Showers v. Executive
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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 DIVISION ONE FILED: 01/20/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE GARY and ELAINE SHOWERS, a married couple, ) ) ) Plaintiffs/Appellants, ) ) v. ) ) EXECUTIVE TOWERS ASSOCIATION, an ) Arizona non-profit corporation, ) ) Defendant/Appellee. ) ) 1 CA-CV 10-0248 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2006-019364 The Honorable Sam J. Myers, Judge REVERSED AND REMANDED Sherman & Howard LLC By Daniel p. Beeks Attorneys for Plaintiffs/Appellants Phoenix Burton T. Cohen P.C. Attorney for Defendant/Appellee Scottsdale B A R K E R, Judge ¶1 the Plaintiffs/Appellants Gary and Elaine Showers appeal superior court s judgment as a matter of law for Defendant/Appellee Executive Towers Association. For the following reasons, we reverse and remand for a new trial. Factual and Procedural Background ¶2 which The Showers purchased two adjoining condominium units, had previously been Executive Towers building. combined into one unit, in the At the time of their purchase, the Showers unit contained a clothes washer, which was connected to a kitchen sink sewer, and a dryer. The Showers desired to remodel the unit to remove the existing washer and dryer, add a laundry room, and install a new washer and dryer. ¶3 The Executive Towers Association association for the condominiums. is the homeowners The Association prohibits the use of clothes washers and dryers in the individual condominium units due to plumbing and ventilation concerns. Nevertheless, the Association had allowed other owners to install washers and dryers in their units when medical conditions prevented them from washing their laundry in the common area laundry facilities. ¶4 Shortly after their purchase, the Showers requested a variance from dryers in the Association s individual units. prohibition They described on washers their plans and to remodel their unit to create a laundry room, and explained that they intended to install a washer that would discharge significantly less water in the sewage system than the existing 2 washer. They also planned to install a dryer that was self- venting and would not vent into the common chases. At the request of the Association s Board of Directors, the Showers provided product literature for the washer and dryer they intended to install. ¶5 The Association s property manager, Michael D. Hogue, informed the Showers that the Board had approved their request for a variance. the Board s Shortly thereafter, a Board member acknowledged approval of the Showers to other residents. maintenance worker plumbing and necessary to install while introducing the During construction, the building s supervised electrical variance the systems the new Showers in alteration their appliances, unit, and never of the which was told the Showers they were not allowed to have a washer and dryer. ¶6 The following year, when the Showers learned Mr. Hogue was leaving his employment with the Association, they asked him for copies of the Board minutes approving the variance. Mr. Hogue told the Showers there were no minutes of the action, but wrote a letter confirming that the Board had voted to grant the variance. ¶7 In 2006, the Showers contracted to sell their unit to Leroy and Frances Paller. and dryer Association approvals shall be the The contract stated that the washer Showers transferable 3 had to received the from Pallers. the The Association notified the escrow agent that the Showers washer and dryer were not allowed and must be removed. The Association claimed it could not find any record that it had granted the Showers a variance to install the washer and dryer and refused to approve the Pallers use of the machines in the unit. ¶8 The Showers filed this action seeking a declaratory judgment that the Association granted them a variance to install the washer subsequent and dryer purchasers and of that the the unit. variance They applies also to all alleged the Association had breached the parties agreement and the covenant of good faith and fair dealing implied therein and sought damages. 1 ¶9 After the Showers presented their case in chief at trial, the court granted the Association s motion for judgment as a matter of law, ruling that although the Showers had put forth sufficient evidence to create a jury question regarding whether the Board granted them a variance, there was no evidence that the parties had agreed the variance would be transferable. The court denied the Showers motion for new trial and entered 1 The Showers subsequently completed the sale of their unit to the Pallers. They assigned their claims in this action to the Pallers, who agreed to pay all further litigation expenses, but retained an interest in the litigation relating to the attorneys fees they had already incurred. The Association did not argue in the trial court, and does not argue on appeal, that the Showers are not real parties in interest. 4 judgment for the Association, including an award of attorneys fees and costs. ¶10 We The Showers timely appealed. have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). Issue ¶11 The Showers argue the superior court erred in granting judgment as a matter of law (JMOL) for the Association because a material question of fact exists regarding whether the parties intended the variance to be transferable. Discussion ¶12 forth The superior court ruled that although the Showers put whether enough the evidence Association to create granted a jury them a question variance regarding to install laundry machines in their unit, reasonable jurors could not find that any such variance was transferable because they had not presented any evidence that the Association agreed or promised that it would be transferable. The Showers contend this was error because the jury could have inferred from the evidence that the parties intended that the variance be transferable and run with the property. ¶13 A court properly grants JMOL only if the facts presented in support of a claim have so little probative value that reasonable people could not find for the claimant. Shoen v. Shoen, 191 Ariz. 64, 65, 952 P.2d 302, 303 (App. 1997). 5 We review the trial court's grant of JMOL de novo, viewing the evidence in the light most favorable to the party opposing the motion. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 505, 917 P.2d 222, 234 (1996). 2 A. ¶14 The Jury Could Infer from the Evidence that Parties Intended the Variance to Be Transferable the The Showers asserted two claims in their complaint: (1) a claim for a declaratory judgment that they obtained a variance to install and use a washer and dryer in their unit and that the variance applies to all subsequent purchasers of the property, and (2) a claim for breach of contract and breach of the implied covenant of good faith and fair dealing arising out of the Association s failure to acknowledge the variance and allow the Showers and their purchasers to use a washer and dryer in the unit. ¶15 In support of their claims, the Showers offered the testimony of variance from Mr. the Showers that Association s he requested prohibition and on obtained washers a and dryers in individual units and expected that the variance was transferable to subsequent owners because it was part of [his] 2 The 1996 amendments to Arizona Rule of Civil Procedure 50 replaced the term directed verdict with judgment as a matter of law. Arizona courts use the terms interchangeably, as [t]he tests for granting a directed verdict and a JMOL motion are the same. Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 127 n.4, ¶ 8, 180 P.3d 986, 992 n.4 (App. 2008) (citation omitted). 6 home. The Showers based their variance request on their plans to remodel the unit to create a laundry room and informed the Board that they intended to install a washer that would discharge significantly less water in the sewage system than the existing washer and a dryer that was self-venting and would not vent into the common chases. To accommodate these appliances, the Showers altered the plumbing and electrical systems in their unit with the supervision of the building s maintenance worker. Thus, the variance was tied to a structural modification of the Showers unit that would remain in the unit even if it was sold to subsequent purchasers. A reasonable jury could infer from this evidence that the Association and the Showers intended that the variance be a transferable property to subsequent owners. variance that ran with the See Wagenseller v. Scottsdale Mem l Hosp., 147 Ariz. 370, 383, 710 P.2d 1025, 1038 (1985) ( The very essence of the jury s function is to select from among conflicting inferences and conclusions that which it for the considers most reasonable. ) (citation omitted). ¶16 The superior court erred in granting JMOL Association on the grounds that the Showers did not present any evidence from which a jury could find that the variance was transferable to subsequent owners of the Showers unit. B. The JMOL Cannot Be Affirmed on Alternative Grounds 7 ¶17 The Association argues the superior court s JMOL was correct for the alternative reasons that the Showers did not present any evidence that they had filed an application for a variance or entered a contract with the Association, urges us to affirm the judgment on that basis. and it See Wertheim v. Pima Cty., 211 Ariz. 422, 424, ¶ 10, 122 P.3d 1, 3 (App. 2005) ( We may affirm a trial court s ruling if it is correct for any reason. ). ¶18 present variance The any to Association argues evidence that install a that filed they washer the an and dryer Showers failed application and to for therefore a no reasonable jury could conclude that the Association granted them a variance. Mr. Showers testified that he and his architect, James Garrison, prepared a letter to the Association s Board of Directors to request the variance and a follow-up letter with additional information in response to the Board s request. Showers testified he believed Mr. delivered the letters to the Board. Garrison had mailed Mr. or Mr. Garrison testified he did not send the letters to the Board, but gave them to Mr. Showers. Citing this testimony, the Association argues that the Showers failed to show that they applied to the Association for a variance and therefore no reasonable jury could find that the Association contend the granted a variance. jury could infer the 8 In response, following: the (1) Showers that the Association received the letters from Mr. Showers testimony that the Board asked for additional information, (2) that Mr. Hogue later informed Mr. Showers that the Board had granted the variance, and (3) that a Board member acknowledged the information the Showers provided about the laundry machines they intended to install. Viewing the evidence in the light most favorable to the Showers, Gemstar Ltd., 185 Ariz. at 505, 917 P.2d at 234, we agree with the trial court that they offered sufficient evidence from which a reasonable jury could conclude that the Association granted them a variance to install a washer and dryer. ¶19 Similarly, we reject the Association s argument that the Showers failed to present any evidence of a contract between themselves and the Association. The Showers offered evidence that the Association agreed to allow them to install a washer and dryer and, in reliance on that promise, they remodeled their condominium unit by altering the plumbing and electrical systems to accommodate the appliances. The Association knew about the Showers building s reliance because the maintenance worker inspected the alterations and he never advised that they were not allowed to install the washer and dryer. This evidence of a promise by the Association and reliance by the Showers in the form of expensive structural modifications to the condominium unit may support the Showers claim under a theory of promissory 9 estoppel. 438, 440 See Chewning v. Palmer, 133 Ariz. 136, 138, 650 P.2d (1982) (stating Arizona has adopted the theory of promissory estoppel set forth in the Restatement (Second) of Contracts § 90(1) (1981), which states: [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise ); Double AA Builders, Ltd. v. Grand State Const. L.L.C., 210 Ariz. 503, 507, ¶ 19, 114 P.3d 835, 839 (App. 2005) (stating elements of promissory estoppel in the context of general contractor and subcontractor). ¶20 Accordingly, we decline to affirm the JMOL on the alternative grounds raised by the Association. Conclusion ¶21 For the foregoing reasons, we reverse court s judgment and remand for a new trial. 10 the superior ¶22 Both parties request an award of attorneys fees on appeal pursuant to A.R.S. § 12-341.01 (2003). court determines the prevailing party in When the superior this action, it is authorized to consider the fees incurred by that party on appeal in determining attorneys fees. whether and how much to award as reasonable We will award the Showers the costs they have incurred in this appeal upon their compliance with Rule 21(a) of the Arizona Rules of Civil Appellate Procedure. /s/ __________________________________ DANIEL A. BARKER, Presiding Judge CONCURRING: /s/ ___________________________________ MARGARET H. DOWNIE, Judge /s/ ___________________________________ MICHAEL J. BROWN, Judge 11
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