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Fisher Industries, Inc. v. AJ Constructors, Inc.

Court of Appeals of Arizona, First Division, Department C

July 25, 2013

FISHER INDUSTRIES, INC., an Arizona corporation and division of FISHER SAND & GRAVEL CO., a North Dakota corporation, Plaintiff/Appellee,
AJ CONSTRUCTORS, INC., a Nevada corporation, Defendant/Appellant.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure.

Appeal from the Superior Court in Maricopa County Cause No. CV2009-022038 The Honorable Colleen L. French, Judge Pro Tempore.

Lewis and Roca LLP Phoenix by Frances J. Haynes Kimberly A. Demarchi Cindy Villanueva Attorneys for Plaintiff/Appellee.

Douglas M. Schumacher Fountain Hills Attorney for Defendant/Appellant.


SWANN, Judge.

¶1 In this breach of contract case, AJ Constructors, Inc. appeals the superior court's grant of summary judgment in favor of Fisher Industries, Inc. The superior court properly concluded that a contract existed, that Fisher performed, and that AJ Constructors failed to pay Fisher. It further concluded that no other party was responsible for the payment. Finding no error, we affirm.


¶2 A.R. Mays Construction, Inc. was the general contractor for a commercial development project in Peoria, Arizona (the "Project"). AJ Constructors, a subcontractor on the Project, entered into a Materials Quote, Scope of Work Supplement (the "Contract") with Fisher. The Contract provided that Fisher would supply two sizes of rock -- 1¼" minus aggregate and 3" minus aggregate -- to be crushed on-site at the Project. Fisher provided materials pursuant to the Contract. Fisher repeatedly demanded payment from both A.R. Mays and AJ Constructors, but $116, 535.50 remained unpaid.

¶3 Fisher filed a complaint against AJ Constructors and A.R. Mays, alleging that AJ Constructors breached the Contract and that both AJ Constructors and A.R. Mays were unjustly enriched in the amount of the remaining payment owed to Fisher. AJ Constructors then filed an answer and cross-claim. AJ Constructors alleged that it had "paid all amounts due and owing to Fisher with respect to AJ Constructors' obligations[, ]" and while it had not been unjustly enriched, A.R. Mays had been. For its part, A.R. Mays admitted unjust-enrichment liability to Fisher for $34, 000 worth of 1¼" minus aggregate for which AJ Constructors never applied for payment, but otherwise denied all material allegations set forth in Fisher's complaint and AJ Constructors' cross-claim.

¶4 Fisher filed a motion for summary judgment against both AJ Constructors and A.R. Mays. AJ Constructors filed a response to Fisher's motion. AJ Constructors contended that A.R. Mays was responsible for paying a portion of the Contract sum because the 3" minus aggregate was provided for A.R. Mays's use and A.R. Mays had directed the crushing of the 3" minus aggregate. A.R. Mays also filed a response to Fisher's motion, and filed its own motion for summary judgment. A.R. Mays contended that it had paid AJ Constructors the full amount of their subcontract. In support of this contention, A.R. Mays provided a copy of an Unconditional Waiver and Release on Final Payment, in which AJ Constructors stated that it had been paid in full for its work on the Project and expressly waived and released any right to any claim for payment from A.R. Mays.

¶5 After hearing oral argument, the court granted Fisher's motion for summary judgment regarding the 1¼" minus aggregate, denied it as to the 3" minus aggregate, and took the remainder of the motion under advisement. The next month, the court granted A.R. Mays's motion for summary judgment, finding that "[t]here was no contract between A.R. Mays and Fisher" and "A.R. Mays has paid AJ Constructors for the work performed by AJ Constructors under the contract between A.R. Mays and AJ Constructors[, ]" as "evidence[d] by the unconditional waiver and release signed by AJ Constructors indicating that it had been paid in full by A.R. Mays." The summary judgment awarded A.R. Mays its attorney's fees and costs, and awarded Fisher the $34, 000 for which A.R. Mays admitted liability.

¶6 Fisher filed a second motion for summary judgment against AJ Constructors on its breach of contract claim concerning the 3" minus aggregate. AJ Constructors did not respond, but filed an Emergency Motion to Extend Deadlines because of a medical emergency of AJ Constructors' counsel. The superior court granted the motion and extended the response deadline for 45 days. But AJ Constructors never responded, and the court ultimately granted the second motion for summary judgment. The court entered judgment for Fisher against AJ Constructors for the full $116, 535.50 sought by the complaint, interest on that amount, and attorney's fees and costs.

¶7 AJ Constructors timely appeals. We have jurisdiction pursuant to A.R.S. ยง ...

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