Greco v. Fairway

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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 ) ) ) Plaintiff/Appellant,) ) v. ) ) FAIRWAY INDEPENDENT MORTGAGE ) CORPORATION, ) ) Defendant/Appellee. ) ) No. DAMIAN J. GRECO, DIVISION ONE FILED: 05-18-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0536 1 CA-CV 09-0673 (Consolidated) DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2006-053364 The Honorable Robert Budoff, Judge AFFIRMED Titus Brueckner Levine & Johnson P.C. By John R. Tellier Attorneys for Appellant Kutak Rock LLP By Michael W. Sillyman Philip A. Overcash Attorneys for Appellee Scottsdale Scottsdale J O H N S E N, Judge ¶1 Damian J. Greco appeals from the superior court s grant of summary judgment and award of attorney s fees in favor of Fairway Independent Mortgage Company. For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Greco entered into a contract to purchase a home on August 13, 2006. obligation to The purchase agreement stated that Greco s complete this sale is contingent upon an appraisal of the [home] by an appraiser acceptable to lender for at least the sales price. The agreement included a section titled due diligence, which granted Greco ten days from the date of the contract to conduct all desired physical, environmental, and other types of inspections and investigations to determine the value and condition of the home. The purchase agreement also provided, BUYER IS AWARE THAT ANY REFERENCE TO THE SQUARE (LAND) FOOTAGE AND IS INVESTIGATED FOOTAGE OF IMPROVEMENTS A MATERIAL DURING THE THE PREMISES, THEREON, MATTER IS TO INSPECTION BOTH THE REAL APPROXIMATE. THE BUYER, PERIOD. PROPERTY IF IT The SQUARE MUST BE agreement required Greco to notify the seller before the close of the inspection period if he disapproved of anything revealed by his due diligence. It further stated, BUYER S FAILURE TO GIVE NOTICE OF DISAPPROVAL OF ITEMS OR CANCELLATION OF THIS CONTRACT 2 WITHIN THE SPECIFIED TIME PERIOD SHALL CONCLUSIVELY BE DEEMED BUYER S ELECTION TO PROCEED WITH THE CORRECTION OF ANY DISAPPROVED ITEMS. TRANSACTION WITHOUT On August 17, 2006, Greco signed the Buyer s Inspection Notice, which stated, inter alia, that he had completed all desired inspections and investigations pertaining to square footage. ¶3 Greco origination and Fairway agreement on entered August 18, into a 2006. mortgage As part of loan that agreement, Greco exercised his right to ask for a copy of the appraisal report that Fairway might obtain. for an appraisal of the property. Fairway contracted Greco was not a party to that contract, which was between Fairway and the appraiser. The appraisal s purpose, according to the appraisal itself, was to provide Fairway with an accurate, and adequately supported, opinion of the market value of the subject property. appraised for $1,300,000; the sale price was The home $1,265,000. Although the home was listed at 3,279 livable square feet, the appraisal stated the livable square footage was 2,860. ¶4 In Acceptance agreed connection Agreement that he with and the Hold closing, Harmless understood that Greco form, [Fairway] signed an which he in assumes responsibility for the Property or its condition. also stated, I acknowledge acceptability of the Property that is 3 the my no The form determination responsibility, of and the I hereby hold harmless and indemnify [Fairway] from any claims . . . which may arise resulting from the condition of the Property . . . [and] any matters indicated or that may have been revealed on a survey. On September 26, 2006, Greco also executed a form titled Appraisal Disclosure, which stated, If you have not already paid an appraisal fee, you may be required to reimburse us for the cost of appraisal and other costs associated with photocopying and postage as a condition to receiving a copy of the appraisal report if not prohibited by state statutes. Greco paid the $400 cost of the appraisal at closing. ¶5 Greco and the seller had agreed the transaction would close on Wednesday, September 28, 2006. On September 27, Greco received a packet of paperwork relating to the transaction, but it did not contain the appraisal. to Fairway responded requesting that he would a copy That day, Greco sent an email of receive the the appraisal closing packet by the end of the week. to this email. appraisal. as Fairway part of a Greco did not respond Escrow closed on September 28, 2006. Greco received a copy of the appraisal after escrow closed. ¶6 Greco filed a complaint on November 17, 2006, naming as defendants Fairway, his real estate agents and the sellers. Count five of the complaint alleged breach of contract by Fairway; it alleged Fairway breached by failing to deliver the appraisal to [Greco] until several days after closing. 4 ¶7 On cross motions for summary judgment, the superior court entered judgment in favor of Fairway. It stated, The Court concludes that there was no contract or agreement between the parties that the appraisal would be received by Plaintiff in advance of closing and that Plaintiff s closing of the agreement without receipt of the appraisal is clear indication that Plaintiff did not believe that receipt of the appraisal prior to closing was part and parcel of any agreement. granted Fairway s jurisdiction of application Greco s for appeals attorney s pursuant to The court later fees. Arizona We have Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). DISCUSSION A. Summary Judgment. 1. ¶8 Standard of review. We review the grant of a motion for summary judgment de novo and view the evidence in the light most favorable to the nonmoving party. Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, 36 433, ¶ 10, P.3d 1200, 1203 (App. 2001). Summary judgment is proper 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. Ariz. R. Civ. P. 56(c). We consider only the evidence that was before the superior court when it addressed the motion. Vig v. Nix Project II P ship, 221 Ariz. 393, 396, ¶ 10, 212 P.3d 85, 88 (App. 2009). 5 We may, however, affirm the superior court s grant of summary judgment for any reason. CDT, Inc. v. Addison, Roberts & Ludwig, C.P.A., 198 Ariz. 173, 178, ¶ 19, 7 P.3d 979, 984 (App. 2000). ¶9 If the party with the burden of proof on the claim or defense cannot respond to the motion by showing that there is evidence creating a genuine issue of fact on the element in question, then granted. Orme School v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 the (1990). motion In for summary addition, when judgment a motion should for be summary judgment is filed, the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. adverse party does not so respond, summary If the judgment, appropriate, shall be entered against the adverse party. if Ariz. R. Civ. P. 56(e); see also Florez v. Sargeant, 185 Ariz. 521, 526, 917 P.2d 250, 255 (1996) ( affidavits that only set forth ultimate facts or conclusions of law can neither support nor defeat a motion for summary judgment ). 2. ¶10 Summary judgment was proper. Greco argues Fairway promised it would provide him the appraisal before the transaction was to close. In his motion for summary judgment and his response to Fairway s cross motion, however, the only language Greco cited for that purported promise was in the Multiple Disclosure Form, the form in which 6 Greco requested a copy of the appraisal. have the right to a copy of the That form stated, You appraisal connection with your application for credit. report used in If you would like to receive a copy, please check the appropriate box below. By signing below you acknowledge receiving a copy of this notice. Greco checked the box stating that he wished to receive a copy of [the] appraisal. ¶11 Nothing in the Multiple Disclosure Form states when Fairway would provide the appraisal to Greco. The unambiguous language of the parties written contract, therefore, provides no support for Greco s argument that Fairway promised to give him the appraisal report prior to close. See, e.g., Hill-Shafer P ship v. Chilson Family Trust, 165 Ariz. 469, 473, 799 P.2d 810, 814 (1990) (where there is no meeting of the minds, no contract is formed). ¶12 Greco s deposition testimony that he expected to receive the appraisal when available cannot change the meaning of the reached. contract if that is not the agreement the parties Greco s statement is insufficient to create a material issue that Fairway promised to provide him with the appraisal prior to closing. the parties A contract is not ambiguous simply because disagree about its meaning. In re Estate of Lamparella, 210 Ariz. 246, 250, ¶ 21, 109 P.3d 959, 963 (App. 2005). Instead, [l]anguage in a contract is ambiguous only 7 when it can meaning. reasonably be construed to have more than one Id. (citing State ex rel. Goddard v. R.J. Reynolds Tobacco Co., 206 Ariz. 117, 120, ¶ 12, 75 P.3d 1075, 1078 (App. 2003)). ¶13 Greco s deposition testimony, moreover, is contradicted by his acknowledgement in the Appraisal Disclosure Form that he may be required to reimburse [Fairway] for the cost of the appraisal . . . as a condition to receiving a copy of the appraisal report. for the cost Disclosure of Form the Since Greco did not reimburse Fairway appraisal disproves any until closing, contention that the Appraisal Fairway contracted to provide him the appraisal prior to closing. had Greco argues that the Appraisal Disclosure Form was executed after the Multiple Disclosure Form, was not part of his agreement with Fairway and cannot be construed together [with his agreement] as a whole. At the very least, however, the Appraisal Disclosure Form supplemented the Multiple Disclosure Form and informs its meaning. ¶14 Greco repeatedly contends Fairway promised him that he would receive the appraisal report prior to closing. record citation he provides for that assertion, The however, supports only the proposition that he asked Fairway for the appraisal, not that Fairway promised him that he would receive it prior to the closing. 8 ¶15 the Our holding is further supported by the language of purchase agreement. In his motion for reconsideration, Greco provided an affidavit in which he argued that he would have rescinded the purchase agreement if he had received the appraisal prior to the close of escrow. As noted, however, the purchase agreement imposed on Greco the responsibility to verify the square Inspection footage Notice of the without home, noting and any he signed issue the about Buyer s the square footage. ¶16 The purchase agreement plainly provided that if Greco was concerned about the square footage of the home, he needed to verify the square footage during the 10-day inspection period. Supra ¶ 2.1 Greco signed the Inspection Notice without raising any issue about the square footage; he does not explain how, given the recited language, the agreement would have permitted him to cancel had he discovered after the 10-day inspection period but represented. prior to closing Accordingly, that the home the language was of smaller the than purchase agreement does not support Greco s contention that he contracted for receipt of a copy of the appraisal report from Fairway prior 1 Greco does not contend that the time allowed to complete such verification was insufficient. The record is silent as to what efforts Greco made, if any, to verify the square footage before signing the Inspection Notice. 9 to the closing so that he could cancel the transaction if he was not satisfied with the appraisal.2 ¶17 For all of these reasons, we hold the superior court did not err in granting Fairway s motion for summary judgment.3 B. Attorney s Fees. 1. Standard of review. ¶18 We review a superior court s orders regarding attorney s fees for an abuse of discretion and will uphold the court's award reasonable of attorney's basis. Maleki fees v. and Desert costs Palms if it has Prof l any Props., L.L.C., 222 Ariz. 327, 333-34, ¶ 32, 214 P.3d 415, 421-22 (App. 2009) (quoting State Farm Mut. Auto Ins. Co. v. Arrington, 192 Ariz. 255, 261, ¶ 27, 963 P.2d 334, 340 (App. 1998)). [W]e view the record in the light most favorable to sustaining the trial court's decision. Rowland v. Great States Ins. Co., 199 Ariz. 577, 587, ¶ 31, 20 P.3d 1158, 1168 (App. 2001). 2 Greco does not assert Fairway promised to provide him a copy of the appraisal prior to the expiration of the 10-day inspection period. 3 Greco argues the court erred by ruling based on waiver when the parties had not briefed that issue. We need not address this issue because we hold entry of summary judgment was appropriate even apart from any alleged waiver. For the same reason, we need not address Greco s argument concerning anticipatory repudiation or Fairway s cross-issues in support of the judgment. 10 ¶19 The superior court has the discretion to award attorney s fees to the prevailing party in a case arising out of contract. A.R.S. § 12-341.01(A) (2003); see also Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, 569, ¶ 9, 155 P.3d 1090, 1093 (App. 2007). In deciding whether to award fees, the superior court should consider the following factors: the merits of the unsuccessful party's claim, whether the claim could have been avoided or settled, whether the successful party's efforts were completely superfluous in achieving the result, whether assessing fees against the unsuccessful party would cause an extreme hardship, whether the successful party did not prevail with respect to all of the relief sought, the novelty of the legal question presented, and whether an award to the prevailing party would discourage other parties with tenable claims from litigating legitimate contract issues for fear of incurring liability for substantial amounts of attorneys' fees. Id. at ¶ 10 (quoting Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985)). The question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason. Warner, 143 Ariz. at 571, 694 P.2d at 1185 (quoting Davis v. Davis, 78 Ariz. 174, 179, 277 P.2d 261, 265 (1954) (Windes, J., specially concurring)). 11 2. ¶20 The superior court did not err in awarding Fairway its attorney s fees. The superior court considered several factors in deciding to award Fairway all of the attorney s fees it sought. The court found that the litigation between these parties arose out of contract (A.R.S. 12-341.01), that Fairway is clearly the prevailing party in this litigation, that Fairway s defense of the case was necessary, that no conclusive evidence has been provided to the Court that an award of fees against Plaintiff would cause extreme hardship, and that the fees of Fairway, although a substantial amount, are reasonable. The court granted Fairway an award of attorney s fees in the amount of $144,572.55 (the Court took into consideration Fairway s concession to have a deduction of $1052.00 from its original request), judgment for costs in the amount of $3179.05 and Rule 68 costs of $2459.50 . . . . ¶21 It is clear from the superior court s order that it considered the appropriate factors and reduced the judgment in accordance with the parties stipulation. We note the trial in the case was continued once on only two days notice, and then it was continued again. These continuances added substantially to the cost of litigation, and we cannot say on this record that the superior court s order was unreasonable. 12 CONCLUSION ¶22 For the foregoing reasons, we affirm the superior court s judgments. /s/_______________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/_________________________________ DANIEL A. BARKER, Presiding Judge /s/_________________________________ LAWRENCE F. WINTHROP, Judge 13

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