                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                     BERNA BOLAND, Plaintiff/Appellant,

                                         v.

      DISCOUNT TIRE COMPANY INC, et al., Defendants/Appellees.

                              No. 1 CA-CV 16-0370
                                FILED 12-21-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV2012-007848
              The Honorable J. Richard Gama, Judge, Retired

                                   AFFIRMED


                                    COUNSEL

McAllister Law Firm PC, Glendale
By Michael L. McAllister
Co-Counsel for Plaintiff/Appellant

Rowley Chapman Barney & Buntrock LTD, Mesa
By Kevin J. Chapman
Co-Counsel for Plaintiff/Appellant
Lewis Brisbois Bisgaard & Smith LLP, Phoenix
By Matthew D. Kleifield, Robert C. Ashley
Co-Counsel for Defendants/Appellees

Lowis & Gellen LLP, Phoenix
By Galen H. Satterlee, C. J. Gibbs
Co-Counsel for Defendants/Appellees

Discount Tire Company, Scottsdale
By Christian K. G. Henrichsen
Co-Counsel for Defendants/Appellees


                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Margaret H. Downie (retired)
joined.


B R O W N, Judge:

¶1           Berna Boland appeals the superior court’s judgment in favor
of Discount Tire Company, Inc. and Discount Tire Direct, Inc. (collectively,
“Discount Tire”). She argues the court erred by denying her two motions
to amend and granting Discount Tire’s motion for summary judgment. For
the following reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             This litigation arises from an accident that occurred in May
2010. Boland was driving a 2003 Mazda B3000 when her vehicle’s right rear
tire failed, causing an immediate loss of air (blowout) due to a tread
puncture. Boland lost control and suffered serious injuries as the vehicle
rolled and crashed on the pavement. Boland purchased the tires from
Discount Tire on February 14, 2009 and drove about 12,500 miles between
the date of purchase and the accident.

¶3            Boland filed a lawsuit in the superior court in May 2012, and
filed an amended complaint shortly thereafter, prior to serving any of the
named defendants. From the outset of the litigation, Boland focused on a
product liability claim against Goodyear, which manufactured the tire, and
Discount Tire, as the distributor. But Boland also included a claim against



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                   BOLAND v. DISCOUNT TIRE, et al.
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Discount Tire for negligence and negligent misrepresentation.1 The court
appointed a special master to assist with numerous discovery issues,
including establishing ground rules for testing and analysis of the damaged
tire.

¶4            In August 2014, Boland sought leave to file a third amended
complaint, alleging the following new claims against Discount Tire:
consumer fraud, fraudulent concealment, emotional distress, and breach of
the covenant of good faith and fair dealing.2 In support of her request,
Boland explained she no longer had a “strict liability case” against
Goodyear or Discount Tire, and argued in part that the amendment was
proper based on “an evolution of the original negligence case against
Discount [Tire].”3 The superior court denied Boland’s request to add any
new claims against Discount Tire and allowed her to proceed on the
negligence claim originally asserted against Discount Tire, but under an
entirely new theory—the tire blowout was ultimately caused by a tool
negligently left inside the tire when Boland purchased the tires.

¶5           In January 2016, Discount Tire moved for summary
judgment, asserting Boland could not establish through appropriate expert
testimony that a tool left inside the tire caused the blowout. The superior
court granted the motion, concluding that Boland failed to establish

1      For reasons not clear from the record, Boland filed a second
amended complaint in September 2012, without leave of the court. See Ariz.
R. Civ. P. (“Rule”) 15(a)(1)-(2). Regardless, the allegations of the second
amended complaint have no bearing on the issues raised in this appeal.

2      Boland also sought to add claims against three new parties (Ford,
Mazda, and Bell Honda), which the superior court denied. Although
Boland suggests those claims should have been allowed to move forward,
her opening brief explicitly confirms she is not seeking to overturn the
court’s ruling as to Ford or Bell Honda. And because she fails to make any
argument on appeal that the court erred in denying her third motion to
amend as it relates to Mazda, she has implicitly confirmed her intent not to
challenge that portion of the court’s ruling.

3     The superior court dismissed Boland’s claims against Goodyear in
September 2014. Boland’s product liability claim against Discount Tire was
apparently withdrawn when she filed her third amended complaint. Also,
the court dismissed Boland’s negligent misrepresentation claim against
Discount Tire in October 2015.



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                   BOLAND v. DISCOUNT TIRE, et al.
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through “admissible evidence [ ] a prima facie case of negligence” against
Discount Tire.

¶6             While the motion for summary judgment was pending,
Boland moved for leave to file a fourth amended complaint, alleging that
Discount Tire failed to warn her of the “highly dangerous consequences of
a tire disablement on her vehicle.” The court denied Boland’s motion based
on undue delay and the resulting prejudice to Discount Tire. The court then
entered judgment dismissing Boland’s claim, and awarded taxable costs to
Discount Tire in the amount of $72,676.65. Boland timely appealed.

                              DISCUSSION

             A.    Motions to Amend

¶7           Boland argues the superior court erred by denying her third
and fourth motions to amend her complaint, contending new information
had been discovered that led to new causes of action.

¶8             We review the denial of a motion to amend for an abuse of
discretion. Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 231
Ariz. 517, 519, ¶ 4 (App. 2013) (citation omitted). The superior court has
discretion whether to grant leave to amend, and will allow amendments
liberally unless it finds specific cause, such as undue delay or futility, to
deny the amendment. See Rule 15(a)(2) (“Leave to amend must be freely
given when justice requires.”). In determining whether the court abused its
discretion, we presume the truth of the facts alleged in the proposed
complaint. MacCollum v. Perkinson, 185 Ariz. 179, 185 (App. 1996). A
finding of undue delay requires more than a party merely seeking to amend
late in the proceedings. See Owen v. Superior Court, 133 Ariz. 75, 79 (1982).
Denial of leave to amend is “a proper exercise of the court’s discretion when
the amendment comes late and raises new issues requiring preparation for
factual discovery which would not otherwise have been necessitated nor
expected, thus requiring delay in the decision of the case.” Id. at 81.

¶9            In denying Boland’s request to file a third amended
complaint, the court declined to allow four new claims against Discount
Tire because the motion was unduly late and permitting the claims to move
forward would have been prejudicial. The court noted that Boland had
“completely changed the factual basis and legal focus of the negligence
claim” she had already asserted. The court determined that the newly-
asserted claims arose from factual circumstances and issues that were
present in the case since its inception. At the time of Boland’s motion, the
only claims pending against Discount Tire were for negligence, product


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                    BOLAND v. DISCOUNT TIRE, et al.
                         Decision of the Court

liability, and negligent misrepresentation. Discount Tire had been
defending these claims for almost three years by the time the court held oral
argument on the motion to amend, and Boland failed to offer any
compelling justification as to why the new claims could not have been
asserted much earlier in the litigation. Thus, we conclude the court did not
abuse its discretion by denying Boland’s attempt to add four new claims at
that stage of the litigation.4

¶10          Similarly, the superior court denied Boland’s request to file a
fourth amended complaint, in which she sought to add a negligent failure
to warn claim against Discount Tire, based on undue delay and prejudice.
The court found that Boland offered “no substantial explanation, much less
a compelling one, why this currently offered claim could not and should
not have been filed years ago.” Given the circumstances surrounding the
proposed amendment, the court acted within its discretion in denying
Boland’s motion to add the failure to warn claim.

              B.    Summary Judgment

¶11            Summary judgment is appropriate if there are no genuine
disputes of material fact and the moving party is entitled to judgment as a
matter of law. Rule 56(a). We review a grant of summary judgment de
novo and view the record in the light most favorable to the party opposing
summary judgment. Barth v. Cochise Cnty., Ariz., 213 Ariz. 59, 61, ¶ 2 (App.
2006). When the party moving for summary judgment makes a prima facie
showing that no genuine issue of material fact exists, the burden shifts to
the opposing party to produce sufficient competent evidence to show that
there is an issue. Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 114-15, ¶ 12
(App. 2008). Finally, “[w]e will affirm if the trial court’s disposition is
correct for any reason.” Logerquist v. Danforth, 188 Ariz. 16, 18 (App. 1996).

¶12          In its motion for summary judgment (accompanied by a
separate statement of facts), Discount Tire asserted that (1) despite its
repeated requests, Boland had failed to provide expert witness testimony
meeting the admissibility standards of Arizona Rule of Evidence 702; (2)
Boland’s theory of liability required expert testimony because it depends


4       Although we find no abuse of discretion on the grounds discussed
here, we do not address other findings made by the superior court that do
not affect our decision, such as the determination that the new claims “do
not relate back to the initial complaint.” See Tumacacori, 231 Ariz. 517, 519,
¶ 4 (recognizing, in the context of a motion to amend, that an appellate court
will affirm a trial court’s decision if it is correct for any reason).


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                   BOLAND v. DISCOUNT TIRE, et al.
                        Decision of the Court

on technical and engineering knowledge; (3) a qualified expert must
provide evidence of how an object left inside a tire can cause a blowout
because making that connection was beyond the common knowledge of a
jury; and (4) the theory of res ipsa loquitur, which permits an inference of
negligence, was inapplicable.

¶13            In her response (with no separate statement of facts), Boland
stated that affidavits would follow, but asserted (1) her attached disclosure
statements provided ample evidence that Discount Tire was negligent; (2)
no expert testimony was necessary to establish causation; and (3) the
superior court should first rule on her pending motion for judgment on the
pleadings to determine whether Discount Tire had waived all affirmative
defenses.5 Boland asserted that “[i]t turns out that a layman could
determine the tire failed from the inside” but that how it failed “needed to
be answered by using various techniques, analyses, and it has resulted in a
very powerful set of opinions, unrebutted in this case.” She asserted,
however, there was no requirement that she provide expert testimony
before Discount Tire is required to disclose “facts and theories” underlying
its defense. Nonetheless, Boland asserted that she would “have affidavits
from her experts shortly.” She did not request additional time in which to
file her response, nor did she file a “request for relief and expedited
hearing” under Rule 56(f),6 which would have allowed her to explain why
she was unable at the time to “present evidence essential to justify [her]
opposition.”

¶14            Discount Tire replied that Boland failed to present any
evidence that would raise a triable issue of fact on causation and that
Boland was precluded under Rule 7.1(a) from filing her expert witness
affidavits at a later time. Thus, according to Discount Tire, Boland failed to
controvert the motion for summary judgment with admissible evidence.
See Dietz v. Lopez, 179 Ariz. 355, 356 (App. 1994) (“A motion for summary
judgment must be granted if the party with the burden of proof . . . presents
no admissible evidence which creates a material issue of fact.”). Boland

5     Boland attached her preliminary expert disclosure statement,
discovery responses, an amended disclosure statement, and a declaration
of counsel indicating in part that expert witness affidavits could not be
secured within the time required for a response and that “further facts,
circumstances and matters will be placed in a Statement of Facts” as is
necessary and appropriate.

6      Rule 56(f) was re-numbered as Rule 56(d), effective January 1, 2017.
As relevant here, the two versions are not materially different.


                                      6
                   BOLAND v. DISCOUNT TIRE, et al.
                        Decision of the Court

then filed her supplemental response, which included the affidavits of her
two experts opining as to how a tool left in the tire eventually caused the
tire to fail.

¶15           In granting the motion for summary judgment, the superior
court found that “a supplemental response is not authorized by the Rules”
and that under Rule 7.1(a), affidavits that are not timely filed “should not
be considered.” The court also found that the “mechanism of failure”
alleged to have caused the tire blowout is not within the “common
knowledge or understanding of a typical juror such that a jur[or] may infer
negligence.” The court therefore concluded that expert testimony was
required to establish causation and that res ipsa loquitur was inapplicable.
Further, the court found there was “an absence of admissible evidence”
connecting Discount Tire’s alleged practices in installing the tire on
Boland’s vehicle to the “proximate cause of the tire’s subsequent puncture
and failure. At best there is alleged a speculative link.” Thus, the court
concluded that Boland failed to meet her “burden of production to establish
admissible evidence of a prima facie claim of negligence.” On appeal, Boland
argues the court erred in (1) disregarding her supplemental response
because it improperly applied Rule 7.1, and (2) finding that expert
testimony was required and res ipsa loquitur was not applicable.7

             1.     Supplemental Response

¶16       Rule 7.1(a)8 permits the filing of a motion accompanied by a
memorandum, an answering memorandum, and reply memorandum.

7       Given our conclusion that Boland failed to timely present admissible
expert witness evidence supporting her negligence claim, we need not
specifically address the superior court’s finding that she also failed to
present admissible evidence showing anything more than a “speculative
link” between Discount Tire’s alleged practices in installing the tire on
Boland’s vehicle and the cause of the blowout. Additionally, we do not
address Boland’s argument that the court erred in failing to consider her
motion for judgment on the pleadings filed after Discount Tire filed its
motion for summary judgment. By granting summary judgment and
concluding that Boland failed to meet her burden of establishing a prima
facie case of negligence against Discount Tire, the court implicitly denied
Boland’s motion for judgment on the pleadings.

8   We cite the version of Rule 7.1 as it was in effect at the time of the
summary judgment proceedings. The current version, adopted as of



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                    BOLAND v. DISCOUNT TIRE, et al.
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Additionally, “affidavits supporting the motion shall be filed and served
together with the motion.” Rule 7.1(a). We review rulings under Rule 7.1
for abuse of discretion, Schwab v. Ames Const., 207 Ariz. 56, 60, ¶ 17 (App.
2004), which is discretion that is “manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons,” Tilley v. Delci, 220 Ariz. 233,
238, ¶ 16 (App. 2009).

¶17           Without citation to authority, Boland asserts that application
of Rule 7.1(a) is not mandatory and thus she could properly continue
responding to Discount Tire’s motion for summary judgment before oral
argument or the court’s ruling. But nothing in the rule permits the filing of
supplemental evidence in support of a memorandum without a court order.
Rule 7.1(a); see Bohmfalk v. Cochise Cnty., 2 CA-CV 2015-0137, 2016 WL
3434717, at *5, ¶¶ 29-31 (Ariz. App. June 20, 2016) (mem. decision) (finding
the superior court did not abuse its discretion in granting a motion to strike
supplemental facts in response to a motion for summary judgment). Given
the plain language of the rule and the posture of the litigation, together with
Boland’s failure to file a Rule 56(f) request for relief, the superior court did
not abuse its discretion in declining to consider Boland’s supplemental
response. Thus, Boland did not submit admissible expert testimony in
response to the motion for summary judgment, which means her
negligence claim fails if such evidence was required to support her claim.

              2.     Res Ipsa Loquitur/Expert Testimony

¶18           A plaintiff asserting negligence must prove: “(1) a duty
requiring the defendant to conform to a certain standard of care; (2) a breach
by the defendant of that standard; (3) a causal connection between the
defendant’s conduct and the resulting injury; and (4) actual damages.”
Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). The plaintiff bears the burden
of proof on the issue of proximate cause, which is described as a “natural
and continuous sequence, unbroken by any efficient intervening cause,
produces an injury, and without which the injury would not have
occurred.” Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546 (1990).
Summary judgment may be granted when the “plaintiff’s evidence does not
establish a causal connection, leaving causation to the jury’s speculation, or
where reasonable persons could not differ on the inference derived from
the evidence . . . .” Id. Boland argues that in addition to “circumstantial
evidence, the principles of res ipsa loquitur could apply here,” asserting that



January 1, 2017, is not materially different as it relates to the issues
presented here.


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                    BOLAND v. DISCOUNT TIRE, et al.
                         Decision of the Court

“[m]ost people could easily conclude that a tire failing from the inside
would indicate negligence.”

¶19          “Res ipsa loquitur (meaning the thing speaks for itself) is a rule
of circumstantial inference of responsibility for an injury.” Lowrey v.
Montgomery Kone, Inc., 202 Ariz. 190, 192, ¶ 6 (App. 2002). Under Arizona
law, the elements of res ipsa loquitur are:

       (1) the accident must be of a kind that ordinarily does not
       occur in the absence of negligence;

       (2) the accident must be caused by an agency or
       instrumentality subject to the control of the defendant; and

       (3) the plaintiff must not be in a position to show the
       particular circumstances that caused the offending agency or
       instrumentality to operate to her injury.

Id. at ¶ 7. “A plaintiff who establishes the elements of res ipsa loquitur can
avoid summary judgment and reach the jury without direct proof of
negligence.” Id. at ¶ 6. The preliminary question of whether res ipsa loquitur
applies is a question of law for the court. Id. Even assuming that Boland
presented admissible evidence in the summary judgment proceedings to
establish the second and third elements of res ipsa loquitur, she has not
presented admissible evidence establishing the first element.

¶20             When there is “no fund of common knowledge” that would
permit a layperson to reasonably conclude that an accident could not have
occurred in absence of negligence, “the parties may provide the evidence.”
Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 355 (App. 1994). And
“[u]nless it is within the layperson’s common experience, a showing that a
plaintiff’s injury is ‘of a kind which ordinarily does not occur in the absence
of someone’s negligence’ requires expert evidence.” Id. (citation omitted)
(emphasis added).

¶21             Here, we agree with the superior court that Boland needed
expert testimony to support her claim because her theory of negligence is
outside a layperson’s knowledge or experience. Without expert testimony,
the causal links between a tool allegedly left in a tire and the subsequent
tire failure is based only on speculation. Boland does not cite, nor are we
aware of, any authority supporting the notion that a common fund of
knowledge or experience exists involving circumstances like those alleged
here—a tool left inside a tire that eventually punctures the tire, causing a
blowout. See id. (recognizing that merely because an accident is rare does


                                      9
                     BOLAND v. DISCOUNT TIRE, et al.
                          Decision of the Court

not lead to the application of res ipsa loquitur.); cf. Brookover v. Roberts Enters.,
Inc., 215 Ariz. 52, 58, ¶ 21 (App. 2007) (finding that plaintiffs failed to show,
without expert testimony or an assumption of common knowledge, that
their automobile collision with a cow in open range territory was the type
of accident that would not occur absent negligence by the owner of the
cow).

¶22           To survive summary judgment, Boland needed to present
admissible evidence establishing a reasonable inference that the tire sold to
her by Discount Tire would not have failed absent negligence by Discount
Tire. She could not make that showing without providing expert testimony
and thus she failed to meet that burden. See Badia v. City of Casa Grande, 195
Ariz. 349, 357, ¶ 29 (App. 1999) (“Sheer speculation is insufficient to
establish the necessary element of proximate cause or to defeat summary
judgment.”); Ward, 178 Ariz. at 355 (“[T]he fact that an accident occurred is
not enough to permit an inference of negligence.”).

                                 CONCLUSION

¶23            For the foregoing reasons, we affirm the superior court’s
judgment.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




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