                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


    MERITAGE HOMES OF ARIZONA, INC., an Arizona corporation
                      Plaintiff/Appellee,

                                        v.

 BINGHAM ENGINEERING CONSULTANTS, LLC., an Arizona limited
                   liability corporation,
                    Defendant/Appellant.

                             No. 1 CA-CV 13-0072
                               FILED 06-10-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2010-005656
              The Honorable Katherine M. Cooper, Judge

                                  AFFIRMED


                                   COUNSEL

Lewis Brisbois Bisgaard & Smith LLP, Phoenix
By James K. Kloss
Counsel for Appellant

Stinson Morrison Hecker LLP, Phoenix
By Jennifer Allen, James E. Holland, Jr.
Counsel for Appellee
                        MERITAGE v. BINGHAM
                         Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge John C. Gemmill and Judge Randall M. Howe joined.


T H U M M A, Judge:

¶1            Defendant Bingham Engineering Consultants, LLC
(Bingham) appeals from the grant of summary judgment in favor of
plaintiff Meritage Homes of Arizona, Inc. (Meritage) on breach of contract,
negligence and negligent misrepresentation claims and an award of
$353,585.21 for damages, attorneys’ fees and sanctions. Finding no
reversible error, the judgment is affirmed.

                FACTS 1 AND PROCEDURAL HISTORY

¶2           For more than two decades, Bingham, owned by Dan
Bingham, has provided residential engineering services for various
companies. Starting in the mid-1990s, Bingham provided such services to
Meritage and at times was Meritage’s exclusive provider of such services.
In October 2003, Bingham sent Meritage a written proposal agreeing to
provide “structural engineering consulting services for post tensioned slab
on grade foundation systems for Hancock Communities 900 series of
plans.” Specifically, Bingham agreed to provide structural designs to
convert a Meritage one-story home design without a basement into a
design “with a basement.”

¶3           The design Bingham provided to Meritage included floor
trusses that supported the kitchen floor over the basement. Although
Bingham’s design called for the trusses to have an adequate “dead load”
for some surface materials, it was inadequate for a home with tile flooring
and granite countertops. Meritage used the Bingham design to build three
homes with basements underneath, and installed tile flooring and granite
countertops in the kitchens. Meritage then received complaints from the
homeowners regarding “bouncy” floors in these three homes. After


1This court “view[s] the evidence and reasonable inferences in the light
most favorable to” Bingham. Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12, 69
P.3d 7, 11 (2003).



                                    2
                         MERITAGE v. BINGHAM
                          Decision of the Court

investigating the complaints, Meritage discovered Bingham’s design was
inadequate for a home with tile flooring and granite countertops. Meritage
then sought to remedy the defect and, to date, Meritage has remedied the
problem in one home.

¶4            In 2010, Meritage brought this action against Bingham for
breach of contract, negligence, negligent misrepresentation and
indemnity. After discovery and briefing, the superior court granted
summary judgment for Meritage on its breach of contract, negligence and
negligent misrepresentation claims and on damages. The court awarded
Meritage $173,648.30 in compensatory damages; $155,877.45 in attorneys’
fees pursuant to Arizona Revised Statute (A.R.S.) section 12-341.01 (2014); 2
$19,059.46 in expenses (including taxable costs) and $5,000 in sanctions, all
with interest at 4.5 percent until paid in full. After additional briefing, the
superior court entered an amended final judgment nunc pro tunc
reflecting these awards and stating that “[n]o further matters remain
pending and this Judgment is entered pursuant to Ariz. R. Civ. P. 54(c),”
indicating the indemnity claim also had been resolved. This court has
jurisdiction over Bingham’s timely appeal pursuant to A.R.S. § 12-
2101(A)(1)-(A)(5)(a).

                               DISCUSSION

¶5            Bingham argues the superior court erred: (1) by granting
summary judgment on Meritage’s breach of contract, negligence and
negligence misrepresentation claims and (2) in awarding damages,
attorneys’ fees and sanctions. This court addresses these issues in turn.

I.     The Superior Court Properly Granted Summary Judgment On
       Meritage’s Claims.

¶6           Summary judgment is appropriate “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. P.
56(a). This court reviews the grant of summary judgment de novo.
Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12, 69 P.3d 7, 11 (2003).

¶7            Although challenging entry of summary judgment on the
contract claim, Bingham “does not deny that some form of contractual
relationship exists between Meritage and Bingham.” An enforceable

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                      3
                         MERITAGE v. BINGHAM
                          Decision of the Court

contract requires: (1) an offer; (2) an acceptance; (3) consideration and (4)
“sufficient specification of terms so that the obligations involved can be
ascertained.” Savoca Masonry Co. v. Homes & Son Const. Co., 112 Ariz. 392,
394, 542 P.2d 817, 819 (1975). The first three requirements clearly are met
here: Bingham provided a written offer to Meritage to provide “structural
engineering consulting services” and “structural calculations and drafting
of the post tensioned slab on grade systems including details;” Meritage
accepted that offer and Bingham provided the design and “was
compensated for its services” by Meritage.

¶8             The superior court found “Bingham breached the contract
by admittedly providing inadequate designs,” concluding that the
contract placed upon Bingham an obligation to provide adequate designs.
On appeal, Bingham argues that the only applicable obligation it could
have breached was “an implied contractual duty to indemnify;” “an
implied covenant;” “the implied warranty of habitability and
workmanlike performance” or “an implied warranty.” Contrary to
Bingham’s arguments, Arizona recognizes that contracts may have
implied-in-fact terms, which “are derived from the behavior of the parties
and are treated in the same way as ‘express’ terms.” E. Allen Farnsworth,
Contracts § 7.16 at 485 (4th ed. 2004). A claim for a breach of an implied-in-
fact term is a suit based on the contract between the parties. See Ramsey Air
Meds, L.L.C. v. Cutter Aviation Inc., 198 Ariz. 10, 17 ¶ 34, 6 P.3d 315, 322
(App. 2000). The question, then, is whether the superior court erred in
finding that Bingham had an implied-in-fact obligation to provide
adequate designs.

¶9            The record before the superior court shows that Bingham
and Meritage have a long history of business relations, with Bingham
providing structural engineering services to Meritage for many years and
serving as the exclusive provider for several years. During that
relationship, and in more than 30 years of business, “Bingham ha[d] never
designed a home that was not capable of supporting tile floors and granite
countertops.” Bingham testified that, when preparing designs for a home,
he assumed “whatever the worst case condition would be,” meaning that
the design needed to be structurally capable of supporting whatever
flooring and countertop that could be used. The court properly could
consider these facts in determining the terms of the parties’ contract.
AROK Const. Co. v. Indian Const. Servs., 174 Ariz. 291, 297, 848 P.2d 870,
876 (App. 1993) (terms of a construction contract are found in “the
agreement itself or by commercial practice or other usage or custom”).




                                      4
                         MERITAGE v. BINGHAM
                          Decision of the Court

¶10            In his deposition, Bingham admitted that it was always the
intent to provide a design that was capable of having tile floors and
Bingham should have “anticipate[d] whatever loadings could” have been
used by Meritage. He stated “I believe we should have anticipate[d] the
granite loading and the tile loading combined, and that the truss loading
should have been increased for that,” adding “[a]s an engineer, I think we
should anticipate whatever loadings could be used.” Bingham further
testified that “I’m already on record as stating that in this particular case,
we should have anticipated the higher loading;” admitting that he “had
not anticipated the loadings that were there” and agreed that, “in other
words, [the truss] calculations were wrong.”

¶11            On this record, the superior court properly concluded the
contract placed upon Bingham not only an obligation to provide designs
but an implied-in-fact obligation to provide adequate designs. See Flagstaff
Affordable Hous. Ltd. v. Design Alliance, Inc., 223 Ariz. 320, 328 ¶ 40, 223
P.3d 664, 672 (2010) (“Architectural contracts generally include
compliance with applicable building codes and other legal design
requirements as an implied term.”); Ramsey Air Meds, L.L.C., 198 Ariz. at
17 ¶ 34, 6 P.3d at 322 (“For example, when a builder contracted with a
plumbing company to install plumbing fixtures in fifty new houses, the
contract contained an implicit promise that the fifty new houses would be
built.”); Zancanaro v. Cross, 85 Ariz. 394, 398, 339 P.2d 746, 749 (1959) (“An
implied promise arising out of the expressed provisions of the contract is
as much a part of the contract as a written one.”).

¶12           Particularly given these candid admissions, on this record,
the superior court properly concluded that Bingham breached an implied-
in-fact contract term to provide adequate designs and that Meritage was
damaged as a result. See, e.g., Thunderbird Metallurgical, Inc. v. Ariz. Testing
Labs., 5 Ariz. App. 48, 50, 423 P.2d 124, 126 (1967) (“In an action on a
contract plaintiff has the burden of proof to show, 1) a contract, 2) a
breach, and 3) damages.”). Accordingly, the superior court did not err in
granting Meritage summary judgment on its breach of contract claim.

¶13          On appeal, Bingham attempts to argue for the first time that
Meritage’s negligence and negligent misrepresentation claims are barred
by Arizona’s economic loss doctrine as set forth in Flagstaff Affordable
Housing Ltd., 223 Ariz. at 320, 223 P.3d at 664. In briefing before the
superior court addressing the various summary judgment motions,
Bingham made no such economic loss doctrine argument. Moreover, in
seeking reconsideration of the order granting Meritage summary
judgment on its contract, negligence and negligent misrepresentation


                                       5
                         MERITAGE v. BINGHAM
                          Decision of the Court

claims, Bingham argued that “Meritage is wrong in arguing that Flagstaff
applies to bar their tort claims and permit them to succeed on their
contract claims,” adding that “[u]nder these facts, only a tort-based claim
can be pursued.” Having failed to present to the superior court the
economic loss doctrine argument it seeks to press on appeal, and having
taken a position contrary to that doctrine with the superior court, this
court will not address Bingham’s economic loss doctrine argument on
appeal. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994)
(“[A]bsent extraordinary circumstances, errors not raised in the trial court
cannot be raised on appeal.”). 3

II.    The Superior Court Properly Calculated Damages, Attorneys’
       Fees And Sanctions.

¶14         Bingham argues the superior court erred in awarding
Meritage damages on summary judgment, awarding Meritage attorneys’
fees pursuant to A.R.S. § 12-341.01 and imposing $5,000 in sanctions
against Bingham. Finding no error, the superior court’s orders are
affirmed.

       A.     Damages.

¶15          The superior court awarded Meritage $173,648.30 in
damages. On appeal, Bingham argues the court erroneously relied on
“inadmissible hearsay” in granting summary judgment on damages. 4

¶16        In seeking summary judgment on damages, Meritage
provided Arizona Rule of Civil Procedure 80(i) declarations from

3The summary judgment from which Bingham appeals did not address
Meritage’s indemnity claim and the record does not indicate Bingham
challenged entry of judgment on that claim. Accordingly, this court will
not address that claim on appeal. See Trantor, 179 Ariz. at 300, 878 P.2d at
658.

4 The additional arguments regarding damages that Bingham seeks to
raise in its reply on appeal are deemed waived. See State v. Moody, 208
Ariz. 424, 452 n.9 ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (noting failure to
assert an argument in an opening brief on appeal “usually constitutes
abandonment and waiver of that claim”); see also State v. Guytan, 192 Ariz.
514, 520 ¶ 15, 968 P.2d 587, 593 (App. 1998).




                                      6
                         MERITAGE v. BINGHAM
                          Decision of the Court

Meritage warranty and service manager Paul Pritts, who “declare[d]
under penalty of perjury” that the information in the declarations was
“true and correct.” Pritts declared “upon my personal knowledge and
records created and maintained by Meritage in the ordinary course of
business” that Bingham’s breach resulted in various types of damages that
Pritts specified and quantified in one of his declarations. Although the
Pritts declarations did not attach supporting documentation, Bingham has
not shown how Pritts’ declarations consisted of inadmissible conclusions
or could not have been relied upon by the superior court. See Ariz. R.
Evid. 601, 602, 603, 803. Moreover, the authority relied upon by Bingham
regarding documentation is distinguishable. See, e.g., Villas at Hidden Lakes
Condos. Ass’n v. Geupel Constr. Co., 174 Ariz. 72, 82, 847 P.2d 117, 127 (App.
1992) (finding, unlike this case, that affidavit offered to support
admissibility of attached documents did “not lay a foundation for either
the admission in evidence of the exhibits or the admission of his
conclusions based on the exhibits”). Accordingly, the superior court
properly considered Pritts’ declarations.

       B.     Attorneys’ Fees.

¶17            The superior court awarded $155,877.45 in attorneys’ fees to
Meritage pursuant to A.R.S. § 12-341.01. Contrary to Bingham’s argument
that this case “does not arise out of contract,” the superior court properly
found that the case does arise out of contract, making Meritage eligible for
an award of attorneys’ fees. See A.R.S. § 12-341.01; see also Cahn v. Fisher,
167 Ariz. 219, 221-22, 805 P.2d 1040, 1042-43 (App. 1990) (finding breach of
an implied-in-fact term of a contract arose out of contract). When a party
is eligible for an award of attorneys’ fees, the amount awarded is
reviewed for an abuse of discretion. Fisher v. Nat’l Gen. Ins. Co., 192 Ariz.
366, 370 ¶ 13, 965 P.2d 100, 104 (App. 1998). Bingham has not supported
its claim that the superior court failed to consider appropriate factors in
awarding fees to Meritage. See Associated Indem. Corp. v. Warner, 143 Ariz.
567, 570, 694 P.2d 1181, 1184 (1985). On this record, the superior court did
not err in awarding Meritage attorneys’ fees under A.R.S. § 12-341.01(A).

       C.     Sanctions Against Bingham.

¶18            The superior court imposed a $5,000 sanction against
Bingham. This court views “the evidence in a manner most favorable to
sustaining the award and [will] affirm unless the trial court’s finding that
the action can be so characterized is clearly erroneous.” Phx. Newspapers,
Inc. v. Dep’t of Corr., 188 Ariz. 237, 243, 934 P.3d 801, 807 (App. 1997). The




                                      7
                        MERITAGE v. BINGHAM
                         Decision of the Court

superior court made detailed findings in imposing sanctions and
concluded that:

             Bingham violated A.R.S. § 12-349 by 1)
             defending a claim without substantial
             justification, 2) asserting defenses primarily for
             delay, 3) unreasonably expanding and
             delaying proceedings, and 4) abusing the
             discovery process.

                     Bingham further violated Rules 11,
             26(F), and 37 by denying liability in its Answer,
             discovery responses, disclosure statements,
             and summary judgment responses and
             continuing to deny liability in the wake of the
             sworn testimony of its own witnesses.
             Regardless of its comparative fault argument,
             Bingham should have narrowed the issues to
             be litigated by acknowledging the facts and its
             own responsibility.

Based on these findings, which are supported by the record, the court did
not err in imposing a $5,000 sanction against Bingham.

III.   Meritage Is Entitled To Costs And Attorneys’ Fees On Appeal.

¶19           Meritage seeks costs and attorneys’ fees on appeal under
A.R.S. § 12-341.01 as well as sanctions on appeal under various other
provisions. In exercising this court’s discretion, Meritage is awarded costs
and reasonable attorneys’ fees upon compliance with Arizona Rule of
Civil Appellate Procedure 21. In exercising this court’s discretion,
Meritage’s request for sanctions on appeal is denied.

                             CONCLUSION

¶20          The superior court’s judgment is affirmed.




                                     :gsh




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