Tag Archives: Arizona Court of Appeals

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Clark, Suciu Join Jones, Skelton & Hochuli

Jones, Skelton & Hochuli, PLC announced that Andrew Clark and Kimberly Suciu have joined the firm as Associates.

Clark will focus his practice on general civil litigation and insurance defense, bad faith, personal injury and construction defect.  Clark grew up in the valley and attended the Ira A. Fulton School of Engineering at ASU prior to attending ASU law school. Prior to joining Jones, Skelton & Hochuli, Clark was a law clerk with the Arizona Corporation Commission, legal extern with the Arizona Department of Administration, a law clerk for the Yuma County Legal Defender’s Office, and legal extern with City of Mesa Prosecutor’s Office.

Suciu joins Jones, Skelton & Hochuli as an Associate focusing her practice on medical malpractice defense and general civil litigation and insurance defense. Prior to joining the firm, Suciu served as a Judicial Extern for the Honorable Patricia A. Orozco, of the Arizona Court of Appeals, Division.

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Clark, Suciu Join Jones, Skelton & Hochuli

Jones, Skelton & Hochuli, PLC announced that Andrew Clark and Kimberly Suciu have joined the firm as Associates.

Clark will focus his practice on general civil litigation and insurance defense, bad faith, personal injury and construction defect.  Clark grew up in the valley and attended the Ira A. Fulton School of Engineering at ASU prior to attending ASU law school. Prior to joining Jones, Skelton & Hochuli, Clark was a law clerk with the Arizona Corporation Commission, legal extern with the Arizona Department of Administration, a law clerk for the Yuma County Legal Defender’s Office, and legal extern with City of Mesa Prosecutor’s Office.

Suciu joins Jones, Skelton & Hochuli as an Associate focusing her practice on medical malpractice defense and general civil litigation and insurance defense. Prior to joining the firm, Suciu served as a Judicial Extern for the Honorable Patricia A. Orozco, of the Arizona Court of Appeals, Division.

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Phoenix Attorney Receives Top Appellate Award

Kathi M. Sandweiss, partner at Phoenix law firm Jaburg & Wilk, P.C has been selected as a ‘2013 Top Rated Lawyer in Appellate Law’ by American Lawyer Media and  Martindale-Hubbell.

Award recipients are selected based on peer reviews. Sandweiss has achieved the AV Preeminent peer review rating, the highest rating in legal ability and ethical standards.

Sandweiss is head of the appellate law department and has represented clients in Arizona and federal appellate courts. She has filed over 100 appellate briefs and petitions for review in the Arizona Court of Appeals, the Arizona Supreme Court, the Bankruptcy Appellate Panel, the Ninth Circuit Court of Appeals and the U.S. Supreme Court.

Keeping Your Secrets, Secret

A properly populated customer list is the life blood of many businesses. The Arizona Court of Appeals recently reminded us that simply calling your list a “trade secret” is not enough to make it so. Rather, two things must occur. First, the list must contain information that is not generally known or readily ascertainable in the community. Thus, the more difficult the list is to put together, the more likely it will be treated as a trade secret. Second, the business must consistently demonstrate its importance by taking reasonable measures to keep the information secret. For example, allowing some former employees or competitors access to your list but not others, may defeat your claim to a trade secret. So exercise care.


For more information contact Leon Silver, Shareholder and Rebecca Lumley, Associate, at the Phoenix office of Polsinelli. Polsinelli is located in 16 cities across the country.

Leon Silver – lsilver@polsinelli.com; 602.650.2066.
Rebecca Lumley – rlumley@polsinelli.com; 602.650.2072.

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Ogletree Deakins Elects Shareholders

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree Deakins), one of the largest labor and employment law firms representing management, is pleased to announce that Christopher J. Meister and Nonnie L. Shivers, from the firm’s Phoenix office, have been elected to the position of shareholder.

Meister has extensive experience litigating matters involving trade secrets and confidential information in state and federal courts and administrative agencies throughout the United States. Meister regularly provides practical and strategic advice to clients regarding compliance with federal and state employment laws, employment policies, and employer best practices to avoid employment litigation. He also utilizes his corporate law experience and business acumen to regularly assist clients with complex employment and incentive agreements, noncompetition and nonsolicitation agreements, confidentiality agreements, and severance agreements. Meister earned his J.D. from the Wake Forest School of Law.

Shivers focuses her practice on defending employers against allegations of discrimination, sexual harassment and wrongful termination in state and federal court, as well as administrative forums. She also regularly provides advice and guidance to employers on reductions in force, disability issues and pre-litigation disciplinary matters. Shivers regularly speaks on current and emerging employment law topics and has published several scholarly articles focused on employment law. Prior to joining Ogletree Deakins, Shivers served as a law clerk to the Honorable Patricia K. Norris on the Arizona Court of Appeals. She earned her J.D. from the University of Arizona.

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Brewer appoints Republican judge to Supreme Court

Arizona Court of Appeals Judge Ann Scott Timmer is Gov. Jan Brewer’s choice to fill a vacancy on the Arizona Supreme Court.

The 52-year-old Republican was one of three finalists nominated by a state screening commission.

Timmer replaces former Justice Andrew Hurwitz, a Democrat, and her appointment changes the court’s partisan makeup to four Republicans and one Democrat. Hurwitz resigned in June to become a federal judge.

Brewer’s three Supreme Court appointments have all gone to fellow Republicans.

Timmer was appointed to the Court of Appeals in 2000 by then-Gov. Jane Hull, another Republican.

Brewer says in a statement that Timmer embodies judicial restraint and respects the separation of powers between branches of government.

In 2003, Timmer authored a panel’s decision upholding the constitutionality of Arizona’s law banning same-sex marriages.

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New Owners Of Commercial Buildings Can Enforce Warranties Against Original Contractors

Does the new owner of a commercial property have the same rights as the former owner when pursuing a claim against the original general contractor for construction defects? The Arizona Court of Appeals phrased the question this way:

“We are asked to decide whether a subsequent purchaser of commercial property can sue for breach of the implied warranty of workmanship and habitability pursuant to an express assignment of that warranty by the original owner.”

The answer in Arizona now is yes, if the new owner obtained an assignment of the construction warranties from the seller.

Winning Warranties, Arizona Business Magazine September 2008Case Study
In the case of Highland Village Partners vs. Bradbury & Stamm Construction Co. Inc., the owner hired a general contractor to build a number of separate apartment buildings and related improvements. Years after construction was complete, the owner sold the property and assigned to the new owner its basic warranty rights. The assignment included:

“All presently effective warranties or guaranties in (original owner’s) possession from any contractors, subcontractors, suppliers, servicemen or material men in connection with … any construction, renovation, repairs or alterations of the improvements or any tenant improvements (as well as) all contracts with general contractors, subcontractors and/or specialty contractors for the improvements which are in the possession and/or under the control of (original owner).”

A few months after the sale, the new owner sued the general contractor for alleged building defects, including problems with the flashing and siding.

Defining the Fine Print
The general contractor tried to have the lawsuit dismissed by arguing that the implied warranty of workmanship, which is implied in the law based on a contractual relationship between parties, belonged only to the original owner with whom it contracted, and could not be asserted by a new party such as the new owner.

This defense, often described as a “lack of privacy,” limits the claims that can be made by those who are not direct parties to a contract. In the residential home building context, an Arizona appellate decision had previously expanded this otherwise narrow scope of warranty claims by non-parties to a contract, allowing warranties to be enforced by a purchaser of a home who was not in privity of contract with the original home builder. That decision was based on public policy considerations, where the court noted that large home builders enjoy superior bargaining power and construction knowledge over individual home buyers — that builders know that homes will change hands frequently, and whether a construction defect is suffered by the original home buyer or rather a subsequent homeowner is not a meaningful distinction from a fundamental liability perspective.

But the Arizona courts had declined to expand warranty liability in the commercial field because similar public policy considerations did not apply. Commercial builders and commercial owners were presumed to have comparable sophistication levels.

In the Highland case, the new owner argued there was a key difference in its facts: It obtained an express assignment of the warranties when it bought the property. Therefore, the new owner now explicitly held the benefits of those contractual warranty rights. The general contractor responded that the distinction didn’t matter. There never was a direct contract between the general contractor and this new owner, and essentially there was nothing effective against the general contractor that could be assigned.

In the end, the court sided with the new owner. It reasoned that there was nothing unusual about allowing assignments of contractual rights, including warranty rights, unless the assignment would materially change the duties of the general contractor — or if the assignment was forbidden by statute, was against public policy or otherwise was precluded by contract.

The general contractor contended that extending liability in favor of new owners might encourage owners to take their sweet time in giving notice of a construction problem. The court disagreed, citing the Arizona statute requiring that any claims for defects must be filed no later than eight years after substantial completion of the improvements.

So the statute of limitations already in effect would preclude stale claims.

The Solution
The court pointed out that a general contractor has a straightforward way to limit its exposure by including a clause in the original construction contract that prohibits assignment of the warranties. With that limitation, only the original owner would, by contract, be able to enforce warranty claims against the general contractor. This would essentially insulate the general contractor from remote warranty claims from purchasers down the line.

However, any existing non-assign ability clause now would likely be the subject of a more focused analysis, because any new buyer, in assessing whether to purchase property, will view a lack of ongoing warranties more critically. Similarly, the original owner might evaluate a warranty transfer restriction advanced by a general contractor in the construction contract in terms of its affect on the future marketability of the property.

End ResultsArizona Business Magazine, September 2008
This case represents a significant extension of the potential liability of general contractors and builders of commercial property to subsequent owners, particularly given that prospective buyers will require (if they did not in the past) an express transfer of any warranty rights along with the commercial property from the original owner.

Christopher M. McNichol is a partner with the law firm of Gust Rosenfeld P.L.C. in Phoenix. His practice includes general commercial transactions and litigation, with an emphasis on real property matters. He can be reached at 602-257-7496 or mcnichol@gustlaw.com.