3137 Willow Creek Rd. v. GNM Cos.

• Decision Date: 15 September 2022
• Docket Number: 1 CA-CV 21-0366
• Parties: 3137 WILLOW CREEK ROAD, LLC, Plaintiff/Appellant/Cross-Appellee, v. GNM COMPANIES, LLC, et al., Defendants/Appellees/Cross-Appellants, KEITH SMITH EXCAVATION, LLC, KEVIN LOLLAR ELECTRIC, LLC, and PEHL CONTRACTING, INC., Defendants/Appellees.
• Court: Arizona Court of Appeals

3137 WILLOW CREEK ROAD, LLC, Plaintiff/Appellant/Cross-Appellee,
v.
GNM COMPANIES, LLC, et al., Defendants/Appellees/Cross-Appellants,

KEITH SMITH EXCAVATION, LLC, KEVIN LOLLAR ELECTRIC, LLC, and PEHL CONTRACTING, INC., Defendants/Appellees.

No. 1 CA-CV 21-0366

Court of Appeals of Arizona, First Division

September 15, 2022

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Yavapai County No. P1300CV202000542 The Honorable Michael P. McGill, Judge

Fennemore Craig, P.C., Phoenix By John R. Jefferies, Christopher L. Callahan, Timothy J. Berg Co-Counsel for Plaintiff/Appellant/Cross-Appellee

Osborn Maledon, P.A., Phoenix By R. Douglas Dalton, Jeffrey B. Molinar, Colin M. Proksel Co-Counsel for Plaintiff/Appellant/Cross-Appellee

Holden Willits PLC, Phoenix By Robert G. Schaffer, Barry A. Willits, Nelson A.F. Mixon Counsel for Defendant/Appellee/Cross-Appellant GNM Companies, LLC

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Elardo, Bragg, Rossi & Palumbo, P.C., Phoenix By Michael E. Palumbo, Jarin K. Giesler, Colin C. Quinn Counsel for Defendants/Appellees Keith Smith Excavation, LLC and Kevin Lollar Electric, LLC

Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

MEMORANDUM DECISION

FURUYA, JUDGE

¶13137 Willow Creek Road, LLC ("Owner") appeals from the superior court's dismissal of its complaint against GNM Companies, LLC, Keith Smith Excavation, LLC, Kevin Lollar Electric, LLC, and others (collectively, the "Subcontractors"). GNM Companies, LLC cross appeals the court's issuance of Arizona Rule of Civil Procedure ("Rule") 54(c) finality language and argues the doctrines of preclusion should have barred Willow Creek's complaint. For the following reasons we affirm in part and vacate in part.

FACTS AND PROCEDURAL HISTORY

¶2This case arises from two construction contracts; one between Owner and Decca Multi-Family Builders, Inc. ("General Contractor"), the general contractor that Owner hired to build an apartment complex in Prescott; and a second contract between the General Contractor and 41 subcontractors ("Subcontractors") hired by the General Contractor.

¶3Beginning in September 2017, Owner filed a series of complaints and counterclaims against the General Contractor and Subcontractors in Yavapai County Superior Court, alleging tort and contract claims. Those claims were consolidated in November 2018 ("First Action").

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¶4Sixteen months later, in March 2020, Owner moved for leave to amend its complaints and counterclaims, hoping to add a third-party indemnity claim against the Subcontractors based on an indemnity clause in the contracts between the General Contractor and Subcontractors. The superior court denied that motion in June ("June 2020 Order") for procedural and substantive reasons, including because:

(1) "the requested amendments would cause undue delay,"

(2) "the requested amendments are futile,"

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