                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


   SOUTHWEST FARM SERVICES, LTD. PARTNERSHIP, an Arizona
              limited partnership Plaintiff/Appellee,

                                          v.

 ROBERT BURNS and JEANNE BURNS, husband and wife dba ROBERT
         BURNS ARCHITECTS, INC., Defendants/Appellants.

                              No. 1 CA-CV 12-0808
                               FILED 3-27-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2010-092562
                 The Honorable Emmet J. Ronan, Judge

                                    AFFIRMED


                                    COUNSEL

Grant & Vaughn, P.C., Phoenix
By Kenneth B. Vaughn, Sharon R. Sprague
Counsel for Plaintiff/Appellee

Jeffrey M. Zurbriggen, P.C., Phoenix
By Jeffrey M. Zurbriggen
Counsel for Defendants/Appellants
                          SOUTHWEST v. BURNS
                           Decision of the Court



                     MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.


W I N T H R O P, Judge:

¶1             Robert and Jeanne Burns, doing business as Robert Burns
Architects, Incorporated, appeal from a judgment and award of attorneys’
fees in favor of Southwest Farm Services, Limited Partnership on a breach
of contract claim. For the reasons stated below, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2           Southwest       Farm      Services,   Limited     Partnership
(“Southwest”) is a hay brokering business. In August 2006, Southwest
contracted with Robert Burns Architects, Incorporated, 1 for the
development of a preliminary project site plan to develop property owned
by Southwest and intended for business operations (the “Preliminary Site
Plan Contract”). The price of services in the Preliminary Site Plan
Contract was $5,600. In October 2006, Southwest contracted with Burns to
provide more comprehensive architectural and engineering services
related to the construction of buildings (the “Construction Design
Contract”). In this contract, Southwest hired Burns to design and provide
construction documents and engineering services for several buildings, a
gate entry, and walls on the property. The price of services in the
Construction Design Contract was $182,950, payable in six payments
pursuant to a schedule set forth in the contract.

¶3          Southwest paid Burns $165,970.51 through June 2009. This
included approximately $5,600 Southwest paid Burns on the Preliminary
Site Plan Contract prior to signing the Construction Design Contract.
Although Burns furnished preliminary site plans and later revised those


1      Robert Burns entered the contract doing business as Robert Burns
Architects, Inc. Southwest later learned the corporation had been
dissolved in 2002 and filed an amended complaint alleging that Robert
Burns and the marital community were personally liable for the breach of
contract. We refer to the defendants collectively as “Burns.”



                                    2
                        SOUTHWEST v. BURNS
                         Decision of the Court

site plans, Burns never delivered to Southwest final, signed, and sealed
construction documents under the Construction Design Contract. Robert
Burns testified that he would have delivered signed and sealed documents
upon receipt of the final payment, which never occurred.

¶4           In October 2009, Southwest notified Burns that it considered
Burns to be in material breach and demanded delivery of final
construction documents in exchange for payment of the $10,959.49 balance
due on the contract or a refund of the money Southwest paid Burns.
Burns did not respond. Southwest made a second identical demand in
March 2010, to which Burns also did not respond.

¶5            Southwest then filed a complaint for breach of contract.
Burns answered and counterclaimed for breach of contract, bad faith, and
unjust enrichment. At a one-day bench trial, the trial court received
evidence of Burns’ invoices to Southwest and payment from Southwest to
Burns. The court also heard testimony from Michael Perez, Southwest’s
limited partner and manager, and Robert Burns. The trial court ruled that
final payment to Burns on the Construction Design Contract was not due
until there was “100% completion of the construction documents and
submitt[al] to Maricopa County and approval of the building permit by
Maricopa County.” The trial court found that no final, signed, and sealed
plans had been submitted and there was no approved building permit.
The trial court concluded that Southwest did not breach the Construction
Design Contract because the final payment was not yet due. The court
rejected Burns’ claim that its nonperformance was justified as well as
Burns’ claim for unjust enrichment on the Construction Design Contract,
finding that Southwest could no longer use the work performed by Burns.
However, the trial court implicitly found that Burns had completed the
Preliminary Site Plan Contract by reducing Southwest’s claimed damages
by the value paid for services under that contract.

¶6             The court awarded Southwest a judgment of $160,330.85,
$65,467.70 in prejudgment interest, and $48,431.90 in attorneys’ fees.
Burns filed a timely notice of appeal. We have appellate jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1)
(West 2014). 2



2      We cite the current Westlaw version of the applicable statutes and
rules unless revisions material to this decision have since occurred.




                                   3
                         SOUTHWEST v. BURNS
                          Decision of the Court

                               DISCUSSION

       I.     Breach of Contract

¶7            Burns argues the trial court erred when it concluded that
Burns breached the Construction Design Contract by failing to submit
final plans to Maricopa County and by failing to obtain an approved
building permit. 3 Interpretation of a contract is a question of law to be
decided de novo. Polk v. Koerner, 111 Ariz. 493, 495, 533 P.2d 660, 662
(1975). On appeal, we view the evidence in the light most favorable to
supporting the judgment and will accept the trial court’s findings of fact
absent clear error. Id. at 494, 533 P.2d at 661.

¶8             Arizona courts strive to enforce contracts according to the
parties’ intent. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 152,
854 P.2d 1134, 1138 (1993). “In ascertaining the parties’ intent, the court
will look to the plain meaning of the words as viewed in the context of the
contract as a whole.” United Cal. Bank v. Prudential Ins. Co. of America, 140
Ariz. 238, 259, 681 P.2d 390, 411 (App. 1983).

¶9            Burns contends that the scope of work detailed in the
Construction Design Contract did not require it to submit final plans to
Maricopa County or obtain an approved building permit. The contract’s
compensation and payment schedule, however, states that Southwest
shall make its fifth payment “[u]pon 100% completion of the construction
documents and Submittal to Maricopa County” and the final payment
“[u]pon approval of the building permit by Maricopa County.” Burns
contends that these provisions only triggered payments and did not
require Burns to submit final plans or obtain a building permit. Our
adoption of Burns’ interpretation of the scope of work language contained
within the contract would render the language in the compensation and
payment schedule meaningless. The payments are dependent upon Burns
completing the items listed in the schedule. If Burns was not obligated to
provide these services, this language would be superfluous.

¶10           Burns also argues it was not obligated to submit final plans
or obtain a building permit because the parties had orally modified the
Construction Design Contract and a valid novation occurred. The contract
required that all requests for changes to the contract “shall be in writing,”


3    It is undisputed that Burns never delivered final construction
documents or a building permit approved by Maricopa County.



                                      4
                          SOUTHWEST v. BURNS
                           Decision of the Court

and Burns admitted there was no written modification of the contract.
Likewise, there was no evidence of any other agreement between the
parties supporting any claim for novation. Thus, these arguments fail.

¶11            Burns also contends the parties extended his time to perform
under the Construction Design Contract when Southwest asked Burns to
obtain an agriculture exemption for the property. However, Southwest’s
Perez testified the property had the agriculture exemption when he
purchased it in 2004. Although Burns testified to the contrary, the trial
court explicitly rejected Burns’ testimony as not credible, accepting
instead Perez’s testimony that the property always had an agriculture
exemption. We defer to the judgment of the trial court on this matter. See
Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12, 9 P.3d
314, 318 (2000) (citations omitted) (stating the “credibility of a witness’
testimony and the weight it should be given are issues particularly within
the province of the” finder of fact). 4

¶12         For these reasons, we affirm the trial court’s conclusion that
Burns breached the contract.

       II.    Burns’ Waiver Defense

¶13           On appeal, Burns argues Southwest’s conduct waived any
obligation Burns had to provide final, signed, and sealed documents,
because Southwest paid Burns in full through June 2009, purposefully
delayed the project due to the bad economy, and actually used the
construction design plans for the current buildings ultimately constructed
on the subject property after Burns was discharged from the project.
Under Arizona Rule of Civil Procedure 8(c), “In pleading to a preceding
pleading, a party shall set forth affirmatively . . . waiver[] and any other
matter constituting an avoidance or affirmative defense.” Having failed to
plead this defense in its answer or specifically allege a waiver within its


4      It is unclear from the briefing whether Burns is really contending
that its efforts helped Southwest preserve the existing agriculture
exemption. However, this alternate reading of Burns’ confusing argument
is not material to our evaluation. The uncontested facts are: (1)
Southwest made repeated demands on Burns to provide final, sealed
plans under the Construction Design Contract, (2) these demands were
ignored, and (3) no such plans were ever provided. As a result, the
evidence at trial more than supports the verdict and judgment as to
breach.



                                       5
                          SOUTHWEST v. BURNS
                           Decision of the Court

counterclaim, Burns is precluded from raising the defense of waiver on
appeal. See Parks v. Am. Cas. Co. of Reading, Pa., 117 Ariz. 339, 342, 572 P.2d
801, 804 (1977), disapproved on other grounds in Darner Motor Sales, Inc. v.
Universal Underwriters Ins. Co., 140 Ariz. 383, 387-88, 682 P.2d 388, 392-93
(1984). We therefore decline to reach the merits of Burns’ waiver defense.

       III.   Burns’ Counterclaim for Unjust Enrichment

¶14           Burns counterclaimed asserting unjust enrichment, arguing
that it was entitled to compensation for the services it provided prior to
any breach.

       Unjust enrichment occurs when one party has and retains
       money or benefits that in justice and equity belong to
       another. . . . To recover on a claim for unjust enrichment, a
       claimant must show (1) an enrichment, (2) an
       impoverishment, (3) a connection between the two, (4) the
       absence of justification for the enrichment and
       impoverishment and (5) the absence of any remedy at law.

Loiselle v. Cosas Mgmt. Grp., LLC, 224 Ariz. 207, 210, ¶ 9, 228 P.3d 943, 946
(App. 2010) (quotations and citations omitted).

¶15            Citing Trustmark Ins. Co. v. Bank One, Ariz. NA, 202 Ariz. 535,
542, ¶ 34, 48 P.3d 485, 492 (App. 2002), Southwest contends that Burns
cannot pursue a counterclaim for unjust enrichment because the doctrine
of unjust enrichment is not available where there is a specific contract
governing the parties. However, we find the immediate case consonant
with Adelman v. Christy, 90 F. Supp. 2d 1034 (D. Ariz. 2000) where the
litigant asserted unjust enrichment as an alternative theory of recovery in
the event it was deemed the breaching party. See Adelman, 90 F. Supp. 2d
at 1045. Thus, we will consider the trial court’s denial of Burns’ unjust
enrichment counterclaim.

¶16           The trial court found Southwest did not receive any benefit
from the work Burns performed on the Construction Design Contract
because that work was of no use to Southwest without the final, signed,
and sealed documents. On appeal, we view the evidence in the light most
favorable to supporting the judgment and will accept the trial court’s
findings of fact absent clear error. Polk, 111 Ariz. at 494, 533 P.2d at 661.

¶17          The record supports the trial court’s finding that Southwest
did not receive any benefit from the work Burns performed on the
Construction Design Contract. Contrary to Burns’ assertion, the record


                                      6
                         SOUTHWEST v. BURNS
                          Decision of the Court

does not demonstrate Burns obtained the property’s agriculture
exemption. Burns did not provide Southwest with a set of final plans that
could be used to obtain bids from contractors and financing from lenders;
even at trial, Burns failed to offer final plans into evidence. Therefore, the
work Burns may have done on the Construction Design Contract did not
benefit Southwest, and Burns’ reliance on Cracchiolo v. Carlucci, 62 Ariz.
284, 157 P.2d 352 (1945), is misplaced.

¶18           Burns also argues Southwest received a benefit from
“grading and drainage” plans from Burns. Although the Construction
Design Contract included a $55,600 professional fee for “civil engineering
for grading and drainage analysis,” the record does not demonstrate
whether Burns provided that service. Perez testified that Southwest had
to hire its own contractor to draw up a grading and drainage plan because
Burns failed to provide one. Perez also testified that Southwest told Burns
the amount “of dirt that needed to be moved and where, and all he did
was put it on his paper and send it to the county and got it approved.”
Because the trial court was in the best position to determine the weight of
the evidence and the credibility of the witnesses, see Estate of Reinen, 198
Ariz. at 287, ¶ 12, 9 P.3d at 318, we conclude the trial court did not err in
denying Burns’ counterclaim for unjust enrichment related to grading and
drainage plans under the Construction Design Contract.

¶19          Burns also argues that Southwest relied on Burns’ site plans
pursuant to the Preliminary Site Plans Contract for the layout of its
current operations. The record demonstrates Burns provided Southwest
with preliminary site plans. Burns then revised the site plans twice at
Southwest’s request because the site plans as originally drafted were
inconsistent with and would not preserve the preexisting agriculture
exemption. In mid-October 2007, the revised site plans were accepted by
the County. As such, Burns did provide Southwest with approved site
plans for which Southwest paid $5,639.66 under the Preliminary Site Plan
Contract. Because Burns had provided a discernible benefit to Southwest
and was entitled to retain the $5,639.66 paid for these services, the trial
court apparently did not include that amount in the $160,330.85 judgment
against Burns.

¶20           Burns appears to argue that a May 2008 invoice for
$27,791.68 is evidence of the value of Burns’ work on the revised site
plans, because the invoice refers to a bill from November 2007
immediately after Burns completed that work. Although Burns had the
burden of proof on a claim of unjust enrichment, Burns did not offer the
November 2007 bill in evidence. See e.g., Loiselle, 224 Ariz. at 210, ¶ 9, 228


                                      7
                         SOUTHWEST v. BURNS
                          Decision of the Court

P.3d at 946 (App. 2010) (emphasis added) (“To recover on a claim for
unjust enrichment, a claimant must show . . . (1) an enrichment [and] (2) an
impoverishment . . . .” (quotations and citations omitted)).

¶21           The missing November 2007 bill presents two problems for
Burns’ claim of unjust enrichment. First, because only two items on the
May 2008 invoice reference the November 2007 bill, it is unclear from the
record whether the entire May 2008 invoice includes the value of the site
plan revision related to the Preliminary Site Plan Contract or whether the
invoice includes civil engineering services related to the Construction
Design Contract. Because the trial court specifically found that Southwest
received no value from the Construction Design Contract, Burns does not
have a viable claim of unjust enrichment on any portion of the invoice
related only to that contract.

¶22           Second, although there are two items on the May 2008
invoice that reference the missing November 2007 bill and total $2,940.49,
without the November 2007 bill in evidence Burns cannot show these
items are for revision of the site plans. On this record, we therefore
conclude that the trial court did not err by finding that Burns was
adequately paid for services rendered pursuant to the Preliminary Site
Plan Contract.

      IV.    Community Liability

¶23           While Jeanne Burns appeared as a party, Burns contends the
judgment against the marital community’s property is erroneous because
there was no evidence regarding the relationship between the corporation
and the marital community. Burns admits that Robert and Jeanne are
married and that Robert Burns Architects, Inc. was dissolved in 2002.
Neither spouse objected to the entry of judgment against both defendants.
Therefore, we will not consider this argument for the first time on appeal.
See Englert v. Carondelet Health Network, 199 Ariz. 21, 26-27, ¶ 13, 13 P.3d
763, 768-69 (App. 2000) (issues not raised below are not generally
considered on appeal).

      V.     Southwest’s Failure to Mitigate Damages

¶24           Burns argues that the trial court erred by failing to address
the issue of damage mitigation. “[W]hether the injured party violated his
duty to mitigate damages is a question of fact for the trier of fact, when
there is conflicting evidence on the question.” Fairway Builders, Inc. v.
Malouf Towers Rental Co., Inc., 124 Ariz. 242, 256, 603 P.2d 513, 527 (App.
1979) (citations omitted). Burns argues Southwest had the burden to


                                     8
                          SOUTHWEST v. BURNS
                           Decision of the Court

mitigate damages. However, as the party in breach, Burns has the burden
of showing that “mitigation was reasonably possible, but was not
reasonably attempted.” N. Ariz. Gas Serv., Inc. v. Petrolane Transp., Inc., 145
Ariz. 467, 477, 702 P.2d 696, 706 (App. 1984) (citation omitted).

¶25           As a threshold matter, Southwest argues Burns waived this
issue by not including mitigation in the joint pretrial statement or closing
arguments. However, Burns raised mitigation as an affirmative defense in
its answer. Burns also questioned Perez about Southwest’s ability to
obtain financing, and Burns testified that the location of the improvements
on Southwest’s property followed his site plans. Thus, Burns sufficiently
raised the mitigation issue at trial, and we do not find waiver.

¶26            Burns suggests that Southwest failed to mitigate damages by
not applying for financing after 2006 and by using the site plans. No
request for written findings of fact or conclusions of law was made upon
the trial court pursuant to Arizona Rule of Civil Procedure 52(a).
Therefore, on appeal, this court “must presume that the trial court found
every fact necessary to support the judgment.” Berryhill v. Moore, 180
Ariz. 77, 82, 881 P.2d 1182, 1187 (App. 1994). Perez testified he could not
apply for a loan without final, signed, and sealed plans that would allow
him to obtain a bid from a contractor. This testimony supports the
implicit conclusion that Southwest did not fail to mitigate damages by not
applying for a loan. Also, as discussed above, Southwest paid Burns for
its work on the site plans, thereby mitigating Southwest’s damages and
any compensable injury attributable to Burns related to its work on the
site plans.

       VI.    Attorneys’ Fee Awards

¶27          Burns argues the trial court erred in awarding attorneys’ fees
to Southwest as there was no basis in fact or law for the award. Burns’
argument is premised upon its position that Southwest breached the
contract. Having affirmed that Burns, not Southwest, was the breaching
party, we also affirm the award of attorneys’ fees to Southwest pursuant
to A.R.S. § 12-341.01(A), which authorizes an award of fees to the
successful party in a contract action.

¶28          We also reject Burns’ argument that the award was
erroneous because the trial court failed to make sufficient findings of fact.
Southwest requested fees pursuant to A.R.S. § 12-341.01, which does not
require written findings of fact supporting the award, only that the
underlying matter arise out of a contract. The parties did not request



                                      9
                         SOUTHWEST v. BURNS
                          Decision of the Court

written findings of fact or conclusions of law pursuant to Arizona Rule of
Civil Procedure 52. Therefore, the trial court did not err in failing to make
detailed findings of fact in support of its award of attorneys’ fees to
Southwest.

¶29          Both parties request an award of attorneys’ fees on appeal.
Southwest was the successful party on appeal in this action arising out of
a contract. Therefore, we award Southwest its reasonable attorneys’ fees
and costs upon compliance with ARCAP 21(a). See A.R.S §§ 12-341.01(A)
and 12-342(A) (authorizing an award of costs on appeal to prevailing
party).

                              CONCLUSION

¶30            We affirm the judgment in favor of Southwest on its breach
of contract claim and the rejection of Burns’ counterclaims. We also affirm
the award of attorneys’ fees to Southwest and award Southwest its
reasonable attorneys’ fees and costs on appeal upon compliance with
ARCAP 21(a).




                                  :MJT




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