BELLINFANTE V. FALCONER
| Decision Date | 23 June 2010 |
| Docket Number | 2 CA-CV 2009-0187,No. CV200800576,CV200800576 |
| Parties | RICHARD BELLINFANTE,Plaintiff/Appellant, v. MARTHA FALCONER,Defendant/Appellee. |
| Court | Arizona Court of Appeals |
Law Offices of Dennis A. Rosen By Dennis A. Rosen and Gayle D. Reay Attorneys for Plaintiff/Appellant
Borowiec, Borowiec & Russell, P.C. By Joel P. Borowiec Attorneys for Defendant/Appellee
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
¶1Appellant Richard Bellinfante appeals from the trial court's entry of judgment in favor of appellee Martha Falconer and from its denial of his motion to amend the complaint and motion for a new trial. Bellinfante argues the court erred when it granted summary judgment, finding he had raised no genuine issue of material fact that Falconer had entered into an enforceable agreement to share her property with him. He also argues summary judgment was granted improperly on Falconer's counterclaim for wrongful lien because there were questions of material fact about his intent. Finally, Bellinfante argues the court erred in awarding attorney fees to Falconer under the wrongful lien statute based on an affidavit in support of fees that covered the entire litigation and because Falconer failed to file the counterclaim in the appropriate form.1
¶ When reviewing the grant of summary judgment, we view the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Andrews v. Blake, 205 Ariz. 236, ¶ 12, 69 P.3d 7, 11 (2003). Bellinfante and Falconer began living together in 1992. At that time, Bellinfante alleges, they verbally agreed that any property they acquired after that point would be held jointly and "treated as community property, the same as if they were married." In 2002, the couple moved into a home that Falconer had purchased in her own name. Bellinfante contends they had "agreed to purchase and improve the... property for their joint benefit and to share equally in all profits and accumulations." Bellinfante's contributions to the homethereafter included "rent, building on the property, improvements to the house, landscaping, mortgage payments and paying for other household bills." When the parties terminated their relationship in early 2008, Bellinfante asked Falconer for half the fair market value of the home. After Falconer refused to compensate him in this manner, Bellinfante filed a complaint against her, asking the court for his equitable share in the property.
¶ After the denial of her motion to dismiss the complaint, 2 Falconer filed an answer that included counterclaims for wrongful lien, fraud, and conversion. She alleged Bellinfante had filed a false mechanic's lien on the real property and had taken items of her personal property when he had moved out of the home. Falconer then filed a motion for summary judgment. She contended there was no genuine issue of material fact as to whether the alleged oral agreement violated the statute of frauds and, in any event, Bellinfante had no legal interest in the home but merely "contribute[d] toward the household bills... because he lived there and ran his business from there." She also contended no issue of material fact existed on the wrongful lien claim "because [Bellinfante] was not a licensed contractor at the time he performed the work, he did not comply with the statutes governing recording a mechanic's lien and he did not have a judgment or order authorizing him to file said lien." Bellinfante opposed summary judgment, relying on Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984), to support hisargument that Falconer had entered into an enforceable agreement. He also emphasized the money and time he had spent on improvements to the property and attached an itemized list of expenditures to his sworn affidavit. He did not, however, dispute Falconer's argument that she was entitled to summary judgment on her wrongful lien claim.
¶ In Falconer's reply to Bellinfante's opposition to the motion, she alleged for the first time that Bellinfante was married to another woman at the time Bellinfante claims they had entered into the agreement and that he had purchased a truck from Falconer in 2005. Falconer argued this supported her contention that they had not entered into a valid agreement to share real and personal property. After a hearing, the trial court granted Falconer's motion on the wrongful lien claim and, as to the alleged agreement, it found, primarily based on Bellinfante's marriage, "a failure of consideration and also... that the agreement would be so contrary to public policy that it is unenforceable, in any event."
¶ After substituting his former counsel with a new attorney, Bellinfante filed a motion for new trial, arguing there existed genuine issues of material fact that precluded summary judgment. The trial court denied Bellinfante's motion and, after dismissing Falconer's claims for fraud and conversion with prejudice, entered final judgment in favor of Falconer. As part of the final judgment, Falconer was awarded costs of $141 and attorney fees of $12,645. This timely appeal followed.
¶ Bellinfante argues the trial court erred when it granted Falconer's motion for summary judgment on her counterclaim for wrongful lien and on his implied contract claim.3 Under Rule 56(c)(1), Ariz. R. Civ. P., a party is entitled to summary judgment when "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law." We review de novo whether the party opposing summary judgment has raised issues of genuine material fact and whether the trial court properly applied the law. Wilshire Ins. Co. v. S.A., 224 Ariz. 97, ¶ 4, 227 P.3d 504, 505 (App. 2010). We will affirm a trial court's grant of summary judgment if it is correct for any reason. City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, ¶ 14, 32 P.3d 31, 36 (App. 2001).
¶ Bellinfante argues he raised a genuine issue of material fact that he and Falconer had entered into an implied contract to pool their resources and share in the proceeds of their accumulations based on Cook. He also argues the trial court erred when it granted summary judgment on the ground that recognition of the alleged agreement would violate public policy. Falconer counters that Bellinfante's action to enforce animplied oral agreement for an interest in real estate is barred by the statute of frauds. See A.R.S. § 44-101(6). Because we agree that Bellinfante presented insufficient material facts to show part performance of an implied agreement and thereby overcome Falconer's assertion that his action on it was barred by the statute of frauds, we affirm the court's grant of summary judgment on this basis.4
¶ In Arizona, "[t]he statute of frauds is by its terms absolute, providing that '[n]o action' can be brought on oral contracts for the conveyance of land." Owens v. M.E. Schepp Ltd. P'ship, 218 Ariz. 222, ¶ 14, 182 P.3d 664, 667 (2008), quoting § 44-101(6) (second alteration in Owens). On its face, Bellinfante's complaint brings an action seeking an interest in Falconer's real property based on an alleged oral agreement between him and Falconer.5 Bellinfante does not maintain the agreement was ever reduced to writing.
¶ Although acts of "part performance" that demonstrate reliance on an oral agreement can remove an agreement from the reach of the statute of frauds, id. ¶ 16, Bellinfante did not present sufficient material facts to demonstrate part performance here. As the court explained in Owens, acts of part performance serve an important evidentiary function they excuse the writing required by the statute because they provide convincing proof that the contract exists. So that the exception does not swallow the rule, the acts of part performance take an alleged contract outside the statute only if they cannot be explained in the absence of the contract.
Id. (citations omitted). Here, Bellinfante avows he made payments toward, and improvements to, the property over several years in reliance on the oral agreement. But given the nature of Bellinfante and Falconer's relationship during those years as a cohabiting couple, such evidence can be "explained in the absence" of the alleged oral agreement. Id. Indeed, our supreme court specifically observed that "[t]he modern case law... requires that any alleged act of part performance be consistent only with the existence of a contract and inconsistent with other explanations such as... an existing relationship between the parties." Id. ¶18. Because Bellinfante's payments to Falconer and improvements to the property can be explained as either contributions toward his living expenses or gifts to Falconer in light of their relationship, Bellinfante did not present sufficient material facts to demonstrate part performance of an oral agreement. Bellinfante's action therefore is barred by the statute of frauds, and the trial court did not err in granting summary judgment on Bellinfante's implied oral contract.
¶ Bellinfante next argues his action should have survived summary judgment because his purported arrangement with Falconer could be characterized as an oral partnership agreement, and oral partnership agreements for the conveyance of an interestin real property are not similarly subject to the statute of frauds.6 Assuming arguendo that the species of oral partnership agreement alleged here would fall outside the statute, 7 we cannot agree that Bellinfante presented sufficient material facts to demonstrate that he and Falconer entered into an oral partnership agreement.
¶11 In Arizona, a partnership is "an association of two or more persons to carry on as co-owners a business for profit." A.R.S. § 29-1012(A). In Myrland v. Myrland, 19 Ariz. App. 498, 502-03, 508 P.2d 757, 761-62 (19...
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