Roberts v. Livdahl
| Decision Date | 12 July 2017 |
| Docket Number | No. 2 CA-CV 2016-0055,2 CA-CV 2016-0055 |
| Parties | LEONARD NOEL ROBERTS, AN INDIVIDUAL, Plaintiff/Appellee, v. JOAN K. LIVDAHL, AN INDIVIDUAL; JTC'S, LLC, AN ARIZONA LIMITED LIABILITY CORPORATION, Defendants/Appellants. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Pima County
The Honorable Gus Aragón, Judge
AFFIRMED
Law Office of Frank Adamo, Phoenix
By Frankie Adamo
and Law Office of Craig Stephan, Scottsdale
By Craig Stephan
Drake Law Firm, PLC, Phoenix
By Richard A. Drake
and
Dickinson Wright PLLC, Phoenix
By Bradley A. Burns and Vail C. Cloar
Presiding Judge Vásquez authored the decision of the Court, in which Judge Staring and Judge Kelly1 concurred.
¶1 Joan Livdahl appeals from the trial court's judgment entered against her following a bench trial on Leonard Roberts's claims for common law fraud and unjust enrichment.2 She argues that Roberts's action was barred by the statute of limitations and the statute of frauds, that insufficient evidence supported some of the court's findings, that the court miscalculated the amount of damages, and that the court erred by finding clear and convincing evidence of fraud. Because we find no error, we affirm.
¶2 "When reviewing issues decided following a bench trial, we view the facts in the light most favorable to upholding the court's ruling." Bennett v. Baxter Grp., Inc., 223 Ariz. 414, ¶ 2, 224 P.3d 230, 233 (App. 2010). In early 2004, Roberts and Livdahl met and began dating. Shortly thereafter, Roberts moved into Livdahl's home in Scottsdale.
¶3 That same year, Livdahl's son Chad purchased a home in Tucson (hereinafter, the "Tucson home"). In 2005, he was indicted on forty-seven federal charges and later pled guilty to conspiracy and mail fraud and was sentenced to concurrent terms of imprisonment.3 The federal government had intended to seize the Tucson home, but Roberts paid $230,000 on Chad's behalf to avoid the forfeiture.
¶4 After Chad went to prison, Roberts moved into the Tucson home4 and began work finishing various projects and making improvements to the property. He completed construction of the swimming pool, spa, and a large water feature Chad had begun before he was indicted. Roberts additionally finished landscaping the front and back yards and installed drip irrigation throughout both yards. He paid for the work himself and estimated it cost him at least $150,000.
¶5 After Chad was indicted, he executed a power of attorney naming his brother, Todd Livdahl, as his authorized agent and Livdahl as an alternate agent. In December 2005, Todd, on Chad's behalf, signed a promissory note payable to Roberts for $385,000, which was secured by a deed of trust he executed for the Tucson home. The amount represented the $230,000 Roberts paid to the federal government to avoid forfeiture of the Tucson home and an additional $155,000 for the improvements he made to the home.
¶6 In April 2006, Todd, as Chad's agent, signed a quitclaim deed transferring a ninety-percent interest in the Tucson home to Livdahl. That September, Livdahl, as Chad's alternate agent, transferred Chad's remaining ten-percent interest to Todd. In April 2009, Livdahl became sole owner of the Tucson home after Todd transferred his ten-percent interest to her.
¶7 By May 2009, Livdahl was having difficulty keeping up with payments on the first mortgage for the Tucson home, and she sought a home-equity line of credit. She told Roberts the bank would not approve her application while his security interest remained on the home, and she asked him to release it. Although Roberts expressed his hesitation to do so, she assured him that, after the bank processed her application, she would re-sign the promissory note and deed of trust. Roberts then released his deed of trust, stating the promissory note had been paid in full. Livdahl was later denied the home-equity loan based on her debt-to-income ratio.
¶8 In September 2009, Roberts's attorney drafted a new promissory note, which was identical to the 2005 promissory note in all respects except that Livdahl, and not Chad, was listed as the borrower. The attorney also drafted a new deed of trust for the Tucson home securing the promissory note. In November, Roberts sent Livdahl the new promissory note and deed of trust, but she refused to sign either document. Shortly thereafter, Roberts became ill and returned to Scottsdale permanently.
¶9 In May 2012, Livdahl sold the home for $775,000. Roberts never received any portion of the proceeds from the sale. Additionally, despite his requests to pick up his personal property from the Tucson home after he became ill, the majority of it never was returned to him.
¶10 Roberts sued Livdahl personally, Chad, Todd, and JTC'S, LLC. Todd and Roberts entered a stipulation dismissing all counts against Todd with prejudice. As to Chad and Livdahl, Roberts asserted claims of fraud, unjust enrichment, and fraudulent transfers pursuant to A.R.S. § 44-1004. He additionally alleged breach of contract and breach of the covenant of good faith and fair dealing claims against Chad.
¶11 Following a bench trial, the trial court entered judgment as a matter of law against Chad for breach of contract, with damages totaling $794,290.53 for the principal and accrued interest on the promissory note. Chad did not appeal from that ruling. The court entered a separate judgment against Livdahl on the claims for fraud and unjust enrichment, awarding Roberts $794,290.53 compensatory damages and $1,000 in punitive damages. We have jurisdiction over Livdahl's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
¶12 Following a bench trial, we defer to the trial court's factual findings "unless clearly erroneous, giving due regard to the opportunity of the court to judge the credibility of witnesses." Castro v. Ballesteros-Suarez, 222 Ariz. 48, ¶ 11, 213 P.3d 197, 200 (App. 2009), quoting In re Estate of Zaritsky, 198 Ariz. 599, ¶ 5, 12 P.3d 1203, 1205 (App. 2000). "We will not reweigh the evidence or substitute our evaluation of the facts." Id. We review issues of law, however, de novo. Id. ¶ 12.
¶13 Livdahl first argues that Roberts's action was barred by the six-year limitation period governing enforcement of written contracts for debt. See A.R.S. § 12-548. She reasons that, because the promissory note was signed on December 9, 2005, Roberts's complaint, filed December 27, 2011, was untimely. Livdahl, however, did not raise this argument below. Consequently, she has waived review of any claim that Roberts's action was barred by any statute of limitations. See Orfaly v. Tucson Symphony Soc'y, 209 Ariz. 260, ¶ 15, 99 P.3d 1030, 1035 (App. 2004). Moreover, we note that Roberts's action against Livdahl was for common law fraud, which is governed by A.R.S. § 12-543, not § 12-548.5 See Coulter v. Grant Thornton, LLP, 241 Ariz. 440, ¶ 9, 388 P.3d 834, 838 (App. 2017).
¶14 Livdahl next argues the promissory note "should not be held at its face value and the trial court decision should be overturned," asserting Roberts did not provide sufficient evidence that he paid the federal government $230,000 or paid for improvements to the Tucson home totaling at least $150,000. Once again, however, Livdahl has waived this argument by not raising it in the trial court. See Orfaly, 209 Ariz. 260, ¶ 15, 99 P.3d at 1035. Additionally, Livdahl has failed to cite any legal authority to suggest Roberts was required to provide evidence explicitly tracing the $385,000 amount in the promissory note to establish the purpose for which it was loaned. See Ariz. R. Civ. App. P. 13(a)(7)(A) (); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007) ().
¶15 However, even were this argument preserved for review, ample evidence supported the trial court's findings on this issue. Both Roberts and Livdahl testified that Roberts paid $230,000 to the federal government to save the Tucson home from forfeiture because Livdahl did not have the funds to do so herself. And Roberts testified he had spent at least $150,000 on the significant improvements he made to the Tucson home and was able to provide detailed testimony as to the exact work he performed, whom he hired to perform the rest, and what materials were purchased and how they were purchased. Roberts also provided receipts and invoices for some of the work and materials totaling $61,238.41. Livdahl did not dispute that Roberts had, in fact, completed the work he attested to having done at the Tucson home. Giving due deference to the court'sassessment of the evidence, Bennett, 223 Ariz. 414, ¶ 2, 224 P.3d at 233, we cannot say the court's factual finding that Roberts paid the federal government $230,000 to avoid forfeiture of the Tucson home and spent approximately $150,000 on improvements to that home was "clearly erroneous," Castro, 222 Ariz. 48, ¶ 11, 213 P.3d at 200, quoting Estate of Zaritsky, 198 Ariz. 599, ¶ 5, 12 P.3d at 1205.
¶16 Next, Livdahl argues various sections of the statute of frauds preclude Roberts's claim.6 See A.R.S. § 44-101(2), (3), (6), (9). The statute of frauds provides that, with regard to nine types of agreements, unless the agreement is in writing and signed by the party to be charged, "[n]o action shall be brought in any court." § 44-101. "Whether the statute of frauds applies is a question of law, which we review de novo." Turley v. Ethington, 213 Ariz. 640, ¶ 6, 146...
To continue reading
Request your trial