Tina Zambrano v. M & Rc II LLC ( 2022 )


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  •                                IN THE
    SUPREME COURT OF THE STATE OF ARIZONA
    TINA ZAMBRANO,
    Plaintiff/Appellant,
    v.
    M & RC II LLC, ET AL.,
    Defendants/Appellees.
    No. CV-21-0205-PR
    Filed September 28, 2022
    Appeal from the Superior Court in Maricopa County
    The Honorable Danielle J. Viola, Judge
    No. CV2017-008174
    REVERSED AND REMANDED
    Opinion of the Court of Appeals, Division One
    
    252 Ariz. 10
     (App. 2021)
    VACATED
    COUNSEL:
    Darrien Shuquem (argued), Vial Fotheringham, LLP, Mesa, Attorneys for
    Tina Zambrano
    James E. Holland, Jr. (argued), Michael Vincent, Stinson LLP, Phoenix,
    Attorneys for M & RC II LLC, et al.
    Thomas L. Hudson, Joshua D. Bendor, Osborn Maledon, P.A., Phoenix,
    Attorneys for Amici Curiae Diamante Condominium Association and
    Kasdan Turner Thomson Booth LLP
    Rosary A. Hernandez, Kenneth Januszewski, Katelyn E. Towe, Burch &
    Cracchiolo, P.A., Phoenix, Attorneys for Amici Curiae Home Builders
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    Association of Central Arizona and Southern Arizona Home Builders
    Association
    Jeremy R. Alberts, Ryan S. Saldanha, Weinberg, Wheeler, Hudgins, Gunn
    & Dial, LLC, Las Vegas, NV, Attorneys for Amicus Curiae Home Buyers
    Warranty Corporation
    VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in
    which CHIEF JUSTICE BRUTINEL and JUSTICES LOPEZ, BEENE, and
    MONTGOMERY joined. JUSTICE KING, joined by JUSTICE BOLICK,
    dissented.
    VICE CHIEF JUSTICE TIMMER, Opinion of the Court:
    ¶1             This case involves a clash of two public policies recognized by
    the common law. On the one hand, parties are generally free to contract
    on whatever terms they choose. See 1800 Ocotillo, LLC v. WLB Grp., Inc.,
    
    219 Ariz. 200
    , 202 ¶ 8 (2008).          Thus, unless legislation precludes
    enforcement of a contract term, our courts will uphold it unless “the term
    is contrary to an otherwise identifiable public policy that clearly outweighs
    any interests in the term’s enforcement.” 
    Id.
    ¶2           On the other hand, Arizona implies a warranty of
    workmanship and habitability in every contract entered into between a
    builder-vendor and a homebuyer. See Richards v. Powercraft Homes, Inc.,
    
    139 Ariz. 242
    , 244 (1984). This warranty protects the homebuyer and
    successive purchasers from financial responsibility for latent defects in the
    home that the buyer could not have reasonably discovered at the time of
    purchase and holds the builder accountable for the home’s faulty
    construction. 
    Id. at 245
    .
    ¶3            Whether Arizona should continue to imply a warranty of
    workmanship and habitability into all contracts between builder-vendors
    and homebuyers is not before us. Rather, the issue here is whether a
    builder-vendor and a homebuyer may agree to disclaim and waive the
    implied warranty if they replace it with an express warranty. We hold
    public policy prohibits enforcement of the disclaimer and waiver.
    2
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    BACKGROUND
    ¶4             In 2013, Tina Zambrano entered into a preprinted purchase
    agreement with M & RC II, LLC, to buy a home that M & RC II’s affiliate,
    Scott Homes Development Company, would build in a new subdivision in
    Surprise, Arizona. (We refer to M & RC II and Scott Homes Development
    Company collectively as “Scott Homes”). Relevant here, paragraph
    fifteen of the agreement states:
    SELLER’S LIMITED WARRANTY.
    (a) At Closing, Seller shall issue a “Home Builder’s Limited
    Warranty” to Buyer, a sample of which has been provided to
    Buyer prior to the execution of this Contract. The Home
    “Builder’s [sic.] Warranty is the only warranty applicable to
    the purchase of the Property.
    ....
    THE    HOME    BUILDER’S     LIMITED   WARRANTY
    REFERENCED ABOVE IS THE ONLY WARRANTY
    APPLICABLE TO THE PURCHASE OF THE PROPERTY.
    ALL OTHER EXPRESS OR IMPLIED WARRANTIES OF
    MERCHANTABILITY, FITNESS FOR A PARTICULAR
    PURPOSE, HABITABILITY AND WORKMANSHIP ARE
    HEREBY DISCLAIMED BY SELLER AND ITS AFFILIATES
    AND WAIVED BY BUYER, ANY IMPLIED WARRANTY
    THAT MAY EXIST DEPITE [sic] THE ABOVE DISCLAIMER
    IS HEREBY LIMITED TO A ONE (1) YEAR PERIOD.
    Zambrano initialed the first paragraph and another, which confirmed she
    had read and understood the agreement.
    ¶5            Scott Homes built the home and, fulfilling its promise, issued
    Zambrano a forty-page, preprinted “Builder’s Limited Warranty,” which is
    administered by Professional Warranty Services Corporation (“PWC”).
    PWC sells the warranty to homebuilders, claiming the warranty
    “provide[s] ‘layers of protection to you as a builder’” and permits builders
    to “manage [their] risk.” Arnold v. Standard Pac. of Ariz. Inc., No. CV-16-
    00452-PHX-DGC, 
    2016 WL 4259762
    , at *4 (D. Ariz. Aug. 12, 2016).
    Significantly, the PWC warranty does not generally warrant the
    3
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    workmanship and habitability of the home.               Instead, it arranges
    construction elements into coverage groups; warrants each group,
    respectively, for one year, two years, or three to ten years against damages
    from variances in materials or workmanship from defined standards of
    performance; and establishes responsibilities for the builder and the
    homebuyer. For example, the warranty here provides that during the first
    year of ownership, Scott Homes will fill excessively settled areas of ground
    around the home’s foundation that prevent sufficient drainage, and the
    homebuyer will remove and replace any affected landscaping. As another
    example, the warranty provides that during the first year of ownership,
    Scott Homes will repair any floors having more than a one-quarter-inch
    ridge or depression within thirty inches of the joists. Like the purchase
    agreement, the PWC warranty disclaims all implied warranties.
    ¶6            In 2017, Zambrano sued Scott Homes for breach of the
    implied warranty of workmanship and habitability. She alleged several
    design and construction defects, including improper grading and soil
    movement mitigation, separation of windows from cracking stucco,
    separation of baseboards from the tile and walls, and nail pops in the
    ceiling. A claim under the PWC warranty to correct these defects was
    either time barred or outside its coverage. Scott Homes ultimately moved
    for summary judgment, arguing Zambrano had waived the implied
    warranty per the purchase agreement. The trial court agreed and entered
    judgment for Scott Homes.
    ¶7             The court of appeals reversed. Zambrano v. M & RC II LLC,
    
    252 Ariz. 10
    , 11 ¶ 1 (App. 2021). It reasoned that “the public policy
    supporting the implied warranty clearly outweighs the freedom-of-contract
    interest in the waiver’s enforcement.” 
    Id.
     at 13 ¶ 16.
    ¶8            We accepted review of Scott Homes’ petition for review
    because whether and to what extent the implied warranty of workmanship
    and habitability can be disclaimed and waived or replaced by an express
    warranty is a recurring issue of statewide importance.
    DISCUSSION
    I.   Standard of Review
    ¶9           Summary judgment is appropriate when “no genuine dispute
    as to any material fact [exists] and the moving party is entitled to judgment
    4
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    as a matter of law.” Ariz. R. Civ. P. 56(a). “We review de novo a grant of
    summary judgment, viewing the evidence and reasonable inferences in the
    light most favorable to the party opposing the motion.” Andrews v. Blake,
    
    205 Ariz. 236
    , 240 ¶ 12 (2003). We likewise review a contract’s meaning de
    novo. 
    Id.
    II.   Voiding a Contract Term as Against Public Policy
    ¶10            The freedom to contract has long been considered a
    “paramount public policy” under our common law that courts do not
    lightly infringe.1 Consumers Int’l., Inc. v. Sysco Corp., 
    191 Ariz. 32
    , 34 (App.
    1997) (quoting Wood Motor Co. v. Nebel, 
    238 S.W.2d 181
    , 185 (Tex. 1951));
    accord CSA 13-101 Loop, LLC v. Loop 101, LLC, 
    236 Ariz. 410
    , 411 ¶ 6 (2014)
    (“Our law values the private ordering of commercial relationships and
    seeks to protect parties’ bargained-for expectations.”). Thus, courts will
    not refuse to enforce a contract merely because one party made a bad deal,
    even when the terms are harsh. See Goodman v. Newzona Inv. Co., 
    101 Ariz. 470
    , 473–74 (1966) (enforcing refusal of seller to transfer ownership of
    property to buyer despite partial payment); S.H. Kress & Co. v. Evans,
    
    21 Ariz. 442
    , 449 (1920) (refusing to enforce oral profit-sharing agreement
    not reflected in a written contract).
    ¶11           But courts will refuse to enforce a contract term if legislation
    prohibits the term or when an identifiable public policy clearly outweighs
    enforcement. 1800 Ocotillo, 219 Ariz. at 202 ¶¶ 7–8; CSA 13-101 Loop,
    1 The Supreme Court once held that “liberty” under the Due Process Clause
    protected “freedom of contract,” Adkins v. Child.’s Hosp. of D.C., 
    261 U.S. 525
    , 545 (1923); see Lochner v. New York, 
    198 U.S. 45
    , 57 (1905), but ultimately
    retreated from that position, W. Coast Hotel Co. v. Parrish, 
    300 U.S. 379
    , 391–
    92, 400 (1937) (overruling Adkins and, effectively, Lochner and other cases);
    see also Dobbs v. Jackson Women’s Health Org., 
    142 S. Ct. 2228
    , 2262–64 (2022)
    (recognizing reversal of these Lochner-era holdings).                 Courts now
    recognize the freedom to contract as protected by the common law.
    Flagstaff Affordable Hous. Ltd. P’ship v. Design All., Inc., 
    223 Ariz. 320
    , 323 ¶ 14
    (2010) (describing contract law as “seek[ing] to preserve freedom of
    contract and to promote the free flow of commerce”); Michael Pillow,
    Liberty Over Death: Seeking Due Process Dimensions for Freedom of Contract,
    8 Fla. A & M U. L. Rev. 39, 40–41 (2012) (“Freedom of contract derives from
    philosophical perspectives that underpin the common law.”).
    5
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    236 Ariz. at 411 ¶ 6. Because the law generally presumes parties are best
    situated to decide whether contractual terms are beneficial, especially in
    commercial settings, courts are hesitant to declare terms unenforceable on
    public policy grounds. 1800 Ocotillo, 219 Ariz. at 202 ¶ 8; see 15 Timothy
    Murray, Corbin on Contracts § 79.4, at 15 (rev. ed. 2020) (“In rare cases, a
    public policy other than the freedom of contract overrides such freedom.”).
    To do so, courts balance the interests in enforcing the terms against the
    public policy interest opposing it. See 1800 Ocotillo, 219 Ariz. at 202 ¶ 7.
    “[T]he weight of the public policy interest generally focuses on the extent
    to which enforcement of the term would be injurious to the public welfare.”
    Id. (citing Restatement (Second) of Contracts § 178 cmt. b (Am. L. Inst.
    1981)).     We identify public policy by examining our constitution,
    legislation, and judicial decisions. CSA 13-101 Loop, 236 Ariz. at 412 ¶ 8;
    1800 Ocotillo, 219 Ariz. at 202 ¶ 7; Wagenseller v. Scottsdale Memorial Hosp.,
    
    147 Ariz. 370
    , 378 (1985), superseded by statute on other grounds, as recognized
    in Powell v. Washburn, 
    211 Ariz. 553
    , 560 ¶ 29 (2006).
    ¶12           Consistent with these principles, this Court has refused to
    enforce contract terms that were unconscionable, illegal, or otherwise
    against public policy. See, e.g., Dobson Bay Club II DD, LLC v. La Sonrisa de
    Siena, LLC, 
    242 Ariz. 108
    , 115 ¶¶ 37–38 (2017) (voiding a contractual late fee
    as an unenforceable penalty provision); CSA 13-101 Loop, 236 Ariz. at 411
    ¶ 1 (holding that parties to a promissory note and deed of trust could not
    prospectively waive a judgment debtor’s statutory right to have the fair
    market value of the burdened property credited against the amount owed
    on the note); Wagenseller, 
    147 Ariz. at 381
     (“Firing for bad cause—one
    against public policy articulated by constitutional, statutory, or decisional
    law—is not a right inherent in the at-will contract, or in any other contract,
    even if expressly provided.”); Darner Motor Sales, Inc. v. Universal
    Underwriters Ins., 
    140 Ariz. 383
    , 390–91 (1984) (stating courts will not enforce
    a standardized insurance contract term when the insurer has reason to
    believe that the insured would not have agreed to the contract if he had
    known about the term).
    ¶13            With these principles in mind, we identify the public policy
    underlying the implied warranty of workmanship and habitability and
    then determine whether that policy clearly outweighs enforcement of the
    parties’ disclaimer and waiver of the implied warranty when an express
    warranty otherwise exists. See 1800 Ocotillo, 219 Ariz. at 202 ¶ 7.
    6
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    III. Enforcing the Disclaimer and Waiver Provision Here
    A.    Identifying the public policy underlying the implied
    warranty
    ¶14           Commencing in 1979, Arizona eliminated application of
    caveat emptor—or “buyer beware”—to the purchase of newly built homes.
    Columbia W. Corp. v. Vela, 
    122 Ariz. 28
    , 32 (App. 1979) (describing the rule
    as “an anachronism patently out of harmony with modern home buying
    practices” (quoting Humber v. Morton, 
    426 S.W.2d 554
    , 562 (Tex. 1968))); see
    also Dorman v. Swift and Co., 
    162 Ariz. 228
    , 231 (1989) (stating that the
    common law doctrine of caveat emptor presumes the buyer has fully
    inspected the premises before conveyance). Instead, we impute the
    implied warranty of workmanship and habitability into all contracts
    between builder-vendors and homebuyers as a matter of common law.
    See Sirrah Enters., LLC v. Wunderlich, 
    242 Ariz. 542
    , 544 ¶ 8 (2017); Sullivan v.
    Pulte Home Corp., 
    232 Ariz. 344
    , 346 ¶ 12 (2013). Under this implied
    warranty, the builder-vendor guarantees it built the home in a
    workmanlike manner and that it is habitable. Sirrah Enters., 242 Ariz.
    at 544 ¶ 8.      The warranty is limited to latent defects that are
    undiscoverable by a reasonable pre-purchase inspection and serves “to
    protect innocent purchasers and hold builders accountable for their work.”
    Richards, 
    139 Ariz. at 245
     (quoting Moxley v. Laramie Builders, Inc., 
    600 P.2d 733
    , 736 (Wyo. 1979)).
    ¶15           The implied warranty “arises from construction of the home”
    itself. Sirrah Enters., 242 Ariz. at 544 ¶ 8 (quoting Lofts at Fillmore Condo.
    Ass’n v. Reliance Com. Constr., Inc., 
    218 Ariz. 574
    , 577 ¶ 13 (2008)).
    Consequently, although the warranty is an imputed term of the original
    purchase agreement, it applies to non-builder-vendors and is enforceable
    by subsequent purchasers, despite a lack of contractual privity with the
    builder. 
    Id.
     at 545 ¶¶ 9–12 (subsequent purchaser); Lofts, 218 Ariz. at 575
    ¶ 1 (non-builder-vendor). A lawsuit filed to enforce the warranty is
    subject to the six-year statute of limitations applicable to contract actions,
    A.R.S. § 12-548(A); Woodward v. Chirco Constr. Co., 
    141 Ariz. 514
    , 516 (1984),
    but cannot be filed later than eight years after construction is completed per
    our statute of repose, A.R.S. § 12-552(F).
    ¶16           Given the warranty’s origins and application, it is not a mere
    “gap filler” supplied by the court when an otherwise enforceable contract
    7
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    lacks an essential term, as Scott Homes and the dissent here assert. See
    Restatement § 204. Our cases are clear that policy considerations gave
    birth to the implied warranty, not a need to fill in an overlooked “gap” in
    contracting. See supra ¶¶ 14–15. Further, because an express warranty is
    not essential to determining a builder-vendor and homebuyer’s rights and
    duties under a purchase agreement, its omission does not leave a “gap” to
    fill. See Restatement § 204. And if an express warranty is included in a
    purchase agreement, it may coexist with the implied warranty; the
    warranties are not mutually exclusive. See Columbia W. Corp., 
    122 Ariz. at 29, 33
     (recognizing an implied warranty despite the existence of an
    express warranty and the lack of any gap); Desert Mountain Props. Ltd. P’ship
    v. Liberty Mut. Fire Ins. Co., 
    225 Ariz. 194
    , 207 ¶ 46 (App. 2010) (same).
    ¶17           Although the legislature has not explicitly codified the terms
    of the implied warranty of workmanship and habitability, it has explicitly
    approved it (1) by accommodating causes of action based on the warranty
    in the Purchaser Dwelling Act, A.R.S. § 12-1362(E) (providing that “the
    bifurcation process prescribed in [the Act] does not alter the seller’s liability
    under the seller’s implied warranty to the purchaser”); (2) by including it
    within a statute of repose for contract actions against home builders and
    vendors, § 12-552(F) (stating that the eight-year limitation period applies to
    “any action based on implied warranty arising out of the contract or the
    construction, including implied warranties of habitability, fitness or
    workmanship”); and (3) by providing a one-year repose period for
    homebuyers to sue for damages caused by latent defects discovered in the
    eighth year after purchase, § 12-552(E). See CSA 13-101 Loop, 236 Ariz. at
    412 ¶ 8 (“Even when not expressly prohibited [by statute], contract terms
    may be invalidated ‘if the legislature makes an adequate declaration of
    public policy which is inconsistent with [them].’” (second alteration in
    original) (quoting Shadis v. Beal, 
    685 F.2d 824
    , 833–34 (3d Cir. 1982))).
    ¶18           The legislature has also recognized the importance of holding
    builders in general to sufficient workmanship standards by requiring the
    registrar of contractors to establish “minimum standards for good and
    workmanlike construction.”         A.R.S. § 32-1104(A)(5).   Fulfilling this
    mandate, the registrar requires builders to “perform all work in a
    professional and workmanlike manner” and “in accordance with any
    applicable building codes and professional industry standards.” Ariz.
    Admin. Code R4-9-108(A)–(B). To satisfy this standard, “a contractor shall
    use such skills, prudence, and diligence in performing and completing tasks
    undertaken that the completed work meets the standards of a similarly
    8
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    licensed contractor possessing ordinary skill and capacity.” R4-9-108(B).
    By establishing workmanship standards for licensed contractors, which
    benefit those contractors’ customers and the public at large, Rule 4-9-108
    aligns with the purposes of the implied warranty of workmanship and
    habitability.
    ¶19          In sum, the public policy underlying the implied warranty of
    workmanship and habitability is twofold: (1) protecting buyers of newly
    built homes and successive owners against latent construction defects that
    were not reasonably discoverable when the home was initially sold and
    (2) holding builders accountable for their work. Richards, 
    139 Ariz. at
    244–45.
    B.    Weighing the public policy underlying the implied
    warranty against enforcement of the disclaimer and
    waiver provision
    ¶20           While acknowledging the presumption that private parties
    are best able to decide whether particular contract terms serve their
    interests, and respecting that society broadly benefits from relying on the
    enforcement of bargains struck between competent parties, we nevertheless
    decide that the circumstances here present the rare case where public policy
    clearly outweighs enforcing a contract term. See 1800 Ocotillo, 219 Ariz.
    at 202 ¶ 8.
    1.    The interest in enforcing the disclaimer and waiver provision
    ¶21           We start by noting a diminished interest in enforcing a
    disclaimer and waiver of the implied warranty because homebuyers
    possess vastly unequal bargaining power, expertise, and knowledge as
    compared with the builder-vendor. Id. ¶ 7 (“Analysis of the weight of the
    public policy interest generally focuses on the extent to which enforcement
    of the term would be injurious to the public welfare.”).             Modern
    homebuilding frequently occurs in large-scale developments, leaving the
    buyer to either purchase the home under terms directed by the builder-
    vendor or forego the purchase altogether. See Richards, 
    139 Ariz. at 245
    .
    Indeed, Zambrano signed Scott Homes’ form purchase agreement and
    accepted the PWC warranty with no variation to the preprinted terms in
    either document, without representation, and without any negotiation
    about warranties, suggesting she was in a take-it-or-leave-it situation. See
    Darner Motor Sales, 
    140 Ariz. at
    390–91 (observing that a term in a
    9
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    standardized contract is “an illusory ‘bargain’ . . . when that ‘bargain’ was
    never really made and would, if applied, defeat the true agreement which
    was supposedly contained in the [contract]”).
    ¶22             A homebuyer must also rely heavily on the builder-vendor’s
    knowledge of construction quality, as builders are “skilled in the
    profession, . . . modern construction is complex and regulated by many
    governmental codes, and . . . homebuyers are generally not skilled or
    knowledgeable in construction, plumbing, or electrical requirements and
    practices.” Richards, 
    139 Ariz. at 245
    ; see Columbia W. Corp., 
    122 Ariz. at 32
    (“The ordinary home buyer is not in a position, by skill or training, to
    discover defects lurking in the plumbing, the electrical wiring, the structure
    itself, all of which is usually covered up and not open for inspection.”
    (quoting Tavares v. Horstman, 
    542 P.2d 1275
    , 1279 (Wyo. 1975))). And
    unlike those who purchase older homes, a person who buys a newly built
    home “has no opportunity to observe how the [home] has withstood the
    passage of time.” Columbia W. Corp., 
    122 Ariz. at 32
     (quoting Pollard v. Saxe
    & Yolles Dev. Co., 
    525 P.2d 88
    , 91 (Cal. 1974)).
    ¶23           This inequality in bargaining power, expertise, and
    knowledge distinguishes the new-home-buying scenario from ones in
    which the parties are on similar footing and are thus better able to decide
    what contract terms serve their individual interests. See 1800 Ocotillo,
    219 Ariz. at 204 ¶ 17 (declining to invalidate a liability-limitation clause
    entered by a real estate developer and a surveying firm on public policy
    grounds as such clauses desirably permitted sophisticated parties to
    allocate risks). The implied warranty was created in recognition of this
    disparity, see Richards, 
    139 Ariz. at 245
    , and undoubtedly reflects the
    homebuyers’ reasonable expectations that a newly constructed home
    would be properly designed and built, see Columbia W. Corp., 
    122 Ariz. at 33
    .
    2.   The counterweight of the public policy supporting imposition of
    the implied warranty
    ¶24          As previously explained, in assigning weight to the public
    policy underlying the implied warranty we generally focus on the extent to
    which enforcement of the disclaimer and waiver provision would injure the
    public welfare. 1800 Ocotillo, 219 Ariz. at 202 ¶ 7.
    ¶25           The implied warranty serves to protect homebuyers and the
    public at large in multiple ways. First, warranting that a home was built
    10
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    using minimum standards of good workmanship conforms to a
    homebuyer’s reasonable expectations. See Columbia W. Corp., 
    122 Ariz. at 33
    . Second, the warranty discourages “the unscrupulous, fly-by-night
    operator and purveyor of shoddy work,” who might otherwise blight our
    communities. 
    Id. at 32
     (quoting Humber, 426 S.W.2d at 562). Third, it
    protects not only the original buyer but also subsequent purchasers. See
    Richards, 
    139 Ariz. at 245
     (“The effect of latent defects will be just as
    catastrophic on a subsequent owner as on an original buyer and the builder
    will be just as unable to justify improper or substandard work.”). Fourth,
    the warranty shields a purchase that “is usually the most important and
    expensive purchase of a lifetime,” thus minimizing the risk of catastrophic
    financial losses for all homebuyers who purchase a home within eight years
    of construction. Columbia W. Corp., 
    122 Ariz. at 33
     (quoting W. Durrell
    Nielsen II, Comment, Caveat Emptor in Sales of Real Property Time for a
    Reappraisal, 
    10 Ariz. L. Rev. 484
    , 491 (1968)); see Richards, 
    139 Ariz. at 245
    .
    ¶26             Enforcing the disclaimer and waiver here would grievously
    injure homebuyers and the public welfare as doing so would likely spell the
    end for the implied warranty and eliminate the above-described
    protections. Builders would almost certainly include a disclaimer and
    waiver in every purchase agreement with the new homebuyer lacking any
    realistic ability to negotiate deletion of the term. And, as has already
    occurred in Arizona and reflected in the public record, the builder would
    surely record the disclaimer and waiver to provide notice to subsequent
    homebuyers and prevent them from enforcing the implied warranty, as the
    law currently permits, even though they had no say in waiving a warranty
    that arose from the construction itself. See Sirrah Enters., 242 Ariz. at 544–
    45 ¶¶ 8–12.
    ¶27           Effectively eliminating the implied warranty, in turn, would
    gut a homebuyer’s ability to hold a builder responsible for latent defects,
    increasing the likelihood that homes would be left unrepaired, to the
    detriment of homebuyers, their neighbors, and the public generally. The
    Purchaser Dwelling Act permits a homebuyer to sue a builder-vendor for
    defects involving the builder’s “violation of construction codes,” its “use of
    defective materials,” and its “failure to adhere to generally accepted
    workmanship standards in the community,” after giving the builder a
    chance to repair or replace those defects. See A.R.S. § 12-1361(4), (7);
    § 12-1362(A)–(B). But the Act does not itself provide a legal cause of action
    for such lawsuits. And without the ability to enforce the implied warranty
    11
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    of workmanship and habitability, there is no legal cause of action to remedy
    these defects.
    ¶28            A homebuyer cannot pursue a negligence claim against the
    builder to recover economic damages caused by latent defects, absent
    personal injury or damage to other property, because Arizona, unlike other
    states, does not permit such claims. See Sullivan, 232 Ariz. at 345–46
    ¶¶ 8–9 (concluding the economic loss doctrine bars the original homebuyer
    from asserting a negligence claim to recover repair costs); Sullivan v. Pulte
    Home Corp., 
    237 Ariz. 547
    , 548 ¶¶ 1–3 (App. 2015) (holding that a
    subsequent homebuyer cannot maintain a negligence action against a
    builder to recover repair costs because the builder does not owe a duty to
    that homebuyer); see also Sewell v. Gregory, 
    371 S.E.2d 82
    , 84–85 (W. Va. 1988)
    (noting most state courts which have considered the issue permit a
    subsequent homebuyer to sue a builder for negligent construction).
    Causes of action based on fraud, misrepresentation, and material omissions
    remain available, just as they did before Arizona recognized the implied
    warranty of workmanship and habitability. See, e.g., Echols v. Beauty Built
    Homes, Inc., 
    132 Ariz. 498
    , 499 (1982) (addressing fraud in sale of home).
    But these claims depend on purposeful wrongdoing by the builder,
    presumably an uncommon occurrence, and would not protect the
    homebuyer from the builder’s unintentionally poor workmanship. See 
    id. at 500
     (setting out the elements of fraud).
    ¶29            An unhappy homebuyer may file a complaint against the
    builder’s license with the registrar of contractors and potentially recover
    money from the residential contractors’ recovery fund.              See A.R.S.
    §§ 32-1131 to -1140. But this remedy is no substitute for enforcing the
    implied warranty of workmanship and habitability against the
    builder-vendor. Unlike a claim for breach of the implied warranty, the
    homebuyer’s recovery is capped at $30,000, does not reimburse
    consequential damages, and attorney fees are not generally recoverable.
    See Sirrah Enters., 242 Ariz. at 547 ¶¶ 20–22; Flagstaff Affordable Hous. Ltd.,
    223 Ariz. at 325–26 ¶ 27; A.R.S. § 32-1132.01(B), (D)–(E). Also, the registrar
    proceedings must commence within two years after the builder’s act, see
    A.R.S. § 32-1133(A), which forecloses claims involving later-discovered
    latent defects. See, e.g., Woodward, 
    141 Ariz. at 515
     (addressing cracks in
    home, ceiling bowing, and floor warping that started three years after
    purchase); § 12-552(E) (permitting suit on latent defects discovered eight
    years after purchase if brought within the following year).
    12
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    ¶30            Scott Homes argues the PWC warranty adequately satisfies
    the public interest in protecting homebuyers from shoddy workmanship.
    It further asserts the express warranty is superior to the implied warranty
    by explicitly defining the parties’ rights and obligations in advance, thereby
    avoiding costly litigation about what is “habitable,” and by extending the
    warranty up to ten years for some defects. We disagree.
    ¶31           The PWC warranty does not protect the same interests as
    those protected by the implied warranty. While the implied warranty
    protects against a builder’s lack of conformity with generally accepted
    community standards for workmanship and habitability, 2 the PWC
    warranty protects against nonconformity with tolerances it establishes for
    certain construction components within the warranty periods, most of
    which fall into the one-year period.          For example, regardless of
    workmanship standards, the PWC warranty provides that Scott Homes will
    repair a separation of stoops, steps, or garage floors from the home if the
    width exceeds one inch and if that separation occurs within the first year of
    ownership. A violation of the PWC warranty tolerances might not violate
    the implied warranty and vice versa. Cf. Nastri, 142 Ariz. at 444 (noting
    the implied warranty does not protect against every imperfection).
    Although related, the interests protected by each warranty—good
    workmanship (implied) versus conformance with specific standards
    (express)—are distinct.      Cf. Columbia W. Corp., 
    122 Ariz. at 29, 32
    (recognizing the need for the implied warranty even though the builder had
    expressly warranted that the home would be built in substantial
    conformance with plans and specifications).
    2  Contrary to Scott Homes’ assertion, the implied warranty of
    workmanship and habitability is not so ill-defined that parties are left
    scratching their heads about the meaning of “habitability” absent an
    express warranty. The implied warranty is a single warranty. See Nastri
    v. Wood Bros. Homes, 
    142 Ariz. 439
    , 444 (App. 1984). It is breached if the
    builder did not construct the home in a workmanlike manner. See Dillig v.
    Fisher, 
    142 Ariz. 47
    , 50 (App. 1984); see also Nastri, 
    142 Ariz. at 444
     (stating
    the implied warranty is satisfied if the home is “reasonably suited for its
    intended use” (quoting Petersen v. Hubschman Constr. Co., 
    389 N.E.2d 1154
    ,
    1158 (Ill. 1979))). There is no requirement to show that the home is
    unlivable. See Dillig, 
    142 Ariz. at 50
    .
    13
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    ¶32           Comparing the two warranties further demonstrates that the
    PWC warranty is an insufficient substitute for the implied warranty and is
    certainly not superior from the homebuyer’s or the public’s perspective.
    Unlike the implied warranty, the PWC warranty does not apply to latent
    design defects that may later result in damages. See Woodward, 
    141 Ariz. at 516
    . Most components are warrantied for only one year after purchase,
    even if latent defects manifest after one year. Cf. 
    id. at 515
     (allowing a
    cause of action for defect found over three years after closing on the home
    purchase); § 12-552(E) (allowing a cause of action for defects discovered
    within eight years of substantial completion). Additionally, the PWC
    warranty caps the amount Scott Homes must spend to repair deficiencies
    (the cap amount is reflected in a form that is not part of our record).
    Finally, rather than warranting the entire home from defects, the PWC
    warranty applies only to select construction components and leaves others
    uncovered. For example, defects in roof or floor sheathing due to faulty
    materials or substandard installation are explicitly not warrantied, unless
    the buyer holds a Federal Housing Administration or United States
    Department of Veterans Affairs mortgage.
    ¶33           We also disagree with Scott Homes’ remaining arguments,
    most of which are intended to add weight to enforcement of the disclaimer
    and waiver provision. Prohibiting waiver of the implied warranty will not
    itself prevent enforcement of arbitration provisions set forth in the PWC
    warranty because the warranty has a severability clause. See Hamblen v.
    Hatch, 
    242 Ariz. 483
    , 491 ¶ 34 (2017) (noting that public policy favors
    arbitration). And disallowing disclaimer and waiver of the implied
    warranty will not disincentivize builders from competing to offer the “best”
    express warranty. A builder can still offer an attractive express warranty
    that exceeds the minimum standards of workmanship and habitability
    established by the implied warranty.
    ¶34           Scott Homes also asserts that the implied warranty serves a
    similar purpose to the implied warranties of merchantability and fitness for
    a particular purpose, which apply to consumer goods. It argues that
    because those warranties can be waived, see A.R.S. § 47-2316(B), we should
    similarly conclude that the implied warranty here can be disclaimed and
    waived. But an implied home warranty is unique in protecting against
    financial catastrophe for homebuyers and community blight. See supra
    ¶ 25. Unlike with most defective consumer goods, poorly built homes are
    not easily discarded or replaced, and their impact can linger for decades.
    14
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    ¶35           Finally, although we considered leaving open the possibility
    that a sophisticated homebuyer in some settings could negotiate to waive
    the implied warranty, we reject that idea. It would be next to impossible
    for courts to decide whether a homebuyer was sophisticated “enough.”
    Even sophisticated homebuyers need the protection offered by the implied
    warranty because they cannot spot hidden, latent defects at the time of
    purchase; and subsequent homebuyers should not be penalized simply
    because the original owner was sophisticated and chose to waive the
    implied warranty. Thus, unless the legislature enacts a statute permitting
    waiver of the implied warranty, our courts will not permit it.
    ¶36            In sum, we conclude the public policy underlying the implied
    warranty of workmanship and habitability clearly outweighs enforcement
    of the disclaimer and waiver of that warranty in the purchase agreement
    and the PWC warranty here. See 1800 Ocotillo, 219 Ariz. at 202 ¶¶ 7–8;
    CSA 13-101 Loop, 236 Ariz. at 411 ¶ 6. Because the PWC warranty has a
    severability clause, the other provisions in that warranty are unaffected by
    this decision.
    ¶37            Our court of appeals has reached conclusions similar to our
    decision today, see Buchanan v. Scottsdale Env’t Constr. & Dev. Co., 
    163 Ariz. 285
    , 286–87 (App. 1989) (concluding that the policies giving rise to the
    implied warranty also void any attempt by the builder to disclaim the
    warranty against the original owner); see also Nastri, 
    142 Ariz. at
    442–43
    (having the same effect as applied to a subsequent homebuyer), as have
    courts in other jurisdictions, see, e.g., Trs. of Cambridge Point Condo. Tr. v.
    Cambridge Point, LLC, 
    88 N.E. 3d 1142
    , 1151 (Mass. 2018) (“[T]o permit the
    disclaimer of a warranty protecting a purchaser from the consequences of
    latent defects would defeat the very purpose of the warranty.” (quoting
    Albrecht v. Clifford, 
    767 N.E.2d 42
    , 47 (Mass. 2002))); Davencourt at Pilgrims
    Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 
    221 P.3d 234
    , 252–53 ¶ 58 (Utah 2009) (to same effect). Although we recognize that
    other courts have reached different conclusions, we find those cases either
    distinguishable or simply wrong. See, e.g., Tusch Enters. v. Coffin, 
    740 P.2d 1022
    , 1030–31 (Idaho 1987) (permitting disclaimer of the implied warranty
    outside boilerplate clauses if builder shows a knowing waiver); Crowder v.
    Vandendeale, 
    564 S.W.2d 879
    , 881 (Mo. 1978) (to same effect).
    15
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    C.      The dissent
    ¶38          Our dissenting colleagues spill considerable ink expressing a
    contrary view. Most of their arguments track Scott Homes’ arguments,
    which we have already addressed and rejected. A few additional points
    warrant mention or emphasis.
    ¶39           First, the dissent bases all its arguments on the false premise
    that the parties here simply “modified” the implied warranty, otherwise
    leaving its protections intact. See infra ¶ 52. But the agreement and the
    PWC warranty plainly provide that the implied warranty is “waived” and
    “disclaimed,” not modified. Supra ¶¶ 4–5. And as explained, the PWC
    warranty and the implied warranty protect different interests. Supra ¶ 31.
    The dissent’s mischaracterization of the waiver and disclaimer provision as
    a “modification” of the implied warranty leads it to mistakenly conclude
    that the express warranty similarly serves to protect unwary buyers from
    suffering the consequences of latent defects, the implied warranty is merely
    a “gap-filler” rendered unnecessary by an express warranty, and the
    implied warranty therefore “should not be held paramount.” See infra
    ¶ 57.
    ¶40            Second, although the dissent claims to embrace the analytical
    paradigm this Court established in 1800 Ocotillo to determine the
    enforceability of a contract provision, see infra ¶ 58, it wholly fails to apply
    it. Our colleagues do not identify a different public policy underlying the
    implied warranty than we do or weigh that policy against enforcement of
    the waiver and disclaimer provision. For example, the dissent fails to
    discuss the ramifications of permitting builder-vendors to insert waiver
    provisions in standard form contracts or the ability of buyers—whatever
    their sophistication level—to understand they are agreeing to purchase a
    new home with the risk of latent defects. Nor does the dissent identify
    attributes of express warranties that are “good enough” to further the same
    policies underlying the implied warranty or the characteristics of parties
    sufficiently “sophisticated” to protect themselves from the risk of latent
    defects.
    ¶41          Instead, the dissent confuses matters by ignoring the policies
    underlying the implied warranty, failing to weigh them against the waiver
    provision, and pointing out needlessly that this Court has never before
    16
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    established a public policy prohibiting such waivers. 3 See infra ¶ 58. By
    the dissent’s flawed logic, because we have not previously conducted an
    1800 Ocotillo analysis to find that the policies underlying the implied
    warranty clearly outweigh enforcement of a contractual waiver provision,
    we are wrong to do so today. See id. Illogic aside, the dissent’s analysis
    sidesteps 1800 Ocotillo.
    ¶42            Third, the dissent cries foul on us for “focus[ing] on policy
    matters that are better—and, as a matter of separation of powers, more
    appropriately—left for the legislature to address.” See infra ¶ 63. This
    criticism is unpersuasive and confusing.
    ¶43            Arizona is not a code state; we are a common law state. See
    A.R.S. § 1-201 (adopting the common law and directing courts to follow it
    unless inconsistent with the state or federal constitution or the laws of this
    state). Who declares the common law by focusing on public policy? We
    do, with appropriate restraint. See Cal-Am Props. Inc. v. Edais Eng’g Inc.,
    
    253 Ariz. 78
    , 83 ¶ 17 (2022) (noting “‘we exercise great restraint in declaring
    public policy’ in the absence of legislative guidance” (quoting Quiroz v.
    ALCOA, Inc., 
    243 Ariz. 560
    , 566 ¶ 19 (2018))); Ontiveros v. Borak, 
    136 Ariz. 500
    , 504 (1983) (stating that the common law is “judge-made and judge-
    applied” and changes as public policy changes). The common law has its
    place in our democracy, and we establish and apply it appropriately and
    with fitting restraint.
    ¶44            Since 1979, our courts have continuously applied the implied
    warranty as part of the common law. See supra ¶ 14. The legislature has
    explicitly approved causes of action based on the warranty by enacting laws
    governing their assertion.        See supra ¶ 17.      Indeed, explanatory
    documents supporting the bill enacted to amend the Purchaser Dwelling
    Act in 2019 reflected that a purchaser of a home may file a lawsuit against
    a builder-vendor for any construction defect after following the Act’s
    procedures. See Ariz. State H.R. Summary for S.B. 1271, 54th Leg., 1st Reg.
    Sess. (Mar. 18, 2019); Ariz. State Senate Fact Sheet for S.B. 1271, 54th Leg.,
    1st Reg. Sess. (Feb. 19, 2019). The House of Representatives summary also
    cited an implied warranty case as authority that the buyer may only file suit
    against the party in privity. See Ariz. State H.R. Summary for S.B. 1271
    (citing Yanni v. Tucker Plumbing, Inc., 
    233 Ariz. 364
    , 367–68 (App. 2013)).
    3 The dissent ignores the two court of appeals cases decided more than
    thirty years ago that prohibited such waivers. See supra ¶ 37.
    17
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    As previously explained, see supra ¶¶ 26–28, if the dissent’s position
    prevails, the implied warranty would likely disappear, and without it
    buyers would have no cause of action to assert, making statutory references
    to the implied warranty superfluous. See § 12-552(E), (F); § 12-1362(E).
    ¶45           We are also confused by our colleagues’ criticism because,
    ironically, they focus on the public policy underlying the common law
    freedom to contract to urge their position. See infra ¶¶ 55, 60. Also, it
    seems to us that despite its protest to the contrary, see infra ¶ 62, the
    dissent’s analysis would require a court to enforce a waiver and disclaimer
    provision even absent an express warranty, see infra ¶ 60 (relying on cases
    with holdings to that effect), leaving the homeowner with no warranty at
    all and changing our existing public policy that favors such provisions.
    And the dissent’s assertion that the implied warranty can only be waived
    when an express warranty exists is itself a declaration of policy. See infra
    ¶ 62. Just like with the proverbial goose and gander, the criticism our
    dissenting colleagues throws our way applies equally to them.
    ¶46           Fourth, the dissent gives short shrift to subsequent
    homebuyers, who would lose the protection offered by the implied
    warranty if the original purchaser could waive it. See infra ¶ 68. Again,
    by not weighing the 1800 Ocotillo factors, the dissent kicks subsequent
    homebuyers to the curb by saying the impact on those buyers—and
    necessarily the public as a whole—“should be left for another day.” See
    infra ¶ 68.   But this is the day, and the dissent neatly avoids the
    uncomfortable reality that if builder-vendors are permitted to waive and
    disclaim the warranty, the warranty will vanish. See supra ¶ 26.
    ¶47            Contrary to the dissent’s assertion, we do not declare any new
    public policy today. See infra ¶ 65. Instead, we preserve the public
    policies that created the implied warranty more than forty years ago, which
    our legislature has approved and accommodated, and our courts have
    routinely enforced.
    ¶48           We respect and take seriously parties’ freedom of contract,
    and act with appropriate restraint when asked to prohibit enforcement of a
    term. But we also will not ignore our obligation to acquiesce to such
    requests when appropriate after conducting the 1800 Ocotillo inquiry. This
    case presents one of the rare occasions we find a public policy paramount
    to the freedom of contract. Any relief for builder-vendors from our
    holding lies squarely with the legislature.
    18
    ZAMBRANO V. M & RC II LLC, ET AL.
    Opinion of the Court
    IV.    Attorney Fees
    ¶49           Zambrano seeks an award of attorney fees incurred on
    appeal, but she failed to state the basis for the request as required by our
    rules of procedure. See ARCAP 21(a)(2) (requiring a party to “specifically
    state the statute, rule, decisional law, contract, or other authority for an
    award of attorneys’ fees”). We therefore decline the request. As the
    prevailing party, we award Zambrano her costs. See A.R.S. § 12-341.
    CONCLUSION
    ¶50          For the foregoing reasons, we reverse the summary judgment
    and remand this matter to the trial court. Although we agree with the
    court of appeals’ holding, we vacate its opinion to replace its reasoning with
    our own.
    19
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    KING, J., joined by BOLICK, J., Dissenting
    ¶51            In this case, a builder-vendor and a homebuyer, who is a
    licensed real estate broker, entered into a written contract agreeing to
    disclaim the judicially-created implied warranty of workmanship and
    habitability and enter into an express warranty instead. The majority
    believes this “presents one of the rare occasions” where “public policy [is]
    paramount to the freedom of contract.” Supra ¶ 48. We disagree.
    ¶52             Since the court of appeals created the implied warranty of
    workmanship and habitability in Columbia Western Corp. v. Vela, 
    122 Ariz. 28
     (App. 1979), this Court has only applied the implied warranty in cases
    where the builder-vendor and homebuyer did not agree to modify the implied
    warranty with an express warranty. See, e.g., Sirrah Enters., LLC v. Wunderlich,
    
    242 Ariz. 542
     (2017); Lofts at Fillmore Condo. Ass’n v. Reliance Com. Constr.,
    Inc., 
    218 Ariz. 574
     (2008); Richards v. Powercraft Homes, Inc., 
    139 Ariz. 242
    (1984). We reject the majority’s bright-line rule today that Arizona’s
    public policy prohibits two competent parties, in all instances, from
    modifying the implied warranty with specific warranty terms of their own
    choosing—even when they knowingly, voluntarily, and intelligently do so.
    We respectfully dissent.
    ¶53            At the outset, the majority acknowledges the implied
    warranty of workmanship and habitability is a court-made doctrine. The
    majority then concludes the implied warranty can never—regardless of the
    circumstances or sophistication of the parties—be waived and replaced
    with an express warranty. Supra ¶ 35 (“[A]lthough we considered leaving
    open the possibility that a sophisticated homebuyer in some settings could
    negotiate to waive the implied warranty, we reject that idea.”). This
    categorical constraint states a highly unusual exception in the law.
    ¶54             Generally speaking, parties are free to waive any number of
    rights, even constitutional rights such as the right to appeal, Hinton v.
    Hotchkiss, 
    65 Ariz. 110
    , 113–14 (1946), the right to counsel, State v. Cornell,
    
    179 Ariz. 314
    , 322–23 (1994), the right to a jury trial, State v. Butrick, 
    113 Ariz. 563
    , 565–66 (1976), and the right to be present during criminal proceedings,
    State v. Dann, 
    205 Ariz. 557
    , 572 ¶ 54 (2003). We are generally free to waive
    implied warranties and protections in other contexts. See, e.g., A.R.S.
    § 47-2316(B) (explaining how “to exclude or modify the implied warranty
    20
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    of merchantability” and how “to exclude or modify any implied warranty
    of fitness”). We are free to waive indemnification. See INA Ins. Co. of N.
    Am. v. Valley Forge Ins. Co., 
    150 Ariz. 248
    , 252 (App. 1986) (“When there is
    an express indemnity contract, the extent of the duty to indemnify must be
    determined from the contract, and not by reliance on implied indemnity
    principles.” (internal citations omitted)). We are even free to waive
    parental rights. See A.R.S. § 8-106(A). And, as a matter of freedom of
    contract, we may waive another’s duty to perform under a contract
    provision. See Mohave Cnty. v. Mohave-Kingman Ests., Inc., 
    120 Ariz. 417
    ,
    421 (1978). Today’s ruling is a sharp departure from the ordinary rule that
    parties may waive their rights.
    ¶55            Arizona’s public policy favoring freedom of contract was
    established long before the court of appeals adopted the implied warranty
    in Columbia Western Corp. For over 100 years, this Court has affirmed
    Arizona’s public policy that parties have the right to make decisions
    regarding their own affairs, property, and services, consistent with their
    priorities and values. Indeed, in 1914, this Court explained,
    We have always understood the law to be that persons under
    no legal disability, as a general rule, have power to do as they
    wish with their own. They may enter into contracts; they may
    give away their substance; they may spend it for mere
    baubles; they may exchange it for high and riotous living; it
    may go to satisfy vanity or pride or ambition; and the courts
    are helpless to say nay or to control their freedom of action in
    those respects. Courts are not instituted to control and
    supervise the private dealings of persons compos mentis who
    are upon an equal footing and labor under no restraint of
    person, property, or mind, such as fraud, duress, coercion, or
    extortion. Freedom of contract and freedom in the use and
    disposition of one’s own are no less sacred than freedom of
    speech.
    Merrill v. Gordon, 
    15 Ariz. 521
    , 531 (1914); see also Warren v. Mosher, 
    31 Ariz. 33
    , 38 (1926) (“A man may do as he will with his own, and if he chooses to
    give or contract it away, so long as it does not interfere with the rights of
    others, the contract will stand.”); Com. Standard Ins. Co. v. Cleveland, 
    86 Ariz. 288
    , 293 (1959) (“[P]arties have a legal right to make such contracts as they
    desire to make, provided only that the contract shall not be for an illegal
    purpose or against public policy. A party cannot complain of the
    21
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    harshness of the terms of the contract.”); Goodman v. Newzona Inv. Co.,
    
    101 Ariz. 470
    , 472 (1966) (“It is not within the province or power of the court
    to alter, revise, modify, extend, rewrite or remake an agreement. Its duty
    is confined to the construction or interpretation of the one which the parties
    have made for themselves.”); 1800 Ocotillo, LLC v. WLB Grp., Inc., 
    219 Ariz. 200
    , 202 ¶ 8 (2008) (“Our law generally presumes . . . that private parties are
    best able to determine if particular contractual terms serve their interests.
    Society also broadly benefits from the prospect that bargains struck
    between competent parties will be enforced.” (internal citation omitted));
    Flagstaff Affordable Hous. Ltd. v. Design All., Inc., 
    223 Ariz. 320
    , 323 ¶ 14 (2010)
    (“Contract law . . . seeks to preserve freedom of contract and to promote the
    free flow of commerce.”). The “utmost liberty of contracting” has been
    described as a “paramount public policy.” Consumers Int’l, Inc. v. Sysco
    Corp., 
    191 Ariz. 32
    , 34 (App. 1997) (quoting Wood Motor Co. v. Nebel,
    
    238 S.W.2d 181
    , 185 (Tex. 1951)).           Moreover, although not directly
    implicated here, the framers of the Arizona Constitution drafted a provision
    supporting the general principle of contractual freedom in Arizona’s
    Declaration of Rights in 1912. Ariz. Const. art. 2, § 25 (“No . . . law
    impairing the obligation of a contract[] shall ever be enacted.”).
    ¶56             Conversely, the implied warranty of workmanship and
    habitability is of more recent vintage, tracing its roots to the 1979 court of
    appeals’ decision in Columbia Western Corp. Today, we confront the very
    question that was expressly reserved in Columbia Western Corp.: whether
    parties may modify the implied warranty of workmanship and habitability
    with an express warranty. 
    122 Ariz. at
    30 n.1 (“As the issue was not
    raised, we do not in this decision address the question as to what effect, if
    any, the existence of an express warranty may have in excluding or
    modifying implied warranties in this context.”).
    ¶57              As explained in Columbia Western Corp., the implied
    warranty of workmanship and habitability was judicially created to
    “eliminate a trap for unwary buyers who fail or are unable to secure an
    express warranty” and to “conform to the reasonable expectations of the
    vendee.” 
    Id. at 33
     (quoting W. Durrell Nielsen II, Comment, Caveat Emptor
    in Sales of Real Property Time for a Reappraisal, 
    10 Ariz. L. Rev. 484
    , 491 (1968)).
    To that end, “the implied warranty of good workmanship serves as a ‘gap-
    filler’ or ‘default warranty’; it applies unless and until the parties express a
    contrary intention.” Centex Homes v. Buecher, 
    95 S.W.3d 266
    , 273 (Tex.
    22
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    2002). 4 And as this Court explained in Balon v. Hotel & Restaurant Supplies,
    Inc., 
    103 Ariz. 474
    , 477 (1968), “[a] fictitious inference of law created to fill
    gaps in written contracts should not be held paramount over the express
    manifestations of intent of the parties.” Thus, the implied warranty of
    workmanship and habitability “should not be held paramount” where
    competent parties have agreed to modify the implied warranty with an
    express warranty. Id.; see also Consumers Int’l, 191 Ariz. at 34 (describing
    parties’ ability to contract freely as a “paramount public policy” (quoting
    Wood Motor Co., 238 S.W.2d at 185)).
    ¶58            We recognize this Court’s jurisprudence that “courts should
    rely on public policy to displace the private ordering of relationships only
    when the term is contrary to an otherwise identifiable public policy that
    clearly outweighs any interests in the term’s enforcement.” 1800 Ocotillo,
    219 Ariz. at 202 ¶ 8; see also Goodman, 
    101 Ariz. at 474
     (recognizing a
    “fundamental right of the individual to complete freedom to contract or
    decline to do so, as he conceives to be for his best interests, so long as his
    contract is not illegal or against public policy” (quoting McCall v. Carlson,
    
    172 P.2d 171
    , 187 (Nev. 1946)). But this Court has also explained that
    in the absence of a legislative declaration of what that public
    policy is, before courts are justified in declaring its existence[,]
    such public policy should be so thoroughly established as a state
    of public mind, so united and so definite and fixed that its
    existence is not subject to any substantial doubt.
    Ray v. Tucson Med. Ctr., 
    72 Ariz. 22
    , 36 (1951) (emphasis added). Since its
    creation, this Court has applied the implied warranty in instances where
    the builder-vendor and homebuyer had not agreed to modify the implied
    4 Centex Homes was later superseded by statute when the Texas Legislature
    “created the Texas Residential Construction Commission and gave it
    rulemaking authority to create statutory warranties of workmanship and
    habitability as to new residential construction,” and “[t]hese statutory
    warranties [became] exclusive and supercede[d] all previous implied
    warranties of workmanship and habitability.” Gym-N-I Playgrounds, Inc.,
    v. Snider, 
    220 S.W.3d 905
    , 913 n.11 (Tex. 2007). Indeed, the exclusive type
    of warranty available to parties is an issue better suited for the legislature
    to address. Infra ¶¶ 63–65.
    23
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    warranty with an express warranty. This Court has never previously
    established a public policy that prohibits sophisticated parties in all cases
    from negotiating their own warranty terms—much less a public policy that
    is “so thoroughly established . . ., so united and so definite and fixed.” 
    Id.
    Thus, while “[t]he common law . . . is adopted and shall be the rule of
    decision in all courts of this state,” A.R.S. § 1-201, the common law does not
    mandate the result today.
    ¶59             In the majority’s view, the type of contract a homebuyer
    enters into does not make a difference. The majority makes clear that no
    party under any set of circumstances may modify the implied warranty of
    workmanship and habitability—even if the homebuyer is sophisticated and
    seeks to purchase a customized home that presents specific risks, for which
    the homebuyer prefers to negotiate unique coverage in an express
    warranty. See supra ¶ 35. The majority further indicates that parties may
    still enter into an express warranty, so long as those terms are in addition
    to the implied warranty of workmanship and habitability. See supra ¶¶ 16,
    20 (stating “if an express warranty is included in a purchase agreement, it
    may coexist with the implied warranty,” but public policy prohibits
    enforcement of a disclaimer of the implied warranty). But what about a
    homebuyer who prefers a contractual term that is less protective than the
    implied warranty as to one section or component of the home, in exchange
    for greater and broader protection in another area of the home? What
    about a homebuyer’s ability to negotiate a reduced purchase price in
    exchange for a warranty more limited than the implied warranty? Even
    here, Zambrano admits her express warranty may in some instances
    provide greater protection than the implied warranty, as a homebuyer may
    have a remedy under the express warranty (but not the implied warranty)
    if there are major structural defects after the statute of repose for the implied
    warranty has passed. In fact, Zambrano’s express warranty covers one of
    the coverage groups for up to ten years against damages from certain
    variances in materials or workmanship, supra ¶ 5, whereas the statute of
    repose for the implied warranty is eight years, A.R.S. § 12-552(E)–(F). The
    majority replaces the parties’ ability to determine their own best interests
    with an absolute prohibition on their ability to do so.
    ¶60             Many other jurisdictions have rejected the categorical rule
    the majority employs today. See, e.g., Turner v. Westhampton Ct., LLC,
    
    903 So. 2d 82
    , 93 (Ala. 2004) (“[T]he principle of freedom of contract permits
    a party to effectively disclaim the implied warranty of habitability.”);
    Greeves v. Rosenbaum, 
    965 P.2d 669
    , 673 (Wyo. 1998) (“The protection
    afforded to purchasers of a new home, however, does not go so far as to
    24
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    allow the purchasers to ignore their negotiated responsibilities.”); Tusch
    Enters. v. Coffin, 
    740 P.2d 1022
    , 1030–31 (Idaho 1987) (explaining “[t]he
    majority of states permit a disclaimer of an implied warranty of habitability,
    but the disclaimer must be clear and unambiguous,” and permitting
    disclaimer of the implied warranty in Idaho where the builder shows a
    knowing waiver); Bridges v. Ferrell, 
    685 P.2d 409
    , 410–11 (Okla. Civ. App.
    1984) (explaining the Oklahoma Supreme Court’s holding “that the implied
    warranty of habitability could be waived by the parties by agreement. . . . is
    in accord with the great majority of courts holding that while an implied
    warranty of habitability is a creature of public policy, a knowing disclaimer
    of the implied warranty would not be considered against public policy of
    [Oklahoma]”); Crowder v. Vandendeale, 
    564 S.W.2d 879
    , 881 n.4 (Mo. 1978)
    (explaining that, in Missouri, “one seeking the benefit of such a disclaimer
    [of the implied warranty] must not only show a conspicuous provision
    which fully discloses the consequences of its inclusion but also that such
    was in fact the agreement reached”).
    ¶61            The majority argues that Zambrano signed the “warranty
    with no variation to the preprinted terms in either document, without
    representation, and without any negotiation about warranties, suggesting
    she was in a take-it-or-leave-it situation.” Supra ¶ 21. But there are
    already well-established legal remedies that could render a contract,
    including an express warranty, invalid and unenforceable. Indeed, courts
    decline to enforce contract terms (1) that are unconscionable or illegal; (2)
    where there was fraud, duress, coercion, misrepresentation, or mistake; and
    (3) where a contract of adhesion was unconscionable and outside the
    reasonable expectations of the parties.              See A.R.S. § 47-2302
    (“Unconscionable contract or clause”); see also Maxwell v. Fid. Fin. Servs.,
    Inc., 
    184 Ariz. 82
    , 88, 90 (1995) (providing that contract provisions “are
    unenforceable if they are oppressive or unconscionable” and noting that
    “claims under the doctrines of fraud, misrepresentation, duress, and
    mistake” may be pursued); Goodman, 
    101 Ariz. at 474
     (recognizing “illegal”
    contracts as unenforceable); Merrill, 
    15 Ariz. at 531
     (discussing “fraud,
    duress, coercion, or extortion”); Broemmer v. Abortion Servs. of Phx., Ltd.,
    
    173 Ariz. 148
    , 153 (1992) (“Contracts of adhesion will not be enforced unless
    they are conscionable and within the reasonable expectations of the
    parties.”). Therefore, by way of example, if a trial court determines a
    homebuyer’s express warranty is invalid and unenforceable because it is
    unconscionable, then the implied warranty of workmanship and
    habitability would apply.       See Sirrah Enters., 242 Ariz. at 544 ¶ 8
    (explaining the implied warranty “arises from construction of the home”
    25
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    (quoting Lofts at Fillmore Condo. Ass’n, 218 Ariz. at 576 ¶ 13)). Here,
    Zambrano asserted a claim for “Breach of Contract” and a claim for “Breach
    of Implied Warranties.”        But Zambrano never asserted any such
    contractual defenses to the formation of her express warranty.
    ¶62             We are not, as the majority claims, “[e]ffectively eliminating
    the implied warranty.” Supra ¶ 27. We would continue to apply the
    implied warranty in cases where the parties have not otherwise agreed to
    substitute it with an enforceable express warranty. Moreover, contrary to
    the majority’s claim, we would not “enforce a waiver and disclaimer
    provision even absent an express warranty.” Supra ¶ 45. The very nature
    of the implied warranty is that it applies where there is no warranty at all.5
    See Richards, 
    139 Ariz. at
    244–46 (extending implied warranty to subsequent
    purchasers lacking privity of contract with builder-vendor where record
    indicated no express warranty). Thus, where parties have a waiver and
    disclaimer provision that lacks an express warranty, this would mandate
    application of the implied warranty. See 1800 Ocotillo, 219 Ariz. at 202 ¶ 8
    (“[C]ourts should rely on public policy to displace the private ordering of
    relationships only when the term is contrary to an otherwise identifiable
    public policy that clearly outweighs any interests in the term’s
    enforcement.”).
    ¶63          In reaching today’s decision prohibiting a waiver of the
    implied warranty, the majority focuses on policy matters that are better—
    5  We would apply the implied warranty as the limited “default” and “gap-
    filler” it was intended to be, recognizing that an assurance of workmanlike
    performance inheres in contracts for the exchange of goods or services that
    conforms to the reasonable expectations of the parties. See, e.g., Kubby v.
    Crescent Steel, 
    105 Ariz. 459
    , 460 (1970) (“A contractor who undertakes to
    perform a contract in accordance with plans and specifications furnished
    by the contractee . . . must perform the work in a workmanlike manner and
    without negligence. A contractor impliedly warrants that he will perform
    in a workmanlike manner even though the contract itself does not contain
    an express warranty of good workmanship.” (internal citations omitted));
    Cameron v. Sisson, 
    74 Ariz. 226
    , 230 (1952) (explaining that “an implied
    warranty did arise” and “[i]t is incumbent upon a contractor who
    undertakes to build a structure or as in this case, a well, to do so in a manner
    befitting a skilled well-driller”); see also A.R.S. §§ 47-2314 to -2317 (granting
    and protecting implied warranties of merchantability and fitness for a
    particular purpose in the sale of goods).
    26
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    and, as a matter of separation of powers, more appropriately—left for the
    legislature to address. The majority attempts to balance various interests
    of homebuyers and the public at large, supporting its decision by reasoning
    that: (1) “an implied home warranty is unique in protecting against
    financial catastrophe for homebuyers and community blight . . . . [P]oorly
    built homes are not easily discarded or replaced, and their impact can linger
    for decades,” supra ¶ 34; (2) eliminating the implied warranty would
    “increas[e] the likelihood that homes would be left unrepaired, to the
    detriment of homebuyers, their neighbors, and the public generally,” supra
    ¶ 27; and (3) the implied warranty “minimiz[es] the risk of catastrophic
    financial losses for all homebuyers,” supra ¶ 25.
    ¶64             In the context of homebuilding and homebuying, these are
    policy considerations better suited for the legislature to address, as we are
    not equipped to evaluate offsetting policy considerations such as the impact
    to home prices or other economic consequences to the public at large.
    Indeed, amici have presented competing policy considerations, including
    that a lack of predictability regarding homebuyer warranties has played a
    role in increasing home prices—an issue we are unable to consider because
    we are limited to the parties, facts, and arguments in this case. By contrast,
    the legislature routinely weighs these types of competing policy
    considerations. See Ariz. Const. art. 3 (“The powers of the government of
    the state of Arizona shall be divided into three separate departments, the
    legislative, the executive, and the judicial; . . . such departments shall be
    separate and distinct, and no one of such departments shall exercise the
    powers properly belonging to either of the others.”). Moreover, the
    contours of the implied warranty of workmanship and habitability are
    nebulous and developed in the context of specific court cases, unlike the
    legislative process where competing interests and approaches are weighed,
    and clear and precise requirements can be adopted.
    ¶65             This Court recently explained that a declaration of public
    policy is primarily a legislative function: “In Arizona, our primary source
    for identifying a duty based on public policy is our state statutes,” and “in
    the absence of a statute, we exercise great restraint in declaring public
    policy.”     Quiroz v. ALCOA Inc., 
    243 Ariz. 560
    , 566 ¶¶ 18–19 (2018)
    (rejecting a tort duty based on foreseeability); see also Local 266, Int'l Bhd. of
    Elec. Workers v. Salt River Project Agric. Improvement & Power Dist., 
    78 Ariz. 30
    , 40–41 (1954) (“We have said that statements of public policy must be
    made by the people through the legislature.”); Ray, 
    72 Ariz. at 35
     (“The
    27
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    declaration of ‘public policy’ is primarily a legislative function.”). 6 This
    Court has appropriately declined to declare public policy in the absence of
    legislative action in the area of torts. We cannot reconcile the divergent
    approach today and would apply judicial deference to legislative
    policymaking in both contexts.
    ¶66              The legislature has recognized the existence of the implied
    warranty of workmanship and habitability by creating a statute of repose
    for such claims, § 12-552(E)–(F), and mentioning the implied warranty in
    the Purchaser Dwelling Act, A.R.S. § 12-1362(E). We disagree with the
    majority’s conclusion that all waivers of the implied warranty are
    prohibited and that parties must now wait for the legislature to expressly
    permit such waivers.         Supra ¶ 48.   The legislature has specifically
    prohibited waivers in other contexts. See, e.g., A.R.S. § 20-3214(D) (“The
    provisions of this chapter [regarding life insurance] may not be waived by
    agreement.”); A.R.S. § 44-1615(A) (“The requirements and rights set forth
    in this article [regarding household goods movers] may not be waived.”);
    A.R.S. § 44-1371(A) (“Any remedy for a violation of this section [regarding
    motor vehicle transactions] may not be waived, modified or limited by
    agreement or contract.”). The legislature, however, has not prohibited the
    waiver of the implied warranty. This is significant and revealing. The
    legislature knows how to prohibit waivers—and has prohibited certain
    waivers—but it has not prohibited a waiver of the implied warranty.
    Therefore, on the specific issue before us, it is unnecessary to wait for the
    legislature to expressly permit such waiver, as the majority contends here.
    ¶67            The legislature has not rendered the implied warranty non-
    waivable, nor has it mandated the implied warranty in all instances. This
    is noteworthy because the legislature has extensively legislated in this area.
    For example, the legislature has required the Registrar of Contractors to
    establish “minimum standards for good and workmanlike construction.”
    A.R.S. § 32-1104(A)(5); see also Ariz. Admin. Code R4-9-108(A)(B) (requiring
    builders, pursuant to legislative standards, to “perform all work in a
    professional and workmanlike manner” and “in accordance with any
    applicable building codes and professional industry standards”). The
    6 The majority’s concern that homebuilders may exclusively start using
    express warranties and disclaiming the implied warranty altogether—a
    concern that is currently abstract and speculative—is likewise better suited
    for the legislature to address. Supra ¶ 26.
    28
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    legislature has also created mechanisms for resolving disputes in the
    homebuilding context, including through “Purchaser Dwelling Actions”
    and the filing of a complaint with the Registrar of Contractors; and,
    pursuant to legislative authority, the Registrar of Contractors has issued
    rules providing mechanisms for resolving disputes. See A.R.S. §§ 12-1361
    to -1366 (addressing “Purchaser Dwelling Actions” permitting a
    homebuyer to sue a builder-vendor for defects involving the builder’s
    “violation of construction codes,” “use of defective materials,” and “failure
    to adhere to generally accepted workmanship standards in the
    community”); A.R.S. §§ 32-1131 to -1140 (providing that homebuyer may
    file a complaint with the Registrar of Contractors and potentially recover
    money); §§ 32-1104(A)(5), -1105 (providing rulemaking authority for the
    Registrar of Contractors); A.R.S. §§ 32-1155 to -1169 (addressing regulation
    of contractors and construction contracts). The legislature has also created
    requirements for construction contracts, see A.R.S. §§ 32-1158, -1158.01,
    made certain provisions within construction contracts void and
    unenforceable, see A.R.S. § 32-1186, and clarified when performance may be
    suspended under a construction contract, see A.R.S. § 32-1185. 7
    ¶68            The majority also expresses concern that, if the implied
    warranty may be modified, subsequent purchasers of a home (who did not
    enter into an express warranty) may be left with no warranty at all. See
    supra ¶¶ 26, 46.      This issue, however, is not before us, because:
    (1) Zambrano directly purchased her home from Scott Homes; and (2) there
    is nothing in this record to indicate Scott Homes recorded the waiver and
    disclaimer as a covenant, thereby giving notice to subsequent purchasers.
    Thus, this case does not present this unresolved issue and it should be left
    for another day. See Richards, 
    139 Ariz. at 245
     (concluding subsequent
    purchasers can pursue claims against a builder-vendor for breach of the
    implied warranty, and explaining that “the purpose of a warranty is to
    protect innocent purchasers and hold builders accountable for their work”
    and thus “any reasoning which would arbitrarily interpose a first buyer as
    an obstruction to someone equally deserving of recovery is
    7 Zambrano argues the legislature’s activity in this area has been primarily
    for the benefit of the builder, and that not much has been done for the
    benefit of the consumer. But, even if true, this is a policy choice made by
    the legislature, and it is not our place to alter that decision “based on our
    own notions of appropriate public policy.” Quiroz, 243 Ariz. at 567 ¶ 20.
    29
    ZAMBRANO V. M & RC II LLC, ET AL.
    JUSTICE KING, joined by JUSTICE BOLICK, Dissenting
    incomprehensible”) (quoting Moxley v. Laramie Builders, Inc., 
    600 P.2d 733
    ,
    736 (Wyo. 1979)).
    ¶69              In conclusion, this Court previously held that “absent
    legislation specifying that a contractual term is unenforceable, courts
    should rely on public policy to displace the private ordering of
    relationships only when the term is contrary to an otherwise identifiable
    public policy that clearly outweighs any interests in the term’s
    enforcement.”       1800 Ocotillo, 219 Ariz. at 202 ¶ 8.    For the reasons
    previously stated, we would reject a sweeping rule that the public policy in
    favor of the implied warranty in all cases “clearly outweighs any interests in
    the . . . enforcement” of an express warranty to which parties agreed in the
    course of organizing their private affairs. Id. Trial courts are certainly
    capable of determining the enforceability of terms in an express warranty
    pursuant to the 1800 Ocotillo standard and recognized contract defenses.
    ¶70            Here, the trial court considered the 1800 Ocotillo standard
    and rejected Zambrano’s public policy arguments under this express
    warranty.     The trial court concluded that: (1) Zambrano’s “express
    warranty covers defined structural defects” for “two years more” than “an
    implied warranty claim;” (2) Zambrano “has not asserted that the ten year
    express warranty is insufficient in scope so as to fail to protect” Zambrano;
    and (3) Zambrano “failed to present any controverting evidence to support
    a conclusion that the waiver and express warranty allow the builder to
    avoid being held accountable for their work.” We would affirm the trial
    court’s grant of summary judgment in favor of Scott Homes on the implied
    warranty claim.
    30