Professional Choice v. Appel

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PROFESSIONAL CHOICE BUILDERS, Plaintiff/Appellee,

v.

JAMES APPEL and SHANA APPEL, Defendants/Appellants.

No. 1 CA-CV 22-0580
FILED 7-25-2023

Appeal from the Superior Court in Navajo County
No. SO900CV201800504
The Honorable Melinda K. Hardy, Judge

AFFIRMED

COUNSEL

Jerry B. DeRose, Attorney at Law, Glendale
By Jerry B. DeRose
Counsel for Plaintiff/Appellee

David J. Martin, Attorney at Law PLLC, Lakeside
By David J. Martin
Counsel for Defendants/Appellants

PROFESSIONAL CHOICE v. APPEL, et al.
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer B. Campbell joined.

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

¶1 Defendants James and Shana Appel appeal the superior
court’s judgment in favor of plaintiff Professional Choice Builders
(“Builder”) for $108,648.14 plus interest. We affirm.

FACTS AND PROCEDURAL BACKGROUND

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

¶3 In February 2018, Builder and the Appels entered a fixed-
price contract (“Contract”). Builder agreed to build a home in Show Low
for $320,000, promising to finish construction in six months. The fixed price
included “costs of building, sales tax, overhead, and insurance.” For work
beyond the scope of contract, the Appels promised to submit “change
orders” to Builder and agreed to pay a non-refundable 23.4 percent upfront
charge, plus costs.

¶4 The Appels secured a construction loan, and the lender (“the
Bank”) had its own requirements for the deal. The Bank required Builder
to finance its own labor and materials and then seek reimbursement from
the Bank, which rested on the Bank’s inspection and approval. The loan
agreement also required the Appels to provide the Bank with receipts and
proof of expenditures.

¶5 The Appels submitted five distinct change orders over the
course of construction, seeking changes to the laundry room, shop, beam
placement, well-house and spray foam insulation. Builder fulfilled each
change order. But the Appels never paid Builder for the work, nor did they
pay the 23.4 percent charge.

¶6 For its part, Builder submitted seven draw requests, and the
Appels signed and approved five. But when Builder submitted a draw

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PROFESSIONAL CHOICE v. APPEL, et al.
Decision of the Court

request for $36,350, the Appels refused to sign and approve it because they
wanted Builder to account for “every penny” spent. The Bank inspected
and approved the draw request but did not release the funds because the
Appels still would not sign it.

¶7 Builder halted construction and asked the Appels to sign the
draw, pay the money owed to Builder and allow Builder to complete the
work. Builder had completed about 85 percent of the work, and both the
Bank and the Navajo County Building Department approved the home.
The Appels obtained a Certificate of Occupancy. But they refused to sign
the pending draw or pay Builder, and they hired another contractor to
finish the work.

This Lawsuit

¶8 Builder sued the Appels for breach of contract, seeking
$118,036.39 in damages, plus interest, fees and costs. In the complaint,
Builder alleged the Appels breached a contract “for a fixed price of $320,000
to finish construction of a residential home.” First in their answer, and then
in their amended answer, the Appels admitted they entered a fixed-price
contract for $320,000.

¶9 For a third time, the Appels admitted they entered a fixed-
price contract in response to Builder’s request for admissions during
discovery. The Appels later asked the court for permission to withdraw
and amend their answer to that request for admissions. The superior court
denied the “untimely” request, finding that Builder would suffer prejudice
and noting that the Appels’ answer already affirmed the entry into a fixed-
price contract. The Appels also stipulated that the contract was for a “fixed
price” in the parties’ amended joint pretrial statement.

¶10 After a three-day bench trial, the superior court awarded
Builder $108,648.14 in damages for breach of contract, along with
prejudgment interest, attorney fees and costs. The Appels unsuccessfully
moved for a new trial and now appeal. We have jurisdiction. See A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶11 On appeal from a bench trial, we review the superior court’s
legal conclusions de novo and defer to its findings of fact unless clearly
erroneous. Town of Marana v. Pima Cnty., 230 Ariz. 142, 152, ¶ 46 (App.
2012). We consider the evidence in the light most favorable to upholding
the court’s ruling, id., and affirm the judgment “if correct for any reason,”

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PROFESSIONAL CHOICE v. APPEL, et al.
Decision of the Court

FL Receivables Tr. 2002-A v. Ariz. Mills, L.L.C., 230 Ariz. 160, 166, ¶ 24 (App.
2012).

¶12 The Appels raise several arguments on appeal, and we reject
the ones the Appels fail to support. See State v. Carver, 160 Ariz. 167, 175
(1989) (“[O]pening briefs must present significant arguments, supported by
authority, setting forth an appellant’s position on the issues raised. Failure
to argue a claim usually constitutes abandonment and waiver of that
claim.”); see also ARCAP 13(a)(4).

¶13 The Appels first argue the superior court erroneously found
they entered into a “fixed-price contract” despite evidence to the contrary.
We reject that argument. The Appels admitted the Contract was for a fixed
price (1) in their initial answer to the complaint; (2) in their amended answer
to the complaint; (3) in their responses to Builder’s request for admissions;
(4) in their amended pretrial statement; and (5) during in-court testimony.
Those admissions are binding. See Schwartz v. Schwerin, 85 Ariz. 242, 249
(1959) (“[A]n admission in an answer is binding on the party making it, and
is conclusive as to the admitted fact.”); see also Aetna Cas. & Sur. Co. v. Dini, 169 Ariz. 555, 557 (App. 1991) (“The pretrial statement controls the
subsequent course of the litigation.”).

¶14 Still, the Appels insist the issue would not have been
conclusive had the court granted their motion to withdraw their admissions
to discovery questions. But even without those admissions, the Appels
were bound by their answer to the complaint and “[n]o evidence may be
shown to contradict [an] admitted fact.” Schwartz, 85 Ariz. at 249.

¶15 The Appels next challenge the amount of damages, insisting
the court failed to balance “[t]he weight of the evidence” when arriving at
its calculation. We review damage awards for abuse of discretion, Gonzales
v. Ariz. Pub. Serv. Co., 161 Ariz. 84, 90 (App. 1989), and find none here.

¶16 For starters, the Appels have not supplied this Court with
transcripts of all relevant proceedings in the superior court. ARCAP
11(c)(1)(B). We therefore presume the missing portions of the record
support the superior court’s judgment. Kohler v. Kohler, 211 Ariz. 106, 108,
¶ 8 n.1 (App. 2005). And the record has sufficient evidence to support the
court’s award. See Higgins v. Assmann Elecs., Inc., 217 Ariz. 289, 296, ¶ 23
(App. 2007) (“[Reviewing court] will not disturb the damages awarded
when there is evidence in the record to support [it].”).

¶17 The Appels challenge the superior court’s award of
prejudgment interest, too. We review that question of law de novo.

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PROFESSIONAL CHOICE v. APPEL, et al.
Decision of the Court

Sunland Dairy LLC v. Milky Way Dairy LLC, 251 Ariz. 64, 70, ¶ 26 (App. 2021).
“A claim is liquidated if the evidence furnishes data which, if believed,
makes it possible to compute the amount with exactness, without reliance
upon opinion or discretion.” Id. at 70, ¶ 27 (citation and internal quotation
marks omitted).

¶18 We discern no error. Here again, the Appels have not
supplied complete transcripts, so we presume they would support the
superior court’s ruling. Kohler, 211 Ariz. at 108, ¶ 8 n.1. And the record
supports the court’s finding of a certain amount.

CONCLUSION

¶19 We affirm. Builder requests its attorney fees and costs under
A.R.S. § 12-341 and -341.01, which we grant contingent upon Builder’s
compliance with ARCAP 21.

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

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