Opinion
No. 1 CA-CV 16-0737
05-01-2018
JOSEPH CHUN, Plaintiff/Appellant, v. SBY 2014-1 BORROWER LLC, et al., Defendants/Appellees.
COUNSEL Keeling Law Offices, PC, Phoenix By Lynn A. Keeling Co-Counsel for Plaintiff/Appellant Rose Walker, L.L.P., Denver, CO By Paul M. Grant Co-Counsel for Plaintiff/Appellant appearing Pro Hac Vice Grasso Law Firm P.C., Chandler By Robert Grasso, Jr., Kim S. Alvarado, Stephanie L. Samuelson Counsel for Defendants/Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2015-005852
The Honorable Daniel G. Martin, Judge
AFFIRMED
COUNSEL Keeling Law Offices, PC, Phoenix
By Lynn A. Keeling
Co-Counsel for Plaintiff/Appellant Rose Walker, L.L.P., Denver, CO
By Paul M. Grant
Co-Counsel for Plaintiff/Appellant appearing Pro Hac Vice Grasso Law Firm P.C., Chandler
By Robert Grasso, Jr., Kim S. Alvarado, Stephanie L. Samuelson
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Kenton D. Jones and Judge James B. Morse Jr. joined. HOWE, Judge:
¶1 Joseph Chun, on behalf of himself and his son, E.C., appeals the trial court's grant of summary judgment in favor of SBY 2014-1 Borrower LLC and Silver Bay Property Corp (collectively "Silver Bay"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Silver Bay leased a home to Chandra Houston pursuant to a Residential Lease Agreement (the "Lease") dated September 13, 2013, for a term ending September 30, 2014. As relevant on appeal, Houston did not disclose to Silver Bay that she had a pit bull dog, and the Lease prohibited pets without Silver Bay's prior written consent. On July 24, 2014, Silver Bay sent Houston a Lease Renewal Addendum (the "Lease Renewal"), offering to extend the Lease for one year beginning on October 1. The Lease Renewal provided: "Absolutely no pets or animals of any kind shall be permitted unless expressly authorized by the Pet Addendum[.]" The Pet Addendum (attached to the Lease Renewal) provided that certain dog breeds, including pit bulls, were prohibited and required the lessee to "register any pet with Landlord in accordance with this Addendum before the pet is brought on the Premises and update this registration annually." Houston executed the Lease Renewal on August 1, 2014. Again, Houston did not disclose that she had, or requested permission to have, a pet.
¶3 On September 10, 2014, three-year-old E.C. was invited into Houston's home, where her dog attacked him. In April 2015, Chun sued Houston for strict liability under the dog bite statute, A.R.S. § 11-1025. Houston did not appear in the action and Chun lodged a default judgment against her. Chun also sued Silver Bay for negligence, and Silver Bay moved for summary judgment arguing that it owed E.C. no duty of care. In June 2016, Chun moved for additional time to conduct discovery under Arizona Rule of Civil Procedure 56(f). Chun's affidavit supporting his motion requested a subpoena to American Pools for documents identifying employees who serviced Silver Bay's pool from October 2013 through September 2014. The affidavit also requested a deposition of Houston's mother, who had been known to the parties since at least October 2015. In both cases, Chun sought to discover additional information on Silver Bay's or their alleged agents' knowledge of the dog kept at the property Houston leased. The trial court denied Chun's motion and granted summary judgment, concluding that Silver Bay did not owe E.C. a duty because it (1) was not in possession of the property and (2) was not aware that a dog was on the property. Chun timely appealed.
The Arizona Rules of Civil Procedure were revised effective January 1, 2017, to reflect comprehensive stylistic and substantive changes. To be consistent with the record below and briefing on appeal, we cite the former rules.
DISCUSSION
1. Motion for Summary Judgment
¶4 Chun argues that the trial court erred by granting Silver Bay summary judgment because Silver Bay was in possession of the Houston property on or about August 1, 2014—when Houston executed the Lease Renewal—and was obligated to remove a known danger (i.e., the dog) at that time. A motion for summary judgment should be granted "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." Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). We review de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law. Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, 289 ¶ 10 (App. 2013). We will affirm the summary judgment if it is correct for any reason supported by the record. KB Home Tucson, Inc. v. Charter Oak Fire Ins. Co., 236 Ariz. 326, 329 ¶ 14 (App. 2014).
¶5 To establish a negligence claim, a plaintiff must prove a duty requiring the defendant to conform to a standard of care, the defendant's breach of that duty, a causal connection between the defendant's conduct and the resulting injury, and damages. Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9 (2007). Whether a defendant owed the plaintiff a duty is a threshold issue; if the defendant did not, the action cannot be maintained. Id. at 143 ¶¶ 9, 11. This is a question of law that we review de novo. Stanley v. McCarver, 208 Ariz. 219, 221 ¶ 5 (2004).
¶6 A lease is regarded under the law "as equivalent to a sale of the land for the term of the lease." Restatement (Second) of Torts § 356 cmt. a (1965). "Under this concept, a tenant's right to exclusive possession of the property suspends the landlord's right of entry . . . during the term of the lease." Klimkowski v. De La Torre, 175 Ariz. 340, 342 (App. 1993) (emphasis added). Hence, as a rule, a landlord not in possession of property owes no duty to a third party who is injured on it. Alcombrack v. Ciccarelli, 238 Ariz. 538, 540 ¶ 7 (App. 2015).
¶7 Chun relies on Klimkowski to assert that Silver Bay was required to remove the dog from the property Houston leased. In Klimkowski, a landowner rented part of a five-acre parcel to a month-to-month tenant. 175 Ariz. at 341. Klimkowski, who lived next door, told the landowner that the tenant was storing gas tanks, paint, thinner, and tar paper near or in a storage shed on the property and that the tenant's young children were playing with cigarette lighters nearby. Id. Despite this knowledge, the landowner continued to lease the property to the tenant. Id. About a month later, the shed caught fire and exploded, injuring Klimkowski and his property. Id. The Klimkowski court noted the general rule that a landowner is not liable for the tenant's acts "in creating or maintaining a nuisance upon the leasehold," but concluded that an exception exists "when a landlord renews a lease or relets the premises to the same tenants after the landlord knows or should know the tenants have created a nuisance." Id. at 342. Chun's reliance on Klimkowski is misplaced. Here, Chun presented no evidence that Silver Bay knew Houston had a "vicious and dangerous pit bull" before it attacked E.C. Chun's argument relies on tenuous evidence that American Pools, the company Silver Bay retained to service the pool at the residence, knew of the dog, and that American Pools's knowledge can be imputed to Silver Bay. See Manley v. Ticor Title Ins. Co. of Cal., 168 Ariz. 568, 572 (1991) (stating the general rule that knowledge acquired by an agent in the course of employment is imputed to the principal). We disagree.
¶8 An agency relationship is characterized by the principal's consent that the agent act on its behalf and subject to its control and the agent's consent to so act. Goodman v. Physical Res. Eng'g, Inc., 229 Ariz. 25, 29 ¶ 12 (App. 2011). Although an independent contractor may be an agent, Wiggs v. City of Phx., 198 Ariz. 367, 370 ¶ 10 (2000), a non-agency independent contractor relationship exists when the element of control is missing, In re Coupon Clearing Serv., Inc., 113 F.3d 1091, 1100 (9th Cir. 1997); cf. Cook v. Orkin Exterminating Co., Inc., 227 Ariz. 331, 334 ¶¶ 14-15 (App. 2011) (finding no fiduciary relationship, which is "something approximating business agency," between homeowner and pest control company). Whether an agency relationship exists is generally a question of fact, Corral v. Fid. Bankers Life Ins. Co., 129 Ariz. 323, 326 (App. 1981), but it may be decided as a matter of law when the material facts from which the agency relationship is to be inferred are not in dispute, Cote v. A.J. Bayless Mkts., Inc., 128 Ariz. 438, 444 (App. 1981).
¶9 Chun did not meet his burden to prove an agency relationship existed between Silver Bay and American Pools. See Brown v. Ariz. Dep't of Real Estate, 181 Ariz. 320, 326 (App. 1995) ("One asserting an agency relationship has the burden of proving it."). Put simply, the record does not reflect that Silver Bay had a right to control American Pools except to require it to perform its agreement to service Silver Bay's pools. See In re Coupon Clearing Serv., 113 F.3d at 1100. And nothing required American Pools to know, much less enforce, the provisions regarding the presence of pets on Silver Bay's property or make reports regarding the presence of animals to Silver Bay.
Because we find that Silver Bay had no knowledge of Houston's dog, we need not address whether Silver Bay had a right to enter and possess the property Houston leased. --------
2. Rule 56(f) Motion
¶10 Next, Chun argues the trial court erred by denying his Rule 56(f) motion for continuance to (1) serve a subpoena on American Pools and (2) depose Houston's mother, in both cases to "discover additional information" relating to Silver Bay's and American Pools's knowledge of a dog at the property Houston leased. We review the denial of a Rule 56(f) request for an abuse of discretion. Simon v. Safeway, Inc., 217 Ariz. 330, 332 ¶ 4 (App. 2007).
¶11 A party opposing summary judgment may seek additional discovery before responding to the motion for summary judgment. See generally Ariz. R. Civ. P. 56(f). The "major objective" of Rule 56(f) is "to insure that a diligent party is given a reasonable opportunity to prepare his case." Simon, 217 Ariz. at 333 ¶ 6. Accordingly, the motion must be accompanied by an affidavit "describing the reasons justifying delay," including "the evidence outside the party's control, its location, what the party believes the evidence will show, the discovery method the party wishes to use, and an estimate of the time required to complete the discovery." Id.
¶12 Here, Chun's affidavit was insufficient because it (1) did not state the amount of time needed to complete the requested discovery and (2) requested to depose a person he had already known about many months earlier in the case. Thus, he did not show that he had been a diligent party. Chun counters that the trial court did not deny the Rule 56(f) motion based on an insufficient affidavit because the court did not state a basis for the denial. This Court, however, may affirm the trial court's decision if it is correct for any reason supported by the record. See KB Home Tucson, Inc., 236 Ariz. at 329 ¶ 14. Moreover, Chun has not provided support for his assertion in his Reply Brief that the affidavit was sufficient. Thus, the court did not abuse its discretion by denying Chun's Rule 56(f) motion.
CONCLUSION
¶13 For the foregoing reasons, we affirm. We award costs to Silver Bay upon compliance with Arizona Rule of Civil Appellate Procedure 21.