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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHI NGUYEN, Plaintiff/Appellant,

v.

CATHY NGUYEN, et al., Defendants/Appellees.

No. 1 CA-CV 16-0158

Appeal from the Superior Court in Maricopa County

No. CV2014-010172

The Honorable Jo Lynn Gentry, Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Robert F. Gehrke, Attorney at Law, Phoenix

By Robert F. Gehrke

Counsel for Plaintiff/Appellant

Collinsworth, Specht, Calkins & Giampaoli, LLP, Phoenix

By Mark T. Collinsworth, Ryan P. Swartz

Counsel for Defendants/Appellees
NGUYEN v. NGUYEN, et al.

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MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Margaret H. Downie and Judge John C. Gemmill joined.1

J O H N S E N, Judge:

¶1 Chi Nguyen ("Plaintiff") appeals from entry of summary 

judgment in favor of Cathy Nguyen ("Cathy") and Loananh Nguyen 

("Loananh") on his claims for breach of contract and unjust enrichment. 

Because a question of fact exists as to whether Plaintiff and Cathy entered 

into an oral contract, we reverse summary judgment in favor of Cathy on 

this claim only. Otherwise, we affirm the summary judgment dismissing 

Plaintiff's unjust enrichment claims and breach of contract claim against 

Loananh for the reasons stated below.

FACTS AND PROCEDURAL BACKGROUND

¶2 In reviewing the grant of summary judgment, "we view the 

facts and evidence in a light most favorable to the party against whom 

summary judgment was granted and draw all reasonable inferences in 

favor of that party." AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 

293 (App. 1993). Applying this standard, the record shows Loananh, 

Cathy's sister-in-law, purchased a house in June 2012. According to 

Plaintiff, Cathy told him that she paid for the house, but to remain 

financially eligible for disability benefits, she put the deed in Loananh's 

name. At that time, Plaintiff and Cathy were in a relationship and soon 

thereafter moved into the house.

¶3 Plaintiff alleged that he loaned Cathy $40,000 to $50,000 to 

make improvements on the house and Cathy has not repaid him as 

promised.

2 Plaintiff admitted Loananh did not know of or consent to the 

 

1 The Honorable John C. Gemmill, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article VI, Section 3 of the Arizona Constitution.

2 In his complaint, Plaintiff alleged the amount was $50,000; in his 

response to defendants' motion for summary judgment, he said the amount 

was approximately $40,000. The difference is not material to the outcome 

of this appeal.
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improvements until they were complete. Plaintiff and Cathy broke up in 

July 2013.

¶4 Plaintiff sued, alleging breach of contract and unjust 

enrichment against Cathy and Loananh. Defendants moved for summary 

judgment, arguing there was no enforceable contract and that Plaintiff 

voluntarily paid for the improvements because of his relationship with 

Cathy and without Loananh's knowledge or consent. The trial court 

granted summary judgment in favor of Loananh, holding the 

improvements were done without her consent or knowledge. The court 

also found Plaintiff had no contract with Cathy and that she was not 

unjustly enriched by the improvements because she was not the 

homeowner. After an unsuccessful motion for reconsideration, Plaintiff 

filed a timely notice of appeal. We have jurisdiction pursuant to Arizona 

Revised Statutes ("A.R.S.") section 12-2101(A)(1) (2017).

3

DISCUSSION

¶5 We review the superior court's grant of summary judgment 

de novo, affirming if there are no genuine issues of material fact and the 

moving party is entitled to judgment as a matter of law. See Ariz. R. Civ. P. 

56(c); Orme School v. Reeves, 166 Ariz. 301, 305 (1990).

4

A. Oral Contract.

¶6 Although Plaintiff's verified complaint alleged Loananh was 

"advised" of Plaintiff's alleged loan to Cathy for home improvements and 

that it needed to be repaid, Plaintiff admitted under oath that Loananh did 

not agree to pay for the improvements. That concession is fatal to his 

contract claim against Loananh. Nor does Plaintiff's allegation that 

Loananh accepted the improvements establish an oral agreement to repay 

him for them.

¶7 Plaintiff argues, however, that Cathy had apparent authority 

to bind Loananh, as principal, because Cathy told him she was the true 

owner of the home. But apparent authority is created when a principal's

conduct leads a third party to reasonably believe she has authorized the 

 

3 Absent material revision after the relevant date, we cite a statute's

current version.

4 Although Rule 56 was amended after the relevant date, the revisions 

are immaterial to the disposition of this appeal. Therefore, we cite the rule's 

current version.
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agent to act. See Miller v. Mason-McDuffie Co. of S. Cal., 153 Ariz. 585, 589 

(1987). Plaintiff had no communication with Loananh until after the 

improvements were completed and has not identified any conduct by 

Loananh that suggested Loananh authorized Cathy to bind her to an oral 

agreement. "Apparent authority can never be derived from the acts of the 

agent alone." Reed v. Gershweir, 160 Ariz. 203, 205 (App. 1989); see also 

Anchor Equities, Ltd. v. Joya, 160 Ariz. 463, 466-67 (App. 1989).

¶8 In support of his contract claim against Cathy, Plaintiff did 

provide some evidence that Cathy agreed to repay him for the 

improvements. Plaintiff's verified complaint stated Cathy agreed to repay 

him, and at his deposition, Plaintiff testified to the same effect. Defendants 

argue Plaintiff's deposition testimony that he decided to make the

improvements because he planned to marry Cathy contradicted his 

allegation that Cathy agreed to repay him. The deposition testimony 

defendants cite, however, does not necessarily disprove Plaintiff's 

contention that Cathy agreed to repay him for the home improvements. 

¶9 Defendants argue Plaintiff failed to provide a sworn affidavit 

in response to the summary judgment motion as required by Arizona Rule 

of Civil Procedure 56(e).

5 A moving party, however, is not entitled to 

summary judgment merely because the opposing party failed to file an 

affidavit in response. Cullison v. City of Peoria, 120 Ariz. 165, 167, n.1 (1978).

In ruling on the motion, the court must consider not only affidavits, but also 

any verified pleadings, depositions, interrogatory responses, and 

admissions that are brought to its attention. Cullison, 120 Ariz. at 167, n.1; 

see also Nemec v. Rollo, 114 Ariz. 589, 592 (1977); Tilley v. Delci, 220 Ariz. 233, 

236, ¶ 10 (App. 2009).

¶10 Plaintiff's verified complaint and his deposition testimony 

were sufficient to create a question of fact as to the existence of an oral 

 

5 Rule 56(e) states:

When a summary judgment motion is made and supported 

as provided in the rule, an opposing party may not rely 

merely on allegations or denials of its own pleading. The 

opposing party must, by affidavits or as otherwise provided 

in this rule, set forth specific facts showing a genuine issue for 

trial. If the opposing party does not so respond, summary 

judgment, if appropriate, shall be entered against that party.
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agreement by Cathy. In light of this evidence, the question of whether a

contract existed requires a determination of witness credibility. Credibility 

determinations are inappropriate for resolution by way of summary 

judgment. See Braillard v. Maricopa County, 224 Ariz. 481, 489, ¶ 19 (App.

2010).

6

¶11 Defendants also contend that even if Cathy agreed to 

reimburse Plaintiff, Plaintiff failed to establish the material terms of the 

contract. Defendants, however, did not present this argument to the 

superior court in their motion for summary judgment. We generally do not 

consider issues raised for the first time on appeal, and will not do so here. 

See Romero v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 6 (App. 2005).

B. Unjust Enrichment.

¶12 Plaintiff argues that absent a contract, he is entitled to recover 

under the equitable theory of unjust enrichment.7 "[U]njust enrichment 

provides a remedy when a party has received a benefit at another's expense 

and, in good conscience, the benefitted party should compensate the other."

Wang Elec., Inc. v. Smoke Tree Resort, L.L.C., 230 Ariz. 314, 318, ¶ 10 (App. 

2012) (quoting Murdock-Bryant Constr., Inc. v. Pearson, 146 Ariz. 48, 53

(1985)).

8

 

6 Because the verified complaint and deposition testimony are 

sufficient to create a question of material fact, we need not address the 

admissibility of the email that was translated from Vietnamese to English. 

Further, the voice mail Plaintiff cites was not included in the record on 

appeal; therefore, we do not address it.

7 Unjust enrichment is equivalent to the common-law cause of action 

called quantum meruit. Murdock-Bryant Constr., Inc. v. Pearson, 146 Ariz. 48, 

52 (1985). Both allow restitution based on the principle that "[a] person who 

has been unjustly enriched at the expense of another is required to make 

restitution to the other." Id. at 53 (quoting Restatement (First) of Restitution

§ 1 (1937)).

8 "An unjust enrichment claim requires proof of five elements: (1) an 

enrichment, (2) an impoverishment, (3) a connection between the 

enrichment and impoverishment, (4) the absence of justification for the 

enrichment and impoverishment, and (5) the absence of a remedy provided 

by law." Wang, 230 Ariz. at 318, ¶ 10.
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¶13 Plaintiff argues the owner of the home benefitted from the 

improvements he paid for and because there was a dispute as to who 

owned the home, summary judgment was improper. Although Plaintiff 

alleged that Cathy was the actual homeowner, he did not provide any 

competent evidence to support this allegation. The deed showed Loananh 

was the homeowner. Plaintiff testified that Cathy told him she paid for the 

home and Loananh merely held the title. Plaintiff did not establish that he 

had actual knowledge that Cathy paid for the house, or that if she did, she 

did not convey it to Loananh. Thus, he failed to provide evidence that 

would create a question of fact as to Cathy's ownership interest and, 

therefore, whether she may be liable for unjust enrichment.

¶14 Loananh argues Plaintiff is not entitled to recover from her 

under unjust enrichment because, as he admitted, he made the 

improvements without her prior notice or approval. Unjust enrichment 

requires that the enrichment be unjust. Wang, 230 Ariz. at 318, ¶ 10; see also 

Blue Ridge Sewer Improvement Dist. v. Lowry & Assoc., Inc., 149 Ariz. 373, 376 

(App. 1986). "Generally, one who performs work which he was not asked 

to do cannot reap the benefits of quantum meruit." Blue Ridge, 149 Ariz. at 

376. It is not unjust for the owner to retain the benefit when the plaintiff 

voluntarily performed the improvements. Id.

¶15 Contrary to Plaintiff's contention, the fact that Cathy agreed 

to repay Plaintiff for the improvements does not render Loananh liable 

under a theory of unjust enrichment. An owner is not liable for 

improvements the tenant agreed to but did not pay for "merely because 

[she] owned the property and the contractor was treated unfairly by the 

tenant." Wang, 230 Ariz. at 319-20, ¶¶ 14-15 (adopting this holding from 

DCB Constr. Co. v. Central City Dev. Co., 965 P.2d 115, 121 (Colo. 1998)).

¶16 As a matter of law, Plaintiff is not entitled to recover under 

unjust enrichment. We affirm the entry of summary judgment as to both 

defendants on the unjust enrichment claim.

C. Attorney's Fees and Costs on Appeal.

¶17 Plaintiff and both defendants request attorney's fees and costs 

on appeal pursuant to A.R.S. §§ 12-341 (2017), 12-341.01 (2017) and 12-349

(2017). Costs on appeal are awarded to the successful party pursuant to 

A.R.S. § 12-342 (2017). We award Loananh her costs and attorney's fees on 

appeal. Given that Cathy's appeal was only partially successful, we decline 

to award costs and fees to either side on Plaintiff's claims against her. The 
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superior court may consider awarding those fees at the conclusion of the 

case.9

CONCLUSION

¶18 We reverse the entry of summary judgment in favor of Cathy 

Nguyen on the breach of contract claim. We affirm the entry of summary

judgment on all other claims.

 

9 None of the claims or defenses constituted an unjustified action 

supporting an award of attorney's fees pursuant to A.R.S. § 12-349.