Opinion
No. 1 CA-CV 18-0160
02-05-2019
HIDDEN HEIGHTS, LLC, et al., Plaintiffs/Appellants, v. CITY OF PRESCOTT, ARIZONA, Defendant/Appellee.
COUNSEL Aspey Watkins & Diesel, PLLC, Flagstaff By Wm Whitney Cunningham, Monica M. Pertea Counsel for Plaintiffs/Appellants The Doyle Firm, P.C., Phoenix By William H. Doyle, Brian R. Hauser 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. P1300CV201600388
The Honorable Don C. Stevens, Judge Pro Tempore AFFIRMED IN PART, AND VACATED AND REMANDED IN PART COUNSEL Aspey Watkins & Diesel, PLLC, Flagstaff
By Wm Whitney Cunningham, Monica M. Pertea
Counsel for Plaintiffs/Appellants The Doyle Firm, P.C., Phoenix
By William H. Doyle, Brian R. Hauser
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined. MORSE, Judge:
¶1 Hidden Heights, LLC, and Prescott Partners, LP (collectively, "Property Owners") appeal the superior court's February 2018 order granting the City of Prescott's ("City") motion for summary judgment. For the following reasons, we affirm in part, and vacate and remand in part.
FACTS AND PROCEDURAL HISTORY
¶2 In 1965, the City and the Iron Springs Improvement District ("District") of Yavapai County, Arizona entered into a Water Services Agreement ("1965 Agreement"). Pursuant to the 1965 Agreement, the City "agree[d] that it [would] provide and furnish water in good faith pursuant to [the] agreement." The 1965 Agreement also provided:
that in the event of any emergency or unforeseen and unanticipated water shortage or breakdown in its water system or facilities, or in the event of any other condition affecting water service or pressure, the City . . . has the right and duty in its sole and exclusive discretion to determine priorities of water right and use between and among non-residents of the City . . . on the basis of prior commitments, agreements or usage, as determined by the City.
¶3 In 2005, the City amended Prescott City Code ("PCC") § 2-1-8 to declare an emergency. Prescott, Ariz., Ordinance 4503 (Oct. 25, 2005). Section 2-1-8 provided, in relevant part, that "[n]o property outside of the City limits shall be served water" unless "the City has previously entered into a valid contractual agreement to provide water service to a specific property, in which event water service or a main extension shall only be allowed to the extent necessary to allow the City to comply with its contractual obligations." PCC § 2-1-8(A)(1). The amendment provided that "if potable water is provided to property outside of the City limits . . . no more than one (1) residential dwelling unit per parcel shall be provided potable water." Id. at § 2-1-8(C). It also defined "parcel of property" as "that real property which was contiguous and under common ownership at any time on or after October 4, 2005." Id.
¶4 Property Owners own two parcels of land within the District and outside the City's limits (collectively, the "Parcels"). Hidden Heights owns Parcel No. 115-02-004C ("Hidden Heights Parcel") and Prescott Partners owns Parcel No. 115-02-004D ("Prescott Partners Parcel"). Property Owners are "successor beneficiaries to [the 1965 Agreement]."
¶5 In March and July of 2006 and August of 2007, a management analyst for the City sent letters confirming that the City's Water Allocation Committee would allocate water from the City's water budget for a proposed subdivision of approximately 30 units. The letters stated that the subject development "[would] have to enter into a water service agreement with the City"; however, a water service agreement was never sought.
¶6 In July 2015, a realtor representing the Hidden Heights Parcel sought confirmation of the City's provision of water service to the Hidden Heights Parcel. A water resource coordinator from the City sent an email with an attached letter ("July 10, 2015 Letter"), explaining that pursuant to PCC § 2-1-8, the Hidden Heights Parcel was entitled to water service for no more than one residential dwelling unit per parcel of property. The letter also stated that (i) lot splits were not permitted under PCC § 2-1-8, and (ii) the 2007 letter was not binding on the City because a water agreement was never sought. It further explained that the 2007 letter was "an offer made in 2007 which reflected the PCC at that time." Prescott Partners received an email informing them that the July 10, 2015 Letter applied to the Prescott Partners Parcel on July 30, 2015.
¶7 On July 15, 2015, City Attorney Clyde Halstead and two other City employees met with representatives of Hidden Heights to further discuss the issue of water services to the Parcels. Property Owners presented notes about legal claims they could bring against the City based on the City's denial of water service. The City restated its position that it would only provide one water connection. However, according to Property Owners' representatives, City personnel indicated that the decision was not final and that Hidden Heights could receive relief from the City Council. One of the City employees stated she would arrange to place the matter before the Council's Water Subcommittee. Over the course of the next few months, the City communicated with Property Owners via email, and the City's Water Issues Committee held a meeting discussing Hidden Heights' "[r]equest for water service outside of City limits for 37 units on [the Hidden Heights Parcel]." In December, the City's Water Issues Committee held another meeting, the minutes of which reflect that the Hidden Heights matter was "in-process."
¶8 In a letter dated February 9, 2016, ("February 9, 2016 Letter") the City stated that it would not provide any water service to the Parcels, explaining that "[a]fter extensive review, a basis obligating the City to provide service ha[d] not been found." The City also explained that under the 1965 Agreement, the Parcels were included within a larger property that was entitled to a maximum of 256 water connections and because the larger property had been subdivided into smaller parcels, including the Parcels, there were already "in excess of 531 connections within the [larger] parcel of land." Accordingly, the February 9, 2016 Letter stated that "the City's contractual obligation to provide water service to the [larger] property, which includes [the Parcels], has been more than satisfied [and] . . . there [was] no further entitlement for water service."
¶9 On May 27, 2016, Property Owners filed a complaint alleging the City had violated Arizona's Private Property Rights Protection Act, but Property Owners never served the complaint. On June 3, 2016, Property Owners served their Notice of Claim, primarily alleging damages for breach of contracts and implied covenants. Property Owners amended the complaint in September 2016, adding claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unconstitutional taking of property, and promissory estoppel.
¶10 The following year, on June 2, 2017, the City moved for summary judgment. It asserted that Property Owners' claims regarding breach of contract, breach of the implied covenant of good faith and fair dealing, unconstitutional taking of property, and promissory estoppel should be dismissed because Property Owners failed to comply with the notice-of-claim statute, Arizona Revised Statutes ("A.R.S.") section 12-821.01, and the applicable statute of limitations, A.R.S. § 12-821.
The City also moved for summary judgment on Property Owners' violation of Arizona's Private Property Rights Protection Act claim, but Property Owners do not appeal the superior court's ruling on this claim. We accordingly do not further address the claim in this decision.
¶11 The superior court granted the City's motion for summary judgment. In relevant part, the court concluded that Property Owners' cause of action accrued on July 10, 2015, and Property Owners were accordingly required to serve their notice of claim on or before December 6, 2015. Alternatively, the court concluded that even if July 30, 2015, were the date of accrual, Property Owners failed to timely serve their notice of claim. The court also dismissed Property Owners' equitable claims, concluding Property Owners had failed to allege any affirmative acts of fraud or concealment that prevented them from recognizing their claim, or fully understanding the nature of any potential damages, or that misled them into believing that the accrual of their claim was tolled.
¶12 Property Owners timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
DISCUSSION
¶13 Property Owners argue the superior court erred by: (1) finding, as a matter of law, that Property Owners' claims accrued on July 10, 2015; (2) implicitly rejecting Property Owners' argument that the City waived, by its conduct, the timing requirements of the notice of claim statute; and (3) rejecting Property Owners' argument that the City should be equitably estopped from raising its timeliness defense.
I. Standard of Review
¶14 We review a superior court's grant of summary judgment de novo. Teufel v. Am. Family Mut. Ins. Co., 244 Ariz. 383, 385, ¶ 10 (2018). We review the facts and reasonable inferences in the light most favorable to the non-moving party. Delgado v. Manor Care of Tucson AZ, LLC, 242 Ariz. 309, 311, ¶ 2 (2017). We affirm "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." Deutsche Bank Nat'l Tr. Co. v. Pheasant Grove LLC, 245 Ariz. 325, 330, ¶ 15 (App. 2018).
II. The Superior Court Applied the Correct Standard in Determining When the Property Owners' Claims Accrued.
¶15 Property Owners argue the superior court erred by: (1) misapplying the summary judgment standard; and (2) concluding their claims accrued on July 10, 2015.
A. The superior court correctly applied the summary judgment standard.
¶16 The Property Owners argue the superior court misapplied the summary judgment standard because it ignored the main contested issues of material fact related to accrual of the Property Owners' claims; misstated uncontested facts; and interpreted the facts and drew all inferences from those facts in favor of the City. We disagree.
¶17 The Property Owners first assert that the superior court ignored contested issues of material fact because it failed to mention the February 9, 2016 Letter; the City's activity between July 10, 2015, and February 9, 2016; and the City's Alternative Water Allocation Policy in its order. However, the court prefaced its order by stating it "[h]a[d] reviewed and considered the pleadings, exhibits and other matters of record[.]" Furthermore, the court expressly considered the Property Owners' arguments regarding the City's activity after July 10, 2015. Finally, the rule governing summary judgment, Arizona Rule of Civil Procedure 56, only prescribes that "[t]he court should state on the record the reasons for granting or denying the motion." The superior court's order did just that.
¶18 The Property Owners next argue the superior court misstated facts as uncontested because it found that "[n]one of [the Property Owners] or their predecessors in interest entered into a water services agreement with the City" despite the parties' stipulation that Property Owners were entitled to water service from the City pursuant to the 1965 Agreement. We disagree. Although the City stipulated that the Property Owners were entitled to water service from the City pursuant to the 1965 Agreement, this stipulation does not affect the superior court's ultimate holding. The 1965 Agreement specifically acknowledged that the provision of water under the Agreement was subject to the "terms, conditions and provisions contained [t]herein," and that in the event of any emergency or water shortage "the City ha[d] . . . the right and duty in its sole and exclusive discretion to determine priorities of water right and use between and among non-residents of the City . . . on the basis of prior commitments, agreements or usage, as determined by the City." PCC § 2-1-8 provided that "[w]ater [would] be furnished subject to rules and regulations of the City." For all residential development, City policy required completion of a separate water services agreement pursuant to a specific form, and the 2006 and 2007 letters, supra ¶ 5, referred to the water services agreements contemplated by this policy. Thus, the term "water services agreement," as used by the superior court, refers to the agreements required under City policy and not to the 1965 Agreement. The superior court correctly found that the Property Owners had not entered into the water services agreements referenced in the 2006 and 2007 letters.
¶19 Finally, the Property Owners assert the court interpreted all facts and drew all inferences in favor of the City because it: (1) interpreted the communications from City staff during the July 15, 2015 meeting to be a "clear and unequivocal statement" of the City's position; (2) failed to acknowledge or draw any inferences in favor of the Property Owners from the February 9, 2016 Letter, the meetings held after July 15, 2015, or any of the City's communication during that time period; (3) ignored the language in the 1965 Agreement that addressed the provision of water in good faith and prioritizing the City's residents only in cases of emergency or water shortages; and (4) inferred that the decision preventing the development rights of both Parcels was made on July 10, 2015, and that both Property Owners were damaged by the decision.
¶20 Regardless of the communications from City staff following the July 10, 2015 Letter, "a reasonable person would have been on notice to investigate" provision of water to the Parcels as of the July 10, 2015 Letter. Cruz v. City of Tucson, 243 Ariz. 69, 72, ¶ 8 (App. 2017) (quoting Walk v. Ring, 202 Ariz. 310, 316, ¶ 24 (2002)). The court accordingly did not err in ascribing significance to the City communications after the July 10, 2015 Letter.
¶21 The superior court also did not ignore language in the 1965 Agreement. Although the 1965 Agreement provided that "[t]he City agrees that it will provide and furnish water in good faith pursuant to the agreement," it also provided:
in the event of any emergency or unforeseen and unanticipated water shortage or breakdown in its water system or facilities, or in the event of any other condition affecting water service or pressure, the City has the prior obligation . . . and also has the right and duty in its sole and exclusive discretion to determine priorities of water rights and use between and among non-residents of the City . . . on the basis of prior commitments, agreements or usage, as determined by the City.Long before this dispute, the City had determined that there was an emergency; the 2005 ordinance amending PCC § 2-1-8 states in its preface that it "declar[ed] an emergency." Prescott, Ariz., Ordinance 4503 (Oct. 25, 2005). Thus, the Property Owners' arguments regarding the court's reading of the 1965 Agreement's language fail. The superior court did not misrepresent the language of the 1965 Agreement or misapply the summary judgment standard.
B. The superior court did not err by concluding the claims accrued in July 2015.
¶22 Property Owners next argue that the superior court erred by concluding their claims accrued on July 10, 2015 because the July 10, 2015 Letter did not constitute a final decision. They assert the July 10, 2015 Letter was not the City's final decision because: (1) it was not issued by the City Council, and the City's Alternative Water Allocation Policy prescribed the City Council as the sole authorized body to approve water requests in excess of four dwelling units; (2) the February 9, 2016 Letter "substantively and dramatically changed" the decision reflected in the July 10, 2015 Letter; and (3) the City engaged in a deliberative process between July 10, 2015 through February 9, 2016, before which time it made no indication it had arrived at a definitive position on the issue. We disagree.
¶23 A party that has a claim against a public entity must file claims with the person or persons authorized to accept service for the public entity "within one hundred eighty days after the cause of action accrues." A.R.S. § 12-821.01(A). Property Owners assert a final decision was necessary for accrual of their claims. They cite the City's 2016 Water Allocation Policy to argue the City's decision was not final because the City Council never approved Property Owners' request for water. However, this argument fails because accrual of claims pursuant to A.R.S. § 12-821.01 only requires that the plaintiff "realize[] he or she has been damaged and know[] or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage." A.R.S. § 12-821.01(B). The "core question" of when a claim accrued is when "a reasonable person would have been on notice to investigate." Cruz, 243 Ariz. at 72, ¶ 8 (quoting Walk, 202 Ariz. at 316, ¶ 24). "When a cause of action accrued is generally a question of fact for the jury, but it may be decided as a matter of law if the record shows when the plaintiff 'unquestionably [was] aware of the necessary facts underlying [his or her] cause of action.'" Cruz, 243 Ariz. at 71-72, ¶ 7 (alterations in original) (quoting Thompson v. Pima County, 226 Ariz. 42, 47, ¶ 14 (App. 2010)).
Property Owners cite Canyon del Rio Investors, L.L.C. v. City of Flagstaff, 227 Ariz. 336 (App. 2011), and Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557 (App. 2003), to support the proposition that a final decision was necessary to trigger accrual. However, both of these cases are distinguishable because they involved actions brought pursuant to 42 U.S.C. § 1983. See Canyon del Rio, 227 Ariz. at 343, ¶ 29; Aegis, 206 Ariz. at 567, ¶ 37. In Aegis, this Court limited its analysis to § 1983 claims, stating, "a decision must be final in order for it to be reviewable by a court in the context of a claim brought pursuant to that statute." 206 Ariz. at 567-68, ¶ 39 (emphasis added); see also Canyon del Rio, 227 Ariz. at 343, ¶ 29 (citing Aegis). Property Owners did not allege a § 1983 violation, therefore the final-decision requirement of Aegis and Canyon del Rio does not apply. --------
¶24 The evidence supports the superior court's conclusion that Property Owners had sufficient information via the July 10, 2015 Letter to meet the standard in § 12-821.01(B). As the superior court found, "[t]he July 10, 2015 [L]etter clearly state[d] that the City would not provide the water connections that [Property Owners] believed that they were entitled to." In their 2006, 2007, and 2015 communications, Property Owners and their predecessors in interest sought confirmation of allocation of water for over thirty units. The July 10, 2015 Letter clearly provided that the Hidden Heights Parcel was "entitled to water service for one residential dwelling unit . . . but lot splits will not be supported." Moreover, the information conveyed in the July 10, 2015 Letter was confirmed during the meeting with the City attorney's office on July 15, 2015.
¶25 Thus, it was clear by July that the Hidden Heights Parcel would not receive allocations for the thirty-plus residential lots planned by Property Owners, and "a reasonable person would have been on notice to investigate." Cruz, 243 Ariz. at 72, ¶ 8. Property Owners received confirmation that the July 10, 2015 Letter applied to the Prescott Partners Parcel on July 30, 2015. Additionally, both Parcels lie within the District, and the July 10, 2015 Letter stated that PCC § 2-1-8 applied to property within the District. See Doe v. Roe, 191 Ariz. 313, 323, ¶ 32 (1998) ("A plaintiff need not know all the facts underlying a cause of action to trigger accrual. But the plaintiff must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury.") (citations omitted). Even if the claims had accrued on July 30, 2015, the superior court properly concluded that Property Owners' claims would still be time-barred because Property Owners did not serve their notice of claim within the statutory period. Accordingly, we find the superior court did not err by concluding the Property Owners' claims accrued in July 2015.
III. The Superior Court Did Not Err by Implicitly Rejecting Property Owners' Waiver Argument.
¶26 The Property Owners argue the superior court erred by implicitly rejecting their argument that the City waived the timing requirements of A.R.S. §§ 12-821 and -821.01(A) by its pre-litigation conduct. They note that the City did not contest the facts supporting the waiver defense in its reply in support of summary judgment. We disagree with Property Owners.
¶27 The notice of claim statute may be waived by conduct. Pinal County v. Fuller, 245 Ariz. 337, 342, ¶ 18 (App. 2018). "Waiver by conduct must be established by evidence of acts inconsistent with an intent to assert the right." Jones v. Cochise County, 218 Ariz. 372, 379, ¶ 23 (App. 2008). "In the summary judgment context, where the facts are undisputed and the 'legal conclusions to be drawn from th[o]se facts' are the matter 'in actual dispute,'" the question of waiver "should be decided by the trial court as a matter of law." Id. at 381, ¶ 29 (quoting Scottsdale Jaycees v. Superior Court (Weaver), 17 Ariz. App. 571, 574 (App. 1972)).
¶28 We are not persuaded by Property Owners' arguments. In Pinal County, this Court concluded that "there is nothing inconsistent about an entity responding to the merits of a claim before litigation and, after the claimant takes the additional step of filing a lawsuit, asserting the affirmative defense that the claim does not comply with statutory requirements." 245 Ariz. at 343, ¶ 20. That is precisely what occurred in this case. The superior court did not err by rejecting Property Owners' waiver argument.
IV. The Superior Court Erred by Granting Summary Judgment on Property Owners' Equitable Estoppel Argument.
¶29 The Property Owners argue the City should be estopped from raising the statutory-bar defense because the City's affirmative conduct induced Property Owners to forbear timely filing of their claims. Because the superior court erred in finding that the City had not taken actions inconsistent with its later position that the Property Owners' claim had accrued by July 2015, we vacate the court's grant of summary judgment and remand for further proceedings.
¶30 The notice of claim statute is subject to equitable estoppel. Jones, 218 Ariz. at 379, ¶ 22. Claims of equitable estoppel "rest on a party's reasonable reliance on the estopped party's conduct." Pinal County, 245 Ariz. at 343, ¶ 21. To establish estoppel, the plaintiff must show that: "(1) the party to be estopped commits acts inconsistent with a position it later adopts; (2) reliance by the other party; and (3) injury to the latter resulting from the former's repudiation of its prior conduct." McLaughlin v. Jones, 243 Ariz. 29, 38, ¶ 39 (2017). "[E]stoppel applies only to the authorized acts of government officials when necessary to prevent a 'serious injustice.'" Gorman v. Pima County, 230 Ariz. 506, 511, ¶ 21 (App. 2012) (quoting Freightways, Inc. v. Ariz. Corp. Comm'n, 129 Ariz. 245, 248 (1981)). "Questions of estoppel, including reasonable reliance, are fact-intensive inquiries." John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208 Ariz. 532, 537, ¶ 10 (App. 2004). Summary judgment is not appropriate if genuine issues of material fact exist. See Gorman, 230 Ariz. at 512-13, ¶ 26 (concluding genuine issues of material fact existed on the issue of equitable estoppel and remanding to superior court); Ariz. R. Civ. P. 56(a).
¶31 To show acts inconsistent with a position later adopted, "the plaintiff must identify specific promises, threats or inducements by the defendant that prevented the plaintiff from filing suit." Nolde v. Frankie, 192 Ariz. 276, 280, ¶ 16 (1998). "When applied to a government actor, the actions relied upon must bear some considerable degree of formalism." Gorman, 230 Ariz. at 511, ¶ 21 (quotation marks omitted). Unwritten agreements will rarely meet the requisite formalism, and the communications from the government must be "more than a mere writing." Id. at ¶¶ 21, 23. "In general, the state may not be estopped due to the casual acts, advice, or instructions issued by nonsupervisory employees." Id. at ¶ 21 (alteration omitted).
¶32 Contrary to the implicit conclusion of the superior court, a jury reasonably could find that the City committed "acts inconsistent with a position it later adopt[ed]," i.e., that the July 10, 2015 Letter was a final decision sufficient to trigger accrual of the Property Owners' claim. As Property Owners argued at the trial level and argue on appeal, the City initially stated the Hidden Heights parcel was entitled to one water connection; engaged in meetings and communications after the July 10, 2015 Letter that indicated the matter was still pending; then sent the February 9, 2016 Letter stating the Parcels were entitled to no water connections. Although a "casually worded e-mail" from an employee without authority to speak for the governmental entity lacks the formality required to show inconsistent acts, see Lowe v. Pima County, 217 Ariz. 642, 651, ¶ 39 (App. 2008), the City engaged in other inconsistent acts that a jury could find possessed the requisite level of formality.
¶33 First, at the July 15 meeting between the City and Hidden Heights representatives, City representatives including the City Attorney advised that the decision expressed in the July 10, 2015 Letter was not final and that Hidden Heights could seek relief from the City Council. City personnel also stated they would arrange to place the matter before the City's Water Sub-Committee at this meeting. Second, in August, the City's Water Issues Committee met with Hidden Heights representatives and addressed the "[r]equest for water service outside of City limits for 37 units on [the Hidden Heights Parcel]." The issue was tabled for further discussion. Third, in December, the City's Water Issues Committee held a session and indicated in its minutes that resolution of the Hidden Heights request was "in-process." Even if, as the superior court found, "there was no evidence of an admission of liability, no agreement to settle or negotiate the claim, no payment, or any negotiations or agreement to toll the statute of limitations," a jury could reasonably find that these meetings and communications implied that the Property Owners' request had not yet been denied and was still under consideration. Thus, a jury could find that these acts were formal and inconsistent with the City's later position that the matter was resolved as of July 2015. We therefore conclude the superior court erred by finding as a matter of law that the Property Owners' estoppel claim failed on the first prong.
¶34 Because the superior court based its decision on estoppel on the first prong, the parties did not develop, and the superior court did not address, the two remaining elements of estoppel—reliance by and resulting injury to Property Owners. Because the superior court did not address these elements, we vacate the superior court's grant of summary judgment and remand for further proceedings. See Gorman, 230 Ariz. at 512-13, ¶ 26; Luther Const. Co., Inc. v. Ariz. Dep't of Revenue, 205 Ariz. 602, 609-10, ¶¶ 38, 41, 44, 46 (App. 2003).
V. Attorneys' Fees and Costs
¶35 Both parties request their attorneys' fees and costs on appeal pursuant to A.R.S. §§ 12-341 (mandating recovery of costs for the successful party) and -341.01 (allowing the successful party's recovery of attorneys' fees in any contested action arising out of contract). See ARCAP 21 (governing awards of attorneys' fees and costs on appeal). Because they are the prevailing party in this appeal, we award costs to the Property Owners. However, we defer an award of fees pending the ultimate determination of the successful party in the superior court. See Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 204, ¶ 37 (App. 2007) (deferring the parties' requests for attorneys' fees on appeal to the superior court's discretion pending resolution of the matter on the merits).
CONCLUSION
¶36 For the foregoing reasons, we affirm the court's conclusion regarding the claims' accrual but we vacate the superior court's grant of summary judgment and remand for further proceedings consistent with this decision.