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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LAWRENCE T. SEIDMAN, et al., Plaintiffs/Appellants,
v.
FRANK D. WEILER, et al., Defendants/Appellees.
No. 1 CA-CV 18-0261
FILED 5-16-2019
Appeal from the Superior Court in Maricopa County
No. CV2015-003144
The Honorable Dawn M. Bergin, Judge
AFFIRMED
COUNSEL
Eckley & Associates, PC, Phoenix
By J. Robert Eckley, John Duke Harris
Counsel for Plaintiffs/Appellants Seidman
Radix Law, PLC, Scottsdale
By C. Adam Buck, Stephanie A. Webb
Counsel for Defendants/Appellees Weiler
Manning & Kass Ellrod Ramirez Trester, LLP, Phoenix
By Anthony S. Vitagliano, Robert B. Zelms, Fatima M. Badreddine
Counsel for Defendants/Appellees Realty One, James Sexton, Anita Burg
Lipson Neilson, PC, Phoenix
By Daxton R. Watson, Michael H. Orcutt
Counsel for Defendants/Appellees RE/MAX, VDH Investments, Kathy Laswick,
Michael Martinez, Maricruz Martinez
SEIDMAN, et al. v. WEILER, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge James P. Beene joined.
W E I N Z W E I G, Judge:
¶1 Plaintiffs Lawrence Seidman and the Lawrence T. Seidman
Revocable Trust (“Buyer”) appeal the superior court’s entry of summary
judgment in favor of Frank and Ana Weiler (“Sellers”); Realty One Group,
James Sexton, Anita Burg (collectively, “Realty One Defendants”); and
ReMax Excalibur, Kathy Laswick, Michael Martinez and Maricruz
Martinez (collectively, “ReMax Defendants”). We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 This lawsuit concerns the sale of a house. Buyer purchased a
house in Scottsdale from Sellers in April 2013. Sellers were represented by
the ReMax Defendants. Buyer was represented by the Realty One
Defendants. Buyer later claimed to have discovered latent defects with the
house in March and December 2014, and then sued all the parties associated
with the transaction in February 2015, including the Sellers, the ReMax
Defendants and Realty One Defendants, but not the home inspector.
¶3 Sellers purchased the house in 1987, two years after it was
built, and owned it for 26 years. They hired the ReMax Defendants to sell
the house in November 2012. The ReMax Defendants toured the property
and asked the Sellers to complete a blank Seller’s Property Disclosure
(“SPDS”), which was later uploaded into the Multiple Listing Service
(“MLS”) database. Sellers signed the SPDS on November 18, 2012, and
certified the information was “true and complete to the best of [their]
knowledge.”
¶4 The house was listed for sale in December 2012. The “Public
Remarks” section of the MLS listing stated: “Second owners of this home,
this abode has been lovingly maintained” and “[t]his home has newer A/C
units and a roof, which should provide for low maintenance in years to
come.” The original listed price was $485,000. Based on feedback, the price
was reduced to $439,000 on March 14, 2013.
¶5 Two days later, Buyer extended a counteroffer and negotiated
a lower purchase price of $432,000. Buyer and Sellers entered a written
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Decision of the Court
purchase contract on March 16, 2013. Buyer initialed a “BUYER
ACKNOWLEDGEMENT” in the contract, written in bold and all capital
letters, where he “recognize[d], acknowledge[d], and agree[d]” that the
ReMax and Realty One Defendants “are not qualified, nor licensed, to
conduct due diligence with respect to the premises or the surrounding
area.” The provision further “instructed” Buyer to conduct due diligence,
which “is beyond the scope of the Broker’s expertise and licensing,” and
Buyer agreed to “expressly release[] and hold[] harmless” the ReMax and
Realty One Defendants “from liability for any defects or conditions that
could have been discovered by inspection or investigation.”
¶6 The Realty One Defendants separately furnished a 10-page
Buyer Advisory to Buyer, created by the Arizona Department of Real
Estate. Buyer “acknowledge[d] receipt” of the Advisory on March 16, 2013,
with an electronic signature of his initials on each page (11 times in all) and
his full electronic signature on the final page. The Advisory explained that
real estate agents are “generally not qualified to discover defects or evaluate
the physical condition” of the house; emphasized the limited duties of
Realty One Defendants to Buyer, which do not include “verifying the
accuracy of” the SPDS or MLS listing; warned that Buyer “is responsible
for” conducting due diligence prior to purchase; and cautioned that MLS
listings are “similar to an advertisement” and Buyer “should verify any
important information contained in the MLS.”
¶7 Buyer received the SPDS from Sellers on March 18,
“acknowledg[ing] receipt” with his electronic initials on each page and an
electronic signature at the end. Ms. Burg of Realty One Group avowed that
she read and reviewed the SPDS with Buyer “line by line.” In response to
questions about roof issues, the Sellers disclosed their “aware[ness] of” past
roof leaks, water damage and roof repairs. They said the leaks “were
identified and corrected” and described the repairs as “[s]un side re-cover
older tile approx 12 yrs.” But otherwise, the couple was not aware of “any
interior wall/ceiling/door/window/floor problems,” “any cracks or
settling involving foundation, exterior walls or slabs,” or “any past or
present mold growth.”
¶8 Once again, the SPDS advised Buyer to verify the disclosures
with a professional and specifically directed him to “CONTACT A
PROFESSIONAL TO VERIFY THE CONDITION OF THE ROOF.” It also
included an acknowledgement from Buyer “that the information contained
herein is based only on the Seller’s actual knowledge and is not a warranty
of any kind. Buyer acknowledges Buyer’s obligation to investigate any
material (important) facts in regard to the Property. Buyer is encouraged
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Decision of the Court
to obtain Property inspections by professional independent third parties
and to consider obtaining a home warranty protection plan.”
¶9 The due diligence period then ensued. The contract afforded
Buyer 10 days to perform all desired inspections of the property. Buyer
asked Burg to recommend a home inspector and received a list of licensed
home inspectors with good reputations. Burg told Buyer he was free to
choose any home inspector and did not have to choose from the list. Buyer
quickly picked and retained the second inspector on the list, Don Barenz of
WIN Home Inspection. The Realty One Defendants received no referral
fee.
¶10 The home inspection occurred on March 19. Buyer and Burg
attended. Sellers also attended, which facilitated a convenient back-and-
forth dialogue in which Buyer asked “questions about things” he had
noticed during the inspection, including “the condition of the roof” and
“concern[s] about the moisture” in the home, pointing to “a piece of
baseboard molding in the master bath that had water discoloration.” Buyer
inquired about a potential leak in the garage roof, which Frank Weiler said
“was taken care of.”
¶11 Buyer accompanied the home inspector during the
inspection. He even climbed on the roof with the inspector to discuss roof
issues. Buyer “jumped up and down on the roof,” remarked that it
“seem[ed] flexy,” and asked the inspector whether this reflected “water
damage or rot.” The inspector responded it was “standard” and “of no
concern” because the builders “used a particular dimension of underlay
drywall [or] plywood.” Buyer also asked about the gaps and caulking
recommendation of the inspector because “if it needed caulking, maybe
there’s water that came in and that’s why the roof was flexing because it
was rotted or weak, but he said no.”
¶12 The home inspector provided his “Extended Home
Inspection Report,” which highlighted various roof-related issues and
“recommend[ed] asking the current owner about any past leaks and roof
repairs.” The inspector found gaps in the flashing, moisture-trapping
debris, and evidence of past or present leaking:
Roof – Debris on Roof: Maintenance. There is debris on the
flat roof. The debris will trap moisture as well as clog scupper
system. All debris should be removed.
Roof – Flashing/Caulking: Maintenance. There is a gap
above the flat roof flashing in a number of areas. I
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Decision of the Court
recommend caulking these gaps with a good quality roof
mastic.
Roof – Indications of Leaking: Yes. I noted sign[s] of possible
roof leak in the garage ceiling. I was unable to confirm if these
a[re] from a past leak o[r] an[] active leak. I recommend
asking the current owner about any past leaks and roof
repairs.
¶13 The report further noted defects to the exterior structure,
including “an open penetration on the east side of the home that is prone to
moisture and pest intrusion [and] should be sealed,” and “marginal to poor
drainage away from structure” on the east side. The inspector
“recommend[ed] monitoring these areas during and after periods of heavy
rainfall,” and “grading and making any other needed repairs to ensure all
water drains away from the structure,” if necessary.
¶14 Buyer had a few more questions after the home inspection on
March 21, including about roof leaks. Burg emailed Buyer’s questions to
the ReMax Defendants who, in turn, forward them to Sellers. Burg
inquired: “There are signs of a possible roof leak in the garage ceiling. Can
you confirm with the owner if this is from a past leak or active leak? And
if [from a] past leak has [it] been fixed?” Sellers responded: “The roof leak
seen in the garage is from a previous leak situation from years ago that was
corrected, and a recent re-seal of that portion of the flat roof was completed
in December last year.”
¶15 That same day, Buyer formally responded to the SPDS with
his Buyer’s Inspection Notice and Seller’s Response (“BINSR”). Buyer
sought a credit or repair for roofing and other issues, including a “[c]redit
or Professional Roofer to repair gap above the flat roof flashing in number
of areas,” and “[c]redit or [d]etermine source of moisture damage to base
of master bathroom cabinets near shower and repair.” Buyer electronically
signed the BINSR, indicating he had “completed all desired [i]nspection[s]”
and “verified all information deemed important [from the] MLS or listing
information,” and “acknowledg[ing]” the ReMax and Realty One
Defendants “assume no responsibility for any deficiencies or errors made”
by the inspector and “neither the Seller nor Broker(s) are experts at
detecting or repairing physical defects in the Premises.”
¶16 Sellers tendered a counteroffer on March 22 to “provide Buyer
[a] $1,000 credit toward [his] closing costs, escrow costs and/or lender fees,
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Decision of the Court
in lieu of all repairs on BINSR.” Buyer accepted the counteroffer later that
day and the parties signed an addendum to the purchase contract.
¶17 Buyer completed a final walk-through inspection on April 19
and acknowledged with his signature that “the property [is] as represented
at the time the purchase contract was accepted by the parties, and any
subsequent repairs that were agreed to . . . have been completed to the
satisfaction of [Buyer].”
¶18 Buyer began renovating the house within “a few days to a
week” after escrow closed on April 18. He budgeted around $20,000 for
extensive repairs and remodeling, including painting, replacing
baseboards, fixing fireplace and tile cracks, refinishing doors, and building
various items. Buyer alleges he discovered “more and more things . . . that
needed fixes” as he made renovations.
¶19 Buyer claims he discovered roof problems almost a year later,
after “heavy rainfall during the late summer to fall 2014” caused “paint and
caulking . . . to peel and crack.” Buyer said he found water leaks and mold
in the walls and water pooling in front of the home. Buyer, however, alleges
he only learned the roof was not “newer” on December 11, 2014, when he
and his attorney climbed onto the roof and discovered “bubbles.”
¶20 Buyer filed this lawsuit on February 26, 2015. He sued Sellers
for negligent misrepresentation, consumer fraud, common law fraud,
mutual mistake and breach of contract for failure to disclose latent defects;
sued the ReMax Defendants for negligence, negligent misrepresentation,
consumer fraud and common law fraud; and sued the Realty One
Defendants for breach of fiduciary duty, negligent misrepresentation,
constructive fraud and common law fraud. 1
¶21 The same day, Buyer filed a formal certificate under A.R.S. §
12-2602, where his counsel avowed “[t]hat claims currently contained in the
Plaintiff’s Complaint allege matters which do require expert opinions and
testimony in support thereof.” Buyer disclosed five expert witnesses
during discovery, including a construction defect expert named George
Frank and a real estate professional expert named Curtis Hall. In
September 2016, Buyer disclosed Hall as an expert “to render opinions
1 Buyer did not sue the home inspector, despite complaining about his
work. Buyer blames the ReMax Defendants for letting him sign a home
inspector’s service agreement that released the home inspector from
“liability for incompetence.”
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Decision of the Court
about the professional standards of care for all such real estate licensees and
to apply same to the issues in this case and to state, by expert opinion,
whether the licensee’s conduct in question has fallen below the applicable
standard of care.” Meanwhile, he disclosed Frank as an expert who “would
discuss and evaluate construction problems” with the home and calculate
the cost of repair.
¶22 On February 6, 2017, Sellers moved for summary judgment
on all claims asserted against them, and the ReMax and Realty One
Defendants joined. Before having to respond, Buyer asked for more time
to conduct discovery (seven depositions) under Arizona Rule of Civil
Procedure (“Rule”) 56(d), and to extend the discovery deadline (set to
expire on February 10). Buyer pointed to an impending mediation in
support. The court denied Buyer’s request for Rule 56(d) relief and ordered
him to respond by March 17. The court did, however, extend the discovery
deadline on March 21 under a stipulated order.
¶23 Buyer responded on March 17, arguing that genuine issues of
material fact precluded summary judgment on his fraud and
misrepresentation claims. He asserted “[t]here is significant proof” that
Sellers knew about and concealed the “roof[ing] problems, water damages
and other defects.” He then pointed to several items for “[s]uch proof,”
including the SPDS, an email exchange between agents, an Allstate
Insurance letter and Frank’s expert report.
¶24 The court held oral argument on April 21 and took the matter
under advisement. In the interim, Buyer deposed Frank and Ana Weiler
and moved to supplement the “facts and legal arguments” in his opposition
to summary judgment on May 25. But Buyer included no additional legal
arguments and only pointed to deposition testimony that Sellers had hired
a licensed contractor “to perform construction work” on the property “in
the form of removal and replacement of wall board (i.e., sheet rock) in the
residence and then repainted same” without disclosure to Buyer. Buyer
contended this “newly discovered” evidence supported his concealment
theory. Sellers opposed the motion, arguing the testimony was irrelevant
given the express SPDS disclosures.
¶25 On August 11, the superior court granted summary judgment
in favor of Sellers and denied Buyer’s motion to supplement. The court
found Buyer had not provided any competent, admissible evidence to
create a genuine issue of material fact that Sellers knew about the alleged
defects at sale and misrepresented or concealed them from Buyer. The
court likewise dismissed Buyer’s mutual mistake claim because he
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Decision of the Court
understood he had imperfect information. The court denied Buyer’s
motion to supplement, however, because the proffered “new” evidence did
not create a fact issue.
¶26 The court denied the joinder motions of the ReMax and Realty
One Defendants, emphasizing its summary judgment ruling related only to
Sellers’ alleged conduct. Those defendants thus moved for summary
judgment in September 2017, which Buyer opposed. After oral argument
on December 5, the court granted both summary judgment motions from
the bench based on, among other things, the absence of expert testimony to
establish a professional duty and breach of that duty. Buyer verbally asked
for permission to supplement his briefing to include expert testimony he
had disclosed but not included or argued, which the court denied.
¶27 Before a minute entry issued, Buyer filed a “Motion for
Reconsideration of Ruling Denying Request to Supplement Summary
Judgment Pleadings and Plaintiffs’ Positions with Previously Disclosed
Licensees (sic) Expert Opinions for Standard of Care Issue.” The court
requested and considered briefing on “(1) whether it would be an abuse of
discretion for the Court to deny Plaintiff’s request to supplement; and (2)
whether allowing Plaintiff to supplement with the expert report would
change the outcome of the Court’s rulings on Defendants’ Motions for
Summary judgment and if not, why not.” The court subsequently denied
the motion for reconsideration and issued its written decision granting
summary judgment to the remaining defendants. The superior court
entered final judgment in favor of all defendants, and Buyer timely
appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
DISCUSSION
¶28 We review the grant of summary judgment de novo, viewing
the evidence in the light most favorable to the non-moving party.
Williamson v. PVOrbit, Inc., 228 Ariz. 69, 72, ¶ 11 (App. 2011). Summary
judgment is proper when there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). We
will affirm the disposition if it is correct for any reason. Logerquist v.
Danforth, 188 Ariz. 16, 18 (App. 1996).
A. Sellers’ Motion for Summary Judgment
1. Misrepresentation, Fraud and Breach of Contract
¶29 Buyer’s tort and breach of contract claims against Sellers
hinge on his allegations that they misrepresented and concealed material
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Decision of the Court
information about roof leaks and repairs. The superior court examined
these claims under Hill v. Jones, 151 Ariz. 81 (App. 1986), which concerns
the issue of disclosure in real estate transactions and creates a duty of
disclosure for home sellers who “know[] of facts materially affecting the
value of the property which are not readily observable and are not known
to the buyer.” 151 Ariz. at 85 (quotation omitted). The court granted
summary judgment to Sellers because Buyer provided insufficient evidence
to create a genuine issue of material fact that Sellers (1) misstated or
concealed alleged defects, or (2) knew about the defects they allegedly
misstated or concealed from Buyer. We agree.
¶30 Buyer asserts Sellers “did not completely or truthfully
represent the actual condition of the property being sold.” He points to
three affirmative statements from the MLS listing and sales brochure:
“lovingly maintained,” “beautifully remodeled,” and “newer A/C units
and a roof.” Buyer also cites statements in the SPDS and an email exchange
to demonstrate Sellers “did not accurately disclose their property’s roof
condition, roof repairs and leaks.”
¶31 The court held the “beautifully remodeled” and “lovingly
maintained” statements represented mere sales puffery, which is not
actionable as fraud or misrepresentation. We agree. A fraud claim cannot
be premised on mere opinion. Page Inv. Co. v. Staley, 105 Ariz. 562, 564-65
(1970). The same is true for negligent misrepresentation. See McAlister v.
Citibank, 171 Ariz. 207, 215 (App. 1992) (“Negligent misrepresentation
requires a misrepresentation or omission of a fact.”). The character of the
statements as puffery or a representation of fact is a legal question.
Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 827 (D. Ariz. 2016). These are
not concrete representations of fact; they are inexact opinions of an adverb-
laden sales pitch.
¶32 Buyer also points to the MLS description of a “newer” roof.
At oral argument, Buyer’s counsel argued the “reasonable definition” of
“newer” in the real estate context means the roof was less than “five, six [or]
seven years old.” The superior court, however, found that “newer” is a
relative adjective that derives its meaning from comparing two or more
items; the term has no concrete meaning standing alone. We agree. As
presented, “newer” has no concrete meaning—it might indicate the roof
was installed in 1990 or just last month; or it might be an opinion of
someone who thinks a 20-year-old roof is still “newer” or “newish.” The
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Decision of the Court
statement is not one of material fact unless tethered to another roof; for
instance, the roof might be “newer” than the original roof. 2
¶33 What is more, Buyer’s assumed definition of “newer” as less
than “five, six [or] seven years old” conflicts with Sellers’ express disclosure
in the SPDS that roof repairs had been conducted around 12 years earlier
on the “sun side” portion of the roof. At a minimum then, Buyer knew the
“sun side” portion of the roof did not comport with his subjective definition
of “newer.”
¶34 And last, Buyer claims Sellers misrepresented the history and
condition of the roof in their SPDS and an email from their real estate agent
on March 22, 2013. Buyer points to several misstatements or omissions,
including: (1) Sellers were “aware of” past roof leaks and they “were
identified and corrected,” (2) Sellers had “re-cover[ed]” the “older tile” on
the sun-side of the roof in 2000, (3) Sellers had resealed the garage portion
of the flat roof in December 2012; and (4) Sellers were “not aware” of “any
interior wall/ceiling/door/window/floor problems,” “any cracks or
settling involving foundation, exterior walls or slabs,“ or “any past or
present mold growth.”
¶35 The superior court granted summary judgment on these
claims because Buyer offered no evidence to establish a genuine fact issue
to demonstrate causation or prove Sellers knowingly misstated or withheld
the alleged material facts from Buyer. We agree Buyer did not establish a
genuine issue of material fact on the element of knowledge—that is, he
offered insufficient evidence to show Sellers knew of the material facts they
are accused of misrepresenting or concealing.
¶36 Buyer relied on two pieces of evidence to demonstrate Sellers’
knowledge: a denial of coverage letter from Allstate Insurance and the
George Frank expert report. We examine each in turn. The Allstate letter,
dated February 11, 2014, is addressed to Buyer and responds to his request
for coverage of “soffit damage due to rot from repeated leakage.” Allstate
denied coverage based on various exclusions in Buyer’s insurance policy.
2 Buyer makes this point with the evidence he proffers to demonstrate
the roof was not “newer,” which is a denial of coverage letter from Allstate
to Buyer in February 2014 noting the roof had been damaged by leaks “over
a period of weeks, months or years.” As the superior court recognized, this
evidence does not demonstrate falsity because the roof might still be
“newer” even assuming historical leaks from the previous week or the prior
year.
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Decision of the Court
Buyer emphasizes the second to last paragraph, which states “[t]his letter
only applies to the soffit portion of your roof where the damage was caused
by repeated leakage or seapage [sic] from your roof which occurred over a
period of weeks, months, or years.” This letter does not create a genuine
issue of material fact as to Sellers’ knowledge. It never even mentions
Sellers, much less indicates what they knew and when they knew it. Nor is
knowledge proven by an unattributed and indeterminate finding of
historical roof leaks. Indeed, Sellers disclosed the existence of past roof
leaks in the SPDS and negotiated a credit for Buyer “to repair gap above the
flat roof flashing in number of areas.” The court correctly concluded the
Allstate Letter “has no probative value.”
¶37 Buyer fares no better with the expert report of George Frank,
whom Buyer disclosed as an expert to “discuss and evaluate construction
problems” with the home and calculate the cost of repair, if any. The court
observed that Frank’s report offers unhelpful, general opinions and “is
laden with statements that constitute improper expert opinion testimony.”
Most significant, however, the report provides no evidence or testimony to
establish that Sellers knew about and misstated or concealed the alleged
extent of roof and house problems, and Frank instead resorts to mere
speculation: “[T]he previous owner and the [ReMax Defendants] had to be
aware of many of these defects present in the home before the sale to
[Buyer].” His speculation is not enough to survive summary judgment. 3
¶38 Buyer claims that summary judgment was inappropriate
under Hill v. Jones, where this court held that house sellers have a duty to
disclose termite damage “known to the seller, but not to the buyer, which
materially affects the value of the property.” 151 Ariz. at 83-84. But Hill is
more harmful to Buyer’s case than helpful because it amplifies the
evidentiary shortcoming in this record that necessitated summary
judgment. Unlike here, the record in Hill was teeming with evidence
showing those sellers knew about the material defects misrepresented to or
concealed from the buyers—for instance, those sellers had two visits from
an exterminator to treat the house for termites, had a termite guarantee and
regular termite inspections, had seen termite damage on the back fence, and
a neighbor had shown the sellers “the area where the [termite] damage and
treatment had occurred.” Id. at 82-83. Buyer offered no such evidence here,
instead arguing the Sellers simply must have known about the water
damage because they had lived in the house for so long. But mere
3 We also note the inconsistency between Frank’s speculation and the
allegations that Buyer himself only learned about the hidden defects after
living in the house for a year and tearing down the walls.
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speculation is unlike the hard evidence that created a factual question in
Hill.
¶39 Buyer also argues the superior court refused to consider two
documents in its summary judgment analysis, but the argument
misconstrues the court’s decision. Buyer points to a paragraph from the
decision where the court “notes that the representations in the SPDS and
March 22 Email do not by themselves constitute misrepresentations or
concealment. They are simply representations.” The court did not ignore
these documents, but instead recognized their limited evidentiary value—
that is, the documents contain representations that might form the basis of
a misrepresentation claim, but Buyer must still prove the representations
are false. Nor do the documents represent proof that Sellers knew about
the alleged defects they purportedly misrepresented or concealed. We
affirm the grant of summary judgment in Sellers’ favor.
2. Mutual Mistake
¶40 The superior court concluded no reasonable jury could find
by clear and convincing evidence that mutual mistake justifies rescission of
the purchase contract. We agree.
¶41 To rescind the contract based on mutual mistake, Buyer
“must show by clear and convincing evidence that the agreement should
be set aside,” which requires that the mutual mistake cover “a basic
assumption on which both parties made the contract,” and “have had such
a material effect on the agreed exchange of performances as to upset the
very bases of the contract.” Nelson v. Rice, 198 Ariz. 563, 566, ¶ 7 (App. 2000)
(quotation omitted). Buyer has no claim for mutual mistake if he was
“aware, at the time the contract [was] made, that he ha[d] only limited
knowledge with respect to the facts to which the mistake relate[d] but
treat[ed] his limited knowledge as sufficient.” Id. at 566, ¶¶ 7-8 (quotation
omitted).
¶42 The court found that Buyer “knew that he had limited
knowledge about the roof leaks and the drainage on the property,” but “did
not hire a roofer to take a closer look even after the inspector noted the
stains on the garage ceiling.” We agree. The undisputed facts indicate that
Buyer had notice of roof-related issues from the Sellers and his home
inspector, and he was repeatedly advised that he was responsible for
conducting due diligence and warned to verify material information (in his
counteroffer, the Buyer Advisory, the SPDS and BINSR). He was instructed
to hire a professional roofer, to verify the roof’s condition and to further
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Decision of the Court
explore roof-related issues. He acknowledged the warnings and verified
that he completed all desired inspections. Yet Buyer did not hire a roofer
to take a closer look and instead opted to complete the transaction with
limited knowledge. We find no error in dismissing Buyer’s mutual mistake
theory on this record.
B. Motion to Supplement Summary Judgment Response
¶43 Buyer next asserts the superior court abused its discretion in
denying his motion to supplement his response to Sellers’ motion for
summary judgment with deposition testimony elicited after the motion was
fully briefed and argued, but still under advisement.
¶44 Buyer filed his summary judgment response on March 17 and
participated in oral argument on April 21. Two months after his response
and one month after oral argument, Buyer deposed Frank and Ana Weiler.
A week after the depositions, Buyer moved for permission to supplement
his response based on new evidence. The claimed new evidence was
deposition testimony from Sellers that they hired “a licensed contractor,
who was a prior son-in-law, to perform construction work on the [house]
in the form of removal and replacement of wall board (i.e., sheet rock) in
the residence and then repainted the same,” and never told Buyer about the
hire. Buyer argued the testimony had “a direct impact on this litigation,”
presumably as evidence of a cover-up. The court disagreed that the
testimony went “directly to [Buyer’s] claims” and denied the motion
because “[Sellers] disclosed roof leaks that were identified and corrected,”
and the new evidence was simply “part of the repair process and not
evidence of a misrepresentation.”
¶45 We review the court’s ruling for a clear abuse of discretion.
Schwab v. Ames Constr., 207 Ariz. 56, 60, ¶ 17 (App. 2004); Ariz. R. Civ. P.
7.1(a)(3)-(4) (responsive memoranda “must” be filed within 10 days after
service of the motion, and “[a]ffidavits and other evidence submitted in
support of any . . . memorandum must be filed with the . . . memorandum,
unless the court orders otherwise”) (emphasis added). Buyer articulated no
good cause for waiting to depose the Sellers in his lawsuit until two months
after filing his opposition to Sellers’ motion for summary judgment. Cf.
Zimmerman v. Shakman, 204 Ariz. 231, 236, ¶ 16 (App. 2003) (court may bar
the use of supplemental disclosure if dispositive motion is pending but it
also may allow late disclosure if good cause is shown). With minimal
diligence, Buyer could have conducted the depositions before summary
judgment had been briefed and argued, but he did not. On this record, the
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court’s decision was not “manifestly unreasonable.” Tilley v. Delci, 220 Ariz.
233, 238, ¶ 16 (App. 2009).
¶46 Moreover, the “newly discovered” evidence was consistent
with the record and would not have rescued Buyer’s claims from summary
judgment. Even if the deposition testimony had been considered, the
record contained insufficient evidence to show that Sellers had knowledge
of roof-related defects which they had not tried to identify and correct, but
instead had concealed from Buyer. See Hill, 151 Ariz. at 85. The testimony
echoed the record and SPDS disclosures—confirming that roof leaks
existed, and that Sellers had hired someone to identify and repair the
damage. Sellers disclosed historical roof leaks and repairs and noted the
leaks “were identified and corrected.” We cannot conclude the court
abused its discretion by denying Buyer’s motion to supplement.
C. Motions for Summary Judgment of ReMax and Realty One
Defendants
¶47 After hearing oral argument, the superior court granted
summary judgment against Buyer on his professional negligence and
breach of fiduciary duty claims because, among other things, Buyer
provided no expert testimony to establish the professional standard of care
and breach. 4 The court recognized that expert testimony was indispensable
for Buyer to withstand summary judgment on his claims for professional
negligence and breach of fiduciary duty—both to establish the professional
standard of care for licensed real estate agents and agencies, and to
demonstrate that defendants breached the standard. Powder Horn Nursery,
Inc. v. Soil & Plant Lab., Inc., 119 Ariz. 78, 80, 83 (App. 1978) (affirming
summary judgment in defendant’s favor because plaintiff provided no
expert testimony that established the requisite standard of care owed by a
professional plant laboratory to its customers and departure therefrom).
4 The court also granted summary judgment on the fraud claims
“based on lack of causation and its previous ruling that [Buyer] failed to
allege sufficient facts to create a genuine issue of material fact as to his
claims for fraud and negligent misrepresentation against [Sellers], and
failed to present any additional facts that would create a genuine issue of
material fact regarding the commission of fraud by [the ReMax and Realty
One Defendants].”
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¶48 Expert testimony was imperative because jurors are not
equipped to designate a definitive standard of care for licensed real estate
professionals and agencies, determine whether the standard has been
satisfied or breached, and then apportion fault between and among several
different professionals. 5 Kreisman v. Thomas, 12 Ariz. App. 215, 221 (1970)
(“In the absence of evidence establishing the requisite standard of care and
that defendant’s conduct failed to meet that standard, there was no basis
upon which the jury could have found defendant liable to the plaintiff, and
therefore the trial court did not commit error in refusing to submit the
matter to the jury.”). Without expert testimony, the professional standard
was indistinct and uncertain, leaving no genuine issue of material fact as to
the elements of duty and breach. Id. (“Where, as here, the duty which the
law recognizes arises because the defendant has held himself out to be
trained in a particular trade or profession, the standard required for the
protection of customers against unreasonable risks must be established by
specific evidence. It cannot be left to conjecture nor be established by
argument of counsel.”).
¶49 Buyer argues the superior court should not have granted
summary judgment for three reasons. First, he claims that no expert
testimony was required because the standard of care was obvious and the
alleged misconduct was grossly apparent. Riedisser v. Nelson, 111 Ariz. 542,
544 (1975) (expert testimony is required in professional negligence cases
“unless the negligence is so grossly apparent that a layman would have no
difficulty in recognizing it”). We disagree. An expert opinion was
especially critical here, where Buyer sued seven different real estate
professionals and agencies representing different parties with different
interests and different relationships; Buyer has contracts with some and no
contracts with others; and he signed various documents, guides and
disclosures during the transaction which implicate and address the duties
and responsibilities of distinct parties.
¶50 Nor did Buyer point to grossly apparent misconduct that all
laypersons could identify. Buyer alleges the real estate professionals
breached assorted duties and standards—ranging from alleged duties to
detect all material defects a “professional person” could discover to
purported duties to confirm that all transmitted information is accurate.
These claims are novel and tenuous, not obvious and grossly apparent. The
defendants held themselves out as having particular skills and training, and
5 Liability among shared tortfeasors is several only, not joint, except
in limited circumstances that do not apply here. See A.R.S. § 12-2506.
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Decision of the Court
expert testimony was needed to establish the standard of care by which to
measure their actions.
¶51 Buyer himself debunked this argument at the outset of this
lawsuit when his counsel certified that he needed expert testimony to
succeed on his claims under A.R.S. § 12-2602, and again when he conceded
at oral argument on summary judgment that he would need to elicit expert
testimony at trial. His initial, reflexive concession only amplifies the gaping
evidentiary chasm.
¶52 Second, Buyer argues at minimum the superior court erred in
denying his motion to supplement or reconsider and we should therefore
reverse the summary judgment order.6 After the superior court announced
its summary judgment decision in open court, Buyer orally sought
permission to supplement his opposition with an expert declaration he had
previously disclosed but never used to oppose summary judgment. The
court denied his motion, and he filed a written motion to reconsider. The
court invited and considered briefing on the issue, then denied the motion.
We review the denial for an abuse of discretion. Tilley, 220 Ariz. at 238, ¶
16.
¶53 The court did not abuse its discretion. Buyer again insists he
should have received a do-over. He emphasizes he disclosed an expert
witness and declaration regarding standard of care issues in discovery and
insists the court should have reconsidered its summary judgment decision
as if he had presented the expert declaration in opposition to summary
judgment. But he didn’t. Buyer had a reasonable opportunity to prepare
and present his case and craft the summary judgment opposition of his
choice, yet he made no mention of expert testimony to establish the
standard of care in this professional negligence action. Cf. Hunter
Contracting Co. v. Superior Court, 190 Ariz. 318, 322 (App. 1997) (“[T]he major
objective of Rule 56(f) is to insure [sic] that a diligent party is given a
reasonable opportunity to prepare his case.”) (quotation omitted); Jones v.
MEA, Inc., 160 So. 3d 241, 248 (Miss. App. 2015) (“While they cited multiple
civil-procedure rules in their post-judgment motion, we have no rule that
6 We generally do not consider evidence and argument first presented
in a motion for reconsideration. Evans Withycombe, Inc. v. W. Innovations,
Inc., 215 Ariz. 237, 240, ¶ 15 (App. 2006). One reason for this rule is that
“when a new argument is raised for the first time in a motion for
reconsideration, the prevailing party below is routinely deprived of the
opportunity to fairly respond.” Id. We nevertheless exercise our discretion
and address Buyer’s arguments here.
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allows for what the Joneses are asking—to make a second, better attempt at
trying a claim after that claim has been properly dismissed on summary
judgment.”).
¶54 Buyer might have decided to omit Hall’s expert affidavit from
his summary judgment opposition for assorted tactical reasons; he might
have deemed it unpersuasive or believed it compromised his other
arguments. What matters, however, is that Buyer concluded it was
unnecessary to include or even reference Hall’s affidavit in opposing the
summary judgment motion or controverting the statements of fact.
¶55 As before, Buyer waited until after the parties exhaustively
briefed and argued summary judgment and after the court orally granted
the motion before requesting a do-over. He does not claim the evidence
represents new facts or circumstances that came to light after summary
judgment was decided. Cf. Union Rock & Materials Corp. v. Scottsdale
Conference Ctr., 139 Ariz. 268, 273 (App. 1983) (new matters in motion for
reconsideration may be considered by another trial court when new facts
or circumstances come to light between the granting of the motion for
summary judgment and the motion for reconsideration). He provided no
good reason for omitting the expert affidavit and neglecting the first
element of his professional negligence claims. His counsel instead claims
the issue was not raised or contested at summary judgment, which is false.
Buyer had nearly three years to formulate his summary judgment defense
and arguments. The court was not “manifestly unreasonable” in refusing
Buyer’s request to resurrect his professional negligence claims and
reconsider the question of summary judgment based on backfilled evidence
and argument. Tilley, 220 Ariz. at 238, ¶ 16.7
¶56 Buyer’s third argument misconstrues the superior court’s
decision. He claims the court improperly dismissed his lawsuit because he
never filed his real estate expert’s declaration under A.R.S. § 12-2602,
without ever “set[ting] a date and terms for compliance” under § 12-
2602(E). Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 129, ¶ 19 (App.
2008) (court abused its discretion when it did not comply with § 12-2602(E)
before dismissing claim under § 12-2602(F)). But his claim was not
dismissed for failure to comply with A.R.S. § 12-2602. Buyer lost because
he provided no evidence to prove an indispensable element of his claim
(duty and breach), and a reasonable jury, therefore, could not find in his
favor based on the record. He presented no expert testimony to establish
7 Because we affirm on this basis, we need not consider the alternative
grounds for denying leave to allow supplemental briefing, e.g., futility.
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the ReMax and Realty One Defendants owed a duty and breached that
duty—indispensable elements of his claims. See Baird v. Pace, 156 Ariz. 418,
420 (App. 1987) (expert testimony generally needed to establish duty and
breach in professional cases).
¶57 In sum, we affirm summary judgment in favor of the ReMax
and Realty One Defendants because Buyer did not establish a genuine issue
of material fact on the professional standard of care or whether the
defendants breached the undefined standard.
D. Attorney’s Fees and Costs
¶58 Sellers and the ReMax Defendants request their attorney’s
fees and costs pursuant to A.R.S. § 12-341.01(A). Because Sellers and the
ReMax Defendants are prevailing parties, and the claims against them arose
out of contract, we grant their request for attorney’s fees on appeal under
A.R.S. § 12-341.01(A), and their costs, subject to compliance with ARCAP
21.
CONCLUSION
¶59 We affirm the superior court’s orders granting summary
judgment to all defendants.
AMY M. WOOD • Clerk of the Court
FILED: AA
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