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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CACH, LLC, a limited liability company, Plaintiff/Appellee,

v.

NANCY M. MARTIN and ROBERT MARTIN, Defendants/Appellants.

No. 1 CA-CV 14-0504

Appeal from the Superior Court in Maricopa County

No. CV 2012-017288

The Honorable Robert H. Oberbillig, Judge

AFFIRMED

COUNSEL

Neuheisel Law Firm, P.C., Tempe

By Kathryn A. Neuheisel, Beth Bruno, Kerry Osborne

Counsel for Plaintiff/Appellee

Nancy and Robert Martin, Tempe

Defendants/Appellants

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Patricia A. Orozco and Judge Maurice Portley joined.
CACH v. MARTIN

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2

D O W N I E, Judge:

¶1 Nancy and Robert Martin appeal from the entry of summary 

judgment in favor of CACH, LLC. For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 CACH sued the Martins for breach of contract, alleging a 

default on a credit card account with Citibank — CACH’s 

predecessor-in-interest. The Martins moved to stay or dismiss the action 

to allow for arbitration, as contemplated by the credit card agreement. 

CACH did not object to arbitration and asked the court to stay the 

proceeding “for a reasonable period of time” to permit the Martins to 

pursue arbitration. 

¶3 In January 2013, the trial court stayed the proceedings to 

allow arbitration to proceed. After the case was dismissed off the inactive 

calendar, the trial court reinstated the action, finding “good cause exists to 

reinstate the case so that it can proceed to resolution on the merits.” 

¶4 CACH filed a motion for summary judgment in October 

2013, which the Martins opposed. The trial court granted CACH’s 

motion, and the Martins filed a timely notice of appeal. We have 

jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 

12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Arbitration Clause

¶5 The Martins contend that “while it may be the defendant

who asks for arbitration of a debt claim of the plaintiff, it is the plaintiff, in 

a setting such as this, that must be the moving party to commence the 

arbitration since it is the plaintiff who seeks ultimate relief or judgment 

(on the facts here).” We disagree. 

¶6 Arbitration agreements are contractual in nature, and their 

interpretation is a question of law that we review de novo. See Estate of 

Decamacho ex rel. Guthrie v. La Solana Care & Rehab, Inc., 234 Ariz. 18, 20–21, 

¶¶ 9–10, 316 P.3d 607, 609–10 (App. 2014); see also Burke v. Voicestream 

Wireless Corp. II, 207 Ariz. 393, 395, ¶ 11, 87 P.3d 81, 83 (App. 2004). An 

agreement to arbitrate is construed according to its language and the 

circumstances in which it was made. U.S. Insulation, Inc. v. Hilro Constr. 

Co., 146 Ariz. 250, 257, 705 P.2d 490, 497 (App. 1985). “If the contractual 
CACH v. MARTIN

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language is clear, we will afford it its plain and ordinary meaning and 

apply it as written.” Liberty Ins. Underwriters v. Weitz Co., 215 Ariz. 80, 83, 

¶ 8, 158 P.3d 209, 212 (App. 2007). 

¶7 The arbitration clause at issue here provides that disputes 

“may” be resolved by binding arbitration and states, in pertinent part: 

Agreement to Arbitrate: Either you or we may, without the 

other’s consent, elect mandatory, binding arbitration for any 

claim, dispute, or controversy between you and us (called 

“Claims”). 

. . . .

How does a party initiate arbitration? The party filing an 

arbitration must choose one of the following two arbitration 

firms and follow its rules and procedures for initiating and 

pursuing an arbitration: American Arbitration Association 

or National Arbitration Forum. . . . You may obtain copies of 

the current rules of each of the arbitration firms and forms 

and instructions for initiating an arbitration by contacting 

them as follows . . . . 

Who pays? Whoever files the arbitration pays the initial 

filing fee. If we file, we pay; if you file, you pay, unless you 

get a fee waiver under the applicable rules of the arbitration 

firm. If you have paid the initial filing fee and you prevail, 

we will reimburse you for that fee. If there is a hearing, we 

will pay any fees of the arbitrator and arbitration firm for the 

first day of that hearing. All other fees will be allocated as 

provided by the rules of the arbitration firm and applicable 

law. However, we will advance or reimburse your fees if the 

arbitration firm or arbitrator determines there is good reason 

for requiring us to do so, or if you ask us and we determine 

there is good reason for doing so. 

¶8 The unambiguous language of the arbitration clause requires 

the party opting for arbitration to initiate the proceedings and pay the 

filing fee. An account holder may request a fee waiver or ask the 

arbitrator to waive the fee for good cause shown, but nothing in the record 

on appeal suggests that the Martins did so. The arbitration clause does 

not obligate CACH to pay the filing fee unless it finds “good reason” to do 

so or unless the arbitrator so orders. Finally, neither legal authority nor 
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the account agreement supports the Martins’ assertion that requiring them 

to initiate arbitration would somehow shift the burden of proof. 

¶9 The trial court gave the Martins a reasonable opportunity to 

pursue arbitration, and when they failed to complete the necessary steps, 

it properly reinstated the case for resolution on the merits. 

II. Summary Judgment

¶10 We review the trial court’s grant of summary judgment de 

novo. Emmett McLoughlin Realty, Inc. v. Pima Cnty., 212 Ariz. 351, 353, ¶ 2, 

132 P.3d 290, 292 (App. 2006). “A plaintiff’s motion must stand on its own 

and demonstrate by admissible evidence that the plaintiff has met its 

burden of proof and that it is entitled to judgment as a matter of law.” 

Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 211, ¶ 1, 292 P.3d 195, 197 

(App. 2012). “It is well established that, in an action based on breach of 

contract, the plaintiff has the burden of proving the existence of a contract, 

breach of the contract, and resulting damages.” Chartone, Inc. v. Bernini, 

207 Ariz. 162, 170, ¶ 30, 83 P.3d 1103, 1111 (App. 2004). We view the 

evidence and all reasonable inferences therefrom in the light most 

favorable to the party opposing summary judgment. Andrews v. Blake, 205 

Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). We consider only the record 

before the trial court at the time of its ruling. See Phoenix Baptist Hosp. & 

Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292, 877 P.2d 1345, 1348 (App. 1994).

¶11 The Martins contend an affidavit from Peter Huber that 

accompanied CACH’s motion was inadmissible hearsay that could not 

support summary judgment. We will uphold a trial court’s ruling 

regarding the admissibility of evidence in summary judgment 

proceedings absent an abuse of discretion. Mohave Elec. Co-op., Inc. v. 

Byers, 189 Ariz. 292, 301, 942 P.2d 451, 460 (App. 1997). We find no abuse 

of discretion here.

¶12 In granting CACH’s summary judgment motion, the court 

ruled that it was “properly supported by admissible evidence.” 

Specifically, the court concluded the business records exception to the 

hearsay rule applied. We agree. 

¶13 A business record is admissible, regardless of its 

classification as hearsay, if the custodian testifies it was: (1) “made at or 

near the time by -- or from information transmitted by -- someone with 

knowledge;” (2) kept in the course of a regularly conducted business 

activity; (3) making the record was a regular practice; and (4) “the 

opponent does not show that the source of information or the method or 
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circumstances of preparation indicate a lack of trustworthiness.” Ariz. R. 

Evid. 803(6). A custodian need not have personally assembled the 

records. State v. Parker, 231 Ariz. 391, 402–03, ¶ 33, 296 P.3d 54, 65–66

(2013). However, mere recitation of Rule 803(6) language in an affidavit is 

insufficient. The affidavit must substantively address the accompanying 

evidence well enough to establish its credibility and allow a court to 

review its accuracy. See Wells Fargo, 231 Ariz. at 213–14, ¶ 18, 292 P.3d at 

199–200. 

¶14 Huber’s affidavit established him as the custodian of records 

for CACH, and it also satisfied each element of the business records 

exception. Huber avowed that CACH’s books and records contained 

account records and information from the original creditor (many of 

which accompanied his affidavit) and he substantively discussed those 

records — making it clear that CACH relied on the Citibank records in its 

daily operations. See Parker, 231 Ariz. at 402, ¶ 33, 296 P.3d at 65 

(“Trustworthiness and reliability stem from the fact that Capital One 

regularly relies on the information that third parties submit as part of their 

ordinary course of business.”).

¶15 In arguing Huber’s affidavit was substantively insufficient,

the Martins rely heavily on Wells Fargo — a case in which we concluded a 

paralegal’s affidavit was insufficient to sustain summary judgment. 231 

Ariz. at 214, ¶ 19, 292 P.3d at 200. We stated: 

In his affidavit, the paralegal made a general avowal that he 

is the custodian of records and that he personally reviewed 

records that established the amount of the Allens’ 

indebtedness to Wells Fargo. Those records were neither 

described nor attached, nor was there anything in the 

affidavit to provide a reviewing court with the means to 

evaluate the accuracy of the paralegal’s calculation of the 

amount claimed to be due. 

Id. at ¶ 18.

¶16 The affidavit and documents in this case differ materially 

from those at issue in Wells Fargo. Huber specifically referred to the 

attached documents and described how and why they were accurate. 

Additionally, Huber attached and referred to several account statements

that identified specific purchases, the balance owed, and interest 

information. The level of detail contrasts starkly with the single statement 
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found in the affidavit in Wells Fargo, which summarily recited an amount 

owed and little else. See id. at 211, 214, ¶¶ 4, 18, 292 P.3d at 197, 200.

¶17 The purpose of a custodian's affidavit is to authenticate 

evidence. Id. at 214, ¶ 19, 292 P.3d at 200. Huber’s affidavit provided 

sufficient detail to authenticate the attached documents such that the trial 

court did not abuse its discretion in concluding they were admissible 

under Rule 803(6) as business records. Further, the Martins admitted the 

account statements were genuine and did not identify any unreliable or 

inaccurate information in them. 

¶18 CACH also provided a copy of a credit card agreement. 

Although the Martins consistently noted the agreement was not signed, a 

signature is not necessary because use of a credit card is sufficient to bind 

the cardholder to the terms and conditions of the account. See A.R.S. 

§ 44-7802. Moreover, the Martins never disclaimed a contractual 

obligation to pay CACH. On the contrary, they admitted receiving

account statements and conceded “that they have failed to pay all of the 

charges made on the cards, and that the account is in breach.” 

¶19 Coupled with the Martins’ admissions, CACH’s proffered 

evidence was sufficient to establish the existence of a contract and the 

Martins’ breach of that contract. CACH also established the requisite 

damages. Each credit card statement provided specific information 

regarding accrual of the debt. The Martins did not submit controverting 

evidence. Instead, they conceded that “[t]he debt here was run up by 

defendants’ daughter who did not pay for what she charged, apparently.” 

We thus conclude that CACH submitted “undisputed admissible evidence 

that would compel any reasonable juror to find in its favor on every 

element of its claim.”1 Comerica Bank v. Mahmoodi, 224 Ariz. 289, 293, ¶ 20, 

229 P.3d 1031, 1035 (App. 2010).

CONCLUSION

¶20 For the foregoing reasons, we affirm the judgement of the 

superior court. We deny CACH’s request for attorneys’ fees incurred on 

appeal because it fails to comply with ARCAP 21(a)(2) (fee request “must 

 

1 The Martins also contend another document accompanying 

Huber’s affidavit — an affidavit of Lana Handy — was inadmissible 

because she was not listed as a witness. Handy’s affidavit is not necessary 

to affirm the trial court’s ruling, so we need not address its admissibility.
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specifically state the statute, rule, decisional law, contract, or other 

authority for an award of attorneys’ fees”). CACH, however, is entitled to 

recover its taxable costs on appeal upon compliance with ARCAP 21.