Hettenhaus v. Jugans

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRANDT HETTENHAUS, Plaintiff/Appellant,

v.

CHARLES JUGANS, et al., Defendants/Appellees.

No. 1 CA-CV 21-0329
FILED 3-15-2022

Appeal from the Superior Court in Maricopa County
No. CV2019-012268
The Honorable Sherry K. Stephens, Judge (retired)

AFFIRMED

COUNSEL

Alexander R. Arpad, Phoenix
Counsel for Plaintiff/Appellant

Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Vice Chief Judge David B. Gass and Judge Angela K. Paton joined.
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Decision of the Court

M c M U R D I E, Judge:

¶1 Plaintiff Brandt Hettenhaus appeals from the superior court’s
judgment awarding attorney’s fees and finding that he failed to prove
loss-of-use damages in his conversion claim against Defendants Charles
Jugans and Renee Schumann.1 We find no reversible error and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Hettenhaus once hired Jugans to perform work restoring his
classic Camaro. But the relationship deteriorated, and Hettenhaus
prevailed against Jugans in a breach of contract action unassociated with
this appeal.2

¶3 With the Camaro litigation pending, Hettenhaus contacted
Gerardus Brokerhof, a friend who had also engaged Jugans for restoration
services. Brokerhof left his 1966 Pontiac GTO at Jugans’ shop for repairs,
where it remained for about 10 years. Hettenhaus bought the GTO for
$15,000 “in ‘as is’ condition and where currently located.” The next day,
Hettenhaus contacted Jugans through counsel to coordinate retrieval of the
GTO from Jugans. Jugans refused to release the GTO to Hettenhaus,
claiming he had a lien on the vehicle for unpaid repairs. Eight days after
buying the GTO, Hettenhaus sued Jugans for conversion.

¶4 Hettenhaus moved for partial summary judgment on liability.
Jugans, no longer represented by counsel, responded to the motion in an
unsigned filing without a statement of facts or an affidavit. As a result, the
superior court entered partial summary judgment for Hettenhaus, finding
Jugans exercised wrongful control over the GTO inconsistent with
Hettenhaus’ right to immediate possession.

¶5 Soon after, Brokerhof retrieved the GTO at Hettenhaus’
request. Brokerhof retained possession of the GTO until Hettenhaus sold it
back to him for the original $15,000 purchase price two months later.

¶6 Hettenhaus informed the court he intended to proceed to a
bench trial on damages for loss of use. The parties tried to settle but failed.
In his disclosure statement, Hettenhaus identified his expert’s report as his

1 We call Appellees the singular Jugans for ease of reference.

2 See Ruling, Hettenhaus v. Jugans et al., CV2018-013438, (Maricopa
County Super. Ct. May 11, 2021).

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“computation of damages.” The report addressed loss-of-use damages for
the thirteen-month detention period and concluded the value of
Hettenhaus’ claim was $143,000, a value based on the rental cost of a
vintage GTO. Although the expert valued Hettenhaus’ loss-of-use claim at
$143,000, his report stated that “an additional discussion for the normal
insurance company rental rates applicable for a loss of use claim on a
normal and standard motor vehicle . . . should be addressed” and
calculated the rental cost of a Toyota Camry at $8550.

¶7 At the trial, Hettenhaus’ counsel commented during his
opening statement that the expert appraiser’s damages calculation was
based on the rental price of a similar vehicle in California, but that the rental
cost was more than the value of the GTO and that “nobody thinks
[Hettenhaus] should recover that.” He said that Hettenhaus was instead
asking to recover $8550, the amount it would cost to rent an ordinary sedan
for 13 months.

¶8 The court heard testimony from Hettenhaus and his expert
auto appraiser. Hettenhaus testified that the GTO was not in a drivable
condition when he bought it but that if he had it, he would have restored it
at the cost of about $20,000. He then could have sold it at an auction for
$65,000 or used it for daily transportation. He explained that he had been
unable to restore the GTO after the court ordered its return because he
suffered financially at the outset of the COVID-19 pandemic and could not
afford the restoration. The appraiser testified that the value of Hettenhaus’
loss of use claim was $143,000.

¶9 After Hettenhaus rested, Jugans moved for a directed verdict,
arguing Hettenhaus failed to prove damages. The court granted the motion.
Jugans requested attorney’s fees under A.R.S. § 12-349, asserting that
Hettenhaus unreasonably expanded the litigation by seeking unsupported
damages after Jugans gave up possession of the GTO. The court found that
Hettenhaus’ claim for $143,000 in loss-of-use damages was unreasonable,
and he should have known before the settlement conference that his request
was not supported by the evidence he planned to present at trial. The court
determined that Hettenhaus unreasonably expanded the litigation and
awarded Jugans $3400 in fees.

¶10 Hettenhaus appealed, and we have jurisdiction under A.R.S.
§ 12-2101(A)(1).

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DISCUSSION

¶11 Hettenhaus argues the superior court erred by granting
Jugans’ motion for a directed verdict and by awarding attorney’s fees under
A.R.S. § 12-349.

¶12 We first address the superior court’s designation of the
judgment as a directed verdict under Rule 50. During a jury trial, the court
may grant a motion for judgment as a matter of law under Rule 50 if the
evidence before the jury has “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.” Desert Palm
Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 578, ¶ 25 (App. 2015). In the
context of a bench trial, the court may weigh evidence after the plaintiff’s
case and enter judgment for the defendant if the plaintiff fails to meet the
requisite burden of proof. Ariz. R. Civ. P. 52(c). The error is harmless when
the superior court misdesignates a judgment without affecting a party’s
substantial rights. Ariz. R. Civ. P. 61; see Rempt v. Borgeas, 120 Ariz. 36, 39
(App. 1978).

¶13 The superior court incorrectly stated that its judgment had
been entered under Rule 50 rather than Rule 52(c). But because this
designation does not affect a party’s substantial rights, we treat the
judgment as entered under Rule 52(c). See Johnson v. Pankratz, 196 Ariz. 621,
626, ¶ 19 (App. 2000) (When the trial court acts as factfinder, “we may treat
a directed verdict based on the insufficiency of the evidence as a judgment
on partial findings pursuant to Rule 52(c).”).

¶14 Following a judgment entered under Rule 52(c), we review
the superior court’s factual findings for clear error but review legal
questions de novo. Tobias v. Dailey, 196 Ariz. 418, 420, ¶ 7 (App. 2000).
Conversion damages include the value of the property taken and any other
damages caused by the wrongful detention, such as compensation for the
plaintiff’s loss of use. Collins v. First Fin. Servs., Inc., 168 Ariz. 484, 486 (App.
1991). Hettenhaus’ complaint requested the GTO’s return and damages to
compensate him for (1) any diminution in the GTO’s value caused by
improper storage and (2) his loss of use of the GTO while it was wrongfully
detained.

¶15 To recover damages for loss of use, a plaintiff must offer
“some competent evidence establishing the usable value of the property.”
Phelps v. Melton, 14 Ariz. App. 296, 298 (1971). The court heard testimony
that the GTO was not in drivable condition while Jugans possessed it but

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that Hettenhaus planned to restore it. As factfinder, the court was free to
weigh Hettenhaus’ credibility and the probative value of his self-serving
testimony that he would have promptly restored the GTO. Based on the
evidence, the court could reasonably conclude Hettenhaus would not have
attempted or completed the restoration and suffered no damages from the
wrongful detention of the inoperable vehicle. Finally, Hettenhaus asserts
that, if nothing else, he was entitled to nominal damages. But Hettenhaus
did not request nominal damages, so the court did not err by failing to
award them.

¶16 Hettenhaus also challenges the court’s attorney’s-fees award,
claiming the damages trial did not unreasonably expand or delay the
proceeding because his claim for damages “was at least fairly debatable.”
Under A.R.S. § 12-349(A)(3), the court must assess reasonable attorney’s
fees and expenses if an attorney or party unreasonably expands a
proceeding. In reviewing an award made under A.R.S. § 12-349, we view
the evidence in a manner most favorable to sustaining the award and affirm
unless the superior court’s finding is clearly erroneous. See Goldman v. Sahl, 248 Ariz. 512, 531, ¶ 65 (App. 2020).

¶17 The superior court found Hettenhaus unreasonably
expanded the proceeding by pursuing damages for loss of use for an
inoperable vehicle. Hettenhaus’ claimed damages were calculated using the
rental value of a fully restored vintage GTO or an ordinary but operable
sedan. His self-serving testimony was the only evidence supporting
Hettenhaus’s declared intent to restore the GTO upon possession. Because
Hettenhaus bought the vehicle while already engaged in litigation with
Jugans and never took possession of the vehicle even after Jugans complied
with the court order, the court did not err by awarding Jugans’ fees under
A.R.S. § 12-349.

ATTORNEY’S FEES

¶18 Jugans requests attorney’s fees and costs under A.R.S.
§ 12-349(A)(1) and -349(A)(3). As the successful party, Jugans is entitled to
costs after compliance with Arizona Rule of Civil Appellate Procedure 21.
See A.R.S. § 12-341 (successful party entitled to costs). In our discretion, we
award Jugans reasonable attorney fees under A.R.S. § 12-349(A)(1) because
Hettenhaus appealed without substantial justification.

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CONCLUSION

¶19 We affirm.

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

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