Sakthiveil v. Clear Title

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THIRUSELVAM SAKTHIVEIL,
Plaintiff/Appellant,

v.

CLEAR TITLE AGENCY OF ARIZONA LLC,
Defendant/Appellee.

No. 1 CA-CV 20-0407
FILED 2-25-2021

Appeal from the Superior Court in Maricopa County
No. CV2018-007158
The Honorable Sherry K. Stephens, Judge

AFFIRMED

COUNSEL

Thiruselvam Sakthiveil, Phoenix
Plaintiff/Appellant

Murphy Cordier, PLC, Phoenix
By Michael A. Cordier
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.

W E I N Z W E I G, Judge:

¶1 Thiruselvam Sakthiveil appeals the superior court’s order
granting summary judgment to Clear Title Agency of Arizona, LLC (“Clear
Title”) on his claims for breach of contract and breach of good faith and fair
dealing. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Sakthiveil is a real estate investor who once owned 25
residential properties in Maricopa County. In or around May 2014,
Sakthiveil received unsolicited text messages and emails from strangers
who offered to sell him 720 kilograms of gold—valued between $13 and $28
million—if he wire transferred $3 to $4 million into designated overseas
bank accounts. Sakthiveil was told the gold was located in the Republic of
Benin and the strangers promised to ship the gold to Sakthiveil’s Arizona
address on a United Nations cargo plane.

¶3 Sakthiveil accepted the offer. He then worked with lenders to
raise the cash by refinancing his residential properties. Clear Title was the
title company for these transactions, opening seventeen distinct escrow
accounts for Sakthiveil between May 2014 and July 2015. For each escrow
account, Sakthiveil signed Clear Title’s standard terms, which required
Clear Title to perform standard escrow services—search title, facilitate
issuance of title insurance, research liens and taxes, gather documents and
record deeds of trust when needed. Clear Title also agreed to collect and
hold the lenders’ funds and disburse the funds as directed upon closing. In
all, Sakthiveil directed Clear Title to wire around $4 million to overseas
bank accounts identified by the strangers.

¶4 The gold never arrived. Sakthiveil later sued Clear Title for
breach of contract and breach of the duty of good faith, alleging that Clear
Title employees had orally guaranteed his gold deal with the strangers and
promised to return his money. After briefing and oral argument, the
superior court granted Clear Title’s motion for summary judgment and

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awarded attorney fees and costs to Clear Title. Sakthiveil appeals. We have
jurisdiction. See A.R.S. § 12-2101(A)(1).

DISCUSSION

¶5 Summary judgment is appropriate 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). “We review de novo a grant of
summary judgment, viewing 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). A moving party is entitled to summary
judgment “if the facts produced in support of the [nonmovant’s] 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.” Id. at ¶ 13. A plaintiff
bears the “burden of showing available, competent evidence that would
justify a trial” once the defendant establishes it is entitled to summary
judgment. Ulibarri v. Gerstenberger, 178 Ariz. 151, 156 (App. 1993). We may
affirm the superior court’s grant of summary judgment if it is correct for
any reason. Rowland v. Great States Ins. Co., 199 Ariz. 577, 581, ¶ 6 (App.
2001).

¶6 Sakthiveil contends that Clear Title orally guaranteed the
strangers would deliver the gold. This theory fails for at least two reasons.
First, oral modifications to an escrow agreement must be supported by
separate consideration under Arizona law. See Demasse v. ITT Corp., 194
Ariz. 500, 506, ¶ 18 (1999) (modification requires offer, acceptance and
consideration). Sakthiveil does not address this requirement or points to
evidence in the record creating a genuine dispute of material fact on
whether the oral guarantee was supported by separate consideration.

¶7 Second, the oral guarantee alleged here would be
unenforceable under Arizona’s statute of frauds unless memorialized in
writing and signed by Clear Title. A.R.S. § 44-101(2) (“No action shall be
brought in any court in the following cases 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, or by some person by him
thereunto lawfully authorized: To charge a person upon a promise to
answer for the debt, default or miscarriage of another.“).

¶8 Sakthiveil counters that the statute of frauds does not apply
to oral insurance agreements, citing Graham v. Vegetable Oil Prods., Co., 1
Ariz. App. 237 (1965). But Graham also recognizes that the statute of frauds

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bars enforcing an oral contract to become another’s guarantor. And the
limited exception detailed in Graham is inapplicable here. Id. at 242
(exception only applies where the “leading object” of an unwritten promise
“is to protect [the promisor’s] own interest and not to become the other’s
guarantor”).1

CONCLUSION

¶9 We affirm the superior court’s grant of summary judgment to
Clear Title. Clear Title requests its reasonable attorney fees and costs on
appeal. See A.R.S. §§ 12-341, -341.01. As the prevailing party, we grant
Clear Title its reasonable attorney fees and costs upon compliance with
ARCAP 21.

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

1 Sakthiveil also argues the superior court erroneously admitted an
affidavit of Clear Title’s representative. We find no abuse of discretion on
this record and note Sakthiveil had the burden of proof on his claims, which
were dismissed for lack of evidence creating a genuine dispute of material
fact.

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