then filed a 35-page renewed JMOL motion and motion
for a new trial. See Ariz. R. Civ. P. 50(b), 59. She concurrently sought leave
to exceed the page limits of Rule 7.1(a)(2) and Maricopa County Superior
Court Local Rule (“Local Rule”) 3.2(f). She again contended that “1st
Choice . . . did not have the proper license to perform the work contracted
for.” This time, White cited to the testimony of Dimond, 1st Choice’s
owner, in a post-judgment ROC hearing and argued for the first time that
the ALJ’s final decision and order precluded 1st Choice from contending at
trial that it was properly licensed to perform the tile work.

¶8 The court denied both motions, finding “no justification for
[White’s] inability to comply with the page limits.” White timely appealed
that order and the underlying judgment, and we have jurisdiction under
A.R.S. § 12-2101(A)(1) and (5)(a).

DISCUSSION

¶9 A court may grant a JMOL motion if it finds “that a reasonable
jury would not have a legally sufficient evidentiary basis to find for the
[non-moving] party on that issue” and the non-moving party has been fully
heard on the issue. Ariz. R. Civ. P. 50(a)(1). We review the denial of a JMOL

1 White voluntarily dismissed her alter ego and false advertising
claims against Appellees and her breach of contract and breach of the
covenant of good faith and fair dealing claims against Dimond.

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motion de novo but construe the evidence in the light most favorable to
Appellees. See Dupray v. JAI Dining Servs. (Phx.), Inc., 245 Ariz. 578, 582, ¶
11 (App. 2018).

¶10 As relevant here, a court may grant a motion for new trial
based on (1) “misconduct of the . . . prevailing party,” (2) “newly discovered
material evidence that could not have been discovered and produced at the
trial with reasonable diligence,” or if (3) “the verdict . . . is not supported by
the evidence or is contrary to law.” Ariz. R. Civ. P. 59(a)(1)(B), (D), (H). We
review the denial of a motion for new trial for an abuse of discretion. Am.
Power Prods., Inc. v. CSK Auto, Inc., 239 Ariz. 151, 154, ¶ 10 (2016).

I. Trial Motions.

¶11 White contends that the superior court should have granted
the JMOL motions she filed during trial because “the ROC had already
determined 1st Choice . . . did not carry the correct license for the Work,”
and thus, there was a breach of the contract. Under Rule 50(a)(1), the court
may grant judgment as a matter of law against a party only if that “party
has been fully heard on an issue.” White brought her first JMOL motion
immediately after she rested her case-in-chief, before Appellees had a
chance to present their case. Because the Appellees had not yet been fully
heard on this issue, we affirm the denial of White’s first JMOL motion.

¶12 White argues that her second JMOL motion should have been
granted because the superior court should have concluded that the ROC’s
final determination and order resulted in both claim and issue preclusion.
But these doctrines only apply when there has been a final decision on the
merits. See Howell v. Hodap, 221 Ariz. 543, 546, ¶ 17 (App. 2009); Campbell v.
SZL Props., Ltd., 204 Ariz. 221, 223, ¶ 9 (App. 2003). Although it appears
that both parties presented evidence regarding the scope of 1st Choice’s
license in the ROC hearing, the ROC did not allege a license violation, and
the ALJ expressly declined to reach that issue.

¶13 White cites the ALJ’s finding that “1st Choice was not licensed
to install tile,” but that finding was not final or conclusive given the ALJ’s
corollary statement that licensure was not at issue. White thus did not meet
her burden of showing the issue was litigated, determined, and necessary
to the decision in the previous case. See Airfreight Express Ltd. v. Evergreen
Air Ctr., Inc., 215 Ariz. 103, 109, ¶ 15 (App. 2007).

¶14 White also argues that under A.R.S. § 32-1153, 1st Choice
could not validly contract with her because the company was not properly
licensed to perform tile work. But § 32-1153 simply states that an

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unlicensed contractor may not “commence or maintain any action . . . for
collection of compensation for the performance of any act for which a
license is required.” That statute does not bar an unlicensed contractor
from defending a lawsuit. See, e.g., Bentivegna v. Powers Steel & Wire Prods.,
Inc., 206 Ariz. 581, 587, ¶ 20 (App. 2003); Miller v. Superior Court, 8 Ariz.
App. 420, 423 (App. 1968). Accordingly, the court did not err by denying
White’s JMOL motions.

II. Post-Trial Motions.

¶15 The court did not reach the merits of White’s renewed JMOL
motion and motion for a new trial because she did not comply with the
applicable page limits. White challenges that ruling only by asserting that
she “could not adequately address” all relevant issues within the page
limits, a bare assertion that is insufficient to establish a meritorious basis for
her failure to comply with the required page limits.

¶16 Moreover, the issues raised in the post-trial motion did not
establish a basis for relief. To the extent her post-trial motion re-raised
issues presented in her earlier motions, her arguments are unavailing for
the reasons detailed above. And to the extent the post-trial motion raised
new issues, her arguments lacked merit.

A. Dimond’s Post-Judgment Testimony.

¶17 First, White contends that Dimond’s post-judgment ROC
hearing testimony constituted newly discovered evidence under Rule
59(a)(1)(D) and merited a new trial. However, Rule 59(a)(1)(D) applies only
to evidence that existed at the time of judgment but was not discovered
until after the judgment was rendered. Boatman v. Samaritan Health Servs.,
Inc., 168 Ariz. 207, 212 (App. 1990); Wendling v. Sw. Sav. & Loan Ass’n, 143
Ariz. 599, 602 (App. 1984). Dimond testified in January 2019, three months
after the jury rendered its verdict and after the superior court entered Rule
54(c) judgment. Accordingly, this testimony is outside the scope of Rule
59(a)(1)(D).

¶18 White also contends that Dimond’s testimony in the ROC
proceeding evinced a fraud on the court in this case. 1st Choice counters
that later testimony during the ROC proceeding clarifies Dimond’s
testimony. Regardless, White cites no authority suggesting conflicting
evidence in a later administrative hearing requires a reversal under Rule
59(a)(1)(B) based on a party’s misconduct. Accordingly, White has not
demonstrated that Dimond’s post-trial testimony in a different proceeding
should have resulted in a new trial in the instant case.

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B. Jury Instructions.

¶19 Second, White argues that the jury did not follow several of
the final jury instructions. But jurors are presumed to follow jury
instructions, Ryan v. S.F. Peaks Trucking Co., Inc., 228 Ariz. 42, 46, ¶ 12 n.5
(App. 2011), and White does not overcome this presumption.

¶20 White asserts that the jury did not follow the burden of proof
instruction and failed to consider her “plethora of evidence,” which she
contends “significantly outweighed . . . Appellees’ evidence.” But it was
the jury’s role to weigh the evidence at trial, and we do not reweigh the
evidence on appeal. Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 92, ¶ 36
(App. 1998).

¶21 White also cites the ALJ’s determination that “the issues
found by Investigator Grimm constituted workmanship issues” and argues
that this determination demonstrates that the preponderance of the
evidence supports her claim. But the jury was not obligated to accept that
conclusion. And other record evidence suggested that White (who was
responsible for providing the tile to be installed) did not purchase the
proper tiles and did not allow 1st Choice to enter her home to perform
corrective work, facts on which the jury could have relied in reaching its
determination.

¶22 Further, White contends that the jury apparently did not
follow the instructions regarding breach of the covenant of good faith and
fair dealing and negligent misrepresentation, given White’s testimony that
the ROC license number on her contract led her to believe 1st Choice was
properly licensed. But the jury was free to discount or discredit White’s
testimony on this issue even though it was uncontested. See Walsh v.
Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 197, ¶ 12 (2012) (“[A]
jury may appropriately discredit a witness’s uncontradicted testimony for
various reasons, including the witness’s personal interest in the case.”).

¶23 White also contends that the jury ignored the negligence
instruction by not considering her testimony that 1st Choice had been
“careless” by causing “damage to her new toilet, sink, the bathroom tile,
and . . . landscaping.” But there was contrary evidence in the trial record,
and the jurors were free to give her testimony the weight they thought it
deserved. See Kuhnke v. Textron, Inc., 140 Ariz. 587, 591 (App. 1984) (“The
credibility of a witness’ testimony and the weight it should be given are
issues particularly within the province of the jury.”). Accordingly, White
has not established that the jury failed to follow any of its instructions.

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III. Sufficiency of the Evidence.

¶24 Finally, White argues that the verdict was inconsistent with
the evidence presented at trial. We review the evidence in the light most
favorable to upholding the verdict and will affirm if substantial evidence
supports it. S Dev. Co. v. Pima Capital Mgmt. Co., 201 Ariz. 10, 23, ¶ 42 (App.
2001).

¶25 White first repeats the claim preclusion and issue preclusion
arguments addressed above. She then presents a lengthy summary of
Grimm’s testimony, but she overlooks Grimm’s admissions that (1) the
warning letter he sent 1st Choice only stated that it “may have” performed
work outside of its license and (2) the ROC did not cite 1st Choice for
exceeding the scope of its license. Moreover, Dimond testified that 1st
Choice’s license included flooring and natural stone materials. White
contends this testimony was not credible given Dimond’s later testimony
in the post-judgment ROC hearing. But his subsequent testimony was not
before the jury, which makes credibility determinations at the time of trial.
See Zuluaga v. Bashas’, Inc., 242 Ariz. 205, 212, ¶ 21 (App. 2017). Accordingly,
White has failed to show that the jury’s verdict was not supported by
substantial evidence.

IV. Attorney’s Fees and Costs on Appeal.

¶26 Appellees request their attorney’s fees incurred in this appeal
under A.R.S. § 12-341.01(A), which permits a discretionary award to the
successful party in an action arising out of a contract. In an exercise of our
discretion, we decline to award Appellees attorney’s fees. As the prevailing
parties on appeal, Appellees are entitled to taxable costs incurred in this
appeal upon compliance with ARCAP 21.

CONCLUSION

¶27 We affirm the judgment and the denials of White’s JMOL and
new trial motions.

AMY M. WOOD • Clerk of the Court
FILED: AA

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