Opinion
No. 1 CA-CV 15-0646
12-13-2016
34 DEGREES NORTH, LLC, an Arizona limited liability company, Plaintiff/Appellant, v. MOUNTAIN VIEW CONSTRUCTION, LLC, an Arizona limited liability company; MALOUFF AND COMPANY MASONRY, LLC, an Arizona limited liability company, Defendants/Appellees.
COUNSEL Ducharme Law Firm, Scottsdale By Wayne B. Ducharme Counsel for Plaintiff/Appellant Warner Angle Hallam Jackson & Formanek, PLC, Phoenix By Matthew J. Pierce, Tara C. Nordquist, J. Brent Welker Counsel for Defendant/Appellee Mountain View Construction, LLC Righi Fitch Law Group, P.L.L.C., Phoenix By Richard L. Righi Counsel for Defendant/Appellee Malouff and Company Masonry, LLC
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2012-011784
The Honorable Roger E. Brodman, Judge
The Honorable Mark H. Brain, Judge
AFFIRMED
COUNSEL Ducharme Law Firm, Scottsdale
By Wayne B. Ducharme
Counsel for Plaintiff/Appellant Warner Angle Hallam Jackson & Formanek, PLC, Phoenix
By Matthew J. Pierce, Tara C. Nordquist, J. Brent Welker
Counsel for Defendant/Appellee Mountain View Construction, LLC Righi Fitch Law Group, P.L.L.C., Phoenix
By Richard L. Righi
Counsel for Defendant/Appellee Malouff and Company Masonry, LLC
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Maurice Portley joined. WINTHROP, Judge:
The Honorable Maurice Portley, Retired Judge of the Arizona Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution.
¶1 Plaintiff 34 Degrees North, LLC ("34 Degrees") appeals the trial court's summary judgment in favor of Defendants Mountain View Construction, LLC ("MVC") and Malouff and Company Masonry, LLC ("Malouff") (collectively, "Appellees") on 34 Degrees' complaint alleging defective construction of a commercial project. The trial court separately granted summary judgment to MVC on the basis of preclusion and to Malouff on the basis of a failure to disclose and submit appropriate expert testimony. Raising several issues, 34 Degrees argues that the trial court erred in granting summary judgment to Appellees. For the following reasons, we affirm.
34 Degrees' complaint also named several other defendants, but as noted throughout this decision, its claims against each of those defendants have been resolved, leaving only MVC and Malouff as the remaining Appellees.
FACTS AND PROCEDURAL HISTORY
¶2 John and Maureen Botkin are the sole owners/members of 34 Degrees. In 2009, the Botkins, on behalf of 34 Degrees, purchased property in Strawberry, Arizona, on which they planned to build Gila County Chopper—a two-story commercial enterprise with a restaurant/bar on the lower level and a custom motorcycle shop on the upper level ("the project"). 34 Degrees hired George Gabriel Catone to provide architectural services and prepare construction plans and specifications for the project.
¶3 On June 23 and 25, 2010, 34 Degrees entered contracts with MVC, a licensed general contractor, to construct a major portion of the project. 34 Degrees also hired Floyd Swenson, a professional engineer, as the project's special construction inspector. Construction began in 2010, and MVC received a portion of the contract price.
¶4 On January 23, 2011, 34 Degrees removed MVC from the project and terminated its contract with MVC. According to 34 Degrees' subsequent complaint, MVC had breached its contractual obligations by failing to perform its work in accordance with the requirements of the building plans and specifications. Soon thereafter, 34 Degrees hired Malouff to complete the project and address any necessary corrections or repairs.
MVC disputes this characterization of the facts, arguing that work ceased after a monetary dispute between 34 Degrees and MVC led to "a complete breakdown in communication" and termination of MVC's contract without the required written notice.
¶5 On March 14, 2011, 34 Degrees filed a complaint with the Registrar of Contractors ("ROC"), alleging MVC abandoned the project, breached the contract, embezzled and misappropriated funds, stole materials, billed for hours not worked, forced 34 Degrees to sign subcontracts, departed from plans and specifications, was responsible for construction deficiencies, failed to pay withholding taxes and to comply with labor laws, and failed to pay monies owed to material suppliers and contractors. See generally Ariz. Rev. Stat. ("A.R.S.") § 32-1154 (2016) (providing grounds for suspension or revocation of a contractor's license).
We cite the current version of the applicable statutes unless changes material to our analysis have occurred since the relevant date(s).
¶6 On April 1, 2011, an inspector for the ROC, Tom Sandoval, conducted a jobsite inspection and, twelve days later, issued a corrective work order, under which the ROC gave MVC fifteen days to take corrective action. However, by that time, 34 Degrees had already removed MVC from the project and hired Malouff; accordingly, MVC could not perform any of the corrective work.
¶7 Malouff was on the project for only a few months before the Gila County Community Development Department stopped inspections due to "structural issues"; Malouff formally ceased all work on the project as of September 15, 2011. According to 34 Degrees, the building is half- finished, unusable, and subject to being torn down at additional expense due to various architectural, design, and/or construction defects.
¶8 Meanwhile, on August 9, 2011, Daryl E. Young, P.E., a forensic engineer, performed a structural analysis of the project for 34 Degrees. Young prepared a comprehensive report dated August 30, 2011.
¶9 The ROC held an administrative hearing on 34 Degrees' complaint on November 7, 2011, and the ALJ considered testimony from ROC inspector Sandoval, John Botkin, architect Catone, Terri Fleming (MVC's qualifying party/member), and Young, whose structural analysis report was admitted into evidence. On November 23, 2011, the ALJ issued a decision, and the ROC adopted the ALJ's recommended order, effective February 6, 2012.
¶10 The ALJ concluded that 34 Degrees had met its burden of proof as to only two of the nine charges against MVC: specifically, MVC had (1) failed to perform some of its work in a workmanlike manner—namely, by leaving drag marks and footprints on the concrete near the door and by leaving concrete voids over two lintels (horizontal support beams)—and (2) "failed to pay taxes when it utilized and paid in cash an undocumented worker." Based on these two statutory violations, the ALJ recommended that the ROC place MVC's license on disciplinary probation for 120 days.
¶11 As to the other alleged violations, the ALJ rejected 34 Degrees' claims, concluding in part that 34 Degrees had caused MVC to stop work "over a monetary dispute," that MVC did not abandon the contract or refuse to perform and was justified in not performing the remedial work, and "that the credible evidence of record failed to establish that [MVC] departed from plans, specifications, or building codes. The evidence of record established that 34 Degrees approved the changes in the plans in order to reduce the cost of the project."
¶12 Before filing suit, 34 Degrees retained a new structural and forensic engineer, Ronald A. Starling, who prepared a structural analysis report, dated July 20, 2012, in which he identified several architectural and structural design related concerns, and as-built construction concerns.
¶13 On August 17, 2012, 34 Degrees and the Botkins filed a complaint against MVC, Malouff, Catone, Swenson, and RLI Insurance Company ("RLI"), alleging breach of contract (MVC, Malouff, Catone, and Swenson), negligence - construction defects (MVC and Malouff), professional negligence (Catone and Swenson), and contractor's license bond (MVC and RLI). Counsel for 34 Degrees also filed a certification "that expert opinion testimony is necessary to prove the standard of care or liability" applicable to each defendant and that, "[p]ursuant to A.R.S. § 12-2602, Plaintiffs shall serve preliminary expert opinion affidavits regarding each of the licensed professional defendants with the initial disclosure statement."
In April 2010, RLI issued a General Commercial Contractor's license (surety) bond in the amount of $5,000.00 to MVC in connection with its work on the construction project. On September 30, 2011, 34 Degrees filed a claim against the bond, which RLI denied in October 2011. Malouff's insurance carrier went into receivership.
¶14 On November 30, 2012, 34 Degrees disclosed Starling's structural analysis report, and on March 15, 2013, the trial court entered an approved scheduling order, memorializing the parties' agreement in their joint pretrial memorandum to disclose areas of expert testimony by April 15, the identity and opinions of expert witnesses by June 14, and rebuttal expert witnesses and opinions by July 15, 2013. The order further provided that "[n]o expert witnesses, expert opinions, lay witnesses, or exhibits shall be used at trial other than those disclosed in a timely manner, except for good cause shown or written agreement of the parties."
¶15 On June 19, 2013, Starling submitted to 34 Degrees a supplemental preliminary repair protocol outline "to assist your cost to repair expert regarding areas specifically addressed in [Starling's previous July 20, 2012 report]." On June 28, Thomas Cross of the Bouw Company, Inc. submitted to 34 Degrees a "cost to repair defects" estimate pursuant to Starling's preliminary repair protocol. The total estimated cost to repair was $239,235.50. 34 Degrees disclosed the two additional expert reports on July 1, 2013.
The cost to repair report contains no clear reference to costs for repairing concrete drag marks or voids in the lintels, the two workmanship areas identified in the ALJ's previous decision.
¶16 On August 14, 2013, the trial court granted partial summary judgment in favor of RLI based on a statute of limitations defense.
¶17 On July 3, 2014, MVC and Swenson filed a motion for summary judgment, arguing,
The counts against MVC were the subject of a previous administrative hearing wherein Plaintiffs were found to have failed to meet their burden of proof on those claims. Additionally, Plaintiff 34 Degrees is seeking damages that it expressly waived by Contract. The Counts against Mr. Swenson should be dismissed because they are derivative of the previously adjudicated claims against MVC. Lastly, the Plaintiffs have not disclosed evidence sufficient to prove their professional negligence claim against Mr. Swenson.
¶18 On August 1, 2014, 34 Degrees filed a "Preliminary Expert Opinion Affidavit of Ronald Starling." In the affidavit, Starling blamed the project's structural damage on the building design, the architectural and structural plans, and the failure of the architect (Catone) to coordinate the construction documents. He further concluded that the evidence of site layout and construction defects had been created by "[t]his lack of coordination." On August 19, the Botkins and 34 Degrees advised the trial court they had settled their claims against Swenson. On August 21, 2014, an order of dismissal with prejudice was filed as to Swenson.
¶19 The parties conducted the depositions of Cross on November 25 and Starling on December 4, 2014. Cross stated in his deposition that he was only going to testify as to cost of repair, and not as to liability or allocating costs, including costs related to waterproofing. When counsel for MVC asked Cross's opinion as to causation of water intrusion at the project, counsel for 34 Degrees objected, stating, "I am going to object to this line of questioning about causation, and all of that, when Mr. Cross was retained only to -- to estimate construction repair costs -- not to evaluate the causes and effects of any damage inside, nor to evaluate the extent of the damage." 34 Degrees' counsel continued to object to any questions regarding causation as "call[ing] for speculation beyond the scope of this expert's testimony and opinion," and Cross continued to state "I don't know" and "I flat can't answer the question" when asked about causation. In his deposition, Starling acknowledged he had made no effort to allocate damages to the defendants, he did not specifically know at what point MVC's work stopped and Malouff's began, and he agreed that allocating damages among the defendants "would be speculation."
¶20 Later, in a minute entry filed December 31, 2014, the trial court granted MVC's motion for summary judgment, explaining as follows:
J.W. Hancock Enterprises v. Ariz. State Registrar of Contractors, 142 Ariz. 400, 690 P.2d 119 (App. 1984) confirms that claim and issue preclusion can flow from the resolution of a dispute by the Registrar. That is precisely what happened here—issues were fully litigated before an administrative law judge, who found, among other things:(Footnote omitted.) On May 26, 2015, the trial court issued a judgment dismissing MVC and RLI with prejudice and awarding each defendant its costs and attorneys' fees. The court awarded MVC attorneys' fees in the amount of $75,000 and costs in the amount of $6,967.71, plus interest.
• "[T]he credible evidence of record failed to establish that Mountain View departed from plans, specification, or building codes." Decision at p. 9, ¶ 5.
• "The evidence of record established that Mountain View attempted to gain access to the job site in order to [perform specific, limited remedial work], and that 34 Degrees failed to respond to such requests. Therefore, the Administrative Law Judge concludes that Mountain View was justified in not performing the corrective work . . ." Decision at p. 11, ¶ 11.
Finally, [34 Degrees] did indeed waive their consequential damages claims through their contract.
The court struck proposed language in the judgment that referenced Rule 54(b), Ariz. R. Civ. P.
¶21 Meanwhile, on February 2, 2015, Catone and Malouff filed motions for summary judgment. Malouff raised several arguments in support of its motion, including that 34 Degrees had failed to disclose any preliminary expert opinion affidavit or "advance any expert that is qualified to offer an opinion establishing the standard of care of a general contractor, that [Malouff] breached the standard of care, and that its work caused the alleged defects at the property." On May 5, 2015, the court held oral argument on the motions, and in a minute entry filed May 28, 2015, the court granted the motions of Catone and Malouff. As to Malouff, the court concluded that 34 Degrees "has failed to disclose and submit appropriate expert testimony that would allow the claim against this defendant to proceed." In a minute entry filed August 7, 2015, the court awarded Malouff attorneys' fees in the amount of $56,829 and costs in the amount of $302.40, plus interest.
¶22 A final judgment dismissing the matter with prejudice in favor of Malouff and Catone, and incorporating the May 26 judgment in favor of MVC and RLI, was filed on August 7, 2015. On August 31, 2015, the Botkins and 34 Degrees timely appealed the judgments in favor of MVC, Malouff, RLI, and Catone. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2016) and 12-2101(A)(1) (2016).
After filing their notice of appeal, 34 Degrees and the Botkins obtained an order from this court dismissing the Botkins, leaving 34 Degrees as the only plaintiff/appellant in this appeal. 34 Degrees also filed a notice of dismissal as to Catone, and this court dismissed RLI as a defendant/appellee upon stipulation after 34 Degrees and RLI notified the court of a settlement between those parties, leaving MVC and Malouff as the remaining defendants/appellees in this appeal.
ANALYSIS
I. Failure to Comply with ARCAP 13(a)(4) & Motion to Strike
A. ARCAP 13(a)(4)
¶23 MVC argues 34 Degrees has failed to "include appropriate references to the record" in its statement of the case as required by Rule 13(a)(4), ARCAP. Although 34 Degrees' failure to provide proper citation may be treated as waiver of the arguments made, see Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62, 211 P.3d 1272, 1289 (App. 2009) (holding that the failure to comply with Rule 13, ARCAP, can constitute waiver of a claim), we decline to apply waiver on this basis, see Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285 (1966).
B. Motion to Strike
¶24 MVC has also filed a motion to strike both section I(C) from 34 Degrees' reply brief and the Supplemental Citation of Legal Authority filed by 34 Degrees on March 23, 2016. Both section I(C) and the Supplemental Citation of Legal Authority effectively raise new arguments not previously considered by the trial court or set forth in 34 Degrees' opening brief. As a general rule, arguments not raised before the trial court cannot be raised for the first time on appeal, see Dillig v. Fisher, 142 Ariz. 47, 51, 688 P.2d 693, 697 (App. 1984), and issues not clearly raised and argued in the opening brief may be considered waived, see Jones v. Burk, 164 Ariz. 595, 597, 795 P.2d 238, 240 (App. 1990). Nevertheless, in our discretion, we deny MVC's motion.
II. The Trial Court's Grant of Summary Judgment
A. Standard of Review
¶25 We review de novo a trial court's grant of summary judgment. Salib v. City of Mesa, 212 Ariz. 446, 450, ¶ 4, 133 P.3d 756, 760 (App. 2006). We view the facts and reasonable inferences therefrom in the light most favorable to the party against whom summary judgment was granted. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).
¶26 Summary judgment is proper when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). A trial court should grant summary judgment "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). The mere existence of a scintilla of evidence that creates the slightest doubt as to whether a dispute of material fact exists is insufficient to overcome summary judgment. Id. When material facts are not disputed, a trial court may decide the issue as a matter of law. Ortiz v. Clinton, 187 Ariz. 294, 298, 928 P.2d 718, 722 (App. 1996).
¶27 We will affirm the trial court's entry of summary judgment if it is correct for any reason. See In re Guardianship of Pacheco, 219 Ariz. 421, 425, ¶ 13, 199 P.3d 676, 680 (App. 2008); Greenwood v. State, 217 Ariz. 438, 441-42 n.7, ¶ 12, 175 P.3d 687, 690-91 n.7 (App. 2008); Am. Family Mut. Ins. Co. v. Cont'l Cas. Co., 200 Ariz. 119, 121, ¶ 9, 23 P.3d 664, 666 (App. 2001). Further, we need not decide the correctness of the trial court's decision if its judgment can be affirmed for an alternative reason. See Barnes v. Sandoz Crop Prot. Corp., 189 Ariz. 46, 47, 938 P.2d 95, 96 (App. 1997).
B. Summary Judgment in Favor of Malouff
¶28 34 Degrees argues that the trial court erred in granting summary judgment in favor of Malouff as to its claims of negligence and breach of contract on the basis that 34 Degrees "has failed to disclose and submit appropriate expert testimony that would allow the claim against this defendant to proceed." Because 34 Degrees failed to disclose any expert, or expert report, that could establish any connection between Malouff's limited work and liability for damages, however, we find no error.
¶29 To prevail on either cause of action—negligence or breach of contract—a plaintiff must have sufficient evidence to establish that the defendant's actions were in breach and that the breach caused the plaintiff to suffer damages. See Ritchie, 221 Ariz. at 295, ¶ 11, 211 P.3d at 1279 ("[T]o maintain a negligence claim, 'a plaintiff must prove . . . a breach by the defendant . . . [and] a causal connection between the defendant's conduct and the resulting injury . . . .'" (citation omitted)); Goodman v. Physical Res. Eng'g, Inc., 229 Ariz. 25, 28, ¶ 7, 270 P.3d 852, 855 (App. 2011) (requiring a plaintiff to prove the defendant breached the contract and the breach resulted in damages to the plaintiff).
¶30 To prove breach in a negligence claim, the plaintiff must establish the applicable standard of care for a defendant's conduct and that the defendant has failed to comply with that standard. See, e.g., Kreisman v. Thomas, 12 Ariz. App. 215, 220, 469 P.2d 107, 112 (1970). In construction cases and other cases involving licensed professionals, standard of care evidence in negligence matters generally must be provided by expert testimony, because the standard of care involved in construction is not an area that comes within the realm of common knowledge. See Woodward v. Chirco Constr. Co., 141 Ariz. 520, 521-22, 687 P.2d 1275, 1276-77 (App. 1984), approved as supplemented, 141 Ariz. 514, 687 P.2d 1269 (1984).
34 Degrees notes that expert testimony is not necessary to establish the standard of care "where the negligence is so grossly apparent that a lay person would have no difficulty recognizing it," Asphalt Eng'rs, Inc. v. Galusha, 160 Ariz. 134, 135-36, 770 P.2d 1180, 1181-82 (App. 1989), and asserts the negligence shown in this case was obvious even to a lay person. Nevertheless, even if it is obvious that someone was negligent, it is not obvious in this case who was negligent (and if so, to what degree). Moreover, liability among shared tortfeasors is several only, not joint, except in limited circumstances that do not apply here. See A.R.S. § 12-2506 (2016). As this court recognized in Woodward, "[t]he average layman has neither training nor experience in the construction industry and ordinarily cannot determine whether a particular building has been built with the requisite skill and in accordance with the standards prescribed by law or prevailing in the industry." 141 Ariz. at 522, 687 P.2d at 1277 (quoting Miller v. Los Angeles Cty. Flood Control Dist., 505 P.2d 193, 202 (Cal. 1973)).
¶31 Determining whether Malouff and the other licensed professionals involved in the project breached the standard of care required of them would have involved the jury understanding each applicable standard of care and applying the standards of care to a multitude of subsidiary questions bearing not only upon the construction of the building itself, but also upon the building's architectural plans, design, and site location. See Woodward, 141 Ariz. at 522, 687 P.2d at 1277. These are questions a jury could not have resolved from their common experience, and the trial court properly concluded that the issue of the standard of care required expert testimony. Accordingly, the trial court properly dismissed 34 Degrees' negligence claim due to the lack of a standard of care expert.
¶32 As Malouff and 34 Degrees recognize, however, expert testimony regarding a standard of care is generally not required to establish a breach of contract rather than conduct beneath the standard of care. See Asphalt Eng'rs, 160 Ariz. at 136, 770 P.2d at 1182. Nonetheless, 34 Degrees was required to establish that Malouff's actions were in breach and that the breach caused 34 Degrees to suffer damages. See Goodman, 229 Ariz. at 28, ¶ 7, 270 P.3d at 855. 34 Degrees recognized this necessary predicate to any damages recovery when counsel for 34 Degrees filed its "Certification Re Licensed Professional" pursuant to A.R.S. § 12-2602.
We disagree with 34 Degrees' assertion that no preliminary expert opinion affidavit was necessary. 34 Degrees itself certified that expert testimony was necessary in the matter against each of the licensed professionals, and both of 34 Degrees' expert witnesses asserted even they could not allocate liability among the defendants absent further information. 34 Degrees now contends on appeal that Cross would testify not only to the authenticity of his repair estimates, but also "regarding the deficiencies in the waterproofing performed by Malouff." Cross, however, testified in his deposition that he would not be offering any opinions concerning the liability of Malouff, and 34 Degrees cannot now offer Cross as a causation expert, without any formal disclosure or opinion rendered, let alone the demonstration of good cause, because the time for disclosure and discovery has long since passed. See Link v. Pima Cty., 193 Ariz. 336, 338-39, ¶ 4, 972 P.2d 669, 671-72 (App. 1998) (recognizing that the failure to properly and timely disclose expert testimony renders the offered opinions excludable); Ariz. R. Civ. P. 26.1, 37(c).
¶33 Under A.R.S. § 12-2602(A) (2016), "[i]f a claim against a licensed professional is asserted in a civil action, the claimant or the claimant's attorney shall certify in a written statement that is filed and served with the claim whether or not expert opinion testimony is necessary to prove the licensed professional's standard of care or liability for the claim." (Emphasis added.) Moreover, "[i]f the claimant or the claimant's attorney certifies pursuant to subsection A that expert opinion testimony is necessary, the claimant shall serve a preliminary expert opinion affidavit with the initial disclosures that are required by rule 26.1, Arizona rules of civil procedure." A.R.S. § 12-2602(B) (emphasis added). A claim includes a legal cause of action asserted against a licensed professional in a complaint based on alleged breach of contract in which expert testimony is necessary to prove the licensed professional's standard of care or liability for the claim. See A.R.S. § 12-2601 (2016). If the claimant fails to file and serve a preliminary expert opinion affidavit after the claimant's attorney has certified that an affidavit is necessary, the claim is subject to dismissal. A.R.S. § 12-2602(F).
Rule 26.1(a)(6), Ariz. R. Civ. P., requires a party's initial disclosure statement to set forth all expected expert witnesses and "the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert."
¶34 In this case, 34 Degrees provided expert reports establishing that some defective work occurred at the property and for part of the cost of repair, but never provided evidence to attribute the damage to any act or omission by Malouff. Further, although 34 Degrees certified the necessity of filing a preliminary expert opinion affidavit regarding each licensed professional's liability in an effort to establish liability and allocate fault (and thus damages) among the various defendants, 34 Degrees did not do so. Without proof of a causal connection to establish liability and any reasonable allocation of fault, 34 Degrees could not meet its burden of proof, and the trial court did not err in granting summary judgment in favor of Malouff.
It does not matter what damages 34 Degrees asserts if the claim's other elements, such as breach and causation, are lacking.
C. Summary Judgment in Favor of MVC
¶35 34 Degrees also argues that the trial court erred in granting summary judgment in favor of MVC because MVC failed to prove that the ROC's ruling could operate to preclude 34 Degrees' claims for damages.
¶36 Even assuming without deciding that 34 Degrees' newly proffered argument is correct that it was a mere witness and not a party to the ROC proceedings (an issue raised by its March 23, 2016 Supplemental Citation of Legal Authority), and assuming without deciding that preclusion may therefore not be applied to 34 Degrees' claims against MVC, we nonetheless affirm. Although the trial court granted summary judgment on preclusion grounds, we need not decide the correctness of its decision because summary judgment can be affirmed for a different reason. See Barnes, 189 Ariz. at 47, 938 P.2d at 96 (citing Gary Outdoor Advertising Co. v. Sun Lodge, Inc., 133 Ariz. 240, 650 P.2d 1222 (1982)). In this case, 34 Degrees' claims of negligence and breach of contract against MVC suffer from the same defects as its claims of negligence and breach of contract against Malouff. With no standard of care expert to assist the jury in evaluating 34 Degrees' negligence claim, and no preliminary expert opinion affidavit to prove MVC's liability and any possible allocation of fault for the breach of contract claim, the claims were subject to dismissal. Accordingly, the trial court did not err in granting summary judgment in favor of MVC.
See Twin Peaks Constr. Inc. v. Weatherguard Metal Constr., Inc., 214 Ariz. 476, 478, ¶ 9, 154 P.3d 378, 380 (App. 2007) ("The complainant is not a party to the action."); Nick Hardy Constr., Inc. v. Nyberg, 1 CA-CV 14-0671, 2016 WL 159344, at *3, ¶ 15 (Ariz. App. Jan. 14, 2016) ("And Nyberg, the complaining witness, was not a party to the action." (citing Twin Peaks)); but see Int'l Bhd. of Elec. Workers, Local Union 640 v. Kayetan, 119 Ariz. 508, 510, 581 P.2d 1158, 1160 (App. 1978) ("At this point, it is clear that the real parties in interest to the controversy before the registrar are the complainant (IBEW) and the licensee (Jones) with the registrar in the position of decision maker."). See also MVC Constr., Inc. v. Treadway, 182 Ariz. 615, 620-21, 898 P.2d 993, 998-99 (App. 1995) (rejecting as dictum Kayetan's statement that the ROC was a nominal party, but presuming without deciding that attorneys' fees could be awarded against the complaining owner).
A necessary element for the application of res judicata, or claim preclusion, is that the prior suit involves the same parties or their privies; similarly, a necessary element for the application of collateral estoppel, or issue preclusion, is that the party against whom the doctrine is to be invoked had a full opportunity to litigate the matter and actually did litigate it. Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986). --------
III. Costs and Attorneys' Fees on Appeal
¶37 The parties request costs and attorneys' fees on appeal pursuant to A.R.S. §§ 12-341 (2016) and 12-341.01 (2016). MVC also requests attorneys' fees pursuant to A.R.S. § 25-324(A) (Supp. 2015), a statute only applicable in marital and domestic relations cases. In our discretion, we deny the parties' requests for attorneys' fees. We award Appellees their taxable costs, contingent upon compliance with Rule 21, ARCAP.
CONCLUSION
¶38 The trial court's summary judgment is affirmed.