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Anderson v. Drake

Court of Appeals of Arizona, First Division, Department E

September 12, 2013

GERARD ANDERSON, Plaintiff/Appellant,
v.
KENNETH C. DRAKE and RHONDA DRAKE, husband and wife; and YUMA SITE, L.L.C., an Arizona limited liability company, Defendants/Appellees.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. CV 2007-019591 The Honorable Colleen L. French, Judge Pro Tem The Honorable James P. Beene, Judge.

Carm R. Moehle, P.C. Phoenix By Carm R. Moehle Attorneys for Plaintiff/Appellant.

Gallagher & Kennedy, P.A. Phoenix By Glen Hallman Cober Plucker Attorneys for Defendants/Appellees.

MEMORANDUM DECISION

MARGARET H. DOWNIE, Judge

¶1 Gerard Anderson appeals the entry of summary judgment against him and the denial of his motion for new trial. For the following reasons, we affirm.

BACKGROUND[1]

¶2 Yuma Site, L.L.C. ("Yuma Site") is a limited liability company created by Kenneth Drake and Rhonda Drake in April 1997.[2] Yuma Site's operating agreement lists the Drakes as its only members, requiring each to contribute capital, and assigning a 50% interest to each. Yuma Site owns commercial property in Yuma, which it leases to a restaurant, convenience store, and gas station.

¶3 Anderson, who has partnered with Kenneth in business ventures since 1984, claims that he and Kenneth always operated as equal partners and made equal capital contributions. According to Anderson, the two men orally agreed in 1997 that Anderson would become a 50% owner and member of Yuma Site once Anderson's divorce, pending since 1996, was finalized. At that time, Anderson would reportedly make capital contributions in exchange for his membership interest. Anderson and the Drakes had no written agreement concerning Yuma Site.

¶4 Anderson's divorce was final in 2000. He made no capital contribution at that time, but contends he performed services for Yuma Site without pay. In November or December of 2003, Anderson discussed a capital contribution with Kenneth and tendered a one-page handwritten agreement stating that he would purchase a 49% interest in Yuma Site from the Drakes in exchange for $77, 800. Kenneth never signed the agreement. On January 3, 2007, Anderson mailed Kenneth a $41, 830 check, which he asserts was the amount of his capital contribution due after offsets. Kenneth returned the check on January 15, 2007.

¶5 On October 24, 2007, Anderson sued the Drakes and Yuma Site. He asserted claims for breach of contract (count 1), accounting (count 2), declaratory relief as to the amount of capital contribution due (count 3), breach of fiduciary duty (count 4), and constructive trust (count 5). Defendants moved for summary judgment based on, inter alia, the statute of limitations. After briefing and oral argument the superior court granted summary judgment to defendants on all counts and awarded them attorneys' fees and costs.

¶6 Anderson unsuccessfully moved for a new trial. This timely appeal followed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) and (5) .

DISCUSSION

¶7 Anderson contends his breach of contract action was improperly dismissed as time-barred. Because he has not challenged the trial court's statute of limitations ruling as to any other count of the complaint, we confine our analysis to the breach of contract claim. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) (citations omitted) (arguments not asserted in an appellate brief are waived). We review the grant of summary ...


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