Opinion
No. 2 CA-CV 2013-0059
05-06-2014
JOHN P. LIBBY, AN UNMARRIED MAN, Plaintiff/Appellant/Cross-Appellee, v. JEANI LICHTE, IN HER INDIVIDUAL CAPACITY AND AS PERSONAL REPRESENTATIVE FOR HER DECEASED HUSBAND, GARY LICHTE, Defendants/Appellees/Cross-Appellants.
Monroe McDonough Goldschmidt & Molla, PLLC, Tucson By D. Rob Burris Counsel for Plaintiff/Appellant/Cross-Appellee The Moulton Law Firm, P.C., Scottsdale By Timothy L. Moulton and The Cavanagh Law Firm, P.A., Phoenix By William F. Begley Counsel for Defendants/Appellees/Cross-Appellants
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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. C20107776
The Honorable Kenneth Lee, Judge
AFFIRMED IN PART;
VACATED IN PARTAND REMANDED
COUNSEL
Monroe McDonough Goldschmidt & Molla, PLLC, Tucson
By D. Rob Burris
Counsel for Plaintiff/Appellant/Cross-Appellee
The Moulton Law Firm, P.C., Scottsdale
By Timothy L. Moulton
and The Cavanagh Law Firm, P.A., Phoenix
By William F. Begley
Counsel for Defendants/Appellees/Cross-Appellants
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 This appeal follows the entry of summary judgment against plaintiff/appellant/cross-appellee John Libby in favor of defendants/appellees/cross-appellants Gary and Jeani Lichte. Because we find the evidence in the record presents disputed questions of material fact, we vacate the judgment in part and remand for further proceedings. Our disposition makes it unnecessary to address the arguments raised by Libby on appeal, and by the Lichtes in their cross-appeal, concerning the fees, costs, and sanctions in the judgment.
Gary died while this action was pending, and his wife, Jeani, was substituted as his personal representative.
I. Factual and Procedural Background
We disregard the statements of fact in the parties' briefs, as they have failed to provide the proper citations to the record required by Rule 13(a)(4), Ariz. R. Civ. App. P. See Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, ¶ 2, 263 P.3d 683, 686 (App. 2011); see also Sholes v. Fernando, 228 Ariz. 455, n.2, 268 P.3d 1112, 1114 n.2 (App. 2011). Although the parties refer to arbitrarily numbered items in their numerous appendices, "references to exhibits attached to the brief are not references to the record," Lansford v. Harris, 174 Ariz. 413, 417 n.1, 850 P.2d 126, 130 n.1 (App. 1992), and do not render this court's task more convenient, as we must locate every item in the trial court record at any rate. Our court's efficiency is promoted when the parties provide the "uniform, standard record citations" required by the rules. Stant v. City of Maricopa Emp. Merit Bd., 234 Ariz. 196, n.1, 319 P.3d 1002, 1003 n.1 (App. 2014). We draw our facts from our own examination of the record. See Delmastro, 228 Ariz. 134, ¶ 2, 263 P.3d at 686.
¶2 We view and recite the facts in the light most favorable to Libby. See Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, ¶ 2, 263 P.3d 683, 685-86 (App. 2011). Libby and the Lichtes were longtime friends who both owned airplanes. In 2006, Libby loaned the Lichtes $200,000 to help them construct, on their residential property, an airplane hangar that all the parties could use. In 2008, Libby moved his airplane into the hangar. Gary Lichte had access to Libby's plane and sometimes ran or moved it. In December 2009, months after Libby had last been to the hangar or had used his aircraft, it caught fire inside the hangar. Experts determined the fire began either in or on the rear of the airplane, possibly due to the failure of an extension cord that was not part of the plane. The Lichtes discovered the fire and called the fire department, but the plane and hangar were completely destroyed by the blaze.
¶3 In the civil action that followed, Libby asserted claims of bailment and negligence against the Lichtes for the loss of his airplane. The trial court granted the Lichtes' motions for summary judgment on these claims. The court declined to award either party their attorney fees or costs, but the court awarded the Lichtes sanctions totaling $80,869.78 pursuant to Rule 68, Ariz. R. Civ. P. Libby's appeal and the Lichtes' cross-appeal followed the entry of the court's final judgment.
Other claims are not at issue in this appeal.
II. Discussion
¶4 Both claims at issue here assert the Lichtes acted negligently. A negligence claim is composed of four elements: "(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Gipson v. Kasey, 214 Ariz. 141, ¶ 9, 150 P.3d 228, 230 (2007). Summary judgment is appropriate only when there is no genuine issue of disputed material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(c); Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). "We review de novo a grant of summary judgment, viewing the evidence and reasonable inferences in the light most favorable to the party opposing the motion." Andrews v. Blake, 205 Ariz. 236, ¶ 12, 69 P.3d 7, 11 (2003).
A. Bailment Claim
¶5 Libby first challenges the trial court's ruling that granted the Lichtes' motion for summary judgment on his bailment claim. Specifically, he contends the court erred in finding the Lichtes' possession of his airplane was not a bailment. As we understand his argument, he maintains this finding is important because if there were a bailment by contract, then the Lichtes, as bailees, would be "presumed . . . negligent" for failing to return his property, and they would have the burden of proving that their failure to return the plane "was not the result of their own negligence." The authorities Libby cites, however, do not support this contention.
¶6 The primary authority he relies on, Alabama's Freight Co. v. Jiminez, 40 Ariz. 18, 9 P.2d 194 (1932), is inapposite. Jiminez was decided under a repealed statutory scheme, the Uniform Warehouse Receipts Act (UWRA), Ariz. Rev. Code, §§ 3226 through 3274 (1928). 40 Ariz. at 20-21, 9 P.2d at 194-95. This act applied to warehousemen, which it defined as those who were "lawfully engaged in the business of storing goods for profit." Ariz. Rev. Code, § 3274 (1928). The act also specifically provided that "[i]f the warehouseman refuses or fails to deliver the goods . . . the burden shall be upon [him] to establish the existence of a lawful excuse." Jiminez, 40 Ariz. at 20, 9 P.2d at 195, quoting Ariz. Rev. Code, § 3231 (1928). Given this statutory language, our supreme court held that a bailor in a contract action does not carry the burden of showing negligence when a warehouseman has failed to return the goods he has stored. Id. at 21-22, 9 P.2d at 195. But the court's express holding, which applies "when suit is brought against a warehouseman on his contract of bailment," id. at 22, 9 P.2d at 195, is plainly inapplicable here, and we take no guidance from the case. We likewise find inapplicable the case of Lerner v. Brettschneider, 123 Ariz. 152, 155-56, 598 P.2d 515, 518-19 (App. 1979), as it also concerned an action under the UWRA or the Uniform Commercial Code and involved the enforceability of liability limitations in a bailment contract. ¶7 The present case is instead analogous to and governed by Blair v. Saguaro Lake Development Co., 17 Ariz. App. 72, 495 P.2d 512 (1972). There, the plaintiff brought an action against a business that had provided mooring facilities for her boat. Id. at 73, 495 P.2d at 513. The defendant's agent had agreed to check on the plaintiff's boat one night when she was away. Id. During his inspection, he noticed a strange smell coming from the boat, but he could not identify it or its source. Id. The boat subsequently caught fire, for unknown reasons. Id. at 73-74, 495 P.2d at 513-14. When the defendant did not succeed in extinguishing the blaze, the defendant moved the boat into a lake to avoid damaging other property. Id. at 74, 495 P.2d at 514. The plaintiff later paid her bill for the defendant's mooring services and initiated an action against the defendant when it was unable to return her property. Id. The plaintiff presented a theory that there was "a bailment which created a duty of care in the defendant," the defendant "breached this duty by its negligence," and the defendant was liable for the resulting loss. Id. The trial court granted summary judgment in the defendant's favor. Id.
The act was later codified in §§ 52-801 through 52-849 of the Arizona Code of 1939, then in §§ 44-701 through 44-759 of the Arizona Revised Statutes of 1956. It was repealed in 1967 with the adoption of the Uniform Commercial Code. 1967 Ariz. Sess. Laws, ch. 3, §§ 5, 6, 8; Lerner v. Brettschneider, 123 Ariz. 152, 154, 598 P.2d 515, 517 (App. 1979).
¶8 On appeal, this court concluded the undisputed facts established a bailment under the law. Id. at 74, 75, 495 P.2d at 514, 515. Nevertheless, we affirmed the grant of summary judgment due to the lack of evidence showing negligence by the defendant. Id. at 75, 495 P.2d at 515. We held in Blair that a bailee is not presumed to be negligent simply because property in his possession was destroyed by fire; a plaintiff must "'affirmatively show some causal negligence on the part of the bailee'" to avoid summary judgment. Id., quoting Hansen v. Or.-Wash R. & Nav. Co., 188 P. 963, 970 (1920). Our supreme court later cited Blair with approval in Rocky Mountain Fire & Casualty Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 294, 640 P.2d 851, 856 (1982). In that case, the court declined to apply the doctrine of res ipsa loquitur to supply missing evidence of negligence, or a breach of the duty of care, when a fire had destroyed the plaintiff's parked motor home. Id. at 291, 294, 640 P.2d at 853, 856.
¶9 Libby essentially seeks the benefits of the res ipsa loquitur doctrine here; that is, he wishes to avoid his burden of producing evidence of negligence through the operation of a presumption and by shifting the burden of proof to the defendants. But "'fire is not the type of accident which results only from someone's negligence.'" Id. at 294, 640 P.2d at 856, quoting Blair, 17 Ariz. App. at 76, 495 P.2d at 516. As we stated in Blair:
"If the bailee accounts for the injury or non-delivery of the chattel, by showing that it was . . . injured or destroyed by fire or by some other cause which is consistent with the exercise of ordinary care on his part, and does not of itself point to negligence by17 Ariz. App. at 75, 495 P.2d at 515, quoting Hansen, 188 P. at 970. Here, as in Blair, no presumption of negligence operates in Libby's favor, because his property was destroyed by fire. Thus, in order to avoid summary judgment he must produce sufficient evidence of causal negligence that creates a genuine dispute of a material fact. See id.
him, then he has established for himself a prima facie case of due care, [and] has deprived the bailor's case of its prima facie quality . . . ."
¶10 Libby fails to develop an argument, with supporting legal authorities, showing why a bailment determination is otherwise significant in this case. See Ariz. R. Civ. App. P. 13(a)(6) (specifying requirements for argument in opening brief). We therefore do not address the issue further, and we affirm the trial court's ruling on the Lichtes' summary judgment motion.
B. Negligence Claim
¶11 Libby next contends the trial court erred in granting summary judgment because the Lichtes' negligence involved disputed factual questions that were supported by evidence in the record. Specifically, Libby suggests the Lichtes could be found liable because (1) the evidence and expert testimony suggested an extension cord that was not part of the plane might have caused the fire, and (2) regardless of the precise cause of the fire, the Lichtes violated fire codes by failing to install a sprinkler system in the hangar, which would have "guarded against the complete loss of [the a]irplane."
1. Electrical Fire
¶12 As to the first issue, the trial court found Libby had "presented no evidence beyond the speculation of its experts as to what caused the fire." The court further found that Libby had identified "no negligent acts or omissions that have any factual basis" regarding the fire's cause. Although we disagree with the former conclusion, we agree with the latter. Thus, we affirm the court's ruling with respect to this theory of recovery. See Rowland v. Great States Ins. Co., 199 Ariz. 577, ¶ 6, 20 P.3d 1158, 1162-63 (App. 2001) ("We will affirm if the trial court's [summary judgment] ruling is correct on any ground . . . .").
¶13 Contrary to the trial court's finding, the record contained non-speculative evidence regarding the fire's cause. When assessing causation, a court must allow "all reasonably possible inferences favoring the party whose case is attacked; and, if a possible reasonable inference is present, the issue must be presented to the jury for its determination." Brand v. J.H. Rose Trucking Co., 102 Ariz. 201, 206, 427 P.2d 519, 524 (1967). Here, two forensic investigators, Dallas Lane and Gene Meng, determined the fire was accidentally caused by "hostile electrical heating." Certain wires recovered from the area where the fire originated "displayed artifacts of electrical activity" and were consistent with the wires in a partial extension cord that was found tangled in the burned debris of the plane. These suspect wires did not come from the aircraft, nor did they come from an overhead light that fell into the plane during the fire. The investigators therefore concluded, through the available evidence and their own experimentation, that it was likely the extension cord had failed; that it had then ignited a "first fuel," such as a furniture pad that Libby had observed Gary Lichte use in the past when working on the plane's exterior; and that this, in turn, had caused the combustible fiberglass epoxy of the plane to burn. This conclusion was based on evidence in the record and reasonable inferences from it, not speculation.
¶14 Even when the evidence is viewed in the light most favorable to Libby, however, it establishes at most that the failure of the electrical cord was the cause of the fire. Libby has identified no evidence in the record that the Lichtes' use of this electrical cord, under the circumstances here, was negligent or fell below the ordinary standard of care. See Joseph v. Markovitz, 27 Ariz. App. 122, 125, 551 P.2d 571, 574 (1976) ("[A]n appellant must be able to point to an issue of fact in the record which renders the summary judgment improper."); see also Guirey, Srnka & Arnold, Architects v. City of Phoenix, 9 Ariz. App. 70, 71, 449 P.2d 306, 307 (1969) (appellant carries burden of showing error). We therefore have no basis to disturb the trial court's ruling. See Fonda v. City of Mesa, 10 Ariz. App. 111, 113, 456 P.2d 957, 959 (1969) (failing to produce sufficient evidence of any element of negligence claim can result in summary judgment).
¶15 Libby's reliance on Ray v. Bush, 89 Ariz. 177, 359 P.2d 764 (1961), is misplaced, as that case is factually distinguishable. In Ray, the defendants had caused a fire by placing a pin-up lamp with an unguarded bulb on an attic floor "composed entirely of flammable substances." Id. at 179, 359 P.2d at 765-66. Under these circumstances, our supreme court found sufficient evidence of both negligence and proximate causation to support the jury's verdict for the plaintiff, noting that the lamp had "not [been] put to its intended use," it was "unstable," and it was likely to topple due to "the heavy [extension] cord hanging" from it. Id. at 179-80, 359 P.2d at 765-66. Our record, by contrast, does not suggest the extension cord was improperly used. There is consequently no evidence that the Lichtes negligently caused the fire, as the trial court correctly indicated in its ruling.
2. Sprinkler System
¶16 We agree with Libby, however, that the Lichtes could be liable for their allegedly negligent failure to install a sprinkler system in their hangar. The trial court erred in concluding there was no material factual dispute with respect to this claim. See Santiago v. Phx. Newspapers, Inc., 164 Ariz. 505, 508, 794 P.2d 138, 141 (1990) ("The court may grant summary judgment only if no dispute exists as to any material facts, if only one inference can be drawn from those facts, and if the moving party is entitled to judgment as a matter of law.").
Although Libby suggests the Lichtes were "[a]rguably . . . negligent as a matter of law," the facts underlying this claim are disputed, meaning it cannot be resolved as a pure question of law.
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¶17 Under national fire safety standards, airplane hangars must be equipped with automatic fire sprinkler systems in order to be classified for "moderately hazardous activities such as aircraft maintenance and repair . . . [or] storage of some combustibles." In the permitting process, the Lichtes stated they would not build or construct aircraft in the building. Applicable land use and fire codes therefore did not require a sprinkler system to be installed in the hanger, but they also prohibited activities there such as welding, installing or replacing an engine, refueling, or working on the fuel system of a plane.
¶18 Gary Lichte personally obtained the permits for the hangar, and he described the process as a "f[i]ght." He had changed his initial plans to get approval for the hangar, but he testified in his deposition that he intended to "use it like we wanted to use it." He also admitted that a portion of the hangar designated as a "storage" area was used as a "machine shop" and for storing tools such as his welding equipment.
¶19 Libby avowed that Gary Lichte had helped perform substantial work on Libby's plane inside the hangar, including welding, removing and installing the engine, and disconnecting and reconnecting the aircraft's fuel system. The fire marshal testified there was a sufficient water supply for a sprinkler system in the hangar, and such a system would have been required if Gary Lichte had disclosed during the permitting process that he intended to engage in these activities.
¶20 Thus, as Libby argued below and on appeal, the evidence in the record would allow a jury to find the Lichtes "misrepresented the activities and uses which were to occur in the hangar" and breached their duty of care by not installing an appropriate fire suppression system. The trial court determined no sprinkler system was legally required, and the Lichtes again emphasize this point on appeal. Yet this overlooks the critical fact that the Lichtes' legal duty regarding a fire safety system was determined based on their allegedly untruthful representations to fire district officials. Summary judgment was therefore improper in this case.
¶21 We are not persuaded by the Lichtes' additional arguments for affirming the grant of summary judgment. Relying on MacLean v. State Department of Education, 195 Ariz. 235, 986 P.2d 903 (App. 1999), they first contend that Libby's avowals concerning the improper use of the hangar should be disregarded because they were self-serving statements that contradicted Libby's sworn deposition testimony. We cannot agree.
¶22 Although Libby characterized the Lichtes as "honest and upright people" who would not "purposefully lie or misrepresent things," such general statements in his testimony do not "clearly conflict" with his specific avowals about what activities took place in the hangar. Id. ¶ 20. In none of the statements identified by the Lichtes was Libby asked about or addressing that particular topic. Rather, he was speaking about his close friendship with the Lichtes and the reliability of their account of the fire. Cf. id. (finding consideration of affidavit appropriate when party "was not specifically asked in her deposition" about issue and not given opportunity for more detailed explanation). Furthermore, Gary Lichte's own deposition testimony could be viewed as supporting Libby's claims about how the hangar was used.
¶23 In an alternative argument, the Lichtes maintain that if the fire had started in a concealed area of the plane, then a sprinkler system might not have been able to contain or control the fire. The place where the fire originated, however, was a disputed factual issue. One forensic investigator, Dallas Lane, ultimately concluded the fire most likely started on the exterior of the airplane. The experts also generally agreed that sprinkler systems are highly effective at suppressing fires and containing damage to the area of origin. Notably, any dispute as to the amount of damage caused by the lack of a sprinkler system would be a jury question and therefore not an appropriate basis to sustain the judgment on the record here. See Barrett v. Harris, 207 Ariz. 374, ¶ 12, 86 P.3d 954, 958 (App. 2004) ("Causation is generally a question of fact for the jury unless reasonable persons could not conclude that a plaintiff had proved this element.").
¶24 Last, the Lichtes claim that because Libby helped design the hangar, "he's pointing the finger of blame at himself." The trial court appeared to adopt this position, expressly finding that the parties "worked together to design the hanger and systems" within it and that Libby "cannot complain of the absence of a sprinkler or fire suppression system . . . if he could have compelled [its] inclusion."
¶25 We cannot agree that this would provide a basis for granting summary judgment against Libby. First, Libby's knowledge of and involvement in the process of designing and getting permits for the hangar are factual matters that he vigorously contested in his affidavits. Second, and more importantly, Libby's own fault or complicity does not serve as a legal defense that may support summary judgment. See Ariz. Const. art. XVIII, § 5 ("The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury."); Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, ¶ 23, 111 P.3d 1003, 1008 (2005) (observing constitutional provision "refers all . . . assumption of risk defenses, whether express or implied, to the jury"); see also A.R.S. § 12-2506(C) ("The relative degree of fault of the claimant, and the relative degrees of fault of all defendants and nonparties, shall be determined and apportioned as a whole at one time by the trier of fact."). Accordingly, we determine the trial court erred in granting summary judgment as to this theory of negligence.
C. Appellate Fees and Costs
¶26 Both parties have requested awards of attorney fees incurred in this appeal and cross-appeal, pursuant to A.R.S. § 12-341.01. Assuming arguendo that either party would be eligible for such an award under this statute, we would exercise our discretion and decline to grant any such award because the parties have both partially prevailed in this court. See Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985).
¶27 We deny Libby's request for costs because he has failed to identify the substantive basis for the award, citing only Rule 21, Ariz. R. Civ. App. P. See Sklar v. Town of Fountain Hills, 220 Ariz. 449, ¶ 23, 207 P.3d 702, 708 (App. 2008). We deny the Lichtes' general request for costs pursuant to A.R.S. § 12-342 because they have not identified which subsection of the statute they believe to be applicable, and they have not obtained a more favorable judgment on appeal.
III. Disposition
¶28 For the foregoing reasons, the trial court's summary judgment ruling on the bailment claim is affirmed, but the judgment is vacated with respect to Libby's negligence claim and the award of costs, fees, and sanctions. The case is remanded for further proceedings consistent with this decision.