Sholes v. Fernando

FILED BY CLERK
IN THE COURT OF APPEALS OCT 20 2011
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO

BRUCE A. SHOLES; RUSSELL R. )
SHOLES and MARY L. SHOLES, ) 2 CA-CV 2010-0216
husband and wife, ) 2 CA-CV 2010-0217
) (Consolidated)
Plaintiffs/Counterdefendants/ )
Appellants, ) DEPARTMENT A
)
v. ) OPINION
)
ELEANOR FERNANDO and NIHAL J. )
FERNANDO, wife and husband; JUDY )
FERNANDO-SHOLES; and RAYNU )
FERNANDO, )
)
Defendants/Counterclaimants/ )
Appellees. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C20063454

Honorable Ted B. Borek, Judge

AFFIRMED

Bruce A. Sholes Cortaro
In Propria Persona

Russell R. Sholes Cortaro
In Propria Persona

Mary L. Sholes Cortaro
In Propria Persona

Mesch, Clark & Rothschild, P.C.
 By Michael J. Crawford and Paul A. Loucks Tucson
Attorneys for
Defendants/Counterclaimants/
Appellees

B R A M M E R, Judge.

¶1 Russell, Mary, and Bruce Sholes (collectively “the Sholes”) appeal from

the trial court‟s judgment determining the parties‟ ownership interests in Oasis at Wild

Horse Ranch, LLC (Oasis) and in two residential properties. The Sholes argue there was

insufficient evidence to support the court‟s determination that Judy Fernando-Sholes and

Raynu Fernando each owned an interest in Oasis, the court erred in allocating ownership

among the parties, the court erred in determining Bruce had “abandoned” the cash he

asserted he had contributed as capital in Oasis, and the court lacked jurisdiction to

determine ownership of the property known as the Camino Verde house.1 We affirm.

Factual and Procedural Background

¶2 “We view the facts in the light most favorable to upholding the trial court‟s

ruling.”2 Hammoudeh v. Jada, 222 Ariz. 570, ¶ 2, 218 P.3d 1027, 1028 (App. 2009).

1
The Sholes‟ opening brief identifies numerous other “sub-issues” not argued or
supported in the argument section—including issues regarding interest on capital
contributions, judgment for non-party creditors, jury instructions, closing arguments, and
others. Because these issues were not argued sufficiently, we do not address them. See
Polanco v. Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d 391, 393-94 n.2 (App. 2007)
(failure to develop and support argument waives issue on appeal).
2
The Sholes‟ statement of facts fails to make appropriate citations to the record as
required by Rule 13(a)(4), Ariz. R. Civ. App. P., and we therefore have disregarded it.
See State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, n.1, 963 P.2d 334, 336
n.1 (App. 1998). Instead, we rely on the Fernandos‟ statement of facts and our review of
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Oasis was formed in 1999 when articles of organization were filed with the Arizona

Corporation Commission listing four parties each owning an interest twenty percent or

greater: Judy, Raynu, their parents Nihal and Eleanor Fernando (collectively

“Fernandos”), and Bruce‟s parents Russell and Mary Sholes. Bruce and Judy, who were

planning to marry, and Judy‟s brother Raynu, attended an auction and made the

successful bid on a guest ranch property on behalf of Oasis. Money to purchase that

property came from various sources the parties disputed at trial. After the property was

acquired, Raynu and Judy were responsible for most of the day-to-day management of

Oasis.

¶3 In 2006, the Sholes and the Fernandos began litigation involving multiple

claims and counterclaims regarding Oasis‟s ownership and management. The trial court

granted directed verdicts on some claims and granted partial summary judgment in favor

of the Sholes ruling that Eleanor and Nihal had no interest in Oasis. By the time of trial,

the claims had been reduced to who owned Oasis as between Russell and Mary, Bruce,

Raynu, and Judy.

¶4 After a nine-day jury trial, the advisory jury found that Raynu, Judy, and

Russell and Mary had agreed to make capital contributions to Oasis. It also found that

Judy and Raynu collectively had contributed over $300,000 in services to Oasis. The

the record. Additionally, we disregard those portions of the Sholes‟ reply brief to the
extent not “confined strictly to rebuttal of points urged in the appellee‟s brief.” Ariz. R.
Civ. App. P. 13(c).

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advisory jury concluded that Russell and Mary owned fifty percent of Oasis and that

Raynu and Judy each owned twenty-five percent of Oasis.

¶5 After considering the record, including the evidence presented at trial, and

the advisory jury verdicts, the trial court ruled that Oasis was owned: fifty percent by

Russell and Mary, twenty-five percent by Raynu, and twenty-five percent by Judy. The

court further concluded “that portion of ownership attributable to the Sholes to be

$170,000, and that portion attributable to Raynu Fernando to be $85,000, and that portion

attributable to Judy Fernando to be $85,000.” It found Bruce Sholes had no ownership

interest in Oasis. The court also found “Bruce Sholes attempted to avoid his creditors by

holding various assets in the name of Russell and Mary Sholes, including . . . [the

residence known as] the Camino Verde House.” As a result, the court found that Russell

and Mary held title to one half the Camino Verde house in a constructive trust as to any

claims of Bruce‟s creditors and the other half in a resulting trust for Judy. The Sholes

filed a motion for a new trial, which the court denied. This appeal followed.

Discussion

Ownership of Oasis

¶6 The Sholes argue there was insufficient evidence to support the trial court‟s

ruling that Judy and Raynu each owned a twenty-five percent interest in Oasis. We defer

to a trial court‟s factual findings and will not set them aside on appeal “unless they are

clearly erroneous or not supported by substantial evidence.” Nordstrom, Inc. v. Maricopa

Cnty., 207 Ariz. 553, ¶ 18, 88 P.3d 1165, 1170 (App. 2004); see also Ariz. R. Civ. P.

52(a) (“Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard

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shall be given to the opportunity of the trial court to judge the credibility of witnesses.”).

“To the extent the parties presented facts from which conflicting inferences could be

drawn . . . , it was for the trial court, not this court, to weigh those facts.” Ruesga v.

Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, ¶ 27, 161 P.3d 1253, 1261 (App. 2007).

Moreover, any additional findings necessary to sustain the judgment are implied if they

are reasonably supported by the evidence and not in conflict with the court‟s express

findings. Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 191, 193, 836 P.2d 404, 406

(App. 1992). However, we are not bound by a trial court‟s conclusions of law, which we

review de novo. See Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 9, 156

P.3d 1149, 1152 (App. 2007).

Law of the Case

¶7 The Sholes first argue the “law of the case” doctrine bound the trial court to

a ruling issued by a judge previously assigned to the case. They argue that judge ruled

during a hearing concerning the ownership interests of Eleanor and Nihal Fernando that a

written agreement signed by all members of the limited liability company (LLC) was

required before services rendered the LLC by a member could have been considered a

valid capital contribution.

¶8 The “law of the case” doctrine refers to “„the judicial policy of refusing to

reopen questions previously decided in the same case by the same court or a higher

appellate court.‟” Hall v. Smith, 214 Ariz. 309, ¶ 28, 152 P.3d 1192, 1200 (App. 2007),

quoting Jimenez v. Wal-Mart Stores, Inc., 206 Ariz. 424, ¶ 12, 79 P.3d 673, 677 (App.

2003). However, the rule is “„one of procedure, not of substance‟” and “„[a] court does

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not lack the power to change a ruling simply because it ruled on the question at an earlier

stage,‟” especially where a substantial change has occurred in the evidence. Id. ¶¶ 28-29,

quoting Love v. Farmers Ins. Grp., 121 Ariz. 71, 73, 588 P.2d 364, 366 (App. 1978). The

doctrine is not absolute, does not have the same binding effect as the doctrine of res

judicata, and should not be applied “„when it would result in a manifestly unjust

decision.‟” Lennar Corp. v. Transamerica Ins. Co., 227 Ariz. 238, ¶ 12, 256 P.3d 635,

640 (App. 2011), quoting Dancing Sunshines Lounge v. Indus. Comm’n, 149 Ariz. 480,

482, 720 P.2d 81, 83 (1986).

¶9 Although the Sholes do not cite the portion of the record that purportedly

contains the “law of the case” ruling as they have stated it, they refer generally to the

hearing challenging the trial court‟s grant of partial summary judgment determining that

Eleanor and Nihal had no ownership interest in Oasis. The court granted the motion

because Eleanor and Nihal had not “come forward with . . . competent evidence to

support any capital contributions made or to be made by them pursuant to A.R.S.

§ 29-701.” Even assuming, without deciding, that the court‟s comments at the hearing

“decided” the requirements that Eleanor and Nihal were required to meet pursuant

to § 29-701, see Hall, 214 Ariz. 309, ¶ 28, 152 P.3d at 1200, the issue before the court as

to Judy and Raynu was substantially different and, as the court noted, “distinguished due

to factual differences between Judy and Raynu as contrasted with their parents, Eleanor

and Nihal.” The Sholes do not dispute that Judy and Raynu presented competent

evidence they had made capital contributions to Oasis, in direct contrast to the court‟s

finding that Eleanor and Nihal had not presented evidence of “any capital contributions

6
made.” Therefore, to the extent the court reopened any previously raised question, it was

within its power to do so. See Lennar Corp., 227 Ariz. 238, ¶ 12, 256 P.3d at 639-40

(law of case applies where “facts, issues and evidence are substantially the same as those

upon which the first decision rested”).

Evidence of Ownership

¶10 The Sholes also argue A.R.S. §§ 29-701(A) and 29-702(A) compel the

conclusion that Judy and Raynu could not have acquired an ownership interest in Oasis in

exchange for services rendered because they did not “come forward with a writing signed

by them at any point in time” promising to make such a contribution. Section 29-701

provides:

A. An interest in a limited liability company may be issued in
exchange for a capital contribution or an enforceable promise
to make a capital contribution in the future, or both.

B. Except as otherwise provided in an operating agreement,
the agreement or consent of all of the members is necessary to
fix or modify the amount and character of the capital
contributions that a member shall make or shall promise to
make in exchange for an interest in the limited liability
company.

A capital contribution may include “services rendered or any other valuable

consideration.” A.R.S. § 29-601(3).

¶11 “The primary rule of statutory construction is to find and give effect to

legislative intent.” Mail Boxes, Etc., U.S.A. v. Indus. Comm’n, 181 Ariz. 119, 121, 888

P.2d 777, 779 (1995). We first look to the plain language of the statute as the best

reflection of the legislature‟s intent. See id. If the statute‟s language is unambiguous, we

7
give effect to it and do not employ other rules of statutory construction to determine its

meaning. Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223

(1991). Sections 29-701(A) and 29-601(3) provide that an interest in an LLC may be

issued in exchange for services or for an enforceable promise to provide services in the

future. Section 29-701(B) provides that LLC members must “agree[] or consent” to the

amount and character of those contributions. In this case, the trial court considered

evidence including the parties‟ intent to distribute ownership as described in the original

articles of organization and the advisory jury‟s finding that Raynu, Judy, and Russell and

Mary had agreed to make capital contributions to Oasis. As discussed below, substantial

evidence in the record supports the court‟s determination that Judy and Raynu each

owned a twenty-five percent interest in Oasis pursuant to § 29-701.

¶12 However, the Sholes argue the phrase “enforceable promise” in

§ 29-701(A) means a member can never receive an ownership interest in exchange for

services without providing evidence of a written agreement because § 29-702(A)

provides that “[a] promise by a member to make a capital contribution to the limited

liability company is not enforceable unless set out in writing and signed by the member.”

They argue that otherwise the word “enforceable” in § 29-701(A) is rendered

superfluous.

¶13 We disagree with the Sholes‟ contention that § 29-702(A) required Judy

and Raynu to present a written agreement to the trial court in order to prove an ownership

interest in Oasis. Section 29-702 first states a promise to make a capital contribution is

enforceable only if “set out in writing and signed by the member.” § 29-702(A). It then

8
outlines the remedies available to the LLC when a member fails to deliver a promised

capital contribution, including a right to the cash value of the promised capital

contribution or to initiate “legal action for damages for breach of contract or for specific

performance.” § 29-702(B), (D). Section 29-702 is irrelevant where no promise has

been breached, where promised services already have been rendered, and where the sole

issue remaining is whether the members of an LLC originally intended that such services

were to be in exchange for an ownership interest. Therefore, it does not impose a written

agreement requirement in this case.

¶14 Moreover, this interpretation of § 29-701 is consistent with A.R.S.

§ 29-854(B), which provides that “[t]he law of estoppel . . . appl[ies] to this chapter.”

Promissory estoppel provides an equitable remedy that renders a promise enforceable,

Double AA Builders, Ltd. v. Grand State Constr. L.L.C., 210 Ariz. 503, ¶¶ 45, 48, 114

P.3d 835, 843, 844 (App. 2005), where a promise has been made “which the promissor

should reasonably foresee would cause the promisee to rely, [and] upon which the

promisee actually relies to his detriment,” Contempo Constr. Co. v. Mountain States Tel.

& Tel. Co., 153 Ariz. 279, 282, 736 P.2d 13, 16 (App. 1987); see also Restatement

(Second) of Contracts § 90 (1981). The Sholes‟ suggested interpretation of § 29-701(A)

as limited by § 29-702(A) would have the absurd result of prohibiting a court from

exercising its equitable powers to provide a remedy under the principle of promissory

estoppel where, as in this case, the only way to avoid an injustice is to enforce the

9
promise.3 See Restatement § 90; see also A.R.S. § 29-856 (where situation not covered

by statutes governing LLC‟s, “the rules of law and equity . . . govern”).

¶15 The trial court‟s determination that Judy and Raynu each own a twenty-five

percent interest in Oasis is supported by substantial evidence in the record. The original

recorded articles of organization for Oasis stated that Judy and Raynu were two of four

parties who each would “own[] a twenty-percent . . . or greater interest in the capital or

profits of the company.” Evidence at trial showed that Bruce had named Raynu as a

shareholder in a complaint in previous litigation involving Oasis. Raynu testified he and

Judy were “supposed to build the company and create a business with our service” in

exchange for an ownership interest, and he would not have agreed to work at Oasis

merely as an employee. Judy testified she “would have walked away” from Oasis if her

ownership interest had been eliminated. Although the Sholes contend other testimony

disputed those representations, they do not provide supporting citations to the relevant

portion of the record. Moreover, even where conflicting evidence exists, this court will

not reweigh the evidence and “we affirm the trial court‟s ruling [if] substantial evidence

supports it.” See Double AA Builders, Ltd., 210 Ariz. 503, ¶ 41, 114 P.3d at 843 (“due

regard” given to trial court‟s ability to judge credibility of witnesses). The advisory jury

found that Raynu, Judy, and Russell and Mary came to an agreement to make capital

3
The Sholes also argue awarding “sweat equity” to Judy and Raynu without a
written agreement is contrary to law because the Sholes have not benefitted from the
arrangement. However, the argument fails to make any citations to the record or to
relevant authority. Therefore, the argument is waived. See Ariz. R. Civ. App. P.
13(a)(6); Polanco, 214 Ariz. 489, n.2, 154 P.3d at 393-94 n.2.

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contributions to Oasis, and the Sholes do not dispute the jury‟s finding that Judy and

Raynu in fact contributed over $300,000 in services to Oasis. Therefore, the court did not

err in determining that Raynu and Judy each owned twenty-five percent of Oasis.

Calculation of Ownership Percentage

¶16 The Sholes argue the trial court erred in allocating the percentage of

ownership interests in Oasis by not crediting the Sholes with an ownership interest that

equals the amount of cash they paid toward the purchase of Oasis, including an additional

$4,500 plus a $25,000 earnest money payment. They do not cite any portion of the

record to support the “undisputed facts at trial” that allegedly reveal the source of the

earnest money payment. More importantly, they do not refer to any evidence suggesting

the additional amounts were intended to be capital contributions or otherwise address the

court‟s finding that Russell and Mary “agreed to advance $340,000 to consummate the

purchase of Oasis upon the understanding that $170,000 would be repaid.”4 Nor do they

provide any authority to support the suggestion that ownership interests must be allocated

according to the amount of cash paid toward a purchase, rather than by the amount

intended as a capital contribution in exchange for an ownership interest as provided in

§ 29-701(B). Therefore, they have waived this argument on appeal and we do not

address it further. See Ariz. R. Civ. App. P. 13(a)(6) (appellate brief argument shall

4
In its ruling on the Sholes‟ motion for a new trial, the trial court noted it had
considered “numerous arguments on the capital contributions made,” including “that
$170,000 was a premarital gift from Bruce to Judy as a contribution for the Fernandos,
and second, that it was a loan from [Russell and Mary] to Judy on behalf of the
Fernandos.”

11
contain “citations to the authorities, statutes and parts of the record relied on”); Polanco

v. Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d 391, 393-94 n.2 (App. 2007) (appellant‟s

failure to develop and support argument waives issue on appeal).

Bruce’s Abandonment of Ownership Interest

¶17 The Sholes next argue the trial court erred in ruling that Bruce had

“„abandoned‟ $163,511[] of cash capital” contributed to Oasis. However, the court did

not find Bruce ever had made any capital contributions to Oasis with an agreement to

exchange those for an ownership interest—only that he had paid $163,511 amount

toward the ranch property‟s purchase price. As discussed above, § 29-701(B) provides

one must prove the members of the LLC agreed or consented to exchange a capital

contribution for an interest in the LLC. Substantial evidence supports the conclusion that

Bruce had no such agreement and therefore no interest in Oasis. The original articles of

organization for Oasis did not list Bruce as an interest-owning member. And, Bruce

testified at trial that he had “never been a member” of Oasis and that he had filed

affidavits in previous lawsuits stating he was not an owner because he had “never been

on any of the paperwork as an owner.” Therefore, the court did not err in ruling Bruce

has no ownership interest in Oasis.

Camino Verde House

¶18 The trial court determined title to the Camino Verde house was held by

Russell and Mary one-half in a constructive trust for the claims of Bruce‟s creditors and

one-half in a resulting trust for Judy. The Sholes argue the court did not have jurisdiction

to determine ownership of the Camino Verde house because the issue never was raised in

12
the pleadings.5 However, “[w]hen issues not raised by the pleadings are tried by express

or implied consent of the parties, they shall be treated in all respects as if they had been

raised in the pleadings.” Ariz. R. Civ. P. 15(b).

¶19 In the joint pretrial statement the Fernandos submitted contested issues of

law, including: “Are Russell and Mary Sholes holding the Camino Verde home as

nominees for Bruce and/or Judy?” In response, the Sholes filed a “legal memorandum

re[garding] the Fernandos‟ nominee theory” recognizing the Fernandos had alleged

Russell and Mary held various properties as nominees for Bruce and explaining why jury

instructions on resulting trusts were appropriate. The Sholes proposed jury instructions

on the principle of resulting trusts, and the jury was instructed on the principles of

resulting and constructive trusts. The jury also was provided with a verdict form asking it

to determine whether Russell and Mary “hold the Camino Verde House for the benefit of

Bruce and Judy.” The Fernandos argued the purchase money for the Camino Verde

house came from Bruce‟s law office and the mortgages and taxes were paid by Bruce and

Judy.

¶20 The trial court determined Russell and Mary held title to the Camino Verde

house in a constructive trust for Bruce‟s creditors as to half and a resulting trust as to the

other half for Judy because Bruce had “attempted to avoid his creditors by holding

5
The Sholes raise numerous sub-issues related to the Camino Verde house
determination that are unsupported with citation to authority or the record. We confine
ourselves to addressing the arguments as they are presented in the argument section of the
opening brief and are supported properly, as all other issues are waived. See Ariz. R.
Civ. App. P. 13(a)(6); Polanco, 214 Ariz. 489, n.2, 154 P.3d at 393-94 n.2.

13
various assets in the name of Russell and Mary.” This determination followed from the

issue raised by the Fernandos and presented in the jury instructions and interrogatories.

See Turley v. Ethington, 213 Ariz. 640, ¶ 10, 146 P.3d 1282, 1285 (App. 2006)

(imposition of constructive trust appropriate when property acquired such that holder of

title may not in good conscience retain interest); Toth v. Toth, 190 Ariz. 218, 220, 946

P.2d 900, 902 (1997) (resulting trust arises in favor of person furnishing purchase money

for property purchased in name of another).

¶21 In their oral motion for summary judgment on the nominee theory, the

Sholes argued the nominee theory did not “apply to this case at all,” arguing in the

alternative that the jury should be instructed on resulting trust theory. And when the

Fernandos argued that “if the court is going to give instructions on resulting trusts . . . the

court will have to give an instruction on constructive trust,” the Sholes did not object to

giving a constructive trust instruction. By requesting jury instructions on the principle of

resulting trusts and arguing its applicability, the Sholes consented to trying the issue of

whether Russell and Mary held the Camino Verde house for the benefit of Bruce and

Judy as if it had been raised in the pleadings. See Ariz. R. Civ. P. 15(b). Therefore, we

agree with the trial court that any error regarding the Camino Verde house “was either

waived or induced by [the Sholes].” See Schlecht v. Schiel, 76 Ariz. 214, 220, 262 P.2d

252, 256 (1953) (“[O]ne who deliberately leads the court to take certain action may not

upon appeal assign that action as error.”).

¶22 The Sholes also argue that “only the Dissolution Court ha[d] the

jurisdiction to determine whether the interests acquired by [Judy or Bruce] in the Camino

14
Verde House are separate or community in nature” because that issue was raised by Judy

in her petition for dissolution. However, the trial court did not determine whether Bruce

or Judy hold their interests in the Camino Verde house as separate or community

property. Moreover, the Sholes have not explained how the court‟s determination that

Russell and Mary hold the Camino Verde house in trust for Bruce and Judy prevents the

dissolution court from characterizing Bruce and Judy‟s interests as community or

separate. See Ariz. R. Civ. App. P. 13(a)(6); Polanco, 214 Ariz. 489, n.2, 154 P.3d at

393-94 n.2. Therefore, we find no error.

Disposition

¶23 For the foregoing reasons, we affirm. The Fernandos request an award of

attorney fees pursuant to A.R.S. § 12-341.01. We grant their request upon compliance

with Rule 21, Ariz. R. Civ. App. P.

/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge

CONCURRING:

/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Judge

15