Fernandez Living Trust v. Ripps ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
THE RICARDO S. AND ILDA G. FERNANDEZ
REVOCABLE LIVING TRUST, by and through
ILDA G. FERNANDEZ, Trustee,
Plaintiffs/Appellants,
v.
GEORGE R. RIPPS; FRIPPS MOHAVE
CONSTRUCTION LLC,
Defendants/Appellees.
No. 1 CA-CV 18-0562
FILED 8-20-2019
Appeal from the Superior Court in Mohave County
No. S8015CV201700203
The Honorable Charles W. Gurtler, Jr., Judge
REVERSED AND REMANDED
COUNSEL
Grynkewich Law Offices, Las Vegas, NV
By Gary S. Grynkewich
Counsel for Plaintiffs/Appellants
The Kozub Law Group, PLC, Scottsdale
By Richard W. Hundley
Counsel for Defendants/Appellees
FERNANDEZ LIVING TRUST v. RIPPS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.
J O H N S E N, Judge:
¶1 Ilda Fernandez, on behalf of the Ricardo S. and Ilda G.
Fernandez Revocable Living Trust ("the Trust"), appeals the superior
court's entry of summary judgment in favor of defendants George and
Mercedes Ripps and Fripps Mohave Construction, LLC. Because the
evidence establishes genuine issues of material fact as to the two loan
defaults the Trust alleged, we reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 During the final years of his life, Ricardo Fernandez became
friends with George Ripps, who owns Fripps, a homebuilding company.
Fernandez, a retired accountant, performed bookkeeping services for
Fripps at no charge and frequently loaned money to the company. To make
many of the loans, including those relevant to this appeal, Fernandez drew
money from a checking account belonging to the Trust, of which Fernandez
and his wife, Ilda, were the beneficiaries.
¶3 Most of the loans Fernandez made to Fripps were
undocumented and unsecured. In January 2015, however, Fripps recorded
three deeds of trust, each naming Fernandez as beneficiary. Each deed
secured a specified amount of debt and granted Fernandez a security
interest in land, referred to by the parties as "the Motherlode property,"
upon which Fripps planned to build a home. The first deed secured a loan
of $72,200 made the day before the deeds were recorded. The second deed
secured a loan of $55,000 Fernandez made to Fripps in five installments
during January and February 2015. And the third deed secured a total of
$37,700, the purpose and origin of which are disputed.
¶4 After completing the home on the Motherlode property,
Fripps sold it in July 2015. At some point before close of escrow, Fernandez
submitted a payoff demand to the escrow company for $124,900, which was
$40,000 less than the total amount secured by the three deeds of trust. Upon
receipt of the $124,900, Fernandez signed a "Beneficiary's Deed of Full
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Release" as to each deed. Each stated, "the indebtedness and/or obligations
secured by the Deed of Trust executed by Fripps Mohave Const, as Trustor,
and Richard Fernandez, as Beneficiary . . . has been fully paid, satisfied and
discharged."
¶5 Thereafter, Fernandez continued to make smaller
undocumented and unsecured loans to Fripps until he died in July 2016. In
September 2016, Ripps delivered a $5,500 check to Fernandez's home,
claiming that amount covered all of the company's outstanding debt to
Fernandez.
¶6 After Fernandez died, his son Daniel Fernandez began acting
as co-trustee and custodian of records for the Trust. Daniel examined
records in his father's office, including statements from the Trust's checking
account, a checkbook for the same account and handwritten notes in a
folder on top of Fernandez's office desk. His review led the Trust to
conclude that Fripps still owed the Trust approximately $60,000 – $40,000
from the Motherlode loans and $20,000 on other unsecured loans. The Trust
filed suit against Fripps, alleging breach of contract, unjust enrichment and
fraud and seeking an accounting.
¶7 After discovery, Fripps moved for summary judgment. The
superior court granted the motion, dismissed all the Trust's claims and
awarded Fripps attorney's fees and costs. The Trust timely appealed. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-
120.21(A)(1) (2019) and -2101(A)(1) (2019).1
DISCUSSION
¶8 Summary judgment is appropriate when "the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P.
56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990). We review entry of
summary judgment de novo, viewing the evidence and all reasonable
1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
Decision of the Court
inferences therefrom in the light most favorable to the non-moving party.
Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003).2
A. Debt Secured by the Deeds of Trust.
1. Section 33-707(A) is not dispositive.
¶9 The Trust argues a genuine issue of material fact exists as to
whether Fripps owes $40,000 remaining on the loans secured by the deeds
of trust.3 Fripps argues in response that the releases Fernandez executed in
July 2015 are as a matter of law "conclusive evidence" that nothing more
was owed.
¶10 The superior court assumed the truth of the Trust's assertion
that the three deeds of trust secured loans totaling $164,900. The
undisputed evidence before the court was that Fripps had repaid only
$124,900 of that amount. But the court concluded that, under A.R.S. § 33-
707(A) (2019), Fernandez relinquished any claim to collect the balance when
he executed and delivered the three deed releases.
¶11 Under § 33-707(A), a "recorded . . . deed of release and
reconveyance constitutes conclusive evidence of full or partial satisfaction
and release of the . . . deed of trust in favor of purchasers and
encumbrancers for value and without actual notice." A.R.S. § 33-707(A).
Fripps argues, as the superior court concluded, that § 33-707(A) bars the
Trust's claim for any amount still owing on the loans secured by the deeds.
¶12 Fripps fails to appreciate, however, that although the statute
expressly addresses satisfaction of the deed of trust, it does not address
satisfaction of the underlying debt. The two are not the same. See Maine v.
Clack, 43 Ariz. 492, 498 (1934) ("A mortgage is not a debt, but merely security
2 The Trust asks us to strike the statement of the case from Fripps's
answering brief because it does not include citations to the record as
required by Arizona Rule of Civil Appellate Procedure 13. We grant the
motion and will disregard the portion of Fripps's brief not supported by
record citations. See Flood Control Dist. of Maricopa County v. Conlin, 148
Ariz. 66, 68 (App. 1985).
3 The only arguments the Trust raises on appeal concern the superior
court's entry of judgment against Fripps on the Trust's claims for breach of
contract. For that reason, we will not address the court's dismissal of the
Trust's other claims against Fripps or its dismissal of George and Mercedes
Ripps.
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
Decision of the Court
for the payment of the debt, and the release of security in and of itself does
not necessarily release the original indebtedness."). Under the statute, the
act of recording the release document is a legally significant event – it effects
a release of the deed of trust. Yet the statute says nothing about the debt
secured by the deed of trust. Although § 33-707(A) provides that a recorded
lien release is conclusive evidence of release of the deed of trust, the statute
does not likewise provide that the release is conclusive evidence of
satisfaction of the debt secured by the deed of trust.
¶13 To be sure, apart from the statute, the releases stated that
Fripps had satisfied all obligations secured by the deeds. Each stated, "the
indebtedness and/or obligations secured by the Deed of Trust . . . has been
fully paid, satisfied and discharged." Fripps argues that, by executing
releases containing this language, Fernandez waived his right to collect any
unpaid amounts intended to be secured by the deeds of trust. Cf. Maine, 43
Ariz. at 498 (release did not serve "to release any portion of the original
indebtedness" because it did not "state that the mortgage and debt secured
thereby [were] paid").
¶14 The Trust does not dispute that Fernandez himself executed
each of the three lien releases. The Trust argues, however, that the
documents, written notes and calculations Fernandez left behind create a
genuine issue of fact about whether, notwithstanding the releases, some
$40,000 originally secured by the deeds of trust remains owing from Fripps.
As detailed in the next section of this decision, we agree. The documents,
notes and calculations, coupled with the absence of evidence that Fripps
repaid the amounts originally secured by the deeds of trust, are sufficient
to create a triable issue of fact. In other words, viewing the evidence in the
light most favorable to the non-movant, a reasonable juror could conclude
that a debt was owed and not released.
2. Amounts secured by the third deed of trust.
¶15 Having decided that the lien releases do not conclusively bar
the Trust's claim, we must now address a question the superior court did
not, which is whether any amounts were owing after Fripps repaid the
$72,200 and $55,000 loans secured by the first two deeds of trust on the
Motherlode property. The Trust suggests the third deed of trust was
executed to secure a balance of about $33,000 due on prior unsecured loans
and "an accrued amount of interest" owing on that balance and on the two
loans secured by the first two deeds of trust. In support of this theory, the
Trust offered Fernandez's handwritten notes, which include what the Trust
claims are calculations of interest that, when added to the $33,000
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
Decision of the Court
outstanding balance, totals to approximately $37,700. On summary
judgment, Ripps submitted an affidavit denying Fernandez ever charged
Fripps interest. Instead, Fripps argues the third deed of trust was recorded
just in case Fripps needed to come to Fernandez for more funds to complete
the Motherlode project. Fripps claims the deed of trust ended up a nullity
because the company did not need to borrow anything more to finish the
work.
¶16 At the outset, Fripps argues the parole evidence rule bars the
Trust from offering evidence that would "vary or contradict" the release of
the third deed of trust. But Fripps offers no legal authority for the
proposition that a release of a lien is a contract that might be subject to the
parole evidence rule.
¶17 Fripps also argues that the notes and calculations found on
Fernandez's desk are inadmissible hearsay. But we conclude the notes are
records of regularly conducted activity that are admissible as an exception
to the rule against hearsay pursuant to Arizona Rule of Evidence 803(6).
Under Rule 803(6), a document may be admitted if: (1) it was made at or
near the time by someone with knowledge; (2) it was kept in the course of
a regularly conducted activity of a "business . . . occupation, or calling"; and
(3) making the record was a regular practice of that activity.
¶18 In connection with the summary judgment motion,
Fernandez's son Daniel provided an affidavit stating that his father was a
"bookkeeper/accountant" before he retired to Kingman; thereafter,
Fernandez maintained a home office, where "he conducted his regular
activities of maintaining" his books and records and those of the Trust. As
Daniel explained, after Fernandez retired, managing the Trust "was
unequivocally [his] primary occupation."
¶19 Daniel stated that his father kept documents pertaining to
himself, his wife and the Trust in a large briefcase behind his chair in his
home office. Another large briefcase behind the chair contained records
"from various business activities of George Ripps . . . or pertaining to one
or more of his various business interests."4
4 Daniel stated that, based on conversations with his father, "it was
clear" Fernandez believed he had a "very close bond and friendship" with
Ripps. According to Daniel, his father told him "on several occasions" that
he was frustrated by delays in Ripps's repayment of the loans made to him,
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
Decision of the Court
¶20 According to his son, Fernandez "active[ly] manage[d]" the
"assets, income and investments" of the Trust, "paid close, regular and
constant attention" to them and "was meticulous in maintaining" his
financial records. Daniel averred that Fernandez did not use a computer
but instead "meticulously and regularly entered every transaction . . . by
hand into" ledgers, "which he maintained, analyzed and updated
routinely." Fernandez also "regularly reconciled the Trust's accounts as
provided by applicable investment and banking entities individually and
collectively" with his handwritten ledgers. Daniel further averred that,
beyond the Trust documents kept in the briefcase, after his father died, he
found other documents "neatly organized" in a folder on Fernandez's desk,
which reflected Fernandez's "'active' work" on financial matters. Among
the items in the folder on the desk were some handwritten notes, which
included columns of numbers and calculations. Daniel stated he knew his
father's handwriting well and recognized the handwritten notes as his
father's.
¶21 Daniel's statements show the notes were kept in the course of
what had become Fernandez's "business . . . occupation, or calling," and
were made as a "regular practice" of Fernandez's activity of maintaining the
financial papers of the Trust and of Fripps. See Ariz. R. Evid. 803(6).
Fernandez undoubtedly had knowledge of the loans he made to Fripps, and
the dates included in the notes show they were made "at or near the time"
of the deeds of trust, the loans or the repayments at issue. See id.¶22 Moreover, the affidavit adequately satisfies the requirement
of Rule 803(6)(D) that the conditions be "shown by the testimony of . . . [a]
qualified" witness, namely Fernandez's son. See Ariz. R. Evid. 803(6)(D);
see, e.g., State v. Petzoldt, 172 Ariz. 272, 275 (App. 1991) (testimony of
associate that making handwritten records was a "regular practice" in
defendant's marijuana business supported admission of notebook
containing handwritten entries of sales). And Fripps has not shown that
"the method or circumstances of preparation indicate[d] a lack of
trustworthiness" of the notes. See Ariz. R. Evid. 803(6)(E). Viewed closely,
the Fernandez notes create a genuine issue of fact about the Trust's claim
that Fripps owes approximately $40,000 as reflected by the third deed of
trust.
but said his father was reluctant to "pressure [Ripps] for immediate
repayment due to not wanting to jeopardize what he perceived as their
deep friendship."
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
Decision of the Court
¶23 This claim by the Trust relies in large part on Exhibit H to the
Affidavit of Daniel R. Fernandez. At the top left of the second page of that
Exhibit H is a column of entries that appear to reflect loans by Fernandez to
Fripps, and Fripps's payments on those loans, from November 22, 2013
through October 8, 2014, leaving a balance owing of $49,000. The final entry
in the column indicates an interest charge of $3,131.50, which, when added
to the balance, sums to $52,131.50. At the top right of the same page is
another column of entries apparently reflecting additional loans and
payments between Fernandez and Fripps from November 22, 2013 through
January 20, 2015, including a payment to Fernandez on January 20, 2015, of
$52,131.50.5 Thus, contrary to Fripps's contention, these notes, along with
associated bank records, reflect that before the loans made in connection
with the Motherlode project, Fernandez charged interest when he loaned
money to Fripps, and Fripps paid that interest.
¶24 The notes also show that Fernandez calculated interest due on
other loans to Fripps pending at the same time and, most significantly, on
the loans he made to Fripps in connection with the Motherlode property.
Returning to Exhibit H, the result of the transactions reflected in the column
at the top right of the second page of the exhibit (after the payment by
Fripps of $52,131.50) was an outstanding balance of $29,000 as of January
20, 2015. On the bottom of the second page of the exhibit are calculations
of 5 percent interest through April 20, 2015 on (1) the $29,000 outstanding
balance, (2) a $4,000 loan made on November 22, 2013, and (3) the $127,200
in loans (made between January 20 and February 24, 2015), that, as Fripps
concedes, corresponded with the first two deeds of trust.6 The principal
and interest on those loans, as shown on the next page, sum to $164,889.48.
Subtraction of $127,200 (the total principal of the first two deed of trust
loans) from that total leaves a balance of $37,689.48. This balance
approximates the amount secured by the third deed of trust ($37,000),
suggesting that deed was intended to secure interest and principle owing
on various other loans Fernandez had made to Fripps, along with interest
5 This payment, along with another payment the same day to
Fernandez of $55,250, are reflected in a deposit of $107,381.50 in the Trust's
bank statement.
6 The transactions reflected in the column at the top right of the second
page, which result in the $29,000 balance, appear to include this $4,000 loan.
Yet Fernandez calculates interest on the $4,000 loan separately on page
three of the exhibit.
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
Decision of the Court
accruing on the loans secured by the first two deed of trust, as of April 20,
2015, 90 days after the deeds were executed.
¶25 There is no evidence that Fripps made any payment to
Fernandez on April 20, 2015, however, and additional notes on page two of
Exhibit H show calculations of interest accruing after that date. Specifically,
the notes show calculations of 5 percent daily interest on the outstanding
loans (1) from April 20, 2015 to May 31, 2015, and (2) from June 1, 2015 to
July 15, 2015. This interest, added to the previously calculated balance as
of April 20, 2015 ($164,889.48), sums to $166,777.18 "at 7/15/15," as reflected
in the notes. Together, the calculations can be read to mean that before the
Motherlode payoff, Fernandez believed Fripps owed the Trust a total of
$166,777.18. The figures on the second page of Exhibit H then reflect
Fripps's July 15, 2015 payment of $124,900 on the loans secured by the first
two deeds, leaving a balance owing of $41,877.18.7 Notably, the calculations
then show the addition of $6,000 to the balance, an amount Fernandez
loaned to Fripps on May 4, 2015.8
¶26 Similar interest and payoff calculations were found in other
notes Fernandez made, which the Trust produced to Fripps in discovery,
and which Fripps submitted to the court with its summary judgment
motion. Moreover, beyond the Fernandez notes, the Trust also offered the
Fripps balance sheet, which showed a liability (debt) owed to Fernandez in
the amount of $60,000 as of December 31, 2015.
¶27 In sum, the documents the Trust offered on summary
judgment from Fernandez's desk, along with bank documents, the other
notes Fripps offered and the Fripps balance sheet, are sufficient to create a
7 To be sure, another column on the same page of the exhibit reflects a
balance slightly higher than $41,877.18. The higher balance appears to have
been reached by calculations similar to those detailed above – that is, by
adding the principal of all outstanding loans to interest on those loans from
the date of issuance to July 15, 2015. The calculations performed to reach
the higher balance, however, appear to have included interest on the
$29,000 loan twice, perhaps erroneously. Which column is correct and,
more foundationally, whether the notes ultimately establish an amount still
owing at Fernandez's death, will be for the trier-of-fact to decide.
8 Fernandez appears to have calculated interest by multiplying a loan
balance by the number of days outstanding, then dividing that total by
7,300 (which is the mathematical equivalent of multiplying by .00013699 or
.05/365).
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
Decision of the Court
genuine issue of fact as to whether Fripps agreed to pay interest on the loans
it received from Fernandez and, if so, the total amount of interest that
remains owing. Fripps does not contend that it paid any interest due on the
loans (indeed, George Ripps testified no interest was owed), and because
we have held the lien releases did not conclusively establish that amounts
secured by the third deed of trust were satisfied, these factual matters must
be resolved on remand.
B. The $20,000 Outstanding Loan Balance.
¶28 The Trust also argues the superior court erred by entering
summary judgment in favor of Fripps on the Trust's claim to recover at least
$20,000 owing on two other loans: (1) a $6,000 loan made by check dated
May 4, 2015, and (2) a $14,000 loan made by check dated December 1, 2015.
¶29 Viewed in context of the parties' ongoing financial relations at
the time, the evidence before the superior court on summary judgment
establishes a genuine issue of material fact as to these alleged loans.
Statements from Fernandez's checking account show the following
transactions:
Date9 Checks made Deposits reflecting
out to Fripps Fripps's payments
to Fernandez
5/4/2015 $6,000
7/28/2015 $25,000
7/28/2015 $5,000
8/11/2015 $20,000
9/3/2015 $5,000
10/1/2015 $5,000
11/30/2015 $14,000
9 For purposes of consistency, the table shows the date each check
cleared the bank, as shown in the statements. The dates shown therefore
differ slightly from the dates shown on each check image and in
Fernandez's checkbook ledger, which also were before the court.
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
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The record also contains images of the four checks Fernandez wrote to
Fripps to make the loans, as well as an image of the August 11, 2015, check
in the amount of $20,000 from Fripps to the Trust. Neither party provided
images of checks related to the $5,000 deposits made on September 3 and
October 1, 2015, however, and in the bank statements they are simply
labeled "Branch Deposit."10
¶30 These records show that as of July 28, 2015, Fernandez had
made new loans to Fripps totaling $36,000, and that on November 30, 2015,
Fernandez loaned Fripps another $14,000. At that point, Fripps owed
Fernandez a total of $50,000 in new loans (over and above the debts
discussed in Part A of this decision). According to the Trust, the records
show Fripps repaid only $30,000, leaving $20,000 still outstanding.
¶31 In response, Fripps (1) admits Fernandez loaned it $6,000 on
May 4 and (2) does not contest that Fernandez made it two additional loans
totaling $30,000 on July 28. Fripps's argument hinges on the payment of
$20,000 it made to Fernandez on August 11. Fripps suggests the $20,000
payment was an accidental over-repayment of the $6,000 loan rather than a
partial repayment of the $36,000 it then owed, and asserts that the $14,000
Fernandez gave it on November 30 was not another loan but instead was
meant to reimburse the overpayment upon Fernandez's realization of the
mistake. Yet Fripps offers no explanation for how it repaid the $30,000 loan.
It only argues the Trust "provides no declaration or testimony of anyone
with knowledge of an alleged other loan" – disregarding the Trust's
production of images of the July 28 checks made out to Fripps totaling
$30,000.
¶32 Fripps also fails to respond to evidence from Fernandez's
checkbook, which the Trust cites as evidence the loans were not repaid. A
May 1 entry in the checkbook shows a payment of $6,000 to "Fripps
Mohave" and a decrease in the account balance of the same amount. A May
9 entry on the line below shows a deposit/credit of $6,000 labeled "Dep."
and a corresponding increase in the account balance. But a question mark
is written next to "Dep.," with a line pointing to "$6,000"; Fernandez's bank
statements from the relevant period show the $6,000 withdrawal but do not
10 Additional "Branch Deposits" appear throughout the bank
statements and correspond to checks of equal value made out to Fripps, but
neither party has argued the additional checks or deposits are relevant to
the outstanding debt at issue.
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
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show a corresponding $6,000 deposit; and the handwritten checkbook
account balance is later corrected to reflect the absence of repayment.
¶33 A second page of Fernandez's checkbook shows a December
1 check of $14,000 to "Fripps Mohave Constr." and an account balance
decreased accordingly. Several lines down, the checkbook appears to show
a December 31 deposit of $14,000 and a correspondingly increased account
balance. The number "$14,000" is marked over, however, and "Dep. Never
paid" is written on the same line. The Trust’s bank statements from the
relevant period show the $14,000 check but do not show any corresponding
$14,000 deposit. And at the last date of entry, the handwritten checkbook
account balance listed differs from the account balance in bank records by
approximately $14,000. Finally, written notes found on Fernandez's office
desk, which Fripps submitted on summary judgment, show calculations of
interest on the $14,000 "since 12/1/15," a calculation that would have been
unnecessary were the payment simply a refund of Fripps's mistaken
overpayment.
¶34 Rather than disputing the substance of this evidence, Fripps
argues the handwritten checkbook is not "admissible or reliable" and is
insufficient to rebut George Ripps's explanation of the loan arrangements.
Although Fripps does not specify its evidentiary objection on appeal, it
argued before the superior court that handwritten pages from the check
register were inadmissible "on the grounds of lack of foundation and
hearsay."
¶35 Because the checkbook is offered to prove the truth of the
matters asserted – that certain amounts were withdrawn from and
deposited in the Trust's checking account on particular days – it is hearsay.
See Ariz. R. Evid. 801, 802. Nonetheless, the Trust argues the checkbook is
admissible pursuant to the exception for records of regularly conducted
activity. Ariz. R. Evid. 803(6); see supra ¶ 22.
¶36 Fernandez's checkbook satisfies each requirement of Rule
803(6). The checkbook entries are chronological, and the date listed for each
check is the same as that written on the check itself. Bank statements show
each check clearing several days after its corresponding checkbook entry,
suggesting Fernandez wrote entries contemporaneously with writing
checks or making deposits, rather than after the fact. Fernandez kept
records of the Trust's transactions "in the course of" his regularly conducted
activity of managing the Trust's finances, which included loaning the
Trust's money to a company for which he provided bookkeeping services.
And, as noted, Daniel Fernandez testified he recognized his father's
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FERNANDEZ LIVING TRUST v. RIPPS, et al.
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handwriting, was familiar with his father's habit of keeping organized
financial records and found the checkbook in Fernandez's office. Cf. State
v. Parker, 231 Ariz. 391, 402, ¶¶ 35-36 (2013) (co-worker's testimony that it
was the author's habit to record or log hours each day and that he
recognized author's handwriting was sufficient foundation to admit
handwritten timesheets under Rule 803(6)); Petzoldt, 172 Ariz. at 275;
Sabatino v. Curtiss Nat. Bank of Miami Springs, 415 F.2d 632, 634-35 & n.3 (5th
Cir. 1969) (notebook in which decedent had "recorded checks and
reconciled his statements" was admissible under the Federal Business
Records Act).
¶37 Taken together, the bank records and checkbook pages
establish a genuine issue of material fact as to the $20,000 that the Trust
contends is owing, sufficient to withstand summary judgment.
C. Attorney's Fees.
¶38 The Trust does not request attorney's fees or costs on appeal,
but Fripps does so pursuant to A.R.S. § 12-341.01 (2019). Because the Trust
is the prevailing party, we decline to award fees to Fripps. The Trust is
entitled to recover its costs. We vacate the superior court's award of fees to
Fripps without prejudice to that court making a reasonable award of fees to
the prevailing party at the conclusion of the case pursuant to § 12-341.01.
CONCLUSION
¶39 For the foregoing reasons, we reverse the judgment of the
superior court and remand for proceedings consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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