Opinion
1 CA-CV 11-0564
11-27-2012
GREGORY BEST, a single man, Plaintiff/Appellant, v. SECURITY TITLE AGENCY, INC., an Arizona corporation, Defendant/Appellee.
Gregory Best, Plaintiff/Appellant In Propria Persona Mariscal Weeks McIntyre & Friedlander PA Michael R. Scheurich Robert C. Brown Attorneys for Defendant/Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - (Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2005-092924
The Honorable Karen A. Potts
AFFIRMED
Gregory Best, Plaintiff/Appellant
In Propria Persona
Phoenix
Mariscal Weeks McIntyre & Friedlander PA
by Michael R. Scheurich
Robert C. Brown
Attorneys for Defendant/Appellee
Phoenix
PORTLEY, Judge ¶1 Gregory Best ("Best") challenges the summary judgment granted to Security Title Agency, Inc. ("Security Title"). Because we agree that there are no genuine issues of material fact in dispute and Security Title is entitled to judgment as a matter of law, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Best entered into an option contract to purchase Lot 25 Center Grove Tract in Phoenix with Charles Fanniel in the anticipation that Charles and his wife, Lucille, would acquire title to the property. Lucille did not sign the March 2004 option contract. Believing that the option contract was not enforceable, the Fanniels sold the property to Foresight Investment Group, L.L.C. ("Foresight"). After the sale to Foresight closed, Best sued the Fanniels and Foresight. He subsequently amended his complaint and claimed that Security Title, the escrow agent, caused him damage by its tortious interference with contract and negligence. ¶3 Security Title successfully moved for summary judgment. The court signed a judgment containing language pursuant to Arizona Rule of Civil Procedure 54(b). Best then filed this appeal. ¶4 The trial court subsequently granted the motion for summary judgment filed by the Fanniels because they "did not own the [p]roperty at the time Charles entered the contract, and the contract lacked consideration." Best v. Fanniel, 1 CA-CV 11-0181, 2012 WL 724303, at *1, ¶ 8 (Ariz. App. Mar. 6, 2012) (mem. decision). Best also challenged that ruling, but it was affirmed on appeal. Id. at *1, ¶ 1.
DISCUSSION
¶5 Summary judgment is properly granted if "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). In reviewing the ruling, "we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law." Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 506, ¶ 10, 269 P.3d 678, 682 (App. 2012) (as amended). We view the facts and any inferences "in the light most favorable to the party against whom judgment was entered." Id. We will affirm if the court was correct for any reason. City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985).
I
¶6 The trial court granted summary judgment to Security Title because the option contract was not an enforceable contract. The court revisited the issue after the Fanniels moved for summary judgment and granted their motion because the option contract was not a valid and enforceable contract. In that appeal, this court affirmed the trial court's finding that the option contract was not enforceable. See Fanniel, 2012 WL 724303, at *2, ¶ 11. Because the validity of the option contract was raised and resolved, and Best had a full and fair opportunity to, and did, litigate the issue, he is collaterally estopped from relitigating the same issue in this appeal. See Campbell v. SZL Properties, Ltd. , 204 Ariz. 221, 223, ¶ 9, 62 P.3d 966, 968 (App. 2003). As a result, Best is estopped from relitigating his equitable interest argument. ¶7 Even if we assume, however, that the collateral estoppel principles do not apply, we reject Best's arguments on appeal for the reasons set forth in Fanniel, 2012 WL 724303, at *1-2, ¶¶ 8-11, and as law of the case. See Flores v. Cooper Tire & Rubber Co. , 218 Ariz. 52, 57, ¶ 23, 178 P.3d 1176, 1181 (App. 2008) (explaining that under the law of the case doctrine legal issues will not be determined differently "on a subsequent appeal in the same case").
The only argument Security Title advanced in its summary judgment motion on the tortious interference claim was that the option contract was not a valid and enforceable contract.
II
¶8 Best alleges that Security Title "acted negligently in its professional responsibility as an escrow agent" because it knew of the option contract but nonetheless facilitated the sale between the Fanniels and Foresight. ¶9 Best contends that, although he was not a client, Security Title still owed him a duty of care under Paradigm Ins. Co. v. Langerman Law Offices, 200 Ariz. 146, 24 P.3d 593 (2001). We disagree. ¶10 Although our supreme court acknowledged that "Arizona's courts have long recognized situations in which a professional is under a duty of care to nonclients[,]" id. at 153, ¶ 24, 24 P.3d at 600, Paradigm does not stand for the proposition that a professional owes a duty of care to non-clients in every circumstance. Rather, Paradigm explains that the general rule is that a professional does not owe a duty of care to a non-client unless "special circumstances require otherwise." Id. at 154, ¶ 27, 24 P.3d at 601. Paradigm explains that "there are special circumstances where we have imposed liability on a professional to the extent that a foreseeable and specific third party is injured by the professional's actions." Id. (internal quotation marks omitted). The court further explained that the "common thread" that exists among cases recognizing that a professional has a duty to a non-client, is that "there was a foreseeable risk of harm to a foreseeable non-client whose protection depended on the actor's conduct." Id. (internal quotation marks omitted). In other words, our supreme court has "recognized that those who, because of their special relationship or status are in a position to foresee harm and to control it, may be required to share with the primary wrongdoer the consequences of injury to others." Luce v. State Title Agency, Inc., 190 Ariz. 500, 503, 950 P.2d 159, 162 (App. 1997) (internal quotation marks omitted). If the professional has no control over whether the non-client is injured, then no special relationship exists and the professional owes no duty to the non-client. Id. ¶11 Here, Security Title had no control over whether the Fanniels sold the property to Foresight. In fact, it is well established that an escrow agent owes a fiduciary duty to the principals "to comply strictly with the terms of the escrow agreement." Maxfield v. Martin, 217 Ariz. 312, 314, ¶ 12, 173 P.3d 476, 478 (App. 2007). Thus, by virtue of its contract with the Fanniels and Foresight, Security Title had an affirmative duty to facilitate the close of escrow between the parties. As a result, there was no special relationship between Security Title and Best that would give rise to any duty. ¶12 Because Security Title owed no duty of care to Best, there was no duty it could breach. As a result, the trial court correctly determined that there were no genuine issues of material fact on the negligence claim and that Security Title was entitled to judgment as a matter of law.
Best cited to an unpublished decision, Petrine v. Sinchak-Higby, 1 CA-CV 08-0280, 2009 WL 1530727 (Ariz. App. June 2, 2009) (mem. decision), which quotes Paradigm. We, however, cannot rely on unpublished decisions. ARCAP 28(c); Sw. Airlines v. Ariz. Dep't of Revenue, 197 Ariz. 475, 478, ¶¶ 11-12, 4 P.3d 1018, 1021 (App. 2000).
Best raises a number of other issues for the first time on appeal. Because he did not first raise them with the trial court, we will not consider them. Sereno v. Lumbermens Mut. Cas. Co. , 132 Ariz. 546, 549, 647 P.2d 1144, 1147 (1982).
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III
¶13 Security Title requests its attorneys' fees on appeal under Arizona Revised Statutes ("A.R.S.") section 12-341.01 (West 2012). Best asserted only tort claims against Security Title. There was no contractual relationship between Best and Security Title, and the duty not to interfere with the contract of another arises out of law, not contract. Because no causal link exists between Best's tort claims and the escrow agreement, Security Title is not entitled to an award of attorneys' fees under A.R.S. § 12-341.01(A). See Bar J Bar Cattle Co. v. Pace, 158 Ariz. 481, 486, 763 P.2d 545, 550 (App. 1988).
CONCLUSION
¶14 Based on the foregoing, we affirm the judgment granted to Security Title.
______________________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: __________________________
PATRICIA A. OROZCO, Judge
_______________________
RANDALL M. HOWE, Judge