Opinion
No. 1 CA-CV 13-0264
07-03-2014
JYM BOCK and PAMELA BOCK, dba BOCK BROTHERS, Plaintiffs/Appellants, v. INTERSTATE WRECK REBUILDERS, INC., an Arizona corporation; STEVE CUSHMAN and JANE DOE CUSHMAN, individually and as husband and wife, Defendants/Appellees.
Jackson White, P.C., Mesa By Roger R. Foote Counsel for Plaintiffs/Appellants The Law Office of Don D. Skypeck, Phoenix By Don D. Skypeck Counsel for Defendants/Appellees
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CV2009-093902
The Honorable Mark F. Aceto, Judge
AFFIRMED
COUNSEL
Jackson White, P.C., Mesa
By Roger R. Foote
Counsel for Plaintiffs/Appellants
The Law Office of Don D. Skypeck, Phoenix
By Don D. Skypeck
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Michael J. Brown joined. THOMPSON, Judge:
¶1 Jym Bock and Pamela Bock, dba Bock Brothers, (Bock) appeal from the trial court's amended judgment granting partial summary judgment in favor of Interstate Wreck Rebuilders, Inc., Steve Cushman and Jane Doe Cushman (collectively, Interstate) and granting Interstate's motion to dismiss. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In February 2009, Bock contracted with Interstate for the repair of excessive temperature problems in their 1998 truck. While the truck was in possession of Interstate, Bock expressed concern that a recent dust storm may have damaged the truck while it was being repaired in an open bay area of the shop. Interstate sent a sample of the oil from the truck's engine to be tested by Lab One, Inc. to determine whether there were contaminants in the engine. The Lab One test indicated there were no abnormal contaminants in the oil sample. Approximately three weeks after Interstate completed the repairs and returned the truck to Bock, Bock contacted Interstate about noises coming from the motor of the truck while driving in California. Interstate placed Bock in contact with Stan's Repair Shop (Stan's), located in California, and Bock took the truck there for repair. Stan's inspected and repaired the truck, and Bock paid the invoiced cost of repairs. A short time later, Bock continued to experience mechanical problems with the truck and contracted with another company for additional repairs. Bock demanded payment from Interstate for the cost of the repairs, damage to the truck, and Interstate's actions related to the truck. Interstate refused to remit payment.
¶3 Bock filed a complaint against Interstate alleging negligence, breach of contract, and intentional and/or negligent misrepresentation. The complaint alleged that Interstate allowed dirt to intrude into the engine, thereby causing damage to the truck. The complaint also alleged Interstate breached the contract by refusing to honor the agreement with Bock for repairs, "and/or to pay for repairs caused by their work on Plaintiff's Truck." Lastly, Bock alleged that Interstate made false promises and representations that they never intended to honor, namely that Interstate would reimburse Bock for the cost of the "repairs needed caused by [Interstate's] prior work."
¶4 Interstate filed a motion for summary judgment arguing that the following evidence in the record showed there were no abnormal substances, including substantial dirt, in the engine at the time the truck left Interstate's possession: the Lab One test; an affidavit by the Vice-President of Lab One testifying to the substance and meaning of the Lab One test results; and testimony that Interstate had covered the truck's engine with materials meant to protect the engine from dirt intrusion during the dust storm. Interstate further argued that Bock failed to present any evidence of the existence of dirt in the engine of the truck when it left Interstate's control.
¶5 Bock filed a response to the motion, challenging the accuracy and reliability of the Lab One test, as well as the accuracy of Interstate's evidence that the engine was covered by a wood block during the dust storm. Bock argued that Interstate committed spoliation by failing to retain the oil sample tested by Lab One, and that the Lab One test should therefore be excluded from evidence. Interstate filed a reply and noted that the only evidence introduced by Bock in support of their allegation that Interstate allowed dirt to enter the truck's engine was an invoice from Stan's. The invoice contained a handwritten note on it which stated, "water trash sediments found in injectors fuel [illegible] lines." Interstate argued that the invoice was inadmissible for lack of foundation, lack of authentication, and hearsay. Interstate concluded that Bock thus failed to present any admissible evidence in support of their claim that Interstate permitted dirt to enter the engine of the truck.
¶6 After oral argument, the trial court found that Interstate presented evidence that there was no dirt in the engine of the truck when it left Interstate's control. The trial court also sustained Interstate's objection to the admission of the invoice from Stan's for lack of foundation, lack of authentication and hearsay. The trial court concluded that while Bock presented evidence attacking the weight of Interstate's evidence, Bock failed to present any affirmative evidence that dirt entered into the truck's engine while in Interstate's control. Thus, the trial court granted partial summary judgment in favor of Interstate "on any claim made by [Bock] predicated on the presence of dirt in the engine of [Bock's] truck at the time the truck left [Interstate's] possession."
¶7 Interstate filed a motion to dismiss arguing that the complaint's claims of negligence, breach of contract, and intentional and/or negligent misrepresentation were all predicated on the presence of dirt in the truck's engine at the time the truck left Interstate's control. Interstate contended that the complaint therefore failed to state a claim upon which relief can be granted and should be dismissed in its entirety. Bock filed a response to the motion arguing the following: Interstate's motion was not a motion to dismiss because it did not challenge the allegations of the complaint; the law of the case doctrine prohibited Interstate's motion to dismiss; summary judgment was not granted as to every count of the claim; and the trial court failed to rule on Bock's claim of spoliation.
¶8 The case was reassigned to a different judge who granted Interstate's motion to dismiss, finding that the complaint failed to state a claim upon which relief can be granted. The trial court noted that given the partial summary judgment ruling, "the allegations in the complaint about dirt in the engine are now without legal significance" and "are to be ignored." The trial court found that apart from the dirt in the engine allegation, the complaint set forth no facts on how Interstate did any of the following: 1. breached the agreement with Bock for repairs; 2. breached an agreement to pay for repairs caused by Interstate's work; 3. performed the repairs negligently; or 4. made promises or representations to pay for repairs caused by their work.
¶9 Bock filed a motion for a new trial arguing that there was affirmative evidence that Interstate permitted dirt to enter the truck's engine. Bock contended that the trial court wrongfully rejected the invoice from Stan's as hearsay under Rule 801 of the Arizona Rules of Evidence, and therefore, a new trial should be granted. The trial court denied Bock's motion for a new trial and subsequently entered judgment dismissing Bock's complaint and cause of action in its entirety, with prejudice.
¶10 Bock timely appealed the judgment. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) § 12-2101(A) and 5(A) (Supp. 2013).
DISCUSSION
I. Summary Judgment
¶11 Bock argues that the trial court erred in granting partial summary judgment because the invoice from Stan's was affirmative evidence that Interstate permitted dirt to intrude into the truck's engine. Summary judgment is appropriate if there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). We review a grant of summary judgment de novo and view the facts in the light most favorable to the non-moving party. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).
¶12 Bock asserts that the invoice was not hearsay and should have been admitted because it met several of the conditions under Rule 801(d)(2) of the Arizona Rules of Evidence, and because the invoice was a business record. Alternatively, Bock argues that even if the invoice was hearsay, it should have been admitted as an exception under Rule 807 of the Arizona Rules of Evidence. We will affirm the trial court's rulings on the exclusion of evidence absent a clear abuse of discretion, or legal error and prejudice. Taeger v. Catholic Family and Cmty. Servs., 196 Ariz. 285, 295-96, ¶ 35, 995 P.2d 721, 731-32 (App. 1999).
¶13 The trial court sustained Interstate's objection to the admission of the invoice based on lack of foundation, lack of authentication, and hearsay. Even if we assume arguendo that the invoice was not hearsay, Bock still had to provide foundation and authentication for the invoice. See Ariz. R. Evid. 901(a) (requirement of authentication is a condition precedent to admissibility); see also Taeger, 196 Ariz. at 296, ¶ 40, 995 P.2d at 732 (stating plaintiffs must provide sufficient foundation for admission of evidence in addition to their claim that evidence was not hearsay); State v. Stotts, 144 Ariz. 72, 81-82, 695 P.2d 1110, 1119-20 (1985) ("A hearsay objection concerns the reliability of evidence itself; an authenticity objection questions the form in which the evidence is presented."). The record does not show that Bock contested the trial court's exclusion of the invoice for lack of foundation and authentication, and has therefore waived this issue on appeal. See Premier Fin. Servs. v. Citibank (Ariz.), 185 Ariz. 80, 86-87, 912 P.2d 1309, 1315-16 (App. 1995) (court of appeals cannot consider issues, theories, and evidence not presented to superior court). Moreover, we note that the record does not show that Bock provided any foundation for the invoice which would have verified that the invoice was in fact what they purported it to be. See Ariz. R. Evid. 901(a); see also State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991) ("The trial judge must be satisfied that the record contains sufficient evidence to support a jury finding that the offered evidence is what its proponent claims it to be."). Accordingly, we find no error in the trial court's exclusion of the invoice from evidence.
Bock did not provide a copy of the transcript of the hearing on the motion for summary judgment; and we will not presume that they raised a foundation and authentication argument during the hearing. See State ex rel. Dept. of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d 70, 73 (App. 2003); ARCAP 11(b)(1) (an appellant is responsible for providing all relevant transcripts); see also Fendler v. Phoenix Newspapers Inc., 130 Ariz. 475, 478 n.2, 636 P.2d 1257, 1260 n.2 (App. 1981) (stating that where an appellant has chosen not to provide this court with a transcript of the hearing on the motion for summary judgment, we will not presume that the issue argued on appeal was raised in the hearing).
¶14 Bock also argues that the trial court improperly imposed a burden that is contrary to the standard of summary judgment by accepting Interstate's evidence showing a lack of dirt in the truck's engine despite the conflicting evidence presented by Bock. We disagree. A party moving for summary judgment must "demonstrat[e] both the absence of any factual conflict and his or her right to judgment." United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App. 1990). In determining whether the moving party has met this "burden of production," the court must determine which party bears the burden of proof on the claim or defense at trial. Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 117 n.7, ¶ 22, 180 P.3d 977, 982 n.7 (App. 2008). If the moving party does not bear the burden of proof at trial, it may meet its burden of production by "point[ing] out by specific reference to the relevant discovery that no evidence exist[s] to support an essential element of the [non-moving party's] claim." Orme School v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (stating that the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses).
¶15 Once the party moving for summary judgment makes a prima facie case showing that no genuine issue of material fact exists, the burden then shifts to the nonmoving party to produce sufficient evidence to establish the existence of one or more essential elements of the claim or defense. Ariz. R. Civ. P. 56(c); Orme, 166 Ariz. at 310, 802 P.2d at 1009; see also Hydroculture, Inc. v. Coopers & Lybrand, 174 Ariz. 277, 283, 848 P.2d 856, 862 (App. 1992) ("[A] defendant can obtain summary judgment when the plaintiff is unprepared to establish a prima facie case."). Summary judgment should be granted "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme, 166 Ariz. at 309, 802 P.2d at 1008.
¶16 Applying these principles here, we find that Interstate met its burden of production and Bock failed to demonstrate the existence of a genuine issue of material fact. Interstate argued in their motion for summary judgment that Bock failed to provide any evidence to support their claim that Interstate damaged the truck by allowing dirt to intrude into the engine. In support, Interstate referenced affidavits and corresponding documents in the record establishing that a test of the engine indicated there were no abnormal substances in the oil, and that Interstate had covered the truck's engine with materials meant to protect the engine from dirt intrusion during the dust storm. We agree with the trial court that Interstate met its burden of production, and that the burden thus shifted to Bock to present evidence sufficient to show the existence of a genuine issue of material fact. See Thruston, 218 Ariz. at 119, ¶ 26, 180 P.3d at 984.
¶17 Accordingly, Bock was obligated to show the existence of evidence in the record to support their allegation that Interstate damaged the truck by permitting dirt to intrude into the engine. See Orme, 166 Ariz. at 310, 802 P.2d at 1009; see also Trurston, 218 Ariz. 117, at ¶ 21, 180 P.3d at 982 (summary judgment should be granted if the party with the burden of proof on the claim cannot show that there is evidence creating a genuine issue of fact on the element in question). The only evidence offered by Bock in support of their claim was the invoice from Stan's, which contained a handwritten diagnostic note stating, "water trash sediments found in injectors fuel [illegible] lines." As we previously discussed, we find no error in the trial court's exclusion of the invoice for lack of foundation and authentication. Additionally, we do not discern from the "pleadings, deposition[s], answers to interrogatories, and admissions on file, together with the affidavits" in the record any evidence that Interstate permitted dirt to intrude into the engine of the truck. See Tilley v. Delci, 220 Ariz. 233, 236, ¶ 10, 204 P.3d 1082, 1085 (App. 2009); see also Ariz. R. Civ. P. 56(a), (c)(3).
¶18 We also disagree with Bock's argument that the deposition evidence which disputed the reliability and accuracy of the Lab One test was sufficient to create a genuine issue of material fact. See Ariz. R. Civ. P. 56(e)(4) (an adverse party, when objecting to a proper motion for summary judgment, may not rest upon the mere allegations or denials of its prior pleading, but must set forth specific facts showing that there is a genuine issue for trial); see also Stevens v. Anderson, 75 Ariz. 331, 334, 256 P.2d 712, 714 (1953) (noting that a pleader cannot create a genuine issue of material fact simply by making a contradictory statement, where motion for summary judgment is supported by evidence). The trial court correctly determined that the evidence presented by Bock merely challenged the weight of the evidence presented by Interstate, and failed to establish the existence of an element essential to Bock's claims. Accordingly, we find no error in the trial court's grant of partial summary judgment in favor of Interstate. II. Spoliation
¶19 Bock next argues that the trial court erred in granting partial summary judgment to Interstate without imposing sanctions against Interstate for the spoliation of the oil sample used in the Lab One test. A trial court has discretion to impose sanctions when a party destroys potentially relevant evidence, including the preclusion of evidence or a jury instruction allowing an adverse inference to be drawn regarding what the destroyed evidence would have shown. Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 249-50, 955 P.2d 3, 5-6 (App. 1997); see also Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 267, ¶ 8, 229 P.3d 1008, 1009 (2010). A court must weigh all the relevant circumstances before imposing sanctions, including whether there was any "bad faith or intentional destruction," or whether the loss of evidence prejudiced the party seeking sanctions. Smyser, 215 Ariz. at 439-440, ¶¶ 36-38, 160 P.3d at 1197-98.
"Spoliation" is defined as "[t]he intentional destruction of evidence . . . . The destruction, or the significant and meaningful alteration of a document or instrument." Smyser v. City of Peoria, 215 Ariz. 428, 438 n.11, ¶ 32, 160 P.3d 1186, 1196 n.11 (App. 2007) (quoting Black's Law Dictionary 1257 (6th ed. 1990)).
¶20 In this case, the trial court did not abuse its discretion by declining Bock's request to exclude the Lab One test because of spoliation of the oil sample. There is no evidence upon which a reasonable fact finder could conclude that Interstate willfully or negligently discarded the oil sample in order to destroy the evidence, or that Interstate even knew that the oil sample was going to be destroyed. Neither does the record indicate that the destruction of the oil sample from the truck rendered Bock irreparably prejudiced and unable to refute the evidence. See Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 411, ¶ 30, 207 P.3d 654, 664 (App. 2008) (holding that the court did not abuse its discretion by refusing spoliation sanction for evidence destroyed by plaintiff when defendants did not establish they were prejudiced in any meaningful way and defendants could gather evidence through other means). Furthermore, it is speculation to assume that any retesting of the oil sample from the truck would have supported Bock's case. There is an equally strong inference that retesting the oil sample would have supported Interstate's claim that there was no dirt in engine fluid of the truck. Based on the record, we cannot speculate as to which inference is stronger. See Souza, 191 Ariz. at 251, 955 P.2d at 7; see also Stubli v. Big D Intern. Trucks Inc., 107 Nev. 309, 313, 810 P.2d 785, 788 (Nev. 1991) (noting that the prejudicial impact of the spoliation evidence cannot be speculative). Accordingly, the trial court did not abuse its discretion in refusing to apply a spoliation inference to its summary judgment analysis. III. Motion to Dismiss
Although the trial court did not specifically address Bock's spoliation argument in its order granting summary judgment to Interstate, by granting the motion the court implicitly rejected this argument. See Lowe v. Pima Cnty., 217 Ariz. 642, 645 n.3, ¶ 10, 177 P.3d 1214, 1217 n.3 (App. 2008).
¶21 Bock next argues that the trial court incorrectly considered and relied on the summary judgment ruling in granting Interstate's motion to dismiss. Bock asserts that because the trial court was required to take all factual assertions in the complaint as true, it erred in applying the summary judgment ruling in its determination of whether the complaint failed to state a claim upon which relief may be granted.
Because we find that the trial court did not err in granting Interstate partial summary judgment, we reject Bock's additional argument that dismissal was improper because the grant of summary judgment was improper.
¶22 In deciding a motion to dismiss for failure to state a claim, a court must determine whether the complaint, construed in the light most favorable to the plaintiff, adequately sets forth a valid claim. Aldabbagh v. Ariz. Dep't of Liquor Licenses & Control, 162 Ariz. 415, 417-18, 783 P.2d 1207, 1209-10 (App. 1989). In our review of the dismissal of a complaint for failure to state a claim, we take as admitted the well-pled material allegations of the complaint, but not unwarranted deductions of fact or conclusions of law. Id. at 417, 783 P.2d at 1209. "[C]ourts look only to the pleading itself" when adjudicating a Rule 12(b)(6) motion. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 6, 189 P.3d 344, 346 (2008). If "matters outside the pleading" are considered, the motion must be treated as one for summary judgment. Ariz. R. Civ. P. 12(b). However, a complaint's exhibits, or public records regarding matters referenced in a complaint, are not "outside the pleading," and courts may consider such documents without converting a Rule 12(b)(6) motion into a summary judgment motion. See Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 63, 64, ¶¶ 10, 13, 226 P.3d 1046, 1049-50 (App. 2010) (finding documents were public record and central to plaintiffs' claim, and thus were not extraneous to the complaint).
¶23 In this case, Interstate quoted from the trial court's prior minute entry to show that summary judgment was granted on any claim in the complaint predicated on the presence of dirt in the engine of the truck. Because the trial court's minute entry did not specify which claims in the complaint remained, Interstate requested that the trial court dismiss the complaint in its entirety for failure to state a claim. In their response, Bock also quoted and referred to the trial court's minute entry to argue that summary judgment was improperly granted, and that despite the trial court's order, the complaint alleged sufficient facts in support of the claims. As a public record, the trial court did not err in considering and relying on the minute entry in its ruling granting the motion to dismiss. See Strategic Dev. & Constr., 224 Ariz. at 64, ¶ 13, 226 P.3d at 1050; accord Harris Custom Builders, Inc. v. Hoffmeyer, 834 F. Supp. 256, 261 (N.D.Ill. 1993) (stating that in evaluating a motion to dismiss, the court may consider matters of public record, orders and items appearing in the record of the case, including trial court's prior ruling on summary judgment motion). Moreover, the minute entry was not was not extraneous to the complaint because it was central to Bock's claims of negligence, breach of contract and intentional and/or negligent misrepresentation. See ELM Retirement Center, LP v. Callaway, 226 Ariz. 287, 289, ¶¶ 7-8, 246 P.3d 938, 940 (App. 2010) (holding that a contract central to the plaintiff's claim was not a matter outside the pleadings for purposes Rule 12(b)(6)). IV. Res Ipsa Loquitur
The minute entry was also the law of the case, and as such, there was no error in the trial court's reliance on it. See Jimenez v. Wal-Mart Stores, Inc., 206 Ariz. 424, 428, ¶ 12, 79 P.3d 673, 677 (App. 2003) (stating that the law of the case doctrine "describes the judicial policy of refusing to reopen questions previously decided in the same case by the same court or a higher appellate court" (quoting Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278 860 P.2d 1328, 1331 (App. 1993))).
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¶24 Lastly, Bock argues that the trial court erred in failing to consider the circumstantial evidence and the issue of res ipsa loquitur to show Interstate's negligence. Bock did not assert that res ipsa loquitur applied until their response in support of their motion for a new trial. Having pleaded specific negligence, as it appears was the position taken by them in their complaint and responses to Interstate's motions, Bock cannot now rely upon res ipsa loquitur. See Martinez v. Jordan, 27 Ariz. App. 254, 257, 553 P.2d 1239, 1242 (1976) ("When a party pleads specific negligence, his proof is limited to those specific grounds and the doctrine of res ipsa loquitur is inapplicable."); see also Hall v. Delvat, 95 Ariz. 286, 290, 389 P.2d 692, 695 (1964) ("[S]pecific averments in a pleading must be given precedence over general averments regarding the same matter."). Bock alleged Interstate was specifically negligent because they permitted dirt to intrude into the engine. All argument to the trial court went to showing that Interstate had permitted dirt to intrude into the truck's engine, and thereby caused further damage to the truck. The burden was upon Bock to prove the specific negligence alleged, and they failed to meet that burden.
¶25 Even if plaintiff had relied upon res ipsa loquitur, that doctrine is not applicable to this fact situation. Res ipsa loquitur is applicable only when it is a matter of common knowledge, or shown through expert testimony, that the injury would not ordinarily have occurred if due care had been exercised. Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 321, ¶ 11, 183 P.3d 1285, 1289 (App. 2008); see also Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 352, 357, 873 P.2d 688, 690, 695 (App. 1994) (concluding that a 4-year old falling while running does not support an inference of negligence on the part of day care center). Bock failed to establish, either by common knowledge or expert opinion, that the truck's mechanical problems and the alleged sediments found in the truck's fuel line would not ordinarily have occurred in the absence of negligence. Accordingly, we find no error in the trial court's grant of summary judgment.
CONCLUSION
¶26 For the foregoing reasons, we affirm the trial court's judgment. Bock has not prevailed on any claim and we therefore deny their request for attorneys' fees and costs on appeal.