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Hatch Development, LLC v. Solomon

Court of Appeals of Arizona, First Division

June 21, 2016

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.

         Appeal from the Superior Court in Navajo County No. S0900CV201100592 The Honorable Robert J. Higgins, Judge

          Holden 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 Defendants/Counterclaimants/Appellants

          Judge John C. Gemmill delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.


          GEMMILL, Judge

         ¶1 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.


         ¶2 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 indemnity.

         ¶3 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.

         ¶4 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.

         ¶5 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).


         ¶6 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. Proc. 56(a).[1]

         I. Consideration of the Statute of Limitations

         ¶7 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 ...

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