UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Margaret H. Downie joined.
G O U L D, Judge:
1
MTR Builders Inc. (Contractor) and Jahan Realty
Management Corporation (Owner) both appeal from a jury verdict
declaring Owner breached the parties contract and awarding Contractor
$52,129.18 in damages. For the following reasons we affirm the verdict and
rulings of the trial court.
FACTS AND PROCEDURAL BACKGROUND
2
In December 2009, Owner and Contractor entered a
construction contract to build a shell building for retail space in Tempe.
The construction contract contained a draw schedule of five progress
payments outlining the amounts Owner would pay Contractor at
predetermined stages of construction.1 The project progressed and
Contractor reached completion of the fifth and final phase of construction.
3
On June 1, 2011, Contractor emailed Owner with an invoice
seeking payment of Draw 5 and requesting a final walkthrough. Owner
responded via email on June 10 stating that a few outstanding matters
needed to be resolved pursuant to the contract before scheduling a final
walkthrough; Owner requested issuance of a Certificate of Occupancy by
the City of Tempe and final written approval by the Owners appointed
third-party inspector.
4
Owner and its architect, who acted as the third-party
inspector, walked through the building and created a punch list that was
sent to Contractor on June 29, 2011. Contractor responded on July 12,
stating (1) it had remedied all punch-list items for which it was
contractually responsible, and (2) requesting Owners inspector to reinspect the property and issue final approval. However, the inspector
During the course of construction the parties signed an amendment
to the contract extending the completion date and increasing payment to
Contractor for various change orders.
1
17
We review an award of summary judgment de novo, both as
to whether there are any genuine issues of material fact and as to whether
the moving party is entitled to judgment as a matter of law. Greenwood v.
State, 217 Ariz. 438, 442, 13 (App. 2008). [W]e view the facts in a light
most favorable to the party opposing the motion. Nelson v. Phoenix Resort
Corp., 181 Ariz. 188, 191 (App. 1994). We will affirm if the trial courts ruling
is correct for any reason. Hawkins v. State, 183 Ariz. 100, 103 (App. 1995).
18
The trial court granted Owners motion for summary
judgment on the Prompt Pay Act claim. It concluded that Contractors
request for payment was premature and that Owner timely objected to the
request for payment. On cross-appeal, Contractor argues the trial court
erred in granting summary judgment to Owner. Contractor contends
Owner never issued a written statement within the terms of the act to notify
Contractor it would not approve the billing.
19
Under the Prompt Pay Act an owner is required to make final
payment to the contractor within seven days after the billing or estimate
for final payment is certified and approved. Arizona Revised Statutes
(A.R.S.) 32-1129.01(A). The contractor shall submit its billing [o]n final
completion of the work. A.R.S. 32-1129.01(K). The Act defines final
completion to mean either (1) when the work has been completed in
accordance with the terms and conditions of the construction contract, or
(2) the date of final inspection and final written acceptance by the
governmental body that issues the building permit. A.R.S. 321129(A)(3).
25
We review the courts ruling on a motion for directed verdict
de novo. Dawson v. Withycombe, 216 Ariz. 84, 95, 25 (App. 2007). In our
review, we view the evidence and all reasonable inferences drawn from
the evidence in a light most favorable to the non-moving party, and will
reverse a courts denial only upon a showing that there is no probative
6
34
In determining whether a jury instruction is justified, we
must view the evidence in the strongest manner supporting the theory of
the party requesting the instruction. Pioneer Roofing Co. v. Mardian Constr.
Co., 152 Ariz. 455, 462 (App. 1986). The instruction should be given if there
is any evidence tending to establish the theory, even if contradictory
facts are also presented. Id.
35
Owner argues the court erred in instructing the jurors they
could find in favor of Contractor if they found Contractor had substantially
performed the contract.5 Owner also contends Contractor anticipatorily
repudiated the contract when it prematurely sought final payment thereby
freeing Owner of any obligation to further perform.
36
The court properly instructed the jury on both substantial
performance and anticipatory breach. Evidence was presented at trial that
could support either theory. See Golonka v. General Motors Corp., 204 Ariz.
:ama
10