Las Corrientes v. The Sundt Companies

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE LAS CORRIENTES, L.L.C., an Arizona limited liability company dba Bear Creek Golf Course, ) ) ) ) ) Plaintiff/Appellant, ) ) v. ) ) THE SUNDT COMPANIES, INC., an ) Arizona corporation; SUNDT ) CONSTRUCTION, INC., an Arizona ) corporation, ) ) Defendants/Appellees. ) __________________________________) DIVISION ONE FILED: 08-03-2010 PHILIP G. URRY,CLERK BY: DN No. 1 CA-CV 09-0374 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2007-012052 The Honorable Mark F. Aceto, Judge AFFIRMED Paul M. Rybarsyk PC By Paul M. Rybarsyk Attorney for Plaintiff/Appellant Scottsdale The Doyle By And Attorneys Phoenix Firm PC William H. Doyle D. Andrew Bell for Defendants/Appellees S W A N N, Judge ¶1 Las Corrientes, L.L.C., d/b/a Bear Creek Golf Course ( Plaintiff ), summary appeals judgment Construction, for Inc. from The the Sundt superior court s Companies, ( Defendants ), and Inc. from grant and the of Sundt court s subsequent denial of a motion for new trial in this negligence action. For the reasons set forth below, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Because we are reviewing a decision granting summary judgment in favor of Defendants, we view the facts in the light most favorable to the non-moving party, Plaintiff. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). ¶3 In September 2004, the City of Chandler contracted with Defendants to perform construction on a portion of a city road adjacent to Plaintiff s golf course. Defendants commenced the road construction project in November 2004. ¶4 from In May or June 2005, Defendants removed the pavement the portion of the city road that abuts Plaintiff s property line and the golf course s entry- and exit-way. From that time until September 2005, the area was in various stages of construction that involved sand, twelve-inch-high dirt mounds, gravel, and ultimately pavement. ¶5 During the construction period, Daniel Strand, one of the golf course owners, observed vehicles trying with great 2 difficulty to access the golf course. On one occasion, Strand saw an employee s vehicle become stuck in sand. On another occasion, he witnessed customers and employees unable to leave the golf course because the construction prevented their exit. Employees informed Strand that customers had made complaints and statements that indicated they would not return to the golf course until the construction was completed. ¶6 Plaintiff sued Defendants for negligence, alleging that Defendants construction activities had blocked ingress to and egress from the golf course and had caused Plaintiffs to suffer revenue losses and reputational harm. The court granted summary judgment for Defendants on the ground that Plaintiff did not present applicable expert to road testimony regarding construction the standard projects. It of also care denied Plaintiff s motion for a new trial. ¶7 Plaintiff timely appeals. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003). DISCUSSION ¶8 Our review of a grant of summary judgment is de novo. Andrews, 205 Ariz. at 240, ¶ 12, 69 P.3d at 11. We will affirm if the superior court s ruling is correct for any reason. Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986). Here, although the superior court granted summary judgment for Defendants on standard of care grounds, we need not reach the 3 question whether an expert was required because the record reveals that Plaintiff did not provide competent evidence of a causal connection between Defendants conduct and Plaintiff s alleged damages. ¶9 Summary judgment may be granted when there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. 56(c)(1). Ariz. R. Civ. P. A motion for summary judgment should be granted if the facts produced in support of the claim . . . 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. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). existence of a slightest doubt summary judgment. ¶10 To scintilla is of Consequently, the mere evidence insufficient to that withstand creates the motion for a Id. establish a negligence claim, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform standard to a certain of care; (2) the defendant s failure to conform to that standard; (3) a reasonably close causal connection between the defendant s conduct plaintiff s resulting injury; and (4) actual damages. and the Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). To survive a motion for summary judgment, a plaintiff must produce 4 admissible evidence from which a reasonable jury could find in his favor on each element. See Nat l Bank of Ariz. v. Thruston, 218 Ariz. 112, 116-17, ¶¶ 20-22, 180 P.3d 977, 981-82 (App. 2008). In their motion for summary judgment, Defendants argued, inter alia, that Plaintiff's claim for damages was based on speculation and conjecture. ¶11 A plaintiff proximate causation. must We agree. prove both causation-in-fact and See Rogers ex rel. Standley v. Retrum, 170 Ariz. 399, 401, 825 P.2d 20, 22 (App. 1991). Causation-in-fact exists when the defendant s conduct contributed, even if only to a small degree, to the plaintiff s harm and the harm would not have occurred but for the defendant s conduct. Ariz. at 505, 667 P.2d at 205. Ontiveros, 136 Whether causation-in-fact exists is usually a question for the jury; however, summary judgment may be appropriate when there exists no evidence from which reasonable people could find causation. See Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 & n.1, 150 P.3d 228, 230 & n.1 (2007) (addressing summary judgment based on insufficient evidence of proximate cause); Ontiveros, 136 Ariz. at 505, 667 P.2d at 205 (acknowledging that in some cases the absence of cause-in-fact may be recognized as a matter of law). ¶12 Plaintiff In response produced to only the motion Strand s for summary affidavit, the judgment, contract, contact information for complaining customers, and accounting 5 exhibits. In his affidavit, Strand stated that he saw vehicles experience great difficulty accessing the golf course. The affidavit did not identify the frequency with which vehicles had difficulty entering the golf course, nor did Strand assert personal knowledge that a vehicle ever abandoned attempts to access the golf course. incidents: Indeed, the affidavit cites only two one in which an employee s car became stuck in sand while trying to enter the golf course, and one in which several patrons were stranded on the golf course for an unspecified time because of Defendants construction activities. ¶13 Evidence not based on a witness s personal knowledge may not be considered for purposes of summary judgment. Aranda v. Cardenas, 215 Ariz. 210, 219, ¶¶ 33-34, 159 P.3d 76, 85 (App. 2007). Strand acknowledged at his deposition that he had seen only one vehicle become stuck in the construction area and that vehicle belonged to an employee of the golf course, not a customer. had no At his deposition, Strand further admitted that he first-hand complaints. customers knowledge of other incidents or customer He also admitted that he could not identify any whose construction. patronage he lost as a result of the The entirety of the evidence concerning access problems, therefore, consists of Strand s observations of two incidents - one of which did not involve any customers at all. Though Plaintiff had the opportunity to present evidence from 6 others who may have had first-hand knowledge of lost customers, it did not do so. ¶14 Though road inconvenience to gravamen Plaintiff s of the construction patrons of an complaint can surely affected is that cause business, the the allegedly negligent construction caused him to lose business for a period of months. Even assuming that Defendants were somehow negligent in the construction of the improvements, the record is devoid of evidence of a link between Defendants conduct and Plaintiff s lost business. Strand lacked any personal knowledge that the access problems he observed caused lost business. Though he referred to a list of complaining customers, and stated that those customers would testify about their access problems, he presented no admissible evidence that customers were unable or unwilling to problems.1 visit the Plaintiff golf course further because presented no of the evidence access of the alleged reputational harm. ¶15 In addition to the absence of testimony concerning lost customers, the financial documents that Plaintiff provided likewise do not imply a causal connection between the period of 1 We note also that Strand did not personally compile the list of names, and there is no evidence that he received any complaints. 7 construction and a decline in business.2 motion for summary judgment, In opposing Defendants Plaintiff did not provide a complete record of the data underlying Strand s calculation of damages. Plaintiff did, however, provide a record of monthly greens fees revenue - which Strand testified represented the bulk of the alleged lost revenue construction year), and 2006. - for 2004, 2005 (the These records reveal that the decline in business during the months of construction followed the same general seasonal revenue trends as Plaintiff s revenue in other years. A reasonable jury could not infer from the financial data alone that Defendants construction activities were linked to revenue losses that would not otherwise have been sustained. ¶16 We conclude, therefore, that Plaintiff did not provide evidence from which reasonable people could find causation-infact to support its claim for damages. Accordingly, summary judgment in favor of Defendants was appropriate. 2 In a letter to Defendants, Strand estimated that the golf course lost $70,614 in revenue in August and September 2005. He did not provide an estimate of losses for the other construction months. 8 CONCLUSION ¶17 For the reasons set forth above, we affirm the grant of summary judgment in favor of Defendants. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ____________________________________ DANIEL A. BARKER, Judge 9

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