IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County. Cause No.

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1 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c; ARCAP 28(c; Ariz. R. Crim. P IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SANDERS CONSTRUCTION, INC., an Arizona corporation, DAVID CREED, Plaintiff/Appellee, v. Defendant/Appellant. 1 CA-CV DEPARTMENT E MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. CV The Honorable Douglas L. Rayes, Judge AFFIRMED Jennings, Haug & Cunningham, LLP By Elan Mizrahi John M. Sticht Attorneys for Plaintiff/Appellee David Creed, Defendant/Appellant In Propria Persona Phoenix Fountain Hills P O R T L E Y, Judge 1 David and Lisa Creed (the Creeds appeal from the summary judgment granted to Sanders Construction, Inc.

2 ( Sanders on its breach of contract and violations of the Prompt Pay Act claims. For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND 2 Lisa Creed (also known as Lisa Atienza signed a document titled Work Authorization, whereby she authorized Sanders to make the necessary repairs or replacement (the Project to rectify water damage at the Fountain Hills residence she shared with her husband, David Creed. 1 The Work Authorization, which Lisa signed as the owner-insuredauthorized representative, further stated: The insured or authorized representative agrees to pay their deductible before repairs or replacement begins. The insured agrees to pay any portion of the cost of repairs or replacement not paid by the insurance company. The insured also agrees to have Sanders Construction, Inc. named on any payment made by the insurance company, and agrees to promptly endorse payment at completion of work. I, Lisa R. Atienza, authorize my insurance company, Arizona Home Insurance Co., [ AHIC ] to pay Sanders Construction, Inc. directly for all repairs Later, despite a demand by Sanders, the Creeds refused to pay $17, for work performed in connection with the Project. The Creeds alleged that because the parties had no agreement with respect to the work at issue and the labor and 1 One spouse can bind the community. ( A.R.S (B, -215(D (2007. See Ariz. Rev. Stat. 2

3 materials provided by [Sanders] were deficient, incomplete and non-complying. 4 Sanders filed suit against the Creeds alleging breach of contract ( Count 1, violations of the Prompt Pay Act ( Count 2, 2 unjust enrichment ( Count 3, and breach of the duty of good faith and fair dealing ( Count 4. Sanders later moved for summary judgment on Counts 1 and 2. 3 In connection with its statement of facts in support of its motion, Sanders provided a copy of the Work Authorization signed by Lisa; an affidavit of Sanders chief executive officer, Gene Sanders; and a copy of Sanders Request for Admissions that was served upon the Creeds and to which the Creeds had not objected or responded. The Creeds responded to the summary judgment motion but did not file a separate statement of facts as required by Arizona Rule of Civil Procedure ( Rule 56(c(2. They did, 2 The Prompt Pay Act, A.R.S to (2008 & Supp. 2010, provides in part that an owner shall make progress payments to a contractor on the basis of a duly certified and approved billing or estimate of the work performed and the materials supplied during the preceding thirty day billing cycle. A.R.S (A. Those payments are to be made within seven days after the date the billing or estimate is certified and approved. Id. A billing or estimate shall be deemed approved and certified fourteen days after the owner receives the billing or estimate, unless before that time the owner or the owner s agent prepares and issues a written statement detailing those items in the billing or estimate that are not approved and certified. A.R.S (D; Stonecreek Bldg. Co., Inc. v. Shure, 216 Ariz. 36, 38-39, 9-11, 162 P.3d 675, (App Sanders subsequently successfully moved to dismiss Counts 3 and 4. 3

4 however, attach a copy of the Work Authorization; a copy of a corrective Work Order dated May 19, 2009, apparently issued by the Arizona Registrar of Contractors ( ROC in response to a complaint filed against Sanders; copies of exchanges between David and a kitchen cabinet installer; and a copy of the completed Request for Admissions. Sanders replied in support of its motion and supplemented its statement of facts and Gene Sanders affidavit. 5 Oral argument was scheduled, but the Creeds did not appear. 4 The superior court granted Sanders summary judgment on Counts 1 and 2 and entered formal judgment. The Creeds appealed, and we have jurisdiction pursuant to A.R.S (B (2003. DISCUSSION 6 We review de novo the grant of a motion for summary judgment. Tierra Ranchos Homeowners Ass n v. Kitchukov, 216 Ariz. 195, 199, 15, 165 P.3d 173, 177 (App The moving party must establish that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c(1; accord Nat l Bank of Ariz. v. Thruston, 218 Ariz. 112, , 12, 180 P.3d 977, (App The movant need merely point out by 4 Lisa Creed filed an individual petition for chapter 13 bankruptcy in November 2009, which was subsequently dismissed on January 20,

5 specific reference to the relevant discovery that no genuine and material factual dispute exists regarding the claim s essential elements. Orme Sch. v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 328 (1986 (White, J., concurring. The burden then shifts to the nonmoving party to produce sufficient evidence of a genuine issue of material fact as to one or more essential elements of the claim or defense. Id.; see Rule 56(c. [S]ummary judgment is mandatory where the party opposing the judgment does not file affidavits in opposition to the affidavits filed by the moving party, unless the papers of the moving party fail to show he is entitled to judgment as a matter of law. Eastwood Elec. Co. v. R. L. Branaman Contractor, Inc., 102 Ariz. 406, 410, 432 P.2d 139, 143 (1967. We review the decision on the record made in the trial court, considering only the evidence presented to the trial court when it addressed the motion. Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55, 8, 156 P.3d 1157, 1160 (App The Creeds raise various arguments challenging the evidentiary basis for the superior court s order granting summary judgment to Sanders. The Creeds, however, do not properly support their arguments with references to the items of record that indicate the existence of genuine issues pertaining to any material fact. Instead, they cite generally to either 5

6 Sanders statement of facts in support of the summary judgment motion or to the Creeds response to the summary judgment motion, the latter of which is replete with unsupported factual assertions. 8 Moreover, to the extent proper record references can be inferred, the Creeds misstate the record. For example, they state, It was further proven that work was not completed as documented by the [Work Order.] The Work Order does not prove that work was not completed. Rather, the Work Order merely demonstrates that of fourteen complaints made by the homeowner (apparently the Creeds the contractor (apparently Sanders was ordered by the ROC inspector to take corrective action with respect to three items. 5 Finally, the Creeds fail to present any legal authority for their assertion that [i]t clearly was not the responsibility of the defendants to prepare and issue a formal written statement to Plaintiff. See A.R.S (D (stating that a contractor s billing or estimate is deemed approved and certified unless within fourteen days after receipt of same, the owner prepares and issues a written statement detailing those items in the billing or estimate that are not approved and certified. 5 The Creeds did not rebut Gene Sanders avowal that the Creeds refused to allow Sanders access to the property to remedy those issues. 6

7 9 This court does not have a duty to develop a party s argument. Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143, 750 P.2d 898, 901 (App A litigant must present significant arguments, set forth his or her position on the issues raised, and include citations to relevant authorities, statutes, and portions of the record. See ARCAP 13(a(6; see also Adams v. Valley Nat l Bank of Ariz., 139 Ariz. 340, 343, 678 P.2d 525, 528 (App ( We are not required to assume the duties of an advocate and search voluminous records and exhibits to substantiate an appellant s claims.. The failure to present an argument in this manner usually constitutes abandonment and a waiver of that issue. State v. Moody, 208 Ariz. 424, 452 n.9, 101, 94 P.3d 1119, 1147 n.9 (2004; see also Cullum v. Cullum, 215 Ariz. 352, 355 n.5, 14, 160 P.3d 231, 234 n.5 (App (holding that appellate courts will not consider arguments posited without authority.. 10 We could affirm the judgment without addressing its merits. However, after reviewing the record, we are convinced summary judgment in Sanders favor was proper. In support of its motion for summary judgment, Sanders provided evidence that the Creeds did not pay for Sanders work on the Project in violation of Lisa Creed s agreement set forth in the Work Authorization. Sanders also presented evidence that the Creeds did not object in writing within fourteen days of Sanders 7

8 demands for payment. The Creeds did not properly rebut the foregoing evidence proffered by Sanders. See Rule 56(e ( 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.. Indeed, by failing to timely respond to Sanders Request for Admissions, the Creeds effectively admitted the allegations Sanders raised in its complaint in support of Counts 1 and 2. See Rule 36(a, (c (When the defendant does not respond in writing to request for admissions within sixty days after service of summons and complaint, the matter is deemed admitted and conclusively established.. Accordingly, the superior court properly granted Sanders summary judgment. See Rule 56(e (When the adverse party does not respond to a motion for summary judgment by affidavits or as otherwise provided in Rule 56 thereby setting forth specific facts showing that there is a genuine issue for trial, summary judgment, if appropriate, shall be entered against the adverse party.. 11 Finally, Sanders requests its attorneys fees and costs incurred on appeal pursuant to A.R.S ,

9 (2003, (K, (M (2008 and ARCAP 25. We grant the request subject to Sanders compliance with ARCAP 21. CONCLUSION 12 The judgment is affirmed. CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ PATRICK IRVINE, Judge /s/ MAURICE PORTLEY, Judge 9