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Santorii v. Martinezrusso, LLC

Court of Appeals of Arizona, First Division

August 23, 2016

TAMMY DIANNE SANTORII, individually, as surviving wife of MARK ANTHONY SANTORII as statutory plaintiff for herself and on behalf of all surviving statutory beneficiaries of MARK ANTHONY SANTORII, deceased, Plaintiff/Appellant,
v.
MARTINEZRUSSO, LLC dba RE/MAX PROFESSIONALS, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County No. CV2013-051647 The Honorable John R. Hannah, Judge

          Beale Micheaels Slack & Shughart, PC, Phoenix By K. Thomas Slack, Tracy A. Gromer Counsel for Plaintiff/Appellant

          Jones Skelton & Hochuli, PLC, Phoenix By William D. Holm, Jonathan Paul Barnes, Jr., Jessica J. Kokal Counsel for Defendants/Appellees

          Presiding Judge Kent E. Cattani delivered the opinion of the Court, in which Judge Samuel A. Thumma and Judge Randall M. Howe joined.

          OPINION

          CATTANI, Judge

         ¶1 This is a wrongful death case in which we address whether Arizona's real estate statutes and regulations establish-as a matter of law-that the relationship between real estate brokers and their salespersons is one of employer and employee. We conclude that although the statutes and regulations impose on a broker the responsibility to closely supervise a real estate transaction and the documentation of that transaction, they do not establish the requisite control over other aspects of a salesperson's activities (such as driving to and from sales appointments), and thus do not dictate an employer-employee relationship as a matter of law. We thus affirm the superior court's order granting summary judgment to MartinezRusso, LLC dba RE/Max Professionals ("MartinezRusso") on the basis that the agent involved in a car accident, Sergio Horcos, was not an employee and thus, MartinezRusso was not vicariously liable for his alleged negligence.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Horcos was returning from a real estate sales appointment when the car he was driving crossed the center line and struck Tammy Santorii's husband's tractor-trailer. Both men died in the collision.

         ¶3 Santorii brought a wrongful death lawsuit against MartinezRusso, alleging that MartinezRusso was vicariously liable for Horcos's negligence.[1] Following the close of discovery, MartinezRusso filed a motion for summary judgment, arguing it could not be liable for Horcos's actions because he was an independent contractor, not an employee. Santorii filed a cross-motion for partial summary judgment, seeking a declaration that MartinezRusso was vicariously liable as a matter of law.

         ¶4 The superior court granted MartinezRusso's motion and denied Santorii's motion. After the court certified its ruling under Arizona Rule of Civil Procedure 54(b), Santorii timely appealed.

         DISCUSSION

         ¶5 Santorii argues that the superior court improperly granted summary judgment to MartinezRusso. She asserts - as she did in her cross-motion for summary judgment-that real estate brokers should be held liable as a matter of law for their salespersons' negligence. She further asserts that summary judgment in favor of MartinezRusso was improper because there were questions of fact regarding whether Horcos was an employee or an independent contractor, even though Horcos's contract specified that he was an independent contractor paid solely by commission.

         ¶6 We review the grant of summary judgment de novo, considering the facts in the light most favorable to the non-moving party. US Airways, Inc. v. Qwest Corp., 238 Ariz. 413, 420, ¶ 25 (App. 2015). Summary judgment is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).

         I. Employment Relationship as a Matter of Law.

         A. Arizona's Real Estate ...


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