Opinion
No. 1 CA-CV13-0728
12-02-2014
GBELA and EDMUND CHONCZYNSKI, husband and wife, Plaintiffs/Appellants, v. BENJAMIN and CHRISTINE AGUILERA, husband and wife, Defendants/Appellees.
COUNSEL McCauley Law Offices P.C., Cave Creek By Daniel J. McCauley III Counsel for Plaintiffs/Appellants Slaton & Sannes, P.C., Scottsdale By Joel E. Sannes Counsel for Defendants/Appellees
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. CV2007-051068
The Honorable Alfred M. Fenzel, Judge
REVERSED AND REMANDED
COUNSEL McCauley Law Offices P.C., Cave Creek
By Daniel J. McCauley III
Counsel for Plaintiffs/Appellants
Slaton & Sannes, P.C., Scottsdale
By Joel E. Sannes
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined. NORRIS, Judge:
¶1 The principal issue in this appeal from summary judgment in favor of Defendant/Appellee Benjamin Aguilera is whether Plaintiffs/Appellants Edmund and Gisela Chonczynskis' settlement with the parties they allege defrauded them bars their claim against him for aiding and abetting that fraud. We hold it does not. Further, we reject Aguilera's arguments that we should affirm summary judgment in his favor on other grounds argued to but rejected by the superior court.
FACTS AND PROCEDURAL BACKGROUND
"On appeal from summary judgment, we consider the evidence in the light most favorable to the party opposing summary judgment." Moretto v. Samaritan Health Sys., 198 Ariz. 192, 194, ¶ 11, 8 P.3d 380, 382 (App. 2000). Our factual recitation is for purposes of resolving this appeal only and should not be construed as an acceptance of any of the factual allegations of the parties.
¶2 This case arises out of the Chonczynskis' purchase and subsequent loss of property in Puerto Peñasco, Sonora, Mexico. The Chonczynskis allege that in May 1997 they entered into an agreement with RY Development Company, an Arizona limited partnership ("RY"), through its alleged agent, Oscar Esquer and his company, Desarollos Casa, to pay $143,500 for a lot RY marketed to them as being in a subdivided development called "Del Mar." In July of that year, the Chonczynskis paid the balance of the purchase price at the office of Phoenix Holdings II, an Arizona company that was to provide financing and marketing for the Del Mar project. The Chonczynskis contracted with Esquer to have a vacation home built on the lot (collectively, the "property") for $240,000, and the home was completed by December 1998. Neither RY, Phoenix Holdings II, nor Esquer ever provided the Chonczynskis with a deed. In 2007, the Chonczysnkis learned Del Mar had never been subdivided.
¶3 In 2001, the Tourist Industry, Hotels, Restaurants, Bars, Nightclubs, Waiters, Dancers, Cooks and Other Workers Union of the Municipality of Puerto Peñasco (the "Union") sought to enter into a collective bargaining agreement with Desarrollos Casa and/or "the owner of Del Mar." After receiving no response, the Union workers went on strike. In 2003, a Mexican labor board awarded the Union back wages plus additional wages as they continued to accumulate.
¶4 In 2001, a dispute arose over the ownership of Del Mar with Esquer on one side and RY and Phoenix Holdings II on the other. In connection with that dispute, in June 2004, Aguilera, an attorney, began representing Phoenix Holdings II, and consequently RY's interests in Del Mar.
¶5 On July 9, 2004 the Union began proceedings to collect the wages owed to its members by obtaining a lien on Del Mar. In December 2004, Aguilera negotiated with and allegedly bribed Union officials to substitute the Chonczynskis' property for Del Mar as the subject of the Union's lien. At this time, Aguilera allegedly knew the Chonczynskis had paid for the lot and the construction of the house. On January 25, 2005, the labor board issued an order that only the Chonczynskis' property would be auctioned to satisfy the Union's lien pursuant to the Union's request.
¶6 The Union auctioned the Chonczynskis' property on February 1, 2005. The house contained many of the Chonczynskis' personal possessions. Aguilera purchased the property and subsequently transferred it to Inmobiliaria Tomka, a Mexican corporation in which he held a controlling interest, for the benefit of RY. Though the Chonczysnkis retained Mexican legal counsel, they were unable to set aside the sale or otherwise protect their interests because, without a deed, they could not prove they owned the property. The Chonczynskis were unable to recover their personal possessions that were in the house at the time of the auction.
¶7 The Chonczysnkis filed this lawsuit in 2007 alleging various contract and tort claims against RY, its principal, Gary Yahnke, Inmobiliaria Tomka, and Aguilera. As relevant to this appeal, the Chonczynskis alleged Aguilera manipulated the auction and obtained control of Inmobiliaria Tomka to obfuscate RY's fraud and to extinguish any claim to the property the Chonczynskis might be able to assert.
¶8 The superior court dismissed the Chonczynskis' complaint, finding the statute of limitations had run on all claims, and "the proper forum for this litigation is Mexico." This Court reversed the dismissal of the Chonczysnkis' tort and unjust enrichment claims. Chonczynski v. RY Dev. Co., No. 1 CA-CV 08-0296, 2009 WL 1138080 at *11, ¶ 67 (Ariz. App. Apr. 28, 2009) (mem. decision). After remand, the superior court dismissed all claims against Inmobiliara Tomka and all claims against Aguilera save aiding and abetting fraud and unjust enrichment.
¶9 In June 2013, RY and Yahnke settled with the Chonczynskis. Under the terms of the settlement agreement, the Chonczynskis agreed to release all claims they had against Yahnke and RY "arising out of . . . [their] Complaint," and, without admitting liability, RY agreed to "accept" entry of a $450,000 judgment enforceable only against it in Mexico. The superior court accordingly dismissed all claims against Yahnke and entered judgment against RY consistent with the settlement agreement.
¶10 After the superior court dismissed the claims against Yahnke and entered judgment against RY, Aguilera filed a "Motion for Summary Judgment Based on Res Judicata," arguing the settlement extinguished all remaining claims against him. The superior court granted summary judgment "[f]or the reasons stated by Defendants Aguilera."
On appeal, the Chonczynskis have not challenged the superior court's dismissal of their unjust enrichment claim. Accordingly, we will not address it. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) ("Issues not clearly raised and argued in a party's appellate brief are waived.").
DISCUSSION
¶11 On appeal, the Chonczynskis argue the superior court should not have granted summary judgment against them because Aguilera may still be found liable as a tortfeasor, and, therefore, under Arizona's comparative fault system, the release of Yahnke and the release of and judgment against RY ("RY release/judgment") does not bar their aiding and abetting claim against Aguilera. See Ariz. Rev. Stat. ("A.R.S.") §§ 12-2501 to 2509 (2003) ("UCATA"). We agree with the Chonczynskis, and hold Aguilera's arguments are contrary to UCATA as the Chonczynskis' aiding and abetting claim is not "derivative" in the sense that it solely arises out of his alleged legal and/or contractual relationship with RY/Yahnke. We also reject the additional arguments Aguilera makes in favor of affirming summary judgment. I. Effect of the Settlement Agreement on the Aiding and Abetting Claim against Aguilera
¶12 "[A] person who aids and abets a tortfeasor is himself liable for the resulting harm to a third person." Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 485, ¶ 31, 38 P.3d 12, 23 (2002). Aiding and abetting is a derivative or secondary claim in the sense that it requires another person to have committed an intentional tort which the aider and abettor "substantially assist[ed]." See id. at ¶¶ 34, 36. Thus, an aider and abettor is a tortfeasor along with the primary tortfeasor and, as such, may be held jointly liable with the primary tortfeasor or only severally liable for the injury caused, depending on findings made by the jury. See Sec. Title Agency, Inc. v. Pope, 219 Ariz. 480, 497, ¶¶ 77-79, 200 P.3d 977, 994 (App. 2008) (while aider and abettor and primary tortfeasor may be held jointly and severally liable if they are shown to have acted in concert under A.R.S. § 12-2506(D)(1), such a showing is not necessary to establish a claim for common-law aiding and abetting when the primary tortfeasor and aider and abettor are to be held only severally liable).
¶13 Thus, as the Chonczynskis correctly point out, UCATA governs the effect of the release of Yahnke and the RY release/judgment on Aguilera's potential liability for aiding and abetting. Under UCATA, Aguilera may still be liable for "the amount of damages allocated to [him] in direct proportion to [his] percentage of fault" if found only severally liable. A.R.S. § 12-2506(A), see, e.g., Sec. Title Agency, 219 Ariz. at 490, ¶ 39, 200 P.3d at 987 (primary tortfeasor 3.17% at fault, aider and abettor 96.83% at fault). Aguilera may be jointly and severally liable if he is found to have acted in concert with RY/Yahnke or as RY/Yahnke's agent, see A.R.S. § 12-2506(D), in which case the Chonczynskis' claim against him would be reduced "to the extent of any amount stipulated by the release" of RY. A.R.S. § 12-2504(1). Aguilera is not, however, absolved of liability by virtue of the RY release/judgment or the release of Yahnke.
The record reflects the Chonczynskis may not have properly presented and preserved any argument that Aguilera acted in concert with RY/Yahnke. For purposes of this appeal we have assumed the Chonczynskis preserved the issue. On remand nothing in this decision should be construed as prohibiting Aguilera from arguing to the contrary.
¶14 Aguilera correctly points out that a primary tort is a necessary element of an aiding and abetting claim, see Wells Fargo Bank, 201 Ariz. at 485, ¶ 34, 38 P.3d at 23 (to prevail on an aiding and abetting claim plaintiff must prove primary tortfeasor committed a tort that causes injury to the plaintiff); however, this point of law does not support his argument that the Chonczynskis' aiding and abetting claim cannot go forward because of the RY release/judgment and the release of Yahnke. In the cases Aguilera relies on in making this argument, a fact-finder determined that the underlying primary tort did not occur, thus rendering the plaintiff unable, as a matter of law, to prove an aiding and abetting claim premised on that tort. Fink v. Magner, 988 F. Supp. 70, 72-73 (D. Conn. 1997); Richard B. LeVine, Inc. v. Higashi, 32 Cal. Rptr. 3d 244, 249-50 (Cal. Ct. App. 2005); Efthimiou v. Smith, 846 A.2d 222, 226-28 (Conn. 2004). Here, the superior court did not make any factual finding that RY and Yahnke did not commit the fraud upon which Aguilera's alleged aiding and abetting liability is premised; rather, the Chonczynskis stipulated to a judgment with RY and released their claims against RY and Yahnke.
¶15 In the balance of his arguments, Aguilera assumes that the effect of the Chonczynskis' settlement with RY/Yahnke is governed by principles of vicarious liability and/or non-insurance indemnity law, not UCATA. Relying on these inapplicable principles, Aguilera's primary argument in his motion for summary judgment and on appeal is that a "derivative claim," such as aiding and abetting, is barred by the plaintiff's settlement with the primary tortfeasor. As a matter of logic, we fail to see how obtaining a stipulated judgment against a defendant alleged to have committed the primary tort would operate to bar a claim against the aider and abettor, and the authorities Aguilera marshals in support of this proposition are unpersuasive.
Throughout his arguments, Aguilera does not distinguish between the dismissal of Yahnke and the judgment entered against RY. We have not done so either, because, at a minimum, the judgment against RY does not bar the Chonczynskis' aiding and abetting claim.
¶16 The vicarious liability cases Aguilera relies on in arguing the release of Yahnke and the RY release/judgment bar the aiding and abetting claim against him are inapplicable or contrary to Arizona law. Unlike several cases he cites, Aguilera's alleged liability does not arise solely from the wrongful conduct of RY/Yahnke, but from alleged substantial assistance he provided to RY/Yahnke in connection with their alleged fraud. See Bacon v. United States, 321 F.2d 880, 882 (8th Cir. 1963) ("[T]here can be no doubt, nor do the [plaintiffs] make any such contention, that the [employer/defendant] could not have been independently negligent in any way. The only possible cause of action against the [employer/defendant] would be founded under the doctrine of respondeat superior."); Wells v. Spirit Fabricating, Ltd., 680 N.E. 2d 1046, 1053 (Ohio Ct. App. 1996) ("[T]he employer cannot be found to be liable for negligence he did not commit. The employer's liability is dependent on the negligence of the employee. Since the plaintiff released [employee] for his negligence, there is no basis to support plaintiff's claim against [employer]."); Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573-74, 716 P.2d 28, 30-31 (1986) (in a respondeat superior case, judgment for or dismissal of agent relieves master of liability); Ericksen v. Pearson, 319 N.W. 2d 76, 82-83 (Neb. 1982) (when the claim against the master is based solely on respondeat superior, a judgment or dismissal in favor of servant releases master of liability).
¶17 Furthermore, while Arizona law is consistent with the general principle that release of an agent releases a principal whose only liability arises from the wrongful acts of the agent, see, e.g., Law v. Verde Valley Med. Ctr., 217 Ariz. 92, 96, ¶ 13, 170 P.3d 701, 705 (App. 2007), it is inapplicable to the facts of this case. The Chonczynskis settled with the alleged principal, not the alleged agent, and thus Bacon, 321 F.2d at 882, and Spirit Fabricating, 680 N.E. 2d at 1048, are distinguishable for this reason as well.
¶18 Finally, the two cases Aguilera cites in which a release of the principal operated to release the agent, Ericksen, 319 N.W. 2d at 83, and, Transpac Const. Co., Inc. v. Clark & Groff Eng'rs, Inc., 466 F.2d 823, 829 (9th Cir. 1972), rely on a common-law principle that release of either the principal or agent releases the other. This court explicitly rejected this principle in Jamerson v. Quintero, 233 Ariz. 389, 391, ¶ 8, 313 P.3d 532, 534 (App. 2013) (pursuant to A.R.S. § 12-2504, "a consent judgment in favor of a principal does not as a matter of law bar a claim against the tortfeasor agent"); see also A.R.S. § 12-2504(1) ("[A] release or a covenant not to sue or not to enforce judgment . . . given in good faith to one of two or more persons liable in tort for the same injury . . . does not discharge any of the other tortfeasors from liability for the injury . . . ."). Thus, under this theory, even if applicable to the facts of this case, the Chonczysnkis' release of Yahnke and the RY release/judgment do not, as a matter of Arizona law, bar their claim against Aguilera.
Aguilera cites one case in which the settlement with the principals barred plaintiffs' claim against the agent-attorney; the issue in that case, however, concerned whether the attorney, who represented the principals in prior litigation, was the same party as the principals for purposes of res judicata. Jayel Corp. v. Cochran, 234 S.W.3d 278 (Ark. 2006).
¶19 Aguilera also argues the release of Yahnke and the RY release/judgment barred the Chonczynskis' aiding and abetting claim under principles borrowed from non-insurance indemnity case law. As we understand the argument, Aguilera is contending the settlement agreement was essentially a release that extinguished the Chonczynskis' fraud claim and thus the Chonczynskis cannot pursue their "derivative" aiding and abetting claim. This argument mischaracterizes the facts of this case insofar as it ignores the facts presented by the Chonczynskis that show Aguilera and RY/Yahnke both actively participated in causing the Chonczynskis' damages, and Aguilera's alleged liability as an aider and abettor does not arise out of a purely legal and/or contractual relationship with RY/Yahnke, as is the case in an indemnitor/indemnitee relationship. Aguilera's argument is also based on a mischaracterization of Arizona law as stated by the Arizona Supreme Court and this court. The cases Aguilera relies on, Cunningham v. Goettl Air Conditioning Inc. and Tumbling T-Ranches v. Flood Control Dist. of Maricopa Cnty., and other Arizona non-insurance indemnity cases he does not cite, recognize that the terms of an indemnity agreement will govern the extent of the actual liability of the indemnitor. Cunningham v. Goettl Air Conditioning Inc., 194 Ariz. 236, 241-42, ¶ 25, 980 P.2d 489, 494-95 (1999); A Tumbling T-Ranches v. Flood Control Dist. of Maricopa Cnty., 220 Ariz. 202, 209-10, ¶ 23, 204 P.3d 1051, 1058-59 (App. 2008); see also Flood Control Dist. of Maricopa Cnty., v. Paloma Inv. Ltd. P'ship, 230 Ariz. 29, 36-38, ¶¶ 11-19, 279 P.3d 1191, 1198-1200 (App. 2012). Further, the cases cited by Aguilera do not mean that under the facts here, the RY release/judgment and the Chonczynskis' release of Yahnke constituted an admission or factual determination that the underlying fraud did not happen. By releasing RY and Yahnke, the Chonczynkis have extinguished their right to further pursue their fraud claim against them; the Chonczynskis have not, however, conceded that RY/Yahnke did not commit the fraud alleged.
¶20 For the foregoing reasons, we hold the RY release/judgment and the Chonczynskis' release of Yahnke did not, as a matter of law, prevent them from going forward with their aiding and abetting claim against Aguilera. II. Aguilera's Additional Arguments for Affirming Summary Judgment
¶21 Aguilera argues we should affirm summary judgment in his favor for reasons he raised in other summary judgment motions he filed but which the superior court denied. See ARCAP 13(b); Bryce v. St. Paul Fire & Marine Ins. Co., 162 Ariz. 307, 308, 783 P.2d 246, 247 (App. 1989) (prevailing party may seek to uphold favorable judgment for reasons argued on the record, but different from those relied on by superior court). We find these alternative arguments unpersuasive.
A. Statute of Limitations
¶22 Aguilera first argues the statute of limitations bars the Chonczynskis' aiding and abetting claim because he purchased the property at auction on February 1, 2005, and the Chonczynskis did not sue him until June 2007, more than two years later. The statute of limitations for fraud claims, however, is three years. A.R.S. § 12-543(3) (2003).
¶23 Furthermore, "a tort claim accrues when a plaintiff knows, or through the exercise of reasonable diligence should know, of the defendant's wrongful conduct." Taylor v. State Farm Mut. Auto. Ins. Co., 185 Ariz. 174, 177, 913 P.2d 1092, 1095 (1996). Because the claim against Aguilera is for aiding and abetting the fraud of RY and Yahnke, the statute of limitations did not begin to run until the Chonczysnkis had, or should have had, sufficient information to bring the underlying primary fraud claim against RY and Yahnke. See Flannery v. Singer Asset Fin. Co., LLC, 94 A.3d 553, 567 n.23 (Conn. 2014) ("[T]he limitations period on a cause of action for aiding and abetting a tort is the same as that for the underlying tort.") (citation omitted) (internal quotation marks omitted). And, as we stated in our prior decision in this case, "[w]hether the Chonczynskis had actual notice prior to 2007, or should have known of the fraud in light of the existing facts, is disputed and should be left for the fact finder to decide." Chonczynski, 1 CA-CV 08-0296, at *5, ¶ 30. We will not affirm summary judgment on this ground.
B. Causation
¶24 Aguilera next argues the Chonczynskis cannot establish his actions caused their damages because they would not be in possession of the property even absent his alleged actions. This argument assumes a more demanding causal link than is required for aiding and abetting liability. While "[a]n aiding-and-abetting claim requires proof of a causal connection between the defendant's assistance or encouragement and the primary tortfeasor's commission of the tort, . . . 'but for' causation is not required." Pope, 219 Ariz. at 491, ¶ 47, 200 P.3d at 988. "The test is whether the [aider and abettor's] assistance makes it 'easier' for the violation to occur, not whether the assistance was necessary." Wells Fargo, 201 Ariz. at 489, ¶ 54, 38 P.3d at 27.
¶25 Here, the Chonczynskis presented evidence Aguilera's assistance made it easier for RY/Yahnke to commit the underlying fraud. The Chonczynskis alleged RY/Yahnke deprived them of the property which they purchased and improved in reliance on representations they would recieve legal title to a subdivided lot. Aguilera allegedly assisted this fraud by extinguishing any equitable claim the Chonczynkis may have had to the property by negotiating with the Union to auction only the Chonczynskis' property and then by purchasing the property at the auction. Furthermore, the Chonczynskis alleged Aguilera helped conceal the fraud from them by surreptitiously transferring the property back to RY through a Mexican shell corporation. Thus, we cannot say as a matter of law that the Chonczynskis cannot show causation, and we will not affirm summary judgment on this ground.
Aguilera also argues the Chonczynskis cannot prove his actions contributed to their losses because the property is now owned by Desarrollos Casa. According to Aguilera, because Desarrollos Casa held title to Del Mar when the Chonczynskis purchased the lot and then re-acquired title to Del Mar inclusive of the property, nothing he did caused the Chonczynskis any harm. This argument ignores the evidence marshalled by the Chonczynskis that Esquer and Desarrollos Casa were acting as RY's agent in the Del Mar development and that Aguilera's alleged actions caused them to lose their equitable claim to the property before Desarrollos Casa obtained title to Del Mar in 2008.
C. Damages
¶26 Aguilera further argues the Chonczynskis cannot prove damages because, thus far, they have only offered expert testimony of the property's value as of July 25, 2007, and not as of the date they bought the lot or even when the property was auctioned. While it is true that for purposes of determining fraud damages according to a benefit of the bargain theory, "the controlling value is the value at the date of the fraudulent transaction, and not at a later date," Ulan v. Richtars, 8 Ariz. App. 351, 358 n.5, 446 P.2d 255, 262 n.5 (1968), it is not clear from the record the Chonczynskis are pursuing this theory of damages. More importantly, a defendant in a fraud action "may not limit the proof of damages to the benefit of the bargain," and a plaintiff may present evidence pursuant to other damages theories. Ashley v. Kramer, 8 Ariz. App. 27, 30-31, 442 P.2d 564, 567-68 (1968); accord Cole v. Gerhart, 5 Ariz. App. 24, 26, 423 P.2d 100, 102 (1967) ("We have been cited no decision holding that because the 'benefit-of-the-bargain' rule has been adopted, other fundamental rules of damage must be thrown out the window.").
¶27 Further, the Chonczynskis are seeking other damages in addition to "the current fair market value of the lot and residence." The Chonczynskis offered evidence they paid $143,500 to purchase the lot, paid $240,000 to build the home, and were deprived of their personal possessions when the property was sold at auction. See, e.g., Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 521, 591 P.2d 1005, 1009 (App. 1979) (out-of-pocket expenses necessary to perform contract prior to discovering fraud are recoverable); Ashley, 8 Ariz. App. at 30-31, 442 P.2d at 567-68 (consequential damages recoverable in fraud action). Thus, the record does not support Aguilera's argument that the Chonczynskis have failed to prove any damages, and we will not affirm summary judgment on this ground.
D. Chonczynskis' Failure to Respond to Requests for Admissions
¶28 Finally, Aguilera contends we should affirm summary judgment in his favor because the Chonczynskis' failure to respond to his requests for admissions ("requests") conclusively establishes facts which entitled him to summary judgment. See Ariz. R. Civ. P. 36(a), (c). On appeal, Aguilera asks that we weigh the legal significance of all ten of the unanswered requests. The record, however, reflects Aguilera only relied on two of these requests in asking the court to grant him summary judgment: "Admit YOU did not pay the entire $143,500 purchase price YOU agreed to pay for the lot YOU allege YOU purchased in DEL MAR"; and "Admit YOU did not pay, and have not paid, any money toward the design, engineering and/or construction of a residence to be built on any lot YOU allege YOU purchased in DEL MAR." Accordingly, we will only consider those two requests. See City of Tucson v. State, 191 Ariz. 436, 439 n.3, 957 P.2d 341, 344 n.3 (App. 1997) (refusing to consider basis for upholding superior court's ruling raised for first time on appeal).
Among the eight other requests are statements, which even if admitted, would not have entitled Aguilera to summary judgment. For example, one request asked the Chonczynskis to admit "Aguilera acted in the course and scope of his attorney-client relationship with Phoenix Holdings when he participated in the foreclosure auction procedures relating to the lot YOU allege YOU purchased in DEL MAR." Under Arizona law, a lawyer can be guilty of aiding and abetting his client's fraud even if he is acting within the scope of his representation of the client. Chalpin v. Snyder, 220 Ariz. 413, 424, ¶ 45, 207 P.3d 666, 677 (App. 2008).
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¶29 Accepting for purposes of this appeal the Chonczynskis' failure to respond to the requests "conclusively established" they did not pay for the lot or the construction of the house, Ariz. R. Civ. P. 36(c), Aguilera is still not entitled to summary judgment because the Chonczynskis' aiding and abetting claim does not depend solely on having paid for the lot or the construction of the house. As discussed, the Chonczysnkis have also claimed damages arising from the loss of their personal possessions which were in the house at the time of auction. Aguilera has not argued the Chonczynskis cannot prove those damages at trial. We will not affirm summary judgment on this ground, and it is for the superior court to determine the precise effect of the Chonczynskis' failure to respond to the requests insofar as they are implicated in further proceedings on remand. III. Attorneys' Fees
¶30 The Chonczynskis appeal the superior court's decision to award Aguilera attorneys' fees. Because we have reversed the summary judgment in favor of Aguilera, we also vacate the superior court's fee award.
CONCLUSION
¶31 For the foregoing reasons, we reverse the summary judgment in favor of Aguilera, vacate the fee award in his favor, and remand for further proceedings consistent with this decision and limited to the Chonczynskis' aiding and abetting claim against Aguilera. We deny Aguilera's request for attorneys' fees and costs because he is not the prevailing party on appeal. As the prevailing party, the Chonczynskis are entitled to their statutory taxable costs on appeal pursuant to A.R.S. § 12-341 (2003), contingent upon their compliance with ARCAP 21.