Opinion
No. 2 CA-CV 2014-0154
02-10-2015
GREGORY BEST, Plaintiff/Appellant, v. C. DALE HILLARD AND WEST USA REALTY, INC., Defendants/Appellees.
COUNSEL Gregory Best, Phoenix In Propria Persona Thomas, Thomas & Markson, P.C., Phoenix By Neal B. Thomas and Michael G. Kelley Counsel for Defendants/Appellees
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Maricopa County
No. CV2013015136
The Honorable John Rea, Judge
AFFIRMED
COUNSEL Gregory Best, Phoenix
In Propria Persona
Thomas, Thomas & Markson, P.C., Phoenix
By Neal B. Thomas and Michael G. Kelley
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 In this negligence action, Gregory Best appeals from the trial court's summary judgment entered in favor of West USA Realty, Inc. ("West USA") and real estate broker C. Dale Hillard. Best argues the court erred by ruling his claim was barred by the statute of limitations. He also contends the court erred when it denied his motion to consolidate this case with another brought by West USA against Best. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts "in the light most favorable to the party opposing the summary judgment motion below." Keonjian v. Olcott, 216 Ariz. 563, ¶ 2, 169 P.3d 927, 928 (App. 2007). In 2005 and 2006, Best filed complaints against Charles Fanniel and Robert Warrick, among others, for breach of contract in separate real estate purchase transactions. The last of these proceedings ended in 2013. See Best v. Warrick, No. 1 CA-CV 12-0043 (memorandum decision filed Apr. 16, 2013); Best v. Warrick, No. 1 CA-CV 11-0678 (memorandum decision filed Dec. 11, 2012); Best v. Fanniel, No. 1 CA-CV 11-0181 (memorandum decision filed Mar. 6, 2012).
¶3 Best filed the present action against West USA and Hillard in November 2013. He claimed they had negligently supervised an employee, Steve Villareal, a realtor who had encouraged or induced the defendants in the earlier cases to breach their contracts with Best. Hillard and West USA answered and subsequently filed a motion for summary judgment, arguing Best's claim was barred by the statute of limitations. The motion was accompanied by the record indexes from the Warrick and Fanniel cases. In his response to the motion, Best stated:
This is the reason summary judgments are not appropriate before discovery. Here the Defendants have yet to explain why as a licensed agent (Villareal) and licensed broker (Hillard) failed to put either disclosure on the contracts that were used to carry out the Court-found tort[i]ous interference. . . .In granting the motion for summary judgment, the trial court stated, "It is inconceivable that [Best] did not have [a] full opportunity in the 2005 and 2006 lawsuits to discover the role of the current Defendants in the subject transaction." The court concluded, "It is clear that this action was filed long after the expiration of the statute of limitations based on the time that [Best] knew or should have known of his claims in this case." The court denied Best's subsequent motion for reconsideration.
Since [Best] documented when the evidence became known and useable as a basis for his Complaint the Court must demand the Defendants answer for their actions of concealing that material information wh[ile] they were causing nearly a half[-]million in damages to [Best]. The Defendants by simply claiming other people and entities were sued in the past does not negate their liability in this case.
¶4 After the trial court granted summary judgment, Best filed a motion to consolidate this case with a breach of contract action West USA had filed against him in the Dreamy Draw Justice Court. The trial court denied the motion. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).
The trial court's minute entry dated February 4, 2014, states that the court electronically signed a form of judgment submitted by Hillard and West USA. Best then filed his notice of appeal, before the court's denial of his motion to consolidate. Division One of this court stayed the appeal and revested jurisdiction in the trial court so that it could enter "a signed judgment with a certification of finality pursuant to Rule 54(c)," Ariz. R. Civ. P., which it did on October 2, 2014. See Ariz. R. Civ. App. P. 9.1. Division One then reinstated the appeal after Best filed a notice and a copy of the amended judgment.
Rule 8(c), Ariz. R. Civ. App. P., requires a party's notice of appeal to "[d]esignate the judgment or portion of the judgment from which the party is appealing." See Lee v. Lee, 133 Ariz. 118, 124, 649 P.2d 997, 1003 (App. 1982) (jurisdiction limited to matters identified in notice of appeal); see also Eurofresh, Inc. v. Graham County, 218 Ariz. 382, n.1, 187 P.3d 530, 531 n.1 (App. 2007) ("[W]e cite the current versions of [the rules] throughout this decision because no revisions material to this decision have since occurred."). But here, Best did not file an amended notice of appeal to indicate he also was challenging the denial of his motion to consolidate, which the trial court had filed after his original notice of appeal. Nevertheless, the order from Division One only directed Best to "file a copy of the signed judgment within ten days after its entry" and did not require him to file an amended notice of appeal. See Ariz. R. Civ. App. P. 9.1 (allowing automatic reinstatement of appeal). Thus, Best complied with the order. See Ariz. R. Civ. App. P. 3(a) ("[A]n appellate court—to expedite its decision or for other good cause—may suspend any provision of these Rules in a particular case . . . .").
Discussion
¶5 Best argues the trial court erred when it granted summary judgment "by using [its] speculative belief as a determinative finding" and by "not permitting discovery before ruling on the [motion]." "'In reviewing the granting of summary judgment on statute of limitations grounds, . . . [w]e must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law.'" Wyckoff v. Mogollon Health Alliance, 232 Ariz. 588, ¶ 7, 307 P.3d 1015, 1017 (App. 2013), quoting Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996) (alteration in Wyckoff); see Ariz. R. Civ. P. 56(a).
¶6 A lawsuit asserting a claim of negligence must be filed "within two years after the cause of action accrues." A.R.S. § 12-542. Under the "discovery rule" followed in Arizona, "a cause of action does not accrue until the plaintiff knows or with reasonable diligence should know the facts underlying the cause." Doe v. Roe, 191 Ariz. 313, ¶ 29, 955 P.2d 951, 960 (1998). The rule does not permit a plaintiff "to hide behind its ignorance when reasonable investigation would have alerted it to the claim." ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, ¶ 12, 246 P.3d 938, 941 (App. 2010).
¶7 Best seems to argue he had to wait until the Warrick and Fanniel cases were completed—and "Villareal, by credible evidence, was found to have caused [Best] damage"—before he could bring the present case. He maintains Villareal only "reveal[ed] his agency relationship to Best after th[ose] case[s] w[ere] over." The record does not support Best's arguments. First, Best was aware of his underlying damages as early as August 2005, when he filed his complaint in the Fanniel case. And, second, the record in this case shows that Villareal's connection to the defendants in Fanniel was disclosed in September 2007, when Villareal's affidavit was filed, presumably, in support of Fanniel's motion for summary judgment. At a minimum, Best had the opportunity to investigate the connection between his alleged damages, Villareal, Hillard, and West USA in late 2007. Thus, the trial court did not err when it concluded Best "knew or should have known of his claims in this case" long before he filed his complaint in November 2013.
¶8 Best nevertheless argues the trial court's conclusion was based on "speculation." We disagree. In West USA and Hillard's statement of facts in support of their motion for summary judgment, they conceded, for purposes of the motion: "West USA's agent Steve Villareal induced Fanniel and Warrick to break their contracts with [Best] at the time Mr. Villareal was being supervised by these Defendants." They further admitted that Villareal's conduct while being negligently supervised by West USA and Hillard had resulted in the lawsuit filed against Fanniel in August 2005 and the one filed against Warrick in January 2006. Although these facts do not establish Villareal's identity as the defendant's realtor directly, when viewed with Villareal's affidavit in the prior lawsuit, they do support the trial court's finding that Best failed to exercise due diligence given that he at least had actual knowledge of Villareal. In short, the fact that the affidavit was filed at all means Villareal had been disclosed and thus known by Best at the time of the prior lawsuit. And, the fact that the affidavit was filed in support of the defendant's motion for summary judgment in that case implies a connection between the defendants and Villareal that Best also was made aware of, or with reasonable diligence could have discovered.
¶9 A party opposing a motion for summary judgment must "file a statement . . . specifying those paragraphs in the moving party's statement of facts which are disputed." See Ariz. R. Civ. P. 56(c)(3). If the non-moving party fails to do so, a court may treat the moving party's factual allegations as uncontroverted and true. Sato v. Van Denburgh, 123 Ariz. 225, 228, 599 P.2d 181, 184 (1979). In responding to the motion for summary judgment, Best did not file his own statement of facts or dispute West USA and Hillard's factual allegations. Thus, the court's determination was not based on "speculation," but, rather, on the only logical inference that could be drawn from the undisputed facts. See Santiago v. Phx. Newspapers, Inc., 164 Ariz. 505, 508, 794 P.2d 138, 141 (1990) ("The court may grant summary judgment only if no dispute exists as to any material facts, if only one inference can be drawn from those facts, and if the moving party is entitled to judgment as a matter of law.").
¶10 Best also argues "[t]he extrinsic fraud of concealment, in the prior cases, precludes summary judgment in this case" because Villareal, Hillard, and West USA had a duty or statutory obligation to disclose their relationship in contracts or during the Warrick and Fanniel cases, but did not do so. These conclusory allegations are not supported by the record. Best did not provide the trial court with such contracts or any other evidence of "extrinsic fraud of concealment." To support his arguments on appeal, he refers to exhibits he attached to his motion for reconsideration below. But the trial court did not have an opportunity to review these documents before ruling on the motion for summary judgment, and for that reason, we cannot consider them on appeal. See Cella Barr Assocs., Inc. v. Cohen, 177 Ariz. 480, 487 n.1, 868 P.2d 1063, 1070 n.1 (App. 1994) (appellate court precluded from relying on evidence submitted in motion for reconsideration as basis for reversing trial court's earlier dismissal).
¶11 Best argues the statute of limitations should be tolled because "in the prior cases . . . the other parties refused to cooperate with discovery" and, in the present case, "[d]iscovery would have supported [his] claims that [Hillard and West USA] took steps to hide their involvement, relationships, and duties owed." However, these arguments were not raised properly below. Best's argument that the parties in the prior cases had refused to cooperate in discovery—even assuming it had some bearing on this case—was not raised until his motion for reconsideration. See Ramsey v. Yavapai Family Advocacy Ctr., 225 Ariz. 132, ¶ 18, 235 P.3d 285, 290-91 (App. 2010) (issue raised for first time in motion for reconsideration waived). And, to the extent Best argues the trial court should have allowed the parties to conduct discovery before ruling on the motion, he failed to file a request for additional discovery under Rule 56(f), Ariz. R. Civ. P. See Edwards v. Bd. of Supervisors, 224 Ariz. 221, ¶ 19, 229 P.3d 233, 235-36 (App. 2010) (failure to request waives issue on appeal). These arguments therefore are waived, and we need not address them further.
¶12 Accordingly, we affirm the trial court's grant of summary judgment in favor of Hillard and West USA. See Wyckoff, 232 Ariz. 588, ¶ 7, 307 P.3d at 1017. Furthermore, we do not address the merits of Best's remaining argument—that the court erred by denying his motion for consolidation—because the court's judgment disposed of the only "question of law or fact . . . pending before the court" in this case. Ariz. R. Civ. P. 42(a); see Kondaur Capital Corp. v. Pinal County, 235 Ariz. 189, ¶ 8, 330 P.3d 379, 382-83 (App. 2014) ("[W]e typically decline to consider moot or abstract questions as a matter of judicial restraint.").
Disposition
¶13 For the foregoing reasons, we affirm the trial court's judgment. Hillard and West USA request attorney fees on appeal pursuant to A.R.S. § 12-349, Rule 25, Ariz. R. Civ. App. P., and Rule 11, Ariz. R. Civ. P. "Rule 11 is not a proper basis for an award of attorney fees on appeal." Villa de Jardines Ass'n v. Flagstar Bank, FSB, 227 Ariz. 91, n.10, 253 P.3d 288, 296 n.10 (App. 2011). And, in our discretion, we decline their request pursuant to Rule 25. Id. ¶ 26. Nevertheless, because the assertions Best has made on appeal are "groundless and . . . not made in good faith," § 12-349(A)(1), (F), Hillard and West USA are entitled to their reasonable attorney fees and costs upon compliance with the requirements of Rule 21, Ariz. R. Civ. App. P.