City of Phx. v. Glenayre Elecs., Inc.
| Decision Date | 19 May 2016 |
| Docket Number | No. 1 CA–CV 14–0739.,1 CA–CV 14–0739. |
| Citation | 375 P.3d 1189,240 Ariz. 80 |
| Parties | CITY OF PHOENIX, Third–Party Plaintiff/Appellant, v. GLENAYRE ELECTRONICS, INC.; William Lyon Homes, Inc.; KB Home Holdings, Inc.; Richmond American Homes, Inc.; MDC/Wood, Inc. ; UDC Homes, Inc. nka Shea Homes of Phoenix, Inc. and Elliott Homes, Inc.; Swengel–Robbins Contracting Co., Inc.; Aztec Construction, Inc.; JNC, Inc.; UH Holdings, Inc.; Los Paisanos Development, Inc.; Michael Newsome ; Chi Construction Co.; Continental Homes, Inc.; Pulte Home Corp.; Del Webb Corp.; Wittman Contracting Co.; Jeff Blandford Investments, Inc., Third–Party Defendants/Appellees. |
| Court | Arizona Court of Appeals |
Phoenix City Attorney's Office By Brad Holm, Phoenix, Counsel for Third–Party Plaintiff/Appellant.
Osborn Maledon PA, Mary R. O'Grady, Phoenix, Counsel for Third–Party Plaintiff/Appellant.
Gallagher & Kennedy PA By Kevin E. O'Malley, Mark A. Fuller, Thomas A. Maraz, Phoenix, Counsel for Third–Party Defendants/Appellees CHI Construction Co., Continental Homes, Inc.
Green & Baker Ltd. By Katherine E. Baker, Diane L. Bornscheuer, Scottsdale, Counsel for Third–Party Defendant/Appellee Glenayre Electronics, Inc.
Berkes Crane Robinson & Seal LLP By Brad D. Bleichner, Los Angeles, CA, Counsel for Third–Party Defendant/Appellee William Lyon Homes, Inc.
Lorber Greenfield & Polito LLP By Holly P. Davies, Alexix G. Terriquez, Phoenix, Counsel for Third–Party Defendants/Appellees KB Home Holdings Inc., Richmond American Homes Inc., MDC/Wood, Inc.
Wood Smith Henning & Berman LLP By Jill Ann Herman, Phoenix, Counsel for Third–Party Defendants/Appellees UDC Homes, Inc. nka Shea Homes of Phoenix, Inc., Elliott Homes, Inc.
Gammage & Burnham, PLC By Richard K. Mahrle, Jason L. Cassidy, Phoenix, Counsel for Third–Party Defendant/Appellee Swengel–Robbins Contracting Co., Inc.
Law Offices of Joseph A. Kula By Joseph A. Kula, Benjamin R. Eid, Scottsdale, Counsel for Third–Party Defendant/Appellee Aztec Construction, Inc.
Maynard Cronin Erickson Curran & Reiter PLC By Daniel D. Maynard, Phoenix, Counsel for Third–Party Defendants/Appellees JNC, Inc., UH Holdings, Inc.
Quintairos Prieto Wood & Boyer, PA By Vincent J. Montell, Michael J. Ponzo, Rita J. Bustos, Phoenix, Counsel for Third–Party Defendant/Appellee Los Paisanos Development, Inc.
Michael Newsome, Cave Creek, Third–Party Defendant/Appellee.
Dickinson Wright PLLC By Michael S. Rubin, Stephen E. Richman, J. Gregory Cahill, Phoenix, Counsel for Third–Party Defendants/Appellees Pulte Home Corp., Del Webb Corp.
Shorall McGoldrick Brinkmann PC By Thomas J. Shorall, Jr., Jason J. Boblick, Phoenix, Counsel for Third–Party Defendant/Appellee Wittman Contracting Co.
Wilenchik & Bartness PC By Dennis I. Wilenchik, Mia Nguyen, Phoenix, Counsel for Third–Party Defendant/Appellee Jeff Blandford Investments, Inc.
OPINION
JONES
, Judge:
¶ 1 The City appeals the trial court's orders: (1) dismissing its third-party complaint against Appellees because it was not brought within the eight-year period of repose set forth in Arizona Revised Statutes (A.R.S.) section 12–552(A),1 and (2)
awarding certain Appellees their attorneys' fees as the successful parties in a contract action pursuant to A.R.S. § 12–341.01(A). We conclude A.R.S. § 12–552 applies to governmental entities and that the City's claims are based in contract within the meaning of A.R.S. § 12–552(F) ; therefore, the City's claims against Appellees are time-barred. We also find no error in the court's grant of attorneys' fees to those Appellees who properly asserted a right to fees and conclude that the amounts awarded were within the court's discretion. For these reasons, we affirm.
¶ 2 In 2013, Carlos Tarazon filed a lawsuit alleging he had developed mesothelioma
as a result of long-term exposure to asbestos while performing pipe installation and repair for the City and numerous other defendants not parties to this appeal. Tarazon further alleged the City knew of the inherent dangers of asbestos exposure and was negligent in failing to adequately warn and protect him from those risks.3
¶ 3 The City immediately filed a third-party complaint seeking defense and indemnification from eighty-two developers (the Developers)4 and eight contractors (the Contractors)5 allegedly responsible for planning, designing, and constructing the projects on which Tarazon was exposed to asbestos between 1968 and 1993. Within its complaint, the City alleged the third-party defendants were solely responsible for the selection, installation, and disposal of any asbestos-laden products used in their respective projects, and therefore, the Contractors and Developers were required to indemnify the City against Tarazon's claims—the Contractors by virtue of their construction contracts and right-of-way permits, and the Developers by virtue of City ordinances incorporated within development permits.
¶ 4 Each of the City's contracts with the Contractors provided that “[t]he Contractor agrees to indemnify and save harmless the City of Phoenix ... from all suits, including attorneys' fees and cost of litigation ... of any character or any nature arising out of the work done in fulfillment of the terms of th[e] contract.” The permits issued to the Developers do not contain any specific covenant to indemnify, but rather state the permittee “agrees to perform all work in accordance with” certain agreed-upon plans and specifications, and that the permit is issued “on the express conditions that every agreement and covenant contained in th[e] permit is faithfully performed.” As the City alleges, the agreed-upon plans incorporate specifications required by the Maricopa Association of Governments, which in turn require the permittees to “observe and comply with all such laws, ordinances, regulations, codes, orders and decrees.” Among those ordinances is the following indemnification provision:
The permittee agrees to indemnify and save harmless the City of Phoenix ... from all suits, including attorneys' fees and costs of litigation ... of any character or any nature arising out of or in connection with any act or omission of the permittee, his agents and employees, and of any subcontractor.
¶ 5 The Appellees asserted through various motions and joinders that the City's claims for indemnification were barred by the statute of repose contained in A.R.S. § 12–552(A)
, which provides:
Notwithstanding any other statute, no action or arbitration based in contract may be instituted or maintained against a person who develops or develops and sells real property, or performs or furnishes the design, specifications, surveying, planning, supervision, testing, construction or observation of construction of an improvement to real property more than eight years after substantial completion of the improvement to real property.
In response, the City argued that, as a governmental entity, it is exempt from the statute of repose.
¶ 6 After briefing and oral argument, the trial court dismissed the City's third-party complaint in its entirety. The City filed a motion for reconsideration, which was denied. The court later deemed Appellees the successful parties in a contract action and, after considering the relevant factors identified in Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985)
, awarded attorneys' fees pursuant to A.R.S. § 12–341.01(A) to those parties who had properly requested them. The City timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and –2101(A)(1).
.
¶ 7 It is undisputed that the City filed its third-party complaint more than eight years after completion of the construction projects on which Tarazon worked. The City argues, however, the trial court erred in dismissing the third-party complaint because, as a political subdivision of the State of Arizona, it is exempt from all limitations periods and the period of repose contained in A.R.S. § 12–552(A)
. Whether A.R.S. § 12–552(A) applies to a claim brought by a governmental entity is an issue of first impression.
¶ 8 The interpretation and application of a statute presents a question of law which we review de novo. First Fin. Bank, N.A. v. Claassen, 238 Ariz. 160, 162, ¶ 8, 357 P.3d 1216, 1218 (App.2015)
(citing Schwarz v. City of Glendale, 190 Ariz. 508, 510, 950 P.2d 167, 169 (App.1997) ). We also review de novo the court's dismissal of a complaint as time-barred. See
Shaw v. CTVT Motors, Inc., 232 Ariz. 30, 31, ¶ 8, 300 P.3d 907, 908 (App.2013) () (citing Save Our Valley Ass'n v. Ariz. Corp. Comm'n, 216 Ariz. 216, 218–19, ¶ 6, 165 P.3d 194, 196–97 (App.2007) ); Andrews ex rel. Woodard v. Eddie's Place, Inc., 199 Ariz. 240, 241, ¶ 1, 16 P.3d 801, 802 (App.2000) (motion to dismiss).
City of Bisbee v. Cochise Cnty., 52 Ariz. 1, 18, 78 P.2d 982 (1938). This doctrine has been codified by A.R.S. § 12–510, which states: “Except as provided in A.R.S. § 12–529, the state shall not be barred by the limitations of actions prescribed in this chapter.”6
In re Diamond Benefits Life Ins., 184 Ariz. 94, 96, 907 P.2d 63, 65 (1995).
¶ 10 When interpreting a statute, “we look first to the plain language of the statute as the most reliable indicator of its meaning.” Harris Corp. v. Ariz. Dep't of Revenue, 233...
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Stafford v. Burns
...(App. 2007). The interpretation and application of statutes also present questions of law which we review de novo . City of Phx. v. Glenayre Elecs., Inc. , 240 Ariz. 80, 84, ¶ 8, 375 P.3d 1189 (App. 2016) (citing First Fin. Bank, N.A. v. Claassen , 238 Ariz. 160, 162, ¶ 8, 357 P.3d 1216 (Ap......
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