GM Development Corp. v. Community American Mortg. Corp.

• Decision Date: 26 July 1990
• Docket Number: CA-CV,No. 1,1
• Citation: 165 Ariz. 1,795 P.2d 827
• Parties: GM DEVELOPMENT CORPORATION, an Arizona corporation, Plaintiff-Appellee, v. COMMUNITY AMERICAN MORTGAGE CORPORATION, a Wisconsin corporation; Community Shares, Ltd., a Wisconsin corporation, Defendants-Appellants. 89-100.
• Court: Arizona Court of Appeals

Page 827

795 P.2d 827

165 Ariz. 1

GM DEVELOPMENT CORPORATION, an Arizona corporation, Plaintiff-Appellee, v. COMMUNITY AMERICAN MORTGAGE CORPORATION, a Wisconsin corporation; Community Shares, Ltd., a Wisconsin corporation, Defendants-Appellants.

No. 1 CA-CV 89-100.

Court of Appeals of Arizona Division 1, Department C.

July 26, 1990.

[165 Ariz. 3] Murphy & Posner by Jean Gray Platt, Terry L. Rakow, Phoenix, for plaintiff-appellee.

Brown & Bain, P.A. by Janie A. Simms, Eddward P. Ballinger, Jr., Douglas Gerlach, Lynn F. Chandler, Phoenix, for defendants-appellants.

OPINION

CONTRERAS, Presiding Judge.

This is an appeal of the trial court's entry of partial summary judgment in favor of appellee GM Development Corporation (hereinafter "GM") on a breach of contract claim. The trial court determined that appellant Community American Mortgage Corporation (hereinafter "CAMCO") was liable for accrued rent as the lessee of the premises, and appellant Community Shares, Ltd. (hereinafter "Shares") was liable as guarantor on the lease. On appeal, we consider three issues:

1. Whether deposition transcripts referred to in the pleadings on the motion for partial summary judgment but not filed with the court until after entry of formal judgment can be considered by this court as part of the record on appeal.

2. Whether there were genuine issues of material fact in the record before the trial court which render entry of partial summary judgment improper.

3. Whether the trial court abused its discretion by including Rule 54(b) lan guage in the formal judgment on the breach of contract claim.

In response to the foregoing issues, we conclude that the deposition transcripts cannot be considered by this court as part of the record on appeal. In addition, we conclude that appellants failed to establish any genuine issues of material fact in the record that would preclude entry of partial summary judgment. We further conclude that the inclusion of Rule 54(b) language in the formal judgment was not an abuse of the trial court's discretion. Accordingly, we affirm the trial court's entry of partial summary judgment on the breach of contract claim.

FACTS

In September, 1986, CAMCO entered into a ten-year written lease agreement with GM. The contract involved the lease of commercial property owned by GM and located in Scottsdale, Arizona. At some point thereafter, Shares executed a written guaranty of the lease, guaranteeing performance of the terms of the lease including payment of rent. CAMCO failed to pay rent beginning in November, 1987. In January, 1988, GM filed a complaint naming CAMCO and Shares as defendants. ¹ Although the complaint has a number of counts, our analysis focuses on Count II which alleges that CAMCO breached its lease agreement and Shares breached its guaranty of the lease by failing to make rental payments that were due and owing.

In May, 1988, GM filed a motion for partial summary judgment against CAMCO and Shares on Count II. Following the submission of response and reply memoranda and oral argument on the matter, the trial court granted partial summary judgment in favor of GM by minute entry dated October 12, 1988. Final judgment was entered on December 7, 1988. Appellants subsequently filed a motion for reconsideration and objections to the form of judgment. Although the order denying the motion for reconsideration and overruling objections to the form of judgment was signed by the trial judge on December 21, 1988, it was not file-stamped until December 23, 1988. On December 22, 1988, the trial court entered an order allowing the filing of specified deposition transcripts "for use in the appeal of this matter." This appeal followed.

DEPOSITION TESTIMONY

As a threshold issue, we must first determine what consideration, if any, is to be given by this court to the deposition transcripts filed by appellants pursuant to the trial court's order of December 22, 1988. An appellate court's review is limited to the record before the trial court. Schaefer v. Murphey, 131 Ariz. 295, 299, 640 P.2d 857, 861 (1982); West v. Baker, 109 Ariz. 415, 418-19, 510 P.2d 731, 734-35 (1973). Consequently, unless the deposition transcripts were part of the record before the trial court at the time it considered the motion for partial summary judgment, we cannot consider them on appeal. See Payne v. M. Greenberg Construction, 130 Ariz. 338, 343, 636 P.2d 116, 121 (App.1981); Cimino v. Alway, 18 Ariz.App. 271, 272, 501 P.2d 447, 448 (1972).

It is clear from the record that the transcripts were not part of the record before the trial court during its deliberations on the motion for partial summary judgment or at any time prior to the trial court's order granting partial summary judgment. Appellants' response to GM's motion for partial summary judgment and GM's reply to appellants' response repeatedly refer to deposition testimony in support of their factual contentions. However, we note that neither the appellants nor GM quoted directly from the depositions. We further note that neither party attached copies of the portions to which reference was made nor were the depositions presented to or filed with the trial court. The parties in their written memoranda merely indicated the pages and lines where particular deposition testimony could be found in the tran scripts.. From the foregoing undisputed scenario, it is clear that the transcripts could not have been considered by the trial court before partial summary judgment was granted. They cannot now be considered by this court on appeal.

Notwithstanding the clearly established fact that the trial court did not consider the depositions prior to granting partial summary judgment, appellants argue that the trial court's consideration of the deposition testimony is evidenced by its order to file the depositions "for use in the appeal of this matter." This argument is unpersuasive. The trial court's order merely allowed the depositions to be placed in the file pursuant to Rule 2.14 of the Maricopa County Superior Court Local Rules. The order does not constitute a ruling on the scope of the record on appeal.

It is true, as appellants assert, that Rule 2.14, Maricopa County Superior Court Local Rules, precludes counsel from filing discovery papers with the court absent a court order. However, the rule does not prohibit their use in connection with motions and other proceedings. The rule does not allow the party opposing summary judgment to rely solely on unsworn assertions of fact to controvert a motion which is supported by sworn facts. See Northern Contracting Company v. Allis-Chalmers Corporation, 117 Ariz. 374, 377, 573 P.2d 65, 68 (1977); Prairie State Bank v. Internal Revenue Service, 155 Ariz. 219, 221 n. 1A, 745 P.2d 966, 968 n. 1A (App.1987). If the opposing party fails to present, either by affidavit or other competent evidence, facts which controvert the moving party's affidavits, the facts alleged by the moving party may be considered as true. Portonova v. Wilkinson, 128 Ariz. 501, 502, 627 P.2d 232, 233 (1981); Sato v. Van Denburgh, 123 Ariz. 225, 228, 599 P.2d 181, 184 (1979); Northern Contracting Company, 117 Ariz. at 377, 573 P.2d at 68; Molever v. Roush, 152 Ariz. 367, 370, 732 P.2d 1105, 1108 (App.1986).

In addition, Local Rule 2.14 must be interpreted in conjunction with Rule IV(f), Uniform Rules of Practice of the Superior Court of Arizona, and Rule 56(e), Arizona Rules of Civil Procedure, which set forth with more particularity the form of pleadings required in summary judgment proceedings. Rule 56(e), Arizona Rules of Civil Procedure, provides as follows:

... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. [emphasis added]

Rule IV(f), Uniform Rules of Practice of the Superior Court, requires that statements of facts "shall refer to the specific portion of the record where the fact may be found" (emphasis added).

A related but different question is whether the factual contentions made by the parties in their pleadings can be considered evidence that was before the trial court. As a general rule, an unsworn and unproven assertion is not a fact that a trial court can consider in ruling on a motion for summary judgment. See Northern Contracting Company, 117 Ariz. at 377, 573 P.2d at 68; Prairie State Bank, 155 Ariz. at 221 n. 1A, 745 P.2d at 968 n. 1A. A party asserting a fact has the burden of proving that fact. Yeazell v. Copins, 98 Ariz. 109, 116, 402 P.2d 541, 546 (1965); Prairie State Bank, 155 Ariz. at 221 n. 1A, 745 P.2d at 968 n. 1A.

Where the party moving for summary judgment makes a prima facie 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. E.g., Echols v. Beauty Built Homes, 132 Ariz. 498, 500, 647 P.2d 629, 631 (1982); National Housing Industries, Inc. v. E.L. Jones Development Company, 118 Ariz. 374, 377, 576 P.2d 1374, 1377 (App.1978). GM's motion for partial summary judgment was supported by pleadings previously filed with the court, copies of the lease agreement and the guaranty, and three affidavits. One affidavit verified the factual circumstances surrounding the execution of the lease agreement and the guaranty, along with a verification of the amount of rent owed by appellants. A second affidavit verified attempts on behalf of GM to sell or lease the property after appellants stopped paying rent. A third affidavit verified that GM had been assigned the right to collect the sums due under the CAMCO...