Opinion
No. 1 CA-CV 20-0211
11-19-2020
OTTO ECHEVERRI, Plaintiff/Appellant, v. JOSEPH D. WALKER, Defendant/Appellee.
APPEARANCES Otto Echeverri, Gilbert Plaintiff/Appellant Sanders & Parks PC, Phoenix By Mark G. Worischeck, J. Adam Tate Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CV 2017-096253
The Honorable David J. Palmer, Judge
AFFIRMED
APPEARANCES
Otto Echeverri, Gilbert
Plaintiff/Appellant
Sanders & Parks PC, Phoenix
By Mark G. Worischeck, J. Adam Tate
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
BROWN, Judge:
¶1 This litigation arose from a fire at the Chandler Municipal Airport. When the fire occurred, Otto Echeverri was renting a hangar that shared two common walls with Joseph Walker's rented hangar. The fire caused substantial damage to both parties' planes and personal belongings. In the ensuing lawsuit, initiated by Echeverri, the parties filed competing claims for negligence.
¶2 Walker made a $45,000 offer of judgment relating only to his counterclaim, which Echeverri accepted through his insurance company. After the superior court entered judgment on the counterclaim, an arbitrator ruled in Walker's favor on Echeverri's complaint. Echeverri appealed the arbitration award to the superior court and requested a trial. Walker moved for summary judgment, which the court granted after considering Echeverri's response and Walker's reply. The court also awarded Walker attorneys' fees and costs pursuant Arizona Rule of Civil Procedure 77(h). Echeverri filed a timely notice of appeal.
¶3 Summary judgment is proper when there is no genuine dispute of any material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). We review the superior court's grant of summary judgment de novo, viewing the evidence and reasonable inferences in the light most favorable to the non-moving party. Ochser v. Funk, 228 Ariz. 365, 369, ¶ 11 (2011). We will affirm the superior court's disposition if it is correct for any reason. Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986).
¶4 A party seeking summary judgment is required to provide evidence showing the absence of a genuine issue of material fact and "explain why summary judgment should be entered in its favor." Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 14 (App. 2008). If the moving party meets this initial burden of production, the burden shifts to the non-moving party to "call the court's attention to evidence overlooked or ignored by the moving party" or to "explain why the motion should otherwise be denied." Id. at 119, ¶ 26. "[A]n opposing party may not rely
merely on allegations or denials of its own pleading." Ariz. R. Civ. P. 56 (e).
¶5 To support his claim for negligence, and as pertinent here, Echeverri was required to establish that (1) Walker breached a certain standard of care, (2) a causal connection exists between Walker's conduct and the resulting harm, and (3) Echeverri suffered actual damages. See Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007).
¶6 In his motion for summary judgment, Walker argued in part that Echeverri's claim was unsupported by any evidence that an act or omission by Walker caused the fire. Walker asserted that nothing in Echeverri's discovery responses or disclosure statements even attempted to establish a causal connection. In response, Echeverri referenced police investigation reports that allegedly stated the fire "most likely originated" in Walker's hangar. He also referenced statements allegedly made at Walker's deposition. But Echeverri did not include the investigation reports or any portion of Walker's deposition in support of his response.
¶7 Echeverri, therefore, failed to provide any admissible evidence to prove Walker's alleged negligence. Specifically, Echeverri did not submit a controverting statement of facts as required by Rule 56. See Ariz. R. Civ. P. 56(c)(3)(A)-(B) (requiring a party opposing summary judgment to file a statement of facts, citing "the specific part of the record where support for each fact may be found"). Nor did Echeverri provide any affidavits or other evidence showing genuine triable issues in the case. See Ariz. R. Civ. P. 56(e) ("The opposing party must, by affidavits or as otherwise provided in th[e] rule, set forth specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment, if appropriate, shall be entered against that party.").
¶8 On this record, no evidence supports a causal link between anything Walker did, or should have done, and the fire. Even assuming the validity of Echeverri's general assertions, at most they show that the fire originated in Walker's hangar but do not establish it was due to any action or inaction by Walker. Thus, Echeverri failed to establish any material issue of fact as to causation.
¶9 To the extent Echeverri suggests the superior court erred when it entered judgment on the counterclaim because he disagreed with his insurance company's decision to settle the counterclaim, Echeverri waived the issue by failing to raise any objection in the superior court. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13 (App. 2000)
(appellate courts generally do not consider issues raised for first time on appeal).
¶10 We affirm the superior court's order granting summary judgment in favor of Walker. As the successful party on appeal, Walker is awarded taxable costs subject to compliance with ARCAP 21.