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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ATR, an Arizona limited liability company,

Plaintiff/Appellee,

v.

CEC 141202761, LLC, an Arizona limited liability company; SCOTT 

AYERS and ETSUKO AYERS, husband and wife, 

Defendants/Appellants.

No. 1 CA-CV 15-0285

Appeal from the Superior Court in Maricopa County

No. CV2012-096617

The Honorable David M. Talamante, Judge

JUDGMENT AFFIRMED

COUNSEL

Nussbaum Gillis & Dinner, P.C., Scottsdale

By Randy Nussbaum, John E. Parzych

Counsel for Defendants/Appellants

David Dick & Associates, Chandler

By David Dick

Counsel for Plaintiff/Appellee
ATR v. CEC et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined.

T H U M M A, Judge:

¶1 Defendants Scott and Etsuko Ayers (collectively Ayers) and 

CEC 141202761, LLC (CEC) appeal from an adverse judgment entered 

after a bench trial on two claims asserted by plaintiff ATR. Defendants 

argue the judgment must be set aside because, as a matter of law, CEC did 

not breach the contractual implied duty of good faith and fair dealing (one 

of ATR’s two claims) and, even if it did, that Ayers cannot be held 

personally liable for CEC’s breach. The judgment, however, also is 

premised on the superior court’s finding that defendants tortiously

interfered with ATR’s business expectancy (the second of ATR’s two 

claims). Because defendants do not challenge on appeal the superior 

court’s tortious interference finding, and because the judgment properly 

stands on that separate and independent ground on the record presented, 

the judgment is affirmed. 

FACTS1 AND PROCEDURAL HISTORY

¶2 Scott Ayers has been CEC’s member and manager at all 

times relevant here. 

¶3 In May 2008, CEC entered into a five-year written lease

(Master Lease) with New Millennium Auto Repair and Lube, LLC 

whereby New Millennium leased retail property CEC owned in Chandler. 

A Memorandum of Understanding (MOU), signed and incorporated into 

the Master Lease a few days later, specified an annual 4.5 percent increase 

for rent on the property. Also in May 2008, DDASVS, LLC, an entity in 

 

1 This court views the evidence in a light most favorable to sustaining the 

judgment. Sabino Town & Country Estates Ass’n v. Carr, 186 Ariz. 146, 149

(App. 1996).
ATR v. CEC et al.

Decision of the Court

3

which Scott Ayers was a member and officer, loaned Ian Rayna $6,828 (the 

Rayna Loan).

¶4 In October 2009, New Millennium and ATR entered into a 

written sublease that assigned the Master Lease to ATR, and New 

Millennium sold its assets to ATR. Christopher Schwarz formed ATR at 

about that same time, and Schwarz has been member and manager of 

ATR at all times relevant here. CEC had notice of the transaction and did 

not object at that time.

¶5 From October 2009 until August 2012, ATR paid CEC rent 

and other related obligations under the Master Lease without significant 

incident.

¶6 In late 2011, ATR decided to sell its assets. Brian Fiori later 

expressed an interest in buying ATR’s assets. By September 2012, ATR

informed CEC of its intent to sell its assets to Fiori for $79,000. As a 

precursor to the sale, ATR sought CEC’s approval for the assignment to 

Fiori of the Master Lease (which would expire in May 2013) as well as a 

renewal of the lease with Fiori. Ayers responded that CEC would be 

willing to agree to such an assignment and renewal if CEC was paid: (1) 

the outstanding Rayna loan and (2) rent Ayers claimed was past-due and 

owed under the Master Lease.

¶7 By October 2012, Ayers told Fiori and Schwarz that, based 

on the Rayna loan, Ayers had a lien against the assets ATR had purchased 

from New Millennium. Ayers told Fiori that he owned ATR’s assets and 

offered to sell ATR’s assets to Fiori. Ayers suggested ATR was in default 

under the Master Lease and started threatening eviction and to lock ATR 

out of the Master Lease property unless the amounts demanded were 

paid. Ayers also claimed ATR owed late charges and other payments 

under the Master Lease as modified by the MOU. Notwithstanding a

lengthy course of dealing, Ayers represented to ATR that such amounts 

remained due and owing and noted a provision in the Master Lease

stating acceptance of payments did not constitute a waiver of his right to 

collect those amounts.

¶8 Following these actions by Ayers, Fiori did not go through 

with the purchase of ATR’s assets. 

¶9 In late October 2012, ATR filed this case against CEC and 

Scott Ayers, naming Etsuko Ayers as a defendant solely for community 

property purposes. As relevant here, ATR asserted a tortious interference 

with business expectancy claim and a breach of the contractual implied 
ATR v. CEC et al.

Decision of the Court

4

covenant of good faith and fair dealing claim. After CEC answered, and 

asserted and then withdrew counterclaims, and after substantial motion 

practice, the court held a three-day bench trial. 

¶10 At trial, it was undisputed that there was never a lien on 

ATR’s assets recorded by CEC or Ayers. After trial, the superior court 

found for ATR on both counts and awarded ATR $75,000, representing the 

$79,000 purchase price Fiori would have paid for the ATR assets less a 

$4,000 credit not challenged on appeal. After additional briefing, the court 

entered final judgment against both CEC and Ayers, awarding ATR 

$75,000 in damages; $24,500 in attorneys’ fees and $939 in taxable costs.

2

This court has jurisdiction over defendants’ timely appeal pursuant to the 

Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes 

(A.R.S.) sections 12–120.21(A)(1) and –2101(A)(1) (2016).3

DISCUSSION

¶11 Defendants argue the judgment was erroneous because the 

superior court erred in finding they breached the contractual implied duty 

of good faith and fair dealing and by finding Ayers liable for that contract 

breach. Defendants, however, do not challenge the superior court’s 

decision for ATR on the tortious interference with business expectancy 

claim, which adequately and independently supports the judgment.

¶12 Opening briefs must present and address arguments, 

supported by authority, that set forth the appellant’s position on the issues

raised. Ritchie v. Krasner, 221 Ariz. 288, 305 ¶ 62 (App. 2009); accord Ariz. R.

Civ. App. P. 13(a)(7)(A). The failure to do so constitutes waiver. Ritchie, 

221 Ariz. at 305 ¶ 62. By making no argument challenging the decision on 

the tortious interference claim, defendants have abandoned and waived 

 

2 Although the final portion of the judgment mentions only the good faith 

and fair dealing claim, the body of the judgment concludes evidence 

supported both claims, specifically mentioning the “interfer[ence] with 

[ATR’s] business expectations by preventing the sale from [ATR] to Brian 

Fiori,” a finding that mirrors the court’s ruling after trial.

3 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
ATR v. CEC et al.

Decision of the Court

5

any such challenge. MacMillan v. Schwartz, 226 Ariz. 584, 591 ¶ 33 (App. 

2011); see also Ace Auto. Products, Inc. v. Van Duyne, 156 Ariz. 140, 143 

(App. 1987) (“It is not incumbent upon the court to develop an argument 

for a party.”).

4 Moreover, waiver aside, the evidence relied upon by the 

superior court supports the tortious interference finding. 

¶13 The elements required to establish the tortious interference 

claim asserted here are well-established under Arizona law. See, e.g.,

Antwerp Diamond Exch. of Am., Inc. v. Better Bus. Bureau of Maricopa County, 

Inc., 130 Ariz. 523, 529–30 (1981) (citing cases); Dube v. Likins, 216 Ariz. 

406, 411 ¶ 8 (App. 2008) (citing cases). Because the superior court is in the 

best position to judge the credibility of witnesses and weigh evidence, this 

court will affirm the factual findings unless they are clearly erroneous.

Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51 ¶ 11 (App. 2009). The record on 

appeal, including those facts summarized above, adequately supports the 

superior court’s findings that ATR proved each of these elements as to 

CEC and Ayers.

¶14 The superior court found defendants tortiously interfered 

with ATR’s business expectancy by: (1) conditioning approval of an 

assignment of the Master Lease to Fiori (or to renew the lease) upon 

repayment of the Rayna loan that ATR “had no obligation to assume;” (2) 

attempting to collect back rent under the Master Lease that CEC had 

waived its right to collect; (3) improperly asserting a lien on ATR’s 

property and (4) threatening to evict or lock ATR out of the Master Lease 

property. These facts of record adequately support these findings as well 

as the superior court’s finding for ATR on its tortious interference with 

business expectancy claim.

 

4 During oral argument before this court, defendants asserted their 

arguments challenging the good faith and fair dealing finding constituted 

a challenge to the tortious interference finding. The briefs, however, do 

not support that assertion, meaning the issue was waived when it was not 

asserted in the opening brief. See Skydive Arizona, Inc. v. Hogue, 238 Ariz. 

357, 364 n.2 (App. 2015) (“During oral argument, the parties raised 

arguments not in their briefs. Those arguments are therefore waived, and 

we decline to address them. ‘Arguments raised for the first time at oral 

argument are waived.’”) (citations omitted).
ATR v. CEC et al.

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¶15 Defendants argue on appeal that Ayers could not be 

personally liable without first determining Scott Ayers served as an alter 

ego of CEC or by piercing CEC’s corporate veil. Defendants failed to 

assert these arguments in the superior court, meaning they are waived on 

appeal. See Continental Lighting & Contracting, Inc. v. Premier Grading & 

Utilities, LLC, 227 Ariz. 382, 386 ¶ 12 (App. 2011); Schurgin v. Amfac Elec. 

Distribution Corp., 182 Ariz. 187, 190 (App. 1995). And on appeal, these 

arguments are directed solely to the contractual good faith and fair 

dealing claim, meaning to the extent they could have applied to the 

tortious interference claim, they have been waived. See Schabel v. Deer 

Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996) (noting 

issues not clearly raised and argued in appellate brief are waived). 

¶16 Finally, the record supports the superior court’s tacit finding 

that Scott Ayers’ individual conduct was sufficient to impose direct tort 

liability against him, along with tort liability on CEC, without regard to 

concepts of alter ego or piercing the corporate veil. See Warner v. Sw. 

Desert Images, LLC, 218 Ariz. 121, 127 ¶ 9 (App. 2008) (noting “[a]n agent 

will not be excused from responsibility for tortious conduct [merely]

because he is acting for his principal”) (citation omitted). This is 

particularly true given that the record reflects the beneficiary of the Rayna 

loan (which was not a CEC loan) was Ayers or another entity he 

controlled and not CEC. Nor have defendants shown error in entering 

judgment against Etsuko Ayers for community property purposes on this 

tort claim. See Alosi v. Hewitt, 229 Ariz. 449, 454 (App. 2012) (“The Arizona 

rule is that the community is liable for the intentional torts of either 

spouse if the tortious act was committed with the intent to benefit the 

community, regardless of whether in fact the community receives any 

benefit.”) (citation omitted). 

¶17 For these reasons, the superior court’s finding that 

defendants tortiously interfered with ATR’s business expectancy is 

affirmed. Because the judgment stands on that separate and independent 

ground, the judgment is affirmed.5

 

5 On this unique record, where the judgment stands on this separate and 

independent ground, and the relief requested by defendants regarding the 

good faith and fair dealing claim would not result in the judgment being 

vacated, this court need not address the arguments pressed by the parties 
ATR v. CEC et al.

Decision of the Court

7

¶18 Both sides seek an award of attorneys’ fees on appeal, ATR 

pursuant to the Master Lease and A.R.S. § 12-341.01 and defendants 

pursuant to A.R.S. § 12-341.01. Because defendants are not the successful 

parties on appeal, their request is denied. Because ATR is the prevailing 

party under section 11 of the Master Lease (as to CEC), and the successful 

party under A.R.S. § 12-341.01 (as to Ayers, given this is a case “arising 

out of contract”), ATR’s request for reasonable attorneys’ fees on appeal is 

granted as to defendants. ATR also is awarded its taxable costs on appeal

pursuant to A.R.S. § 12-341. These awards are contingent upon ATR’s 

compliance with Arizona Rule of Civil Appellate Procedure 21. 

CONCLUSION

¶19 The judgment is affirmed. 

 

regarding the contractual good faith and fair dealing claim. See, e.g., Ariz. 

Const. art. 6, § 27 (“No cause shall be reversed for technical error in 

pleadings or proceedings when upon the whole case it shall appear that 

substantial justice has been done.”); Ariz. R. Civ. P. 61 (“The court at every 

stage of the proceeding must disregard any error or defect in the 

proceeding which does not affect the substantial rights of the parties.”); 

Minderman v. Perry, 103 Ariz. 91, 93 (1968) (noting, when judgment 

entered after bench trial “did not rest solely” on challenged conclusion of 

law, “[i]n keeping with our established rules, if the ultimate judgment was 

correct as a matter of law it will be sustained”) (citations omitted).