                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENTAND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                  TBF FINANCIAL, LLC, Plaintiff/Appellee,

                                        v.

        CHESTER and VANESSA DEVENS, Defendants/Appellants.

                             No. 1 CA-CV 13-0425
                               FILED 06-10-2014


           Appeal from the Superior Court in Maricopa County
                            CV2012-055106
           The Honorable Colleen L. French, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Law Office of Barbara Maroney, P.C., Cave Creek
By Barbara Maroney
Counsel for Plaintiff/Appellee

The Law Offices of J.D. Denny, PLLC, Tempe
By J. D. Denny
Counsel for Defendants/Appellants
                      TBF FINANCIAL v. DEVENS
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


B R O W N, Judge:

¶1           Chester and Vanessa Devens (“Appellants”) appeal the trial
court’s grant of summary judgment in favor of TBF Financial, LLC
(“TBF”). For the following reasons, we affirm.

                              BACKGROUND

¶2            In May 2009, Appellants entered into an agreement with Key
Equipment Finance (“KEF”) in which Appellants agreed to lease a semi-
trailer in exchange for payment to KEF of 36 monthly installments of
$1,411.43, plus applicable taxes “levied or assessed against the Lease,
Lessee or Lessor or the Equipment, its lease, sale, ownership, use or
operation.” In June, KEF sent Appellants their first payment notice for the
amount of $1,411.43, plus “sales/use tax” of $124.96 and “interim rent” of
$94.10. Appellants did not pay any amounts under the lease and thus the
trailer was repossessed and sold. The balance due under the lease after
the sale was $44,948.64.

¶3             In December 2011, KEF assigned its rights in the lease to
CCA Financial LLC, who subsequently entered into an asset purchase
agreement with TBF in August 2012. In October 2012, TBF filed a
complaint against Appellants for, among other claims, breach of contract.
Without counsel, Appellants filed an answer in which they admitted they
entered the lease and failed to make payments, but that nonpayment was
justified because KEF breached the lease by invoicing Appellants for
additional amounts than the agreed upon monthly payment of $1,411.43.
Appellants attached to their answer a letter they had sent to a
representative of KEF stating that they were not advised of the extra fees
involved in the lease of the trailer, nor were they to pay sales tax because
in Arizona “leases are not taxed.” TBF moved for summary judgment on
its breach of contract claim. Appellants filed a response generally denying




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                       TBF FINANCIAL v. DEVENS
                          Decision of the Court

the factual assertions made by TBF. After consideration, the trial court
summarily granted TBF’s motion. 1

¶4           Appellants filed a motion for reconsideration, arguing they
had no obligation to pay taxes on the lease because of Arizona’s “motor
carrier” tax exemption. 2      The court denied their motion for
reconsideration and entered judgment in favor of TBF in the amount of
$46,791.64, which included damages, attorneys’ fees, and costs. This
timely appeal followed.

                                DISCUSSION

¶5           Appellants argue that the trial court erred in granting
summary judgment because they did not agree to pay the sales tax
invoiced by the lessor.

¶6            Summary judgment is appropriate if there are no genuine
disputes of material fact and the moving party is entitled to judgment as a
matter of law. Ariz. R. Civ. P. 56(a). We review a grant of summary
judgment de novo, BMO Harris Bank N.A. v. Wildwood Creek Ranch, LLC,
234 Ariz. 100, 102, ¶ 7, 317 P.3d 641, 643 (App. 2014), and view the record
in a light most favorable to the party opposing summary judgment.
Maxwell v. Fid. Fin. Servs., Inc., 184 Ariz. 82, 85, 907 P.2d 51, 54 (1995).

¶7             When the party moving for summary judgment makes a
prima facie case showing that no genuine issue of material fact exists, the
burden shifts to the opposing party to produce sufficient competent
evidence to show that there is an issue. Nat'l Bank of Ariz. v. Thruston, 218
Ariz. 112, 115, ¶ 12, 180 P.3d 977, 980 (App. 2008). “It is well established
that, in an action based on breach of contract, the plaintiff has the burden
of proving the existence of a contract, breach of the contract, and resulting
damages.” Chartone, Inc. v. Bernini, 207 Ariz. 162, 170, 83 P.3d 1103, 1111



1     Although the signed judgment states that Appellants failed to
respond, the court’s prior minute entry specifically states that it reviewed
the motion, response, and reply.

2      Ariz. Rev. Stat. § 28-5860(A) provides that “[p]ayment of the motor
carrier fee by a motor carrier . . . exempts the motor carrier . . . from any
transaction privilege tax or any similar tax imposed by any taxing
authority within this state.”



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                       TBF FINANCIAL v. DEVENS
                          Decision of the Court

(App. 2004) (citing Thunderbird Metallurgical, Inc. v. Ariz. Testing Lab., 5
Ariz. App. 48, 423 P.2d 124 (1967)).

¶8           Rule 56 is clear as to the requirements for an opposing
party’s response:

      Any party filing a motion for summary judgment shall set
      forth, in a statement separate from the memorandum of law,
      the specific facts relied upon in support of the motion. The
      facts shall be stated in concise, numbered paragraphs. As to
      each fact, the statement shall refer to the specific portion of
      the record where the fact may be found. Any party opposing a
      motion for summary judgment shall file a statement in the form
      prescribed by this Rule, specifying those paragraphs in the moving
      party’s statement of facts which are disputed, and also setting forth
      those facts which establish a genuine issue of material fact or
      otherwise preclude summary judgment in favor of the moving
      party.

Ariz. R. Civ. P. 56(c) (emphasis added). As such, “an opposing party may
not rely merely on allegations or denials of its own pleading; rather, its
response must, by affidavits or as otherwise provided in this Rule, set
forth specific facts showing a genuine issue for trial. ”Ariz. R. Civ. P.
56(e)(4). “If the opposing party does not so respond, summary judgment,
if appropriate, shall be entered against that party.” Id.

¶9            Here, TBF provided an affidavit and corresponding
documents establishing that Appellants (1) signed a lease (later assigned
to TBF), (2) failed to make monthly payments under the lease, and (3)
failed to pay the balance due following repossession and sale of the semi-
trailer. As a result, TBF demonstrated a prima facie case for breach of
contract. The burden thus shifted to Appellants to produce evidence
showing a genuine dispute of material fact relating to the breach of
contract claim.

¶10            In their response to TBF’s motion, Appellants simply alleged
that the sales tax claimed by TBF was a material fact in dispute. No
documentation, much less any affidavits or discovery responses, was
included with the response. See Maxwell, 184 Ariz. at 86, 907 P.2d at 55
(explaining that an opposing party must support its opposition by
affidavits or by “depositions, answers to interrogatories, or admissions on
file”). Therefore, because the only controverting materials presented were
unsworn allegations, our review of the summary judgment is limited to



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                       TBF FINANCIAL v. DEVENS
                          Decision of the Court

the facts presented by TBF. See Tilley v. Delci, 220 Ariz. 233, 237, ¶ 11, 204
P.3d 1082, 1086 (App. 2009) (explaining that “an adverse party who fails to
respond does so at his peril because uncontroverted evidence favorable to
the movant, and from which only one inference can be drawn, will be
presumed to be true”).

¶11          Appellants argue nonetheless that in response to the motion
for summary judgment they asserted “through appropriate
memorandum” that the taxes imposed by TBF were not applicable to the
lease agreement. But their general, unsupported assertion was insufficient
to create any factual dispute. See Orme Sch. v. Reeves, 166 Ariz. 301, 309,
802 P.3d 1000, 1008 (1990) (holding that if a party with the burden of proof
on a defense to summary judgment cannot respond to a summary
judgment motion by showing that there is evidence creating a genuine
issue of fact then the motion should be granted). In light of the
uncontroverted evidence presented by TBF, the trial court properly
granted summary judgment.

¶12           TBF requests an award of attorneys’ fees incurred on appeal
pursuant to the terms of the lease, which provides for an award of
reasonable fees if collection proceedings are necessary. We “will enforce a
contractual provision for attorneys’ fees according to its terms.” Rand v.
Porsche Fin. Servs., 216 Ariz. 424, 435, ¶ 42, 167 P.3d 111, 122 (App. 2007).
We therefore award reasonable attorneys’ fees to TBF upon its compliance
with ARCAP 21.

                                CONCLUSION

¶13         For the reasons stated above, we affirm the trial court’s grant
of summary judgment in favor of TBF.




                                   :gsh



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