Goodman v. 12 Univ. LLC

• Decision Date: 23 November 2020
• Docket Number: No. 2 CA-CV 2020-0034,2 CA-CV 2020-0034
• Parties: GREG GOODMAN, Plaintiff/Appellee, v. 12 UNIVERSITY LLC, AN ARIZONA LIMITED LIABILITY COMPANY, AND JAMES DILLER AND SHEILA DILLER, HUSBAND AND WIFE, Defendants/Appellants.
• Court: Arizona Court of Appeals

GREG GOODMAN, Plaintiff/Appellee, v. 12 UNIVERSITY LLC, AN ARIZONA LIMITED LIABILITY COMPANY, ANDJAMES DILLER AND SHEILA DILLER, HUSBAND AND WIFE, Defendants/Appellants.

No. 2 CA-CV 2020-0034

ARIZONA COURT OF APPEALS DIVISION TWO

November 23, 2020

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NOT FOR PUBLICATION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. C20163644

The Honorable Brenden J. Griffin, Judge

AFFIRMED

COUNSEL

Rusing Lopez & Lizardi P.L.L.C., Tucson

By Michael J. Rusing

Counsel for Plaintiff/Appellee

The Nathanson Law Firm, Scottsdale

By Philip J. Nathanson

Counsel for Defendants/Appellants

MEMORANDUM DECISION

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Eppich concurred.

VÁSQUEZ, Chief Judge:

¶1 In this longstanding dispute between the owners of adjoining properties, 12 University LLC, James Diller, and Sheila Diller appeal from the judgment entered pursuant to jury verdicts awarding Greg Goodman damages on his breach-of-contract and trespass claims. The Dillers argue the judgment should be vacated and a new trial ordered because the claims were resolved by previous litigation and thus barred, the trial was marred by various evidentiary errors and attorney misconduct, the damages were not supported by the evidence, and the withdrawal of several of their attorneys over the course of litigation created "irregularity in the proceedings." The Dillers also claim that the trial court's award of attorney fees to Goodman was erroneous. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the jury's verdicts. See Stafford v. Burns, 241 Ariz. 474, n.2 (App. 2017). Goodman and the Dillers own neighboring properties near the intersection of Stone Avenue and University Boulevard in Tucson. Goodman's commercial building is separated from the building on the Dillers' property by a passageway located entirely on the Dillers' property. Masses of vines, rooted on the Dillers' property at the base of Goodman's building, completely cover portions of Goodman's wall and climb up onto his roof. A narrow and cracked concrete walkway, partially covered with dirt and debris and overgrown by vines, runs along the middle of the passageway.

¶3 In 2007, Goodman's tenants reported that rainwater was flooding into the basement of Goodman's building. Upon inspection, Goodman determined that the water was entering through the wall adjoining the Dillers' property. He concluded that cracks in the wallneeded to be repaired, so he called James Diller,¹ seeking permission to waterproof the outside of his wall, which required some excavation on the Dillers' property. While doing so, he asked Diller to remove the vines and to direct water from a downspout emptying at the base of the Dillers' building toward the street. Diller told Goodman that Goodman could enter and remove the vines and redirect the downspout himself. After Goodman's workers removed the vines, however, Diller called him, irate that the workers had not removed all the debris and accusing the workers of stealing some corrugated metal and a plastic lawn chair. Further communication between the two deteriorated, and Diller began leaving Goodman hostile voicemails, calling Goodman in one voicemail "a liar," "arrogant," "an idiot," "a fuckup," "stupid" and lacking "the least degree of common sense," a "cocksucker," a "prick," an "asshole," and "an ignorant, nasty son of a bitch." Diller told Goodman, "You will not be getting access in the future . . . . You will not be excavating in the future ever." Diller informed Goodman that access was unnecessary to fix the problem in any event, suggesting that Goodman

take a nice long weekend, maybe you could spend it with some chimpanzees or, you know, some higher-functioning beings than yourself. And perhaps they can teach you to use crude tools until you can learn to operate a paintbrush and paint some waterproofing on the walls in your basement.

And when the problem goes away, you don't need to call me and tell me that the problem went away. I know that the problem will go away, if you do what needs to be done to waterproof a basement.

¶4 Facing a lawsuit from his tenants to fix the leaks, Goodman sued the Dillers to gain access to the passageway.² During the course of these related lawsuits, Diller got into a fistfight with one of Goodman'stenants and was charged with assault. Goodman's attorney formulated a plan that would resolve both lawsuits and the criminal charges against Diller, and in 2009, the parties agreed to a three-way settlement in which Goodman's tenant agreed to drop the criminal charges against Diller, Goodman's tenant was to receive money from both Goodman and the Dillers, and the Dillers agreed to grant Goodman a license to access the passageway.

¶5 Diller objected to language in the proposed license agreement, however, and initially refused to grant the promised license. But after a settlement conference, the parties signed a renewable license agreement in November 2013, under which the Dillers granted Goodman "permission to enter upon [the Dillers' property] for the purpose of repairing, maintaining, modifying and/or waterproofing a basement/foundation wall, and the wall above ground on the north and east sides of [Goodman's building]." The agreed-upon scope of work included excavation to specified depths. Access was subject to written approval from the Dillers, which the Dillers were required to provide if Goodman provided two weeks' advance written notice, including a description of the work to be done, a copy of any plans or specifications, the beginning and end dates of the project, a current copy of Goodman's commercial general liability insurance policy, information about the contractor, and lien waivers from those performing the work. If such notice was provided, the Dillers were required to allow access for the described project unless it exceeded the scope of the license agreement. After any project, Goodman was to restore the Dillers' property to its original condition, including replacement of any vegetation except for "creeping vines necessarily destroyed as part of the remedial process contemplated by [the] renewal license agreement." Any disputes were to be resolved by designated arbitrators, except that disputes about damage or replacement of vegetation were to be resolved by a designated landscape architecture professor.

¶6 In August 2015, Goodman's contractor sent the Dillers written notice of a project to remove the vines and excavate and waterproof the exterior of the basement wall. The notice satisfied most of the requirements in the license agreement but did not include a lien waiver. Goodman obtained a lien waiver from the contractor and delivered it to Diller. Upon receipt of the notice, Diller proposed an alternative work plan, which Goodman accepted.

¶7 Nonetheless, Diller refused to provide written approval to do the work, without any explanation of what was deficient about the notice.

Despite his belief that the notice was sufficient, Goodman submitted a second notice from a different contractor. Once again, Diller refused to approve the project, despite Goodman's efforts to appease Diller by modifying the work plan. Diller ignored Goodman's attorney's efforts to determine Diller's objections to the work plan. Goodman eventually sent a letter to the Dillers seeking written approval and stating that he would seek arbitration if written approval was withheld.

¶8 Diller's written response was hostile and abusive, describing Goodman's letter as "ignorant, yet aggressively abusive and threatening, . . . simply demonstrat[ing] that you lack the most basic civility or comprehension of the English language." Diller indicated that the notices had "many deficiencies" but refused to enumerate them, stating that the license agreement "does not obligate me to educate you regarding the terms negotiated and most assuredly does not obligate me to provide legal or technical assistance to you or your agents." Instead, he invited Goodman to "review the entirety of the [license agreement] with someone who can provide whatever instruction and legal advice you may require to understand your obligations and then proceed according to the terms of the [license agreement]."

¶9 Goodman's attorney then sent Diller a letter demanding that Diller agree to arbitrate the dispute. Before arbitration occurred, Diller emailed Goodman indicating that he would approve access for work if Goodman submitted his contract with the contractor and "[l]iability waivers . . . from ALL PERSONS who will perform the work." After Goodman responded that the contract was oral and the required lien waivers had already been provided, Diller made additional demands that Goodman "propose in writing" his intentions for vegetation replacement "prior to the commencement of [the project]." Goodman replied that he was willing to provide "two additional 15 gallon Texas Rangers planted anywhere you choose [in the excavated area]" to replace the one shrub that might be destroyed. When Diller did not promptly respond, Goodman informed him that he would proceed with his arbitration request unless Diller soon responded.

¶10 Diller's response was once again hostile and abusive, accusing Goodman of "belligerence" and castigating him for his "sense of entitlement" and "bipolar demeanor." He stated that he would hold Goodman responsible for "all costs associated with [arbitration by the landscape architecture professor], due to your refusal to submit a proposal which could be approved." Responding through his attorney, Goodmaninformed Diller that he would proceed with arbitration if Diller did not provide "unequivocal approval."

¶11 After Diller failed to agree to the selection of an arbitrator, Goodman...