Trap-Zap v. Facilitysource ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
TRAP-ZAP ENVIRONMENTAL SYSTEMS INC.,
Plaintiff/Appellee-Cross Appellant,
v.
FACILITYSOURCE NORTHEAST SERVICES LLC,
Defendant/Appellant-Cross Appellee.
No. 1 CA-CV 18-0278
FILED 8-13-2019
Appeal from the Superior Court in Maricopa County
No. CV 2016-05220
The Honorable Roger E. Brodman, Judge
AFFIRMED
COUNSEL
Jennings, Haug & Cunningham LLP, Phoenix
By Brian D. Myers, Joseph A. Brophy
Defendant/Appellant-Cross Appellee
Engelman Berger PC, Phoenix
By Bradley D. Pack
Plaintiff/Appellee-Cross Appellant
TRAP-ZAP v. FACILITYSOURCE
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.
C A M P B E L L, Judge:
¶1 FacilitySource Northeast Services, LLC (“FSNE”) appeals
from the superior court’s denial of summary judgment in favor of Trap-Zap
Environmental Services, Inc. (“Trap-Zap”) for breach of contract. Trap-Zap
cross-appealed the dismissal of its claim under the Arizona Prompt
Payment Act (the “Act”). For the following reasons, we affirm.
BACKGROUND
¶2 Trap-Zap is a New Jersey corporation that maintains, cleans,
and repairs commercial grease traps. FSNE is an Arizona limited liability
company with its principal place of business in Maricopa County. Trap-Zap
and FSNE entered into a subcontractor agreement (the “Contract”). Trap-
Zap agreed to perform grease trap maintenance and wastewater treatment
services for FSNE’s customer that operated a large chain of grocery stores.
The Contract contains a choice-of-law provision indicating that Arizona
law applies to any dispute between the parties. Trap-Zap performed work
for FSNE in six different states pursuant to the terms of the Contract. FSNE
collected payments on 176 invoices (the “Subject Invoices”) from its
customer but refused to pay Trap-Zap for the completed work.
¶3 Trap-Zap sued FSNE in Arizona for breach of contract,
violation of the Act, negligent misrepresentation, and promissory estoppel
to recover $220,255.20 in fees for all work completed pursuant to the
Contract. Trap-Zap claimed FSNE violated the Act under Arizona Revised
Statutes (“A.R.S.”) section 32-1129. The court granted FSNE’s motion to
dismiss the Prompt Payment claim, ruling the Act did not apply to work
performed outside of Arizona. Trap-Zap moved for partial summary
judgment on its breach of contract claim. Trap-Zap alleged FSNE failed to
pay the Subject Invoices, totaling $161,744.38. In response, FSNE claimed
Trap-Zap breached the Contract by not obtaining the necessary licenses for
work performed in Delaware, New Jersey, and New York. FSNE argued for
the first time that because Trap-Zap lacked the requisite licenses, the
contract was illegal and thereby unenforceable.
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¶4 The court ordered that FSNE raise its illegality claim in a
separate summary judgment motion. FSNE did so, raising the same
arguments regarding illegality and unenforceability. The court denied
FSNE’s motion for summary judgment, finding FSNE’s illegality defense
was not valid.
¶5 The court granted summary judgment in favor of Trap-Zap
ruling (1) that Arizona law applied, (2) under Arizona law, Trap-Zap’s
alleged lack of licensing did not prevent enforcement of the parties’
contract, and (3) FSNE waived illegality as an affirmative defense by failing
to properly raise it in the answer and subsequent disclosures. FSNE timely
appealed the court’s grant of summary judgment in favor of Trap-Zap.
Trap-Zap timely filed a cross-appeal, challenging the court’s dismissal of its
Prompt Payment claim.
DISCUSSION
I. FSNE’s Claims on Appeal
¶6 FSNE’s appeal arises from the superior court’s rejection of
FSNE’s illegality defense and the court’s simultaneous grant of summary
judgment for breach of contract in favor of Trap-Zap. FSNE claims that,
because Trap-Zap was not licensed to collect waste in New York, New
Jersey, and Delaware, the Contract is illegal and therefore FSNE is not
obligated to pay Trap-Zap money owed for the outstanding invoices. The
court found that “even if TrapZap needed licenses it did not have, such
conduct would not bar TrapZap’s claim in this case.” We agree.
Additionally, based on the limited record before us and the waste collection
statues of Delaware, New Jersey, and the counties of New York where Trap-
Zap performed work, there is no evidence in the record that Trap-Zap
engaged in conduct that required licensing—rendering FSNE’s motion on
the illegality of the contract factually unsupported.
A. Dismissal of FSNE’s Counterclaim
¶7 FSNE also challenges the court’s dismissal of its counterclaim
alleging breach of contract, breach of the covenant of good faith and fair
dealing, theft/conversion, and unjust enrichment. As the court noted,
because FSNE “offer[ed] no argument in support of the counterclaim” and
did not put forth evidence it suffered damages or that the alleged breach
was material, the counterclaim fails. Because FSNE failed to make an
argument below regarding its counterclaim, these arguments are waived
on appeal. See Cont’l Lighting & Contracting, Inc. v. Premier Grading & Utils.,
LLC, 227 Ariz. 382, 386, ¶ 12 (App. 2011) (explaining that “legal theories
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must be presented timely to the trial court so that the court may have an
opportunity to address all issues on their merits” and the failure to do so
waives the argument on appeal).
B. Summary Judgment in Favor of Trap-Zap
¶8 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). When reviewing the superior court’s
grant of summary judgment, we review de novo whether genuine issues of
material fact exist and whether the court erred in applying the law. Prince
v. City of Apache Junction, 185 Ariz. 43, 45 (App. 1996). We view all
reasonable inferences in the non-moving party’s favor. Russell Piccoli P.L.C.
v. O’Donnell, 237 Ariz. 43, 46–47, ¶ 10 (App. 2015).
1. Arizona law applies to Trap-Zap’s breach of contract
claim.
¶9 FSNE first argues the trial court erred by determining that
Arizona law applies under the choice-of-law provision in the Contract. We
disagree. The choice-of-law provision in the Contract applies to the
contractual obligations of FSNE and Trap-Zap. Specifically, it states that the
laws of Arizona govern the validity, performance, interpretation, and effect
of the Contract. FSNE does not argue that the laws of Arizona and the states
where the work was performed conflict. Thus, this is not a traditional
conflict of laws issue. Nor does FSNE argue that the provision in the
Contract selecting Arizona law is invalid or void, so we need not determine
whether it is valid or effective. To be sure, in its counterclaim, FSNE
acknowledges that “Trap-Zap entered into a valid written contract with
FSNE.” See Swanson v. Image Bank, Inc., 206 Ariz. 264, 266–67, ¶ 8 (2003) (“If
a contract includes a specific choice-of-law provision, we must determine
whether that choice is ‘valid and effective’ under Restatement § 187.”).
¶10 Instead, FSNE argues that the laws of Delaware, New Jersey,
and New York should apply because those states have a greater interest in
the outcome of this case and because that is where Trap-Zap performed the
work for the Subject Invoices pursuant to the Contract. That could be true
were this a case about the manner in which the work was performed—
specifically, if FSNE’s allegations raised safety concerns for the citizens of
those states. It might also be true if a New Jersey, Delaware, or New York
client actually received services under the Contract and refused to make
payments required by the Contract. Neither is the case at hand. The relevant
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issue here is whether FSNE, an Arizona Corporation, breached the Contract
by failing to pay Trap-Zap for work performed pursuant to the Contract.
¶11 Arizona law gives effect to the plain language of contracts.
Grubb & Ellis Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 86, ¶ 12
(App. 2006). “An express choice-of-law provision in a contract ordinarily
will be given effect . . . .” Ciena Capital Funding, LLC v. Krieg’s, Inc., 242 Ariz.
212, 216, ¶ 11 (App. 2017). “Arizona courts will apply the law of the state
chosen by the parties to govern their contractual relationship as long as the
chosen law has some nexus with the parties or the contract.” Winsor v.
Glasswerks PHX, L.L.C., 204 Ariz. 303, 307, ¶ 9 (App. 2003); see Nanini v.
Nanini, 166 Ariz. 287, 290 (App. 1990) (“When the parties choose the law of
a particular state to govern their contractual relationship and the chosen
law has some nexus with the parties or the contract, that law will generally
be applied.”). According to the Restatement, “the parties’ choice-of-law
applies if the parties could have resolved explicitly a particular issue in their
contract.” Cardon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 207 (1992)
(citing Restatement (Second) of Conflict of Laws § 187(1) (1971)). The parties
agreed to a choice-of-law provision and specifically designated that
Arizona law would govern. Given that FSNE is an Arizona corporation—
and that the chosen forum is Arizona—Arizona has paramount interest in
whether one of the parties breached the Contract.
¶12 FSNE attempts to reap a windfall under the Contract by
arguing Trap-Zap’s allegedly illegal conduct renders the Contract illegal.
While FSNE is correct that illegality cannot be resolved by a particular
provision in the Contract, illegality is not the issue here—the issue is
whether Trap-Zap’s alleged lack of licensing excuses FSNE’s breach of the
Contract. Parties are certainly free to resolve breach of contract issues by a
particular provision in a contract. Thus, the parties’ choice of Arizona law
is valid and enforceable.
2. Trap-Zap can recover for breach of contract under
Arizona law.
¶13 Having determined Arizona law applies, we must next
determine whether Trap-Zap can recover under the Contract, even if it did
not have the required licenses for the work it performed. FSNE relies on
Landi v. Arkules, 172 Ariz. 126 (App. 1992), to support its argument that
contracts are unenforceable and “illegal” in Arizona when one party was
not properly licensed during performance under a contract. The superior
court rejected this argument because a contract for “cleaning grease traps is
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not in and of itself an illegal purpose or contrary to public policy.” We
agree.
¶14 In Arizona, parties may enter into contracts as they desire,
provided only that the contract is not for an illegal purpose or against public
policy. Gaertner v. Sommer, 148 Ariz. 421, 423 (App. 1986). Only “if the acts
to be performed under the contract are themselves illegal or contrary to
public policy, or if the legislature has clearly demonstrated its intent to
prohibit maintenance of a cause of action” should recovery be denied.
Mountain States Bolt, Nut & Screw Co. v. Best-Way Trans., 116 Ariz. 123, 124
(App. 1977). A contract that cannot be performed without violating
applicable law is illegal and void. Ruelas v. Ruelas, 7 Ariz. App. 98, 101
(1968). That is not the case here. The Contract is not an illegal contract
because collecting waste and cleaning grease traps is not itself illegal nor is
it against public policy. FSNE’s defense to performance under the Contract
is a simple material breach of contact claim—did Trap-Zap’s failure to
obtain licensing amount to a breach that would bar recovery? We agree
with the superior court that Arizona law does not bar Trap-Zap’s recovery
under FSNE’s illegality theory.
¶15 To the extent FSNE relies on Landi, that case is inapposite.
Landi involved protection of the public; not relationships between
sophisticated actors. In that matter, the court refused to uphold a contract
between a private investigator and his client based on several factors,
including “improper solicitation of an attorney, an excessive fee, and the
performance of investigative services by persons not licensed.” Landi, 172
Ariz. at 131. The court explained that the public policy behind regulating
public investigators is clear: “for the protection of the public from
unscrupulous and unqualified investigators.” Id. at 135. However, the court
explained that “[t]he failure to obtain a license, permit, or certificate does
not invalidate every contract as contrary to public policy.” Id. The court’s
reasoning applies to the case here.
¶16 This case more closely resembles Mountain States Bolt, Nut &
Screw Co. v. Best-Way Transportation. 116 Ariz. 123. In Mountain States, the
parties entered into a transportation contract where Best-Way agreed to
transport goods for Mountain States to Arizona. Id. at 124. At the time of
performance, a portion of Best-Way’s carrier’s certificate was in dispute,
and it was not properly certified to transport goods for a portion of the
route. Id. As a result, Mountain States refused to pay the amounts owing
under the contract. Id. Best-Way filed a lawsuit to collect the outstanding
balance. Id. The issue raised by Mountain States is similar to those raised by
FSNE: could Best-Way bring a collection action when it was not properly
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certified to perform the work contemplated in the parties’ contract? Id. The
court explained that “[t]he transportation of goods is not in and of itself an
illegal purpose or contrary to public policy.” Id. Because there was “no
immoral or reprehensible motive in” the contract, the court found recovery
should not be denied. Id. (citing Ruelas, 7 Ariz. App. at 101). The court
further explained that no evidence showed that the legislature had ever
declared contracts in violation of the certification requirement “so violative
of public policy as to be unenforceable.” Id. The court’s reasoning in
Mountain States is equally applicable in this circumstance.
¶17 Here, Trap-Zap and FSNE contracted for Trap-Zap’s
maintenance and repair of grease traps. This is not a contract for immoral,
illegal, or reprehensible conduct. The subject of the Contract is not contrary
to public policy. Even assuming there was enough evidence in the record
to show Trap-Zap violated licensing requirements, nothing supports the
contention that the Arizona legislature would find it “so violative of public
policy” that it rendered the underlying contract unenforceable. The
legislature has not expressly precluded recovery by unlicensed waste
carriers. It has done so in other circumstances—as is the case for improperly
licensed or unlicensed contractors. See, e.g., A.R.S. § 32-1153. FSNE has
failed to identify any compelling policy consideration that would be served
by barring Trap-Zap’s recovery in this matter, given the absence of evidence
that the work Trap-Zap actually performed required it to have a waste
transport license. Cf. Levine v. Haralson, Miller, Pitt, Feldman & McAnally,
P.L.C., 244 Ariz. 234, 237–38, ¶¶ 9–11 (App. 2018) (barring recovery of
attorney fees sought in violation of public policy and the Arizona Rules of
Professional Conduct); Landi, 172 Ariz. at 131 (barring recovery for the
public policy reason of preventing improper solicitations by an attorney);
Jackson v. Robertson, 90 Ariz. 405, 411 (1962) (finding a contract for the
issuance of unregistered corporate stock in accordance with the Arizona
Securities Act illegal and unenforceable). The superior court correctly
granted summary judgment against FSNE on its illegality defense and in
favor of Trap-Zap for breach of contract.
¶18 Because the Contract is not an illegal contract and we find
FSNE’s illegality defense does not apply in this case, we need not determine
whether it was timely raised.
II. Trap-Zap’s Cross-Appeal
¶19 Dismissal of a claim under Rule 12(b)(6) is appropriate only if
the plaintiff would not be entitled to relief under any interpretation of the
facts as a matter of law. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8 (2012).
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We review the dismissal of a claim under Rule 12(b)(6) de novo. Id. Our
examination is limited to the pleadings and we will “assume the truth of
the well-pled factual allegations and indulge all reasonable inferences
therefrom.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008).
¶20 The trial court granted FSNE’s motion to dismiss Trap-Zap’s
Arizona Prompt Payment claim, finding the statute did not apply to work
performed outside Arizona. In its cross-appeal, Trap-Zap argues the trial
court erred in dismissing its claim under the Act. Trap-Zap also challenges
the award of the rate of interest on the judgment at the general statutory
rate authorized by A.R.S. § 44-1201. Trap-Zap claims that should it prevail,
and this court determine that the Act applies, the higher 18% interest rate
prescribed in the Act should apply. See A.R.S. § 32-1129.02(H) (2011).1
¶21 The Act provides in part that performance by a subcontractor
under the provisions of a contract entitles the subcontractor to speedy
payment. A.R.S. § 32-1129.02(A), (B) (2011). It further provides, “[i]f a
subcontractor . . . has performed in accordance with the provisions of a
construction contract, the contractor shall pay to its subcontractors . . . the
full amount received for such subcontractor’s work . . . based on work
completed . . . under the subcontract” within seven days. A.R.S. § 32-
1129.02(B) (2011). A construction contract cannot alter the rights of a
subcontractor to receive “prompt and timely payments” as provided in the
Act. A.R.S. § 32-1129.01(P) (2011).
¶22 The Act explicitly applies to “subcontractors” and defines a
subcontractor as “any person, firm, partnership, corporation, association or
other organization, or a combination of any of them, that has a direct
contract with a contractor or another subcontractor to perform a portion of
the work under a construction contract.” A.R.S. § 32-1129(A)(6) (2010). The
Act defines a “construction contract” as “a written or oral agreement
relating to the construction, alteration, repair, maintenance, moving or
demolition of any building, structure or improvement or relating to the
excavation of or other development or improvement to land.” A.R.S. § 32-
1129(A)(1) (2010). The parties do not dispute that the Contract is a
“construction contract” under the Act. But FSNE argues Trap-Zap is not a
“subcontractor” within the meaning of the Act because it is not licensed by
1 Because the Arizona Legislature amended statutes relevant to this case in
Title 32 during the pendency of this appeal, see 2019 Ariz. Sess. Laws 145
(1st Reg. Sess.), we apply and cite to the law in effect when this case began.
For other statutes where no material change has occurred, we cite to the
most recent version.
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the Arizona Registrar of Contractors (“ROC”). Thus, we must determine if
the Act applies to subcontractors not licensed by the Arizona ROC—such
as Trap-Zap—when those subcontractors perform work outside of Arizona.
¶23 We review de novo issues of statutory interpretation. Obregon
v. Indus. Comm’n, 217 Ariz. 612, 614, ¶ 9 (App. 2008). Trap-Zap argues that
because the Act clearly and unambiguously defines its scope, we need not
resort to other methods of statutory interpretation because the legislature’s
intent is readily discernable. Here, while the definitions do not expressly
limit the scope of the Act to contractors licensed by the Arizona ROC, other
provisions of the Act imply that limitation. See A.R.S. § 32-1129.02(B) (2011)
(“Any diversion by the contractor or subcontractor of payments received
for work performed pursuant to a contract . . . constitutes grounds for
disciplinary action by the registrar of contractors.”). We construe a statute
in context with other related provisions and its place in the statutory
scheme. State v. Flynt, 199 Ariz. 92, 94, ¶ 5 (App. 2000). When interpreting a
statute, our primary goal is to “discern and give effect to legislative intent.”
People’s Choice TV Corp. v. City of Tucson, 202 Ariz. 401, 403, ¶ 7 (2002).
“‘Although the statute’s language is the best and most reliable index of the
statute’s meaning,’ when we cannot be certain about the scope of a statute,
we must ‘apply methods of statutory interpretation that go beyond the
statute’s literal language’ to determine the legislature’s intent.” RSP
Architects, Ltd. v. Five Star Dev. Resort Cmtys., LLC, 232 Ariz. 436, 438, ¶ 9
(App. 2013) (quoting Blake v. Schwartz, 202 Ariz. 120, 126, ¶ 29 (App. 2002)).
We do so by “considering [the statute] as a whole and giving harmonious
effect to all of its sections.” Id. “Statutes relating to the same subject matter
should be read in pari materia to determine legislative intent and to maintain
harmony.” Washburn v. Pima County, 206 Ariz. 571, 575, ¶ 10 (App. 2003)
(quoting Goulder v. Ariz. Dep’t of Transp. Motor Vehicle Div., 177 Ariz. 414,
416 (App. 1993)).
¶24 Trap-Zap argues it is entitled to the Act’s protections because
it contracted with FSNE to perform repair and maintenance work. We
disagree. Reading the entire subsection of § 32-1129.02(B), the legislature
intended the payment obligations to apply only to licensed contractors and
subcontractors who are subject to the Arizona ROC’s strict requirements.
Section 32-1129.02(B), which requires payment from a contractor to a
subcontractor within seven days, also provides that “[v]iolations of this
section shall be grounds for suspension or revocation of a license or other
disciplinary action by the registrar pursuant to § 32-1154, subsections B, C,
and D.” Section 32-1154 sets out the procedure and grounds for the ROC to
suspend, cancel, or revoke a contractor’s license and impose civil penalties
on contractors under its control. A.R.S. § 32-1154 (2018).
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¶25 If we were to adopt Trap-Zap’s proposed meaning of
“subcontractor,” the Act would apply to any subcontractor, rendering the
second part of this subsection—directing the ROC to penalize violations of
the Act—meaningless. The ROC has no authority to take disciplinary action
against a contractor who does not hold a license in Arizona. See, e.g., A.R.S.
§§ 32-1101 to -1107; Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 100,
¶¶ 11–12 (defining the jurisdiction of the ROC); see also PAM Transp. v.
Freightliner Corp., 182 Ariz. 132, 133 (1995) (“[W]e attempt to give
‘meaningful operation’ to all provisions of a statute.”).
¶26 Similarly, in RSP Architects Ltd. v. Five Star Development Resort
Communities, LLC, this court held the Act does not apply to a contract for
architectural services. 232 Ariz. at 437, ¶ 1. This court reasoned in part that
“the Prompt Payment Act . . . implies that a ‘contractor’ within the meaning
of the act must be licensed by the Registrar of Contractors.” Id. at 439, ¶ 16.
Because the Act falls within Article 32, titled “Licensing,” and the penalty
for a contractor failing to pay a subcontractor for work performed pursuant
to the contract is subject to discipline by the ROC, —and because architects
“need not obtain a contractor’s license” before performing architectural
work—we held that the legislature did not intend for the Act to apply to
architects. Id. Like the architect in RSP, Trap-Zap is not licensed by the ROC
and therefore is not entitled to utilize the Act’s protections of prompt
payment for licensed contractors.
¶27 Trap-Zap’s contractual obligations were not performed in
Arizona and Trap-Zap is not a licensed contractor in Arizona. Because we
conclude § 32-1129.02 applies only to contractors and subcontractors
licensed in Arizona, we affirm the court’s dismissal of Trap-Zap’s claim
under the Act, and the higher 18% interest rate prescribed in the Act should
not apply.
III. Attorney Fees
¶28 The court granted Trap-Zap’s application for attorney fees
and costs under A.R.S. §§ 12-341 and 12-341.01 and awarded Trap-Zap
$77,185 in legal fees, $3,867.96 in legal research fees, and $3,068.20 in taxable
costs. FSNE asks that the award of fees be vacated and remanded for the
court to reconsider the issue of the prevailing party following this court’s
decision. We review the superior court’s decision to grant a party’s request
for attorney fees for an abuse of discretion. Vicari v. Lake Havasu City, 222
Ariz. 218, 224, ¶ 23 (App. 2009). The superior court found Trap-Zap was the
successful party because, although FSNE was “successful in defeating some
of Trap-Zap’s claims,” overall Trap-Zap was successful on the most
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significant portion of its claim and judgment was entered in Trap-Zap’s
favor. See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 189 (App. 1983)
(“[W]here a party has accomplished the result sought in the litigation, fees
should be awarded for time spent even on unsuccessful legal theories.”).
Because we affirm the superior court’s judgment, we find no abuse of
discretion in the award of fees.
¶29 Both parties request attorney fees on appeal pursuant to
A.R.S. § 12-341.01(A). Because Trap-Zap is the prevailing party, see China
Doll, 138 Ariz. at 189, and its claims arose out of contract, we grant its
request for attorney fees on appeal under A.R.S. § 12-341.01, and also award
costs to Trap-Zap upon compliance with ARCAP 21. See A.R.S. § 12-341.
CONCLUSION
¶30 For the foregoing reasons, we affirm the superior court’s grant
of summary judgment in favor of Trap-Zap for breach of contract and
concurrent denial of FSNE’s motion for summary judgment on illegality.
We also affirm the court’s dismissal of Trap-Zap’s claim under the Arizona
Prompt Payment Act.
AMY M. WOOD • Clerk of the Court
FILED: AA
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