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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                      CHI NGUYEN, Plaintiff/Appellant,

                                        v.

              CATHY NGUYEN, et al., Defendants/Appellees.

                             No. 1 CA-CV 16-0158
                               FILED 1-31-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-010172
                 The Honorable Jo Lynn Gentry, Judge

   AFFIRMED IN PART; REVERSED AND REMANDED IN PART


                                   COUNSEL

Robert F. Gehrke, Attorney at Law, Phoenix
By Robert F. Gehrke
Counsel for Plaintiff/Appellant

Collinsworth, Specht, Calkins & Giampaoli, LLP, Phoenix
By Mark T. Collinsworth, Ryan P. Swartz
Counsel for Defendants/Appellees
                        NGUYEN v. NGUYEN, et al.
                          Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge John C. Gemmill joined.1


J O H N S E N, Judge:

¶1             Chi Nguyen ("Plaintiff") appeals from entry of summary
judgment in favor of Cathy Nguyen ("Cathy") and Loananh Nguyen
("Loananh") on his claims for breach of contract and unjust enrichment.
Because a question of fact exists as to whether Plaintiff and Cathy entered
into an oral contract, we reverse summary judgment in favor of Cathy on
this claim only. Otherwise, we affirm the summary judgment dismissing
Plaintiff's unjust enrichment claims and breach of contract claim against
Loananh for the reasons stated below.

             FACTS AND PROCEDURAL BACKGROUND

¶2             In reviewing the grant of summary judgment, "we view the
facts and evidence in a light most favorable to the party against whom
summary judgment was granted and draw all reasonable inferences in
favor of that party." AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291,
293 (App. 1993). Applying this standard, the record shows Loananh,
Cathy's sister-in-law, purchased a house in June 2012. According to
Plaintiff, Cathy told him that she paid for the house, but to remain
financially eligible for disability benefits, she put the deed in Loananh's
name. At that time, Plaintiff and Cathy were in a relationship and soon
thereafter moved into the house.

¶3          Plaintiff alleged that he loaned Cathy $40,000 to $50,000 to
make improvements on the house and Cathy has not repaid him as
promised.2 Plaintiff admitted Loananh did not know of or consent to the


1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2       In his complaint, Plaintiff alleged the amount was $50,000; in his
response to defendants' motion for summary judgment, he said the amount
was approximately $40,000. The difference is not material to the outcome
of this appeal.


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                        NGUYEN v. NGUYEN, et al.
                          Decision of the Court

improvements until they were complete. Plaintiff and Cathy broke up in
July 2013.

¶4            Plaintiff sued, alleging breach of contract and unjust
enrichment against Cathy and Loananh. Defendants moved for summary
judgment, arguing there was no enforceable contract and that Plaintiff
voluntarily paid for the improvements because of his relationship with
Cathy and without Loananh's knowledge or consent. The trial court
granted summary judgment in favor of Loananh, holding the
improvements were done without her consent or knowledge. The court
also found Plaintiff had no contract with Cathy and that she was not
unjustly enriched by the improvements because she was not the
homeowner. After an unsuccessful motion for reconsideration, Plaintiff
filed a timely notice of appeal. We have jurisdiction pursuant to Arizona
Revised Statutes ("A.R.S.") section 12-2101(A)(1) (2017).3

                               DISCUSSION

¶5            We review the superior court's grant of summary judgment
de novo, affirming if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. See Ariz. R. Civ. P.
56(c); Orme School v. Reeves, 166 Ariz. 301, 305 (1990).4

A.     Oral Contract.

¶6            Although Plaintiff's verified complaint alleged Loananh was
"advised" of Plaintiff's alleged loan to Cathy for home improvements and
that it needed to be repaid, Plaintiff admitted under oath that Loananh did
not agree to pay for the improvements. That concession is fatal to his
contract claim against Loananh. Nor does Plaintiff's allegation that
Loananh accepted the improvements establish an oral agreement to repay
him for them.

¶7           Plaintiff argues, however, that Cathy had apparent authority
to bind Loananh, as principal, because Cathy told him she was the true
owner of the home. But apparent authority is created when a principal's
conduct leads a third party to reasonably believe she has authorized the

3     Absent material revision after the relevant date, we cite a statute's
current version.

4     Although Rule 56 was amended after the relevant date, the revisions
are immaterial to the disposition of this appeal. Therefore, we cite the rule's
current version.


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                         NGUYEN v. NGUYEN, et al.
                           Decision of the Court

agent to act. See Miller v. Mason-McDuffie Co. of S. Cal., 153 Ariz. 585, 589
(1987). Plaintiff had no communication with Loananh until after the
improvements were completed and has not identified any conduct by
Loananh that suggested Loananh authorized Cathy to bind her to an oral
agreement. "Apparent authority can never be derived from the acts of the
agent alone." Reed v. Gershweir, 160 Ariz. 203, 205 (App. 1989); see also
Anchor Equities, Ltd. v. Joya, 160 Ariz. 463, 466-67 (App. 1989).

¶8            In support of his contract claim against Cathy, Plaintiff did
provide some evidence that Cathy agreed to repay him for the
improvements. Plaintiff's verified complaint stated Cathy agreed to repay
him, and at his deposition, Plaintiff testified to the same effect. Defendants
argue Plaintiff's deposition testimony that he decided to make the
improvements because he planned to marry Cathy contradicted his
allegation that Cathy agreed to repay him. The deposition testimony
defendants cite, however, does not necessarily disprove Plaintiff's
contention that Cathy agreed to repay him for the home improvements.

¶9             Defendants argue Plaintiff failed to provide a sworn affidavit
in response to the summary judgment motion as required by Arizona Rule
of Civil Procedure 56(e).5 A moving party, however, is not entitled to
summary judgment merely because the opposing party failed to file an
affidavit in response. Cullison v. City of Peoria, 120 Ariz. 165, 167, n.1 (1978).
In ruling on the motion, the court must consider not only affidavits, but also
any verified pleadings, depositions, interrogatory responses, and
admissions that are brought to its attention. Cullison, 120 Ariz. at 167, n.1;
see also Nemec v. Rollo, 114 Ariz. 589, 592 (1977); Tilley v. Delci, 220 Ariz. 233,
236, ¶ 10 (App. 2009).

¶10          Plaintiff's verified complaint and his deposition testimony
were sufficient to create a question of fact as to the existence of an oral


5      Rule 56(e) states:

       When a summary judgment motion is made and supported
       as provided in the rule, an opposing party may not rely
       merely on allegations or denials of its own pleading. The
       opposing party must, by affidavits or as otherwise provided
       in this rule, set forth specific facts showing a genuine issue for
       trial. If the opposing party does not so respond, summary
       judgment, if appropriate, shall be entered against that party.




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                        NGUYEN v. NGUYEN, et al.
                          Decision of the Court

agreement by Cathy. In light of this evidence, the question of whether a
contract existed requires a determination of witness credibility. Credibility
determinations are inappropriate for resolution by way of summary
judgment. See Braillard v. Maricopa County, 224 Ariz. 481, 489, ¶ 19 (App.
2010).6

¶11           Defendants also contend that even if Cathy agreed to
reimburse Plaintiff, Plaintiff failed to establish the material terms of the
contract. Defendants, however, did not present this argument to the
superior court in their motion for summary judgment. We generally do not
consider issues raised for the first time on appeal, and will not do so here.
See Romero v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 6 (App. 2005).

B.     Unjust Enrichment.

¶12           Plaintiff argues that absent a contract, he is entitled to recover
under the equitable theory of unjust enrichment.7 "[U]njust enrichment
provides a remedy when a party has received a benefit at another's expense
and, in good conscience, the benefitted party should compensate the other."
Wang Elec., Inc. v. Smoke Tree Resort, L.L.C., 230 Ariz. 314, 318, ¶ 10 (App.
2012) (quoting Murdock-Bryant Constr., Inc. v. Pearson, 146 Ariz. 48, 53
(1985)).8




6       Because the verified complaint and deposition testimony are
sufficient to create a question of material fact, we need not address the
admissibility of the email that was translated from Vietnamese to English.
Further, the voice mail Plaintiff cites was not included in the record on
appeal; therefore, we do not address it.

7      Unjust enrichment is equivalent to the common-law cause of action
called quantum meruit. Murdock-Bryant Constr., Inc. v. Pearson, 146 Ariz. 48,
52 (1985). Both allow restitution based on the principle that "[a] person who
has been unjustly enriched at the expense of another is required to make
restitution to the other." Id. at 53 (quoting Restatement (First) of Restitution
§ 1 (1937)).

8     "An unjust enrichment claim requires proof of five elements: (1) an
enrichment, (2) an impoverishment, (3) a connection between the
enrichment and impoverishment, (4) the absence of justification for the
enrichment and impoverishment, and (5) the absence of a remedy provided
by law." Wang, 230 Ariz. at 318, ¶ 10.


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                       NGUYEN v. NGUYEN, et al.
                         Decision of the Court

¶13          Plaintiff argues the owner of the home benefitted from the
improvements he paid for and because there was a dispute as to who
owned the home, summary judgment was improper. Although Plaintiff
alleged that Cathy was the actual homeowner, he did not provide any
competent evidence to support this allegation. The deed showed Loananh
was the homeowner. Plaintiff testified that Cathy told him she paid for the
home and Loananh merely held the title. Plaintiff did not establish that he
had actual knowledge that Cathy paid for the house, or that if she did, she
did not convey it to Loananh. Thus, he failed to provide evidence that
would create a question of fact as to Cathy's ownership interest and,
therefore, whether she may be liable for unjust enrichment.

¶14           Loananh argues Plaintiff is not entitled to recover from her
under unjust enrichment because, as he admitted, he made the
improvements without her prior notice or approval. Unjust enrichment
requires that the enrichment be unjust. Wang, 230 Ariz. at 318, ¶ 10; see also
Blue Ridge Sewer Improvement Dist. v. Lowry & Assoc., Inc., 149 Ariz. 373, 376
(App. 1986). "Generally, one who performs work which he was not asked
to do cannot reap the benefits of quantum meruit." Blue Ridge, 149 Ariz. at
376. It is not unjust for the owner to retain the benefit when the plaintiff
voluntarily performed the improvements. Id.

¶15          Contrary to Plaintiff's contention, the fact that Cathy agreed
to repay Plaintiff for the improvements does not render Loananh liable
under a theory of unjust enrichment. An owner is not liable for
improvements the tenant agreed to but did not pay for "merely because
[she] owned the property and the contractor was treated unfairly by the
tenant." Wang, 230 Ariz. at 319-20, ¶¶ 14-15 (adopting this holding from
DCB Constr. Co. v. Central City Dev. Co., 965 P.2d 115, 121 (Colo. 1998)).

¶16          As a matter of law, Plaintiff is not entitled to recover under
unjust enrichment. We affirm the entry of summary judgment as to both
defendants on the unjust enrichment claim.

C.     Attorney's Fees and Costs on Appeal.

¶17           Plaintiff and both defendants request attorney's fees and costs
on appeal pursuant to A.R.S. §§ 12-341 (2017), 12-341.01 (2017) and 12-349
(2017). Costs on appeal are awarded to the successful party pursuant to
A.R.S. § 12-342 (2017). We award Loananh her costs and attorney's fees on
appeal. Given that Cathy's appeal was only partially successful, we decline
to award costs and fees to either side on Plaintiff's claims against her. The




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                     NGUYEN v. NGUYEN, et al.
                       Decision of the Court

superior court may consider awarding those fees at the conclusion of the
case.9

                             CONCLUSION

¶18         We reverse the entry of summary judgment in favor of Cathy
Nguyen on the breach of contract claim. We affirm the entry of summary
judgment on all other claims.




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




9     None of the claims or defenses constituted an unjustified action
supporting an award of attorney's fees pursuant to A.R.S. § 12-349.


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