Irep v. Feucht

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IREP DEVELOPMENT, LLC,
an Arizona limited liability company
dba AZ Manufactured Homes Warehouse,
Plaintiff/Appellee,

v.

RANDOLPH K. FEUCHT,
Defendant/Appellant.

No. 1 CA-CV 21-0736
FILED 5-24-2022

Appeal from the Superior Court in La Paz County
No. S1500CV202100049
The Honorable Jessica L. Quickle, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Law Offices of Ronald W. Meyer, Phoenix
By Ronald W. Meyer
Counsel for Plaintiff/Appellee

Randolph K. Feucht, Prescott
Defendant/Appellant
 IREP v. FEUCHT
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.

M O R S E, Judge:

¶1 Randolph Feucht1 ("Randolph") appeals the superior court's
grant of summary judgment to IREP Development, LLC ("IREP") on its
claim for unpaid storage fees related to a manufactured home. For the
following reason, we affirm in part, vacate in part, and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 Randolph and Theresa Feucht ("the Feuchts") contracted to
purchase a manufactured home from IREP in 2020. The contract provided
that the Feuchts would be responsible for delivery and setup. Pioneer Title
Agency ("Pioneer") handled escrow and the Feuchts deposited the purchase
funds. The Feuchts and IREP also authorized Pioneer to process the title.
At the close of escrow, Pioneer disbursed the purchase funds to IREP. Two
months later, IREP sent notices to the Feuchts that demanded the removal
of the home from the dealership and threatened to charge them storage fees.

¶3 IREP filed a complaint in 2021 to recover storage fees. The
Feuchts' answer denied the existence of a valid contract, but pled no
affirmative defenses. IREP moved for summary judgment. The Feuchts
responded with a "Motion for Dismissal" in which they claimed, in part,
that (1) the sales contract does not convey ownership, (2) Pioneer held title
until delivery, and (3) the Feuchts are unable to accept the home because La
Paz County did not issue a septic permit. The court held oral argument but
the Feuchts did not attend. The court granted judgment to IREP for $18,200
in storage fees, $8,193.14 in attorney fees and costs, and authorized a
sheriff's sale of the home. Randolph timely appealed and we have
jurisdiction under A.R.S. § 12-2101.

1 Theresa Feucht did not sign the notice of appeal and thus is not a
party to the appeal. See Haberkorn v. Sears, Roebuck & Co., 5 Ariz. App. 397,
399 (1967) (holding that a non-lawyer may not represent his or her spouse
in a court of law). The clerk's office is ordered to amend the caption.

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Decision of the Court

DISCUSSION

¶4 Randolph's brief is not a model of clarity. As best we can
discern, he challenges his ownership of the home and asserts he had no
agreement for storage fees. We consider any other arguments waived. See
In re Aubuchon, 233 Ariz. 62, 64-65, ¶ 6 (2013).

¶5 "We review de novo the superior court's grant of summary
judgment." Jackson v. Eagle KMC LLC, 245 Ariz. 544, 545, ¶ 7 (2019). We
construe the facts in the light most favorable to Randolph as the non-
moving party. Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 14 (App.
2012). But because Randolph failed to respond to the motion, we presume
the truth of "any uncontroverted evidence favorable to the movant, and
from which only one inference can be drawn." Schwab v. Ames Constr., 207
Ariz. 56, 60, ¶ 16 (App. 2004). When the moving party is a plaintiff claiming
breach of contract, that plaintiff bears the burden to prove every element of
the claim with "undisputed admissible evidence that would compel any
reasonable juror to find in its favor." Wells Fargo, 231 Ariz. at 213, ¶ 18
(citation omitted). The plaintiff always bears the ultimate burden of
persuasion, and "the mere absence of a genuine dispute of material fact does
not automatically entitle a plaintiff to judgment." Id. at 211, 213, ¶¶ 1, 16.

¶6 Randolph argues that title could not transfer until IREP
"affixed" the home to the property, but cites no authority for that
proposition. Instead, the sales agreement states "Buyer to do own delivery
& setup." Nothing in the escrow instructions required the delivery of the
home before the close of escrow. And the general rule is that, unless the
parties to a contract agree otherwise, "[t]he place for delivery of goods is the
seller's place of business. . . ." A.R.S. § 47-2308(1). Therefore, Randolph's
argument that the sale was not consummated until IREP delivered the
home is not well taken.

¶7 Randolph also argues the parties' agreement did not provide
for storage fees. A seller is entitled to recover consequential, certain, and
unavoidable damages caused by a buyer's breach. See A.R.S. §§
47-2703, -2706, -2710. The Feuchts failed to remove the manufactured home
from the sales lot after receiving notice. Thus, IREP is entitled to storage
fees. But the appropriate remedy "is a commercially reasonable storage fee,
not the amount [the] seller demanded." Altfillisch Constr. Co. v. Torgerson
Constr. Corp., 120 Ariz. 438, 440 (App. 1978). The evidence presented with
IREP's summary judgment motion failed to establish that $18,200 is a
commercially reasonable fee for 334 days of storage. See Wells Fargo, 231
Ariz. at 213, ¶ 18. Indeed, this amount exceeds the $50 per day demanded

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 IREP v. FEUCHT
Decision of the Court

in IREP's first notice to the Feuchts. Accordingly, on remand, the superior
court must determine the amount of a commercially reasonable storage fee.
See Altfillisch Constr., 120 Ariz. at 440.

CONCLUSION

¶8 We affirm the court's grant of summary judgment on the
breach-of-contract claim, vacate the amount awarded for storage fees, and
remand for proceedings consistent with this decision. IREP failed to cite
any authority in support of its request for attorney fees. See Roubos v. Miller, 214 Ariz. 416, 420, ¶ 21 (2007) ("When a party requests fees, it . . . must state
the statutory or contractual basis for the award."). Assuming, without
deciding, that this is an action arising out of contract, see A.R.S. § 12-341.01,
we deny IREP's request for attorney fees as it is not the successful party on
appeal.

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

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