HATCH DEVELOPMENT, LLC, an Arizona limited liability company; JASON HATCH and SHANNON HATCH, husband and wife, Plaintiffs/Counterdefendants/Appellees,
GARY SOLOMON and BOBBIE SOLOMON, husband and wife; SOL's CONSTRUCTION CO., INC., an Arizona corporation, Defendants/Counterclaimants/Appellants.
from the Superior Court in Navajo County No. S0900CV201100592
The Honorable Robert J. Higgins, Judge
Willits PLC, Phoenix By Michael J. Holden, R. Stewart
Halstead Counsel for Plaintiffs/Counterdefendants/Appellees
Berens, Kozub, Kloberdanz & Blonstein, PLC, Scottsdale By
William A. Kozub, Michael T. DePaoli Counsel for
John C. Gemmill delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani
Gary and Bobbie Solomon, husband and wife, and Sol's
Construction Co. (collectively "Solomon") appeal
from the trial court's judgment imposing indemnity
liability in favor of Jason and Shannon Hatch, husband and
wife, and Hatch Development, LLC (collectively
"Hatch"). For the following reasons, we affirm.
Hatch filed a complaint seeking indemnity against Solomon in
September 2011. The indemnity complaint alleged that Hatch,
Solomon, and the Town of Taylor were sued in 2007 by Lee and
Debbie Hunt ("Hunts") for water damage caused by
sewer and water line construction work Solomon performed on
Hatch's property. The indemnity complaint further alleged
that Solomon was solely responsible for the sewer and water
line construction and had left sewer line trenches open,
resulting in the water damage to the Hunts' property.
Finally, the indemnity complaint alleged that Hatch and the
Town of Taylor settled the lawsuit with the Hunts to avoid
litigation costs. Hatch claimed that Solomon, who was not a
party to the settlement agreement, was liable to Hatch for
Solomon filed an answer and counterclaim denying liability
and alleging that Hatch was not entitled to indemnification
because he also was negligent and because the statute of
limitations had run on the Hunts' claim against Solomon
before the settlement agreement was signed. Both parties
filed motions for summary judgment. Hatch submitted his own
declaration and declarations from a civil engineer who had
inspected the work site and from the attorney who represented
Hatch in the settlement with the Hunts. Solomon submitted his
own affidavit. After oral argument, the trial court granted
Hatch's motion for partial summary judgment on
Solomon's indemnity liability and denied Solomon's
motion for summary judgment.
Solomon filed motions to reconsider, asserting newly
discovered evidence. He submitted an inspection report and an
affidavit from an engineer regarding sewer line approval. The
trial court authorized Hatch to respond to the motions. Hatch
submitted a second personal declaration, along with
declarations from an engineer and also a legal secretary who
had worked for the firm representing Hatch during settlement
negotiations. After oral argument, the court denied the
motions to reconsider. The trial court later granted
Hatch's motions for summary judgment on damages and on
the counterclaim, and entered judgment in favor of Hatch in
the amount of $263, 697.65, plus costs, as well as attorney
fees in the amount of $51, 997.40.
Solomon timely appeals, and we have jurisdiction under
Arizona Revised Statutes ("A.R.S.") sections
12-120.21(A)(1) and 12-2101(A)(1).
Solomon challenges the summary judgment holding him liable on
Hatch's indemnity claim. We review a trial court's
grant of summary judgment de novo, "viewing the evidence
and reasonable inferences in the light most favorable to the
party opposing the motion." Felipe v. Theme Tech
Corp., 235 Ariz. 520, 528, ¶ 31 (App. 2014)
(quoting Andrews v. Blake, 205 Ariz. 236, 240,
¶ 12 (2003)). A trial court "shall grant summary
judgment if the moving party shows that 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.
Consideration of the Statute of Limitations
To address Solomon's arguments on appeal, a timeline of
pertinent dates is instructive:
• April 2007 - Solomon began work installing sewer lines
on Hatch's property.
• July 19, 2007 - A large rainfall occurred, and Hatch
was informed that muddy water had appeared in the sewer line.
Hatch informed Solomon of the muddy water and Solomon assured
Hatch he would take preventative measures.
• July 22, 2007 - A second large rainfall occurred,
overwhelming the sewer system, flooding the Hunts' home
and causing extensive damage.
• July 15, 2008 - The Hunts filed a complaint against
Hatch, Solomon, and the Town of Taylor, seeking damages for
the harm ...