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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PACIFIC OFFICE AUTOMATION INC, 

Plaintiff/Appellee,

v.

CSG WEST LLC,

Defendant/Appellant.

No. 1 CA-CV 20-0709 

Appeal from the Superior Court in Maricopa County

No. CV2018-001524

The Honorable Margaret R. Mahoney, Judge

REVERSED AND REMANDED

COUNSEL

Manolio & Firestone, PLC, Scottsdale

By Veronica L. Manolio

Counsel for Plaintiff/Appellee

Jennings Strouss & Salmon, PLC, Phoenix

By Scott F. Frerichs, Sarah E. Epperson

Counsel for Defendant/Appellant

FILED 12-21-2021
PACIFIC OFFICE v. CSG

Decision of the Court

2

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Paul J. McMurdie joined.

W E I N Z W E I G, Judge:

¶1 Defendant CSG West, LLC (“West”) appeals from the 

superior court’s order granting summary judgment to Plaintiff Pacific 

Office Automation, Inc. (“Pacific”). We reverse and remand as follows.

FACTS AND PROCEDURAL BACKGROUND

¶2 This is a breach of contract action between Pacific and West. 

Pacific sells office equipment and information technology services to 

Arizona businesses. West is a local construction company owned and 

operated by Glenn and Lorraine Edwards. 

¶3 In January 2016, two representatives from Pacific pitched a 

make-over to the Edwards of West’s office technology systems. They met 

at the Edwards’ home and Laverne Wendt, West’s Accounting Manager, 

was also present. Mr. Edwards claims he made “perfectly clear” at this 

meeting that he “was the owner” and “Lorraine [Edwards] was second in 

command.” As things wrapped up, the Edwards expressed interest in 

moving forward. 

¶4 Almost a month later, a representative of Pacific emailed Ms. 

Wendt to “follow up” and answer “any questions about moving forward.”

On February 10, Ms. Wendt responded: “Glenn [Edwards] and I had our 

conversation regarding moving forward. It is official, he is ready to sign 

papers to start the process, however, he wants to go ahead and bit [sic] the 

bullet and get new laptops with the docking stations.” Wendt ended with 

a final request: “Please forward the necessary documents to sign and I will 

meet up with Glenn to sign and send back.” 

¶5 At some point, Ms. Wendt, as West’s “Accounting 

M[anager],” received and signed Pacific’s “Managed Services Agreement” 

(“First Contract”). The First Contract is dated January 25, 2016, but Ms. 

Wendt’s signature is undated, and it is unclear from the record when she 

signed it. The First Contract required West to make five years of monthly 

payments to Pacific in exchange for Pacific’s computer equipment and 
PACIFIC OFFICE v. CSG

Decision of the Court

3

services, including IT management, workstation set-up, email services and 

cloud services. The contract was “non-cancelable.” Pacific later delivered 

and installed the equipment, and West started to pay the monthly invoices. 

¶6 About five months later, Ms. Wendt signed a second contract, 

titled an Amendment (“June Amendment”), upgrading West’s service and 

adding $108 per month. The next month, Ms. Wendt signed a third contract 

(“July Amendment”), upgrading West’s service and adding $36 per month. 

Ms. Wendt signed the June and July Amendments as West’s “Controller.”

¶7 For about ten months, West paid Pacific’s invoices; but then it 

stopped, and Pacific contacted Mr. Edwards, stressing “the nature of the IT 

agreement” and offering to discuss the parties’ IT relationship. Mr. 

Edwards responded for West. He complained the technology did not work 

as promised, instead “crash[ing] regularly” and impeding West’s 

workflow. Pacific said West was still bound by the agreements but offered 

to assess the situation and resolve any system problems. But Mr. Edwards

insisted on “a simple walk-away,” emphasizing that the product was 

“unusable” and “unworkable.” Pacific eventually sent West a notice of 

default, both demanding payment and threatening suit. 

¶8 In January 2018, Pacific sued West for breach of the First 

Contract, June Amendment and July Amendment, alleging that West 

contracted to purchase computer equipment and IT services. Pacific 

attached all three contracts to its complaint, claiming West “entered into a 

Managed Services Agreement” “[o]n or about January 25, 2016,” the date of 

the First Contract. West answered and counterclaimed,1 insisting the 

contracts were unenforceable because Ms. Wendt lacked authority to bind 

West. West later claimed it had an oral agreement with Pacific for hardware 

discussed at the first meeting, and that agreement governed the 

relationship. 

¶9 Discovery was slow. West missed the deadline for initial 

disclosure statements and failed to answer Pacific’s discovery requests

promptly. 

¶10 In June 2019, about 36 months into the lawsuit and on the 

morning of Mr. Edwards’ deposition, Pacific disclosed a second “Managed 

Services Agreement,” dated February 19, 2016 (“Second Contract”). The

Second Contract mirrored the First Contract except the monthly payments 

1 West does not appeal the dismissal of its counterclaims.
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were reduced (from $3,432.50 to $3,312.50) and it identified slightly 

different equipment. But unlike the First Contract or the June and July 

Amendments, the Second Contract included Mr. Edwards’ signature. Mr. 

Edwards admitted the signature looked like his, but he disputed its 

authenticity and claimed he could not remember signing the Second 

Contract. 

¶11 Pacific then turned its attention to the Second Contract and 

refashioned its lawsuit as one for breach of the Second Contract. Five 

months later, in November 2019, Pacific served its second supplemental 

disclosure on West. Pacific now called the Second Contract the “[O]riginal 

Contract,” followed by the June and July Amendments; and Pacific 

demoted the First Contract to a “proposal.” Pacific did not, however, 

amend its complaint.

¶12 Pacific moved for summary judgment in December 2019, 

again describing the First Contract as a mere “proposal/estimated

Managed Services Agreement,” and describing the Second Contract as “the 

Original Contract,” adding that Pacific “delivered and installed the 

[e]quipment at [West’s offices] shortly after the Original Contract was 

entered.” West countered that Pacific had changed its breach of contract 

claim from the First Contract to the Second Contract, which mattered 

because it changed the issue from the apparent authority of Ms. Wendt to 

the actual authority of Mr. Edwards. It also added an authenticity issue 

because Mr. Edwards claimed he never signed the Second Contract.

¶13 But then, at oral argument, Pacific reverted to the First 

Contract. Pacific’s attorney argued the First Contract was enforceable and 

West breached it. Belittling the Second Contract, Pacific said it was only 

disclosed to prove Mr. Edwards knew about and ratified the First Contract.

¶14 After oral argument, the superior court ruled from the bench, 

granting summary judgment to Pacific, and agreeing the lawsuit had

always been about the First Contract. The court determined that West, the 

non-movant, had not carried its burden of proof because it had not 

“established material facts in dispute in response to this motion for partial 

summary judgment.” The court found that West had “not sufficiently 

contested” the “issue of signature and authority,” adding that West had 

“not sufficiently contested it on the facts, or the law,” and the court was 

“curious to know why [West] wouldn’t have provided affidavits [or]

declarations that would have provided the Court with more.”
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¶15 The court granted Pacific all damages it requested 

($135,299.50), plus attorney fees and costs. West timely appealed. We have 

jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶16 We review de novo the superior court’s grant of summary 

judgment, Jackson v. Eagle KMC LLC, 245 Ariz. 544, 545, ¶ 7 (2019), 

construing the facts in the light most favorable to the non-moving party, 

Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 14 (App. 2012). 

Summary judgment is appropriate only when “the moving party shows 

that there is no genuine dispute as to any material fact and [it] is entitled to 

judgment as a matter of law.” Ariz. R. Civ. P. 56(a).

¶17 When the moving party is a plaintiff claiming breach of 

contract, that plaintiff bears a heavy burden to prove every element of the 

claim with “undisputed admissible evidence that would compel any 

reasonable juror to find in its favor.” Wells Fargo Bank, 231 Ariz. at 213, ¶ 

18 (citation omitted); Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 15 

(App. 2008). “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, 231 Ariz. 

at 211, ¶ 1. The plaintiff always bears the ultimate burden of persuasion,

and “the mere absence of a genuine dispute of material fact does not 

automatically entitle a plaintiff to judgment.” Id. at ¶¶ 1, 16.

The Contract: A Moving Target

¶18 At the outset, we note that Pacific’s breach of contract theory 

hinged on different contracts at the complaint and summary judgment

stages. The complaint alleged that West entered and breached the First 

Contract, signed by Ms. Wendt. The motion for summary judgment argued 

that West entered and breached the Second Contract, signed by Mr.

Edwards. 

¶19 Then, at oral argument, Pacific reverted to the First Contract 

theory. Ruling from the bench, the superior court accepted and rationalized 

this moving target, concluding that Pacific was “still suing” under the First 

Contract, and only introduced “the evidence related to the [Second 

Contract] to reflect that [Mr. Edwards] did know of the [First Contract].” 

And so, the court only granted summary judgment to Pacific under the First 

Contract. We turn there now.
PACIFIC OFFICE v. CSG

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Pacific Never Met Its Burden for Summary Judgment

¶20 On the merits, the superior court granted summary judgment 

on Pacific’s theory that West breached the First Contract. We must 

therefore decide whether Pacific “demonstrate[d] the evidence entitles it to 

judgment as a matter of law.” To meet this standard, Pacific must offer

“undisputed admissible evidence” with its motion for summary judgment 

“that would compel any reasonable juror to find” that Pacific carried its 

burden to prove all three elements of its breach of contract claim. Wells

Fargo Bank, 231 Ariz. at 213, ¶ 18; United Bank of Ariz. v. Allyn, 167 Ariz. 191, 

196 (App. 1990) (plaintiff movant must “produc[e] uncontroverted prima 

facie evidence in support of its motion” for summary judgment). Its breach 

of contract claim requires proof that: (1) West and Pacific entered a contract, 

(2) West breached the contract and (3) Pacific has been damaged. First Am. 

Title Ins. Co. v. Johnson Bank, 239 Ariz. 348, 353, ¶ 22 (2016).

¶21 Pacific argued and thus bore the burden to prove that Ms. 

Wendt had either actual or apparent authority to enter the First Contract

for West. See Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 

511–12, ¶ 29 (App. 2011). Whether an agent has authority, and the extent 

of that authority are typically questions of fact, and thus inappropriate for 

resolution on summary judgment. See Bud Antle, Inc. v. Gregory, 7 Ariz. 

App. 291, 293 (1968).

¶22 A corporation “necessarily acts through its agents, who, in 

turn, may only bind a principal within the scope of their authority, actual 

or apparent.” Best Choice Fund, 228 Ariz. at 510-11, ¶ 26. “Actual authority 

includes both express authority outlined in specific language, and implied 

authority when the agent acts consistently with the agent’s ‘reasonable 

interpretation of the principal’s manifestation in light of the principal’s 

objective and other facts known to the agent.’” Id. (citation omitted).

“Apparent authority exists when a principal engages in intentional or 

inadvertent conduct that allows a third party reasonably to conclude that 

the agent has actual authority.” Id. at 511, ¶ 29.

¶23 All agents, however, “may only bind a principal within the 

scope of their authority, actual or apparent,” id. at ¶ 26, and the “mere fact 

that one is found to be a general agent justifies nei[ther] the court nor jury 

in guessing that given acts are within the scope of his authority.” Lois 

Grunow Mem’l Clinic v. Davis, 49 Ariz. 277, 285 (1937). And even when 

dealing with a known agent, the plaintiff “must exercise due caution in 

ascertaining whether the agent is acting within the scope of his authority, if 
PACIFIC OFFICE v. CSG

Decision of the Court

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he wishes to bind the principal.” Best Choice Fund, 228 Ariz. at 512, ¶ 29 

(quoting Lois Grunow Mem’l Clinic, 49 Ariz. at 284). 

¶24 We reverse and remand for three reasons. First, the superior 

court improperly shifted the burden onto the defendant, West, to defeat 

summary judgment. When ruling from the bench, the court remarked: “So, 

curiously, if that were—if that were the case and that’s kind of where the 

gaps existed for [West] to establish material facts in dispute in response to 

this motion for partial summary judgment, I’m curious to know why [West] 

. . . wouldn’t have provided affidavits, declarations that would have 

provided the Court with more.”

¶25 That was error. Because Pacific moved for summary 

judgment on its breach of contract claim, Pacific had to do more than show 

there were no disputed facts; it needed to provide “undisputed admissible 

evidence” that would persuade any reasonable juror on the question of 

actual or apparent authority. See Comerica Bank v. Mahmoodi, 224 Ariz. 289, 

292–93, ¶¶ 19-20 (App. 2010). Pacific bore the burden to prove that Ms. 

Wendt possessed actual or apparent authority, and that Pacific’s reliance 

on Ms. Wendt’s apparent authority was reasonable. See Best Choice Fund, 

228 Ariz. at 512, ¶ 29; see also 2 Fletcher Cyc. Corp. § 449 (“The burden of 

proving apparent authority is on the person seeking to bind the principal.”).

¶26 Pacific compounds the error on appeal, arguing that “[West] 

did not sufficiently prove their defense that Ms. Wendt lacked authority.” 

Actual and apparent authority are forms of agency deployed here to satisfy 

the first element of Pacific’s breach of contract claim. Johnson Bank, 239 Ariz. 

at 353, ¶ 22 (2016); see also Harvard L. Rev. Assoc., The Power of an Agent to 

Bind His Principal by Acts Beyond His Actual or Apparent Authority, 42 Harv. 

L. Rev. 685, 688 (1929) (a principal’s liability under theories of actual or 

apparent authority is based on ordinary principles of the law of contracts). 

West did not have the burden to “disprove” prima facie elements of 

Pacific’s claim. See Benkendorf v. Advanced Cardiac Specialists Chartered, 228 

Ariz. 528, 531–32, ¶¶ 12, 13 (App. 2012) (rejecting notion that defendant had 

to rebut plaintiff’s claim).

¶27 Second, the superior court improperly weighed witness 

testimony and assessed credibility at the summary judgment stage. In 

particular, the court questioned Mr. Edwards’ credibility at oral argument 

before it granted summary judgment from the bench. As background, 

Pacific offered the Second Contract to prove that Mr. Edwards approved 

the First Contract, but Mr. Edwards claimed he never signed the Second 

Contract. Hearing about Mr. Edwards’ denial, the court remarked: 
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“Doesn’t [Mr. Edwards] say about 35, 40 times in his deposition he doesn’t 

remember doing something,” adding “my point simply [is] it’s a consistent 

kind of answer from this witness” and “[h]e seemed to have a real problem 

with the concept that the ink color was different in his signature than 

someone else’s, which made no sense to me at all.” So too, the court 

questioned the avowal of Mr. Edwards that he did not remember being 

“copied on” emails relevant to apparent authority. Sharing an internal 

monologue, the court said: “I’m not suggesting he’s lying,” and “I guess 

that’s a credibility call about what kind of memory this fellow has.”

¶28 That was error. In ruling on a summary judgment motion, a 

court may not pass on the credibility of witnesses, weigh the quality of 

evidence, or choose among conflicting inferences. Orme Sch. v. Reeves, 166 

Ariz. 301, 311 (1990). Summary judgment must not “be used as a substitute 

for jury trials simply because the trial judge may believe the moving party 

will probably win the jury’s verdict, nor even when the trial judge believes 

the moving party should win the jury’s verdict.” Id. at 310 (emphasis 

omitted); see also Jennifer G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 450, 456, ¶ 

23 (App. 2005) (“Though Jennifer might be unlikely to prevail at a trial on 

the merits, ADES was not entitled to summary judgment because material 

issues of fact could not be resolved without credibility determinations and

weighing of evidence, matters peculiarly and exclusively for a trier of 

fact.”).

¶29 Third, Pacific did not meet its burden for summary judgment. 

Pacific did not produce “uncontroverted” admissible evidence from which 

any reasonable juror would conclude that Ms. Wendt had actual or 

apparent authority to enter the First Contract.

¶30 The evidence at summary judgment was controverted. For 

instance, Mr. Edwards said at his deposition that Ms. Wendt lacked

authority to sign the contracts for West, including the First Contract. Pacific 

did not depose Ms. Wendt. And the record contains an email from Ms. 

Wendt to Pacific that casts doubt on the issue of her actual or apparent 

authority, at least for summary judgment purposes. In that February 10 

email, Ms. Wendt reports that “[i]t is official, [Mr. Edwards] is ready to sign 

papers to start the process,” and asks Pacific to “[p]lease forward the 

necessary documents to sign and I will meet up with [Mr. Edwards] to sign 

and send back.” West might argue that Pacific should have been alerted by 

this email that Ms. Wendt lacked either actual or apparent authority to enter 

the First Contract. At a minimum, West might argue the emails shows that 

Pacific was unreasonable to rely on Ms. Wendt’s authority. See Tribe v. Shell 

Oil Co., 133 Ariz. 517, 519 (1982) (“Summary judgment is inappropriate 
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where founded on a disputed inference drawn from an undisputed 

fact.”). Because Pacific fell short of its burden to prove each breach of 

contract element with “undisputed admissible evidence,” we reverse. See 

Mahmoodi, 224 Ariz. at 293, ¶¶ 19-20.

CONCLUSION

¶31 We reverse the superior court’s order granting summary 

judgment to Pacific and remand for proceedings consistent with this 

decision. We likewise vacate the attorney fee award to Pacific. And last, 

we grant West’s request for attorney fees and costs on appeal under A.R.S.

§ 12-341.01, contingent on compliance with ARCAP 21.