Colt Constr., Inc. v. Trujillo

• Decision Date: 23 January 2015
• Docket Number: No. 2 CA-CV 2014-0006,2 CA-CV 2014-0006
• Parties: COLT CONSTRUCTION, INC., AN ARIZONA CORPORATION, DBA BERT'S ELECTRIC AND PLUMBING, Plaintiff/Counterdefendant/Appellee/Cross-Appellant, v. VICTOR TRUJILLO, Defendant/Counterclaimant/Appellant/Cross-Appellee.
• Court: Arizona Court of Appeals

COLT CONSTRUCTION, INC., AN ARIZONA CORPORATION,DBA BERT'S ELECTRIC AND PLUMBING, Plaintiff/Counterdefendant/Appellee/Cross-Appellant, v. VICTOR TRUJILLO, Defendant/Counterclaimant/Appellant/Cross-Appellee.

No. 2 CA-CV 2014-0006

ARIZONA COURT OF APPEALS DIVISION TWO

January 23, 2015

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pima County

No. C20104342

The Honorable Leslie Miller, Judge

AFFIRMED

COUNSEL

Elardo, Bragg, Appel & Rossi, P.C., Phoenix

By John A. Elardo, Venessa J. Bragg, and Rochelle D. Prins

Counsel for Plaintiff/Counterdefendant/Appellee/Cross-Appellant

Goldstein, Horner & Horner, Attorneys, PLLC, Cortaro

By H. Lee Horner, Jr.

Counsel for Defendant/Counterclaimant/Appellant/Cross-Appellee

MEMORANDUM DECISION

Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred.

VÁSQUEZ, Judge:

¶1 In this action for breach of contract and negligence, Victor Trujillo appeals from the trial court's judgment dismissing his counterclaim against Colt Construction, Inc. (Colt) after a series of rulings on various motions for summary judgment and motions in limine. He argues the court denied him, "as a matter of law, his [c]onstitutional right to a jury trial and to have a jury consider and weigh pertinent admissible evidence that the court excluded with pre-trial orders." He also argues the court erred by striking his claim for punitive damages. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 We view the facts "in the light most favorable to the party opposing the summary judgment motion[s] below." Keonjian v. Olcott, 216 Ariz. 563, ¶ 2, 169 P.3d 927, 928 (App. 2007). In early 2010, Trujillo entered into a contract with Colt to remodel his new dental office and to install his dental equipment. Trujillo ultimately refused to pay for the work performed, claiming Colt had done the work improperly.

¶3 In June 2010, Colt initiated an action against Trujillo for breach of contract, and Trujillo filed a complaint with the Arizona Registrar of Contractors (ROC). On July 9, 2010, the Town of Marana shut off the electricity at Trujillo's office "because of hazard[ous] condition[s] at the premise[s]" and because permits had not been issued for the work at the site. On July 14, 2010, the ROCdetermined "that the job was subcontracted and managed by [Trujillo], who is not a licensed general contractor or the owner of the property where the work was being performed" and that "he accepted responsibility for permitting the project by signing a contract with a subcontractor that excluded permitting." The ROC closed the complaint, directing Trujillo to hire a "general contractor, obtain permits and inspections, have power and water service restored and allow the contractor to complete the project."

¶4 Trujillo filed his answer and counterclaim to Colt's complaint later that month. He asserted that "[a]n implicit part of the agreement of the parties was that all necessary permits required would be obtained by Colt." He also alleged Colt's work was "deficient in that [Colt failed to comply with] applicable building codes." Trujillo asserted his counterclaims, apparently for negligence and breach of contract, in a single count as follows:

As a proximate result of the foregoing, . . . Marana has refused to issue an unconditional certificate of occupancy and . . . Trujillo has lost and will continue to lose patient revenue and goodwill . . . .

. . . As a proximate result of Colt's negligent acts and failure to perform in a workmanlike manner, . . . Trujillo is required to obtain the services of a competent licensed contractor to remove the defective work done by Colt and bring the situs property up to code so it can be used as a retail dental practice. . . .

. . . As a proximate result of Colt's negligent actions, Colt has breached the remodeling contract of the parties . . . .

Trujillo requested attorney fees pursuant to A.R.S. § 12-341.01.

¶5 After filing his counterclaim, Trujillo asked Christopher Kaufmann, a dental equipment salesperson, to review Colt's work. Kaufmann determined the air compressor and vacuum used in the dental office were incorrectly installed and, as a result, contaminated air had been blown throughout the rest of office. Trujillo additionally believed that when the town restored electricity to the office, "a power surge occurred and 'fried' the computers and the x[-]ray machines." Trujillo did not amend his counterclaim to expressly seek damages for these items.¹

¶6 The trial court initially set a jury trial for February 28, 2012, but the trial was rescheduled to October 1, 2013, based on various motions by the parties. In March and September 2013, Colt filed and the court ruled on various motions for summary judgment and motions in limine. At the conclusion of a hearing on the motions in limine, the court "question[ed] both counsel regarding whether there [were] remaining issues relative to trial." The parties "agree[d] that as a result of the [c]ourt's rulings . . . Trujillo's counter-claim [was] no longer viable and [he] request[ed] a dispositive ruling." The court's minute entry for the hearing reflects that the court dismissed Trujillo's counterclaim, but denied Colt's request to vacate the trial date.

¶7 Colt filed an application for attorney fees incurred in responding to the counterclaim pursuant to § 12-341.01 and for sanctions pursuant to Rule 68(g), Ariz. R. Civ. P. The parties also filed a stipulation to dismiss Colt's complaint for breach of contract with prejudice. Accordingly, on November 12, 2013, the trial court entered a final judgment in favor of Colt on Trujillo's counterclaim, awarding Colt costs and sanctions pursuant to Rule 68, but denying its request for attorney fees. Trujillo and Colt timely filed their notices of appeal and cross-appeal.

Jurisdiction

¶8 Colt argues this court lacks jurisdiction over Trujillo's appeal because he "voluntarily requested a dismissal of the Counterclaim so that he could appeal unfavorable and discretionary trial court rulings." Trujillo maintains "the court, sua sponte, dismissed the case, agreeing with both sides that the counter claim was no longer viable due to the now-challenged pre-trial rulings." Notwithstanding any arguments by the parties, this court has an independent duty to "review its jurisdiction and, if jurisdiction is lacking, to dismiss the appeal." Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991).

¶9 Pursuant to Rule 1, Ariz. R. Civ. App. P., "[a]n appeal may be taken by any party aggrieved by the judgment."² But when "a lower court ruling addresses multiple claims for relief, an appellant is only entitled to appeal from 'that part of the judgment by which [it] is aggrieved.'" Kondaur Capital Corp. v. Pinal County, 235 Ariz. 189, ¶ 6, 330 P.3d 379, 382 (App. 2014), quoting Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 8, 160 P.3d 223, 226 (App. 2007). And, if parties "abandon their [remaining] claims for the right to immediately appeal [an] adverse ruling against them," they may not revisit the voluntarily dismissed claims on appeal. Harris, 215 Ariz. 344, ¶¶ 12-14, 160 P.3d at 227-28.

¶10 In its final judgment in this case, the trial court ruled in favor of Colt on its "motions in limine" and noted that Trujillo had "attested . . . there w[ere] no further issues with respect to the counterclaim to be brought before a jury" and that Trujillo hadrequested a "dispositive ruling" on his counterclaim.³ On the surface, it thus appears Trujillo did not ask the court to dismiss his counterclaim, and dismissal after his request for a dispositive ruling would be tantamount to an involuntary dismissal. But as we noted above, Trujillo's counterclaim apparently asserts claims for both negligence and breach of contract. And based on our review of the record, as we explain below, we conclude Trujillo essentially abandoned his breach-of-contract claim.⁴

¶11 Colt filed six motions for summary judgment on various grounds. It argued Trujillo's counterclaim was precluded by res judicata based on the ROC's decision in its favor and, in any event, Colt was entitled to judgment as a matter of law on Trujillo's breach-of-contract claim. Colt also maintained Trujillo lacked standing to bring a claim for damages to any electronic equipment because his insurer had already reimbursed him for those losses. It claimed Trujillo planned to seek additional damages not alleged inhis counterclaim for other office buildings, unpaid wages to employees, unpaid bills, foreclosed real estate, lost vehicles, and $312 million in lost income. But, Colt argued, those damages were not reasonably foreseeable, too speculative, or calculated incorrectly. Finally, with regard to Trujillo's new claim for damages arising from air contamination, Colt argued Trujillo had failed to file an expert witness certification pursuant to A.R.S. § 12-2602 and Kaufmann was "not qualified to provide expert, opinion testimony in this case."

¶12 The trial court denied Colt's motions for summary judgment seeking dismissal on the basis of res judicata and dismissal of Trujillo's breach-of-contract claim. And although the court precluded Kaufmann from testifying about the standard of care, contamination, or "any resulting health hazard" in this case, it stated he could testify about the function of the equipment and its proper installation. Similarly, although the court granted Colt's motion for summary judgment "as to damages resulting from the power surge, purchase of new equipment (excluding any 'contaminated' equipment), loss of profits due to the disruption of power, and equipment set-up costs pertaining to the move," it did not dismiss Trujillo's claim for other damages related to his breach-of-contract claim as alleged in the...