Clementine v. Ruhorimbere

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARORA CLEMENTINE, et al.,
Plaintiffs/Appellants,

v.

RUGABIRWA RUHORIMBERE, et al.,
Defendants/Appellees.

No. 1 CA-CV 21-0013
FILED 4-26-2022

Appeal from the Superior Court in Maricopa County
No. CV2018-014462
The Honorable Joseph P. Mikitish, Judge

AFFIRMED

COUNSEL

Clifford Levenson Attorney at Law, Phoenix
By Clifford I. Levenson
Co-Counsel for Plaintiffs/Appellants

Law Offices of Kenneth P. Bemis, Tempe
By Kenneth P. Bemis
Co-Counsel for Plaintiffs/Appellants

Cronus Law, PLLC, Phoenix
By Roger D. Smith
Counsel for Defendants/Appellees
 CLEMENTINE, et al. v. RUHORIMBERE, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.

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

¶1 Marora Clementine and Mvuyekure Fabrice (“Plaintiffs”)
appeal from an adverse judgment on their claims for breach of contract,
issued after a bench trial, and from the superior court’s award of attorney
fees to Rugabirwa Ruhorimbere (“Defendant”). For the reasons that follow,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 On appeal from a bench trial, we view and thus recount the
evidence in the light most favorable to upholding the judgment. See Town
of Florence v. Florence Copper Inc., 251 Ariz. 464, 468, ¶ 20 (App. 2021).

¶3 In late 2015, Defendant and Lilianne Nyambo started a new
business named H & L Devotion, which would operate senior assisted
living homes. They were married at the time, and each contributed money
to the venture. H & L then purchased two assisted living homes.

¶4 A few months later, Plaintiffs sued Lilianne and Defendant
for breach of an oral “joint business venture.” Plaintiffs alleged that they
agreed to invest $85,000 into the venture for one-half of its monthly profits.

¶5 The court held a bench trial in June 2020, at which it dismissed
Lilianne as a defendant based on service of process questions. The court
heard testimony from several witnesses: Plaintiffs, Defendant, Lilianne, H
& L’s accountant, and a business appraisal expert. Defendant denied any
agreement.

¶6 After trial, the court entered judgment for Defendant. Neither
Plaintiffs nor Defendant sought findings of fact, and the court made none.
The court awarded Defendant his costs and attorney fees. Plaintiffs timely
appealed. We have jurisdiction. See A.R.S. § 12-2101(A)(1).

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 CLEMENTINE, et al. v. RUHORIMBERE, et al.
Decision of the Court

DISCUSSION

¶7 Plaintiffs make an assortment of arguments on appeal, many
of them unsupported by citation to legal authority or the record. We
remind counsel of this court’s rules. See ARCAP 13(a)(7)(A). And though
we may assume Plaintiffs have waived their arguments, Ritchie v. Krasner, 221 Ariz. 288, 306, ¶ 62 (App. 2009) (failure to properly develop argument
on appeal results in waiver), we exercise our discretion to consider and
reject them.

¶8 Plaintiffs first challenge the factual basis for the superior
court’s judgment. We defer to the court’s factual findings unless clearly
erroneous, giving “due regard to the trial court’s opportunity to judge the
credibility of witnesses,” but we review legal questions de novo. Town of
Marana v. Pima County, 230 Ariz. 142, 152, ¶ 46 (App. 2012); Ariz. R. Civ. P.
52(a)(6). We affirm the court’s judgment if correct for any reason. FL
Receivables Tr. 2002–A v. Ariz. Mills, LLC, 230 Ariz. 160, 166, ¶ 24 (App. 2012).

¶9 Plaintiffs have shown no error. First, because the superior
court entered no written findings of fact, this court “must assume that [it]
found every controverted issue of fact necessary to sustain the judgment.”
Fleming v. Becker, 14 Ariz. App. 347, 350 (1971). Second, the record offers
ample support for the superior court’s judgment that Defendant did not
breach the contract, including the live testimony of Plaintiffs, Defendant,
and H & L’s accountant. See Moore v. Title Ins. Co. of Minn., 148 Ariz. 408,
413 (App. 1985) (a finding is not erroneous “if there is substantial evidence
to support it, even though there might be substantial conflicting evidence”).
We will not reweigh the evidence on appeal. State v. Buccheri-Bianca, 233
Ariz. 324, 334, ¶ 38 (App. 2013) (“It is not the province of an appellate court
to reweigh evidence or reassess the witnesses’ credibility.”).

¶10 Plaintiffs counter with new theories on appeal. “When the
parties have framed the issues for resolution, they may not change them
absent an amendment of the pleadings or trial of the issue by consent.”
Black v. Perkins, 163 Ariz. 292, 293 (App. 1989). Nor can the parties argue
new theories on appeal. State ex rel. Brnovich v. Miller, 245 Ariz. 323, 324, ¶
5 (App. 2018).

¶11 Plaintiffs also contest the superior court’s $18,500 award of
attorney fees to Defendant under A.R.S. § 12-341.01. An award of attorney
fees “is discretionary with the trial court,” and we will not disturb it if
supported by any reasonable basis. See Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, 569, ¶ 9 (App. 2007). Because Plaintiffs show no abuse of

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 CLEMENTINE, et al. v. RUHORIMBERE, et al.
Decision of the Court

discretion, we affirm the award. This lawsuit lasted almost two years
(including a two-day bench trial), defense counsel supported his request
with relevant records and an affidavit, and the superior court reduced the
award from what Defendant sought.

CONCLUSION

¶12 We affirm the superior court’s judgment and attorney fees
award. Defendant and Plaintiffs request their attorney fees on appeal
under A.R.S. § 12-341.01 and ARCAP 21. As the successful party, we award
Defendant his reasonable attorney fees and costs on appeal under A.R.S. §
12-341.01, contingent upon compliance with ARCAP 21.

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

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