Boland v. Discount Tire ( 2017 )


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  •                       NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    BERNA BOLAND, Plaintiff/Appellant,
    v.
    DISCOUNT TIRE COMPANY INC, et al., Defendants/Appellees.
    No. 1 CA-CV 16-0370
    FILED 12-21-2017
    Appeal from the Superior Court in Maricopa County
    No. CV2012-007848
    The Honorable J. Richard Gama, Judge, Retired
    AFFIRMED
    COUNSEL
    McAllister Law Firm PC, Glendale
    By Michael L. McAllister
    Co-Counsel for Plaintiff/Appellant
    Rowley Chapman Barney & Buntrock LTD, Mesa
    By Kevin J. Chapman
    Co-Counsel for Plaintiff/Appellant
    Lewis Brisbois Bisgaard & Smith LLP, Phoenix
    By Matthew D. Kleifield, Robert C. Ashley
    Co-Counsel for Defendants/Appellees
    Lowis & Gellen LLP, Phoenix
    By Galen H. Satterlee, C. J. Gibbs
    Co-Counsel for Defendants/Appellees
    Discount Tire Company, Scottsdale
    By Christian K. G. Henrichsen
    Co-Counsel for Defendants/Appellees
    MEMORANDUM DECISION
    Presiding Judge Michael J. Brown delivered the decision of the Court, in
    which Judge Jennifer B. Campbell and Judge Margaret H. Downie (retired)
    joined.
    B R O W N, Judge:
    ¶1           Berna Boland appeals the superior court’s judgment in favor
    of Discount Tire Company, Inc. and Discount Tire Direct, Inc. (collectively,
    “Discount Tire”). She argues the court erred by denying her two motions
    to amend and granting Discount Tire’s motion for summary judgment. For
    the following reasons, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    ¶2             This litigation arises from an accident that occurred in May
    2010. Boland was driving a 2003 Mazda B3000 when her vehicle’s right rear
    tire failed, causing an immediate loss of air (blowout) due to a tread
    puncture. Boland lost control and suffered serious injuries as the vehicle
    rolled and crashed on the pavement. Boland purchased the tires from
    Discount Tire on February 14, 2009 and drove about 12,500 miles between
    the date of purchase and the accident.
    ¶3            Boland filed a lawsuit in the superior court in May 2012, and
    filed an amended complaint shortly thereafter, prior to serving any of the
    named defendants. From the outset of the litigation, Boland focused on a
    product liability claim against Goodyear, which manufactured the tire, and
    Discount Tire, as the distributor. But Boland also included a claim against
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    BOLAND v. DISCOUNT TIRE, et al.
    Decision of the Court
    Discount Tire for negligence and negligent misrepresentation.1 The court
    appointed a special master to assist with numerous discovery issues,
    including establishing ground rules for testing and analysis of the damaged
    tire.
    ¶4            In August 2014, Boland sought leave to file a third amended
    complaint, alleging the following new claims against Discount Tire:
    consumer fraud, fraudulent concealment, emotional distress, and breach of
    the covenant of good faith and fair dealing.2 In support of her request,
    Boland explained she no longer had a “strict liability case” against
    Goodyear or Discount Tire, and argued in part that the amendment was
    proper based on “an evolution of the original negligence case against
    Discount [Tire].”3 The superior court denied Boland’s request to add any
    new claims against Discount Tire and allowed her to proceed on the
    negligence claim originally asserted against Discount Tire, but under an
    entirely new theory—the tire blowout was ultimately caused by a tool
    negligently left inside the tire when Boland purchased the tires.
    ¶5           In January 2016, Discount Tire moved for summary
    judgment, asserting Boland could not establish through appropriate expert
    testimony that a tool left inside the tire caused the blowout. The superior
    court granted the motion, concluding that Boland failed to establish
    1      For reasons not clear from the record, Boland filed a second
    amended complaint in September 2012, without leave of the court. See Ariz.
    R. Civ. P. (“Rule”) 15(a)(1)-(2). Regardless, the allegations of the second
    amended complaint have no bearing on the issues raised in this appeal.
    2      Boland also sought to add claims against three new parties (Ford,
    Mazda, and Bell Honda), which the superior court denied. Although
    Boland suggests those claims should have been allowed to move forward,
    her opening brief explicitly confirms she is not seeking to overturn the
    court’s ruling as to Ford or Bell Honda. And because she fails to make any
    argument on appeal that the court erred in denying her third motion to
    amend as it relates to Mazda, she has implicitly confirmed her intent not to
    challenge that portion of the court’s ruling.
    3     The superior court dismissed Boland’s claims against Goodyear in
    September 2014. Boland’s product liability claim against Discount Tire was
    apparently withdrawn when she filed her third amended complaint. Also,
    the court dismissed Boland’s negligent misrepresentation claim against
    Discount Tire in October 2015.
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    BOLAND v. DISCOUNT TIRE, et al.
    Decision of the Court
    through “admissible evidence [ ] a prima facie case of negligence” against
    Discount Tire.
    ¶6             While the motion for summary judgment was pending,
    Boland moved for leave to file a fourth amended complaint, alleging that
    Discount Tire failed to warn her of the “highly dangerous consequences of
    a tire disablement on her vehicle.” The court denied Boland’s motion based
    on undue delay and the resulting prejudice to Discount Tire. The court then
    entered judgment dismissing Boland’s claim, and awarded taxable costs to
    Discount Tire in the amount of $72,676.65. Boland timely appealed.
    DISCUSSION
    A.    Motions to Amend
    ¶7           Boland argues the superior court erred by denying her third
    and fourth motions to amend her complaint, contending new information
    had been discovered that led to new causes of action.
    ¶8             We review the denial of a motion to amend for an abuse of
    discretion. Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 
    231 Ariz. 517
    , 519, ¶ 4 (App. 2013) (citation omitted). The superior court has
    discretion whether to grant leave to amend, and will allow amendments
    liberally unless it finds specific cause, such as undue delay or futility, to
    deny the amendment. See Rule 15(a)(2) (“Leave to amend must be freely
    given when justice requires.”). In determining whether the court abused its
    discretion, we presume the truth of the facts alleged in the proposed
    complaint. MacCollum v. Perkinson, 
    185 Ariz. 179
    , 185 (App. 1996). A
    finding of undue delay requires more than a party merely seeking to amend
    late in the proceedings. See Owen v. Superior Court, 
    133 Ariz. 75
    , 79 (1982).
    Denial of leave to amend is “a proper exercise of the court’s discretion when
    the amendment comes late and raises new issues requiring preparation for
    factual discovery which would not otherwise have been necessitated nor
    expected, thus requiring delay in the decision of the case.” 
    Id. at 81.
    ¶9            In denying Boland’s request to file a third amended
    complaint, the court declined to allow four new claims against Discount
    Tire because the motion was unduly late and permitting the claims to move
    forward would have been prejudicial. The court noted that Boland had
    “completely changed the factual basis and legal focus of the negligence
    claim” she had already asserted. The court determined that the newly-
    asserted claims arose from factual circumstances and issues that were
    present in the case since its inception. At the time of Boland’s motion, the
    only claims pending against Discount Tire were for negligence, product
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    BOLAND v. DISCOUNT TIRE, et al.
    Decision of the Court
    liability, and negligent misrepresentation. Discount Tire had been
    defending these claims for almost three years by the time the court held oral
    argument on the motion to amend, and Boland failed to offer any
    compelling justification as to why the new claims could not have been
    asserted much earlier in the litigation. Thus, we conclude the court did not
    abuse its discretion by denying Boland’s attempt to add four new claims at
    that stage of the litigation.4
    ¶10          Similarly, the superior court denied Boland’s request to file a
    fourth amended complaint, in which she sought to add a negligent failure
    to warn claim against Discount Tire, based on undue delay and prejudice.
    The court found that Boland offered “no substantial explanation, much less
    a compelling one, why this currently offered claim could not and should
    not have been filed years ago.” Given the circumstances surrounding the
    proposed amendment, the court acted within its discretion in denying
    Boland’s motion to add the failure to warn claim.
    B.    Summary Judgment
    ¶11            Summary judgment is appropriate if there are no genuine
    disputes of material fact and the moving party is entitled to judgment as a
    matter of law. Rule 56(a). We review a grant of summary judgment de
    novo and view the record in the light most favorable to the party opposing
    summary judgment. Barth v. Cochise Cnty., Ariz., 
    213 Ariz. 59
    , 61, ¶ 2 (App.
    2006). When the party moving for summary judgment makes a prima facie
    showing that no genuine issue of material fact exists, the burden shifts to
    the opposing party to produce sufficient competent evidence to show that
    there is an issue. Nat’l Bank of Ariz. v. Thruston, 
    218 Ariz. 112
    , 114-15, ¶ 12
    (App. 2008). Finally, “[w]e will affirm if the trial court’s disposition is
    correct for any reason.” Logerquist v. Danforth, 
    188 Ariz. 16
    , 18 (App. 1996).
    ¶12          In its motion for summary judgment (accompanied by a
    separate statement of facts), Discount Tire asserted that (1) despite its
    repeated requests, Boland had failed to provide expert witness testimony
    meeting the admissibility standards of Arizona Rule of Evidence 702; (2)
    Boland’s theory of liability required expert testimony because it depends
    4       Although we find no abuse of discretion on the grounds discussed
    here, we do not address other findings made by the superior court that do
    not affect our decision, such as the determination that the new claims “do
    not relate back to the initial complaint.” See Tumacacori, 
    231 Ariz. 517
    , 519,
    ¶ 4 (recognizing, in the context of a motion to amend, that an appellate court
    will affirm a trial court’s decision if it is correct for any reason).
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    BOLAND v. DISCOUNT TIRE, et al.
    Decision of the Court
    on technical and engineering knowledge; (3) a qualified expert must
    provide evidence of how an object left inside a tire can cause a blowout
    because making that connection was beyond the common knowledge of a
    jury; and (4) the theory of res ipsa loquitur, which permits an inference of
    negligence, was inapplicable.
    ¶13            In her response (with no separate statement of facts), Boland
    stated that affidavits would follow, but asserted (1) her attached disclosure
    statements provided ample evidence that Discount Tire was negligent; (2)
    no expert testimony was necessary to establish causation; and (3) the
    superior court should first rule on her pending motion for judgment on the
    pleadings to determine whether Discount Tire had waived all affirmative
    defenses.5 Boland asserted that “[i]t turns out that a layman could
    determine the tire failed from the inside” but that how it failed “needed to
    be answered by using various techniques, analyses, and it has resulted in a
    very powerful set of opinions, unrebutted in this case.” She asserted,
    however, there was no requirement that she provide expert testimony
    before Discount Tire is required to disclose “facts and theories” underlying
    its defense. Nonetheless, Boland asserted that she would “have affidavits
    from her experts shortly.” She did not request additional time in which to
    file her response, nor did she file a “request for relief and expedited
    hearing” under Rule 56(f),6 which would have allowed her to explain why
    she was unable at the time to “present evidence essential to justify [her]
    opposition.”
    ¶14            Discount Tire replied that Boland failed to present any
    evidence that would raise a triable issue of fact on causation and that
    Boland was precluded under Rule 7.1(a) from filing her expert witness
    affidavits at a later time. Thus, according to Discount Tire, Boland failed to
    controvert the motion for summary judgment with admissible evidence.
    See Dietz v. Lopez, 
    179 Ariz. 355
    , 356 (App. 1994) (“A motion for summary
    judgment must be granted if the party with the burden of proof . . . presents
    no admissible evidence which creates a material issue of fact.”). Boland
    5     Boland attached her preliminary expert disclosure statement,
    discovery responses, an amended disclosure statement, and a declaration
    of counsel indicating in part that expert witness affidavits could not be
    secured within the time required for a response and that “further facts,
    circumstances and matters will be placed in a Statement of Facts” as is
    necessary and appropriate.
    6      Rule 56(f) was re-numbered as Rule 56(d), effective January 1, 2017.
    As relevant here, the two versions are not materially different.
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    BOLAND v. DISCOUNT TIRE, et al.
    Decision of the Court
    then filed her supplemental response, which included the affidavits of her
    two experts opining as to how a tool left in the tire eventually caused the
    tire to fail.
    ¶15           In granting the motion for summary judgment, the superior
    court found that “a supplemental response is not authorized by the Rules”
    and that under Rule 7.1(a), affidavits that are not timely filed “should not
    be considered.” The court also found that the “mechanism of failure”
    alleged to have caused the tire blowout is not within the “common
    knowledge or understanding of a typical juror such that a jur[or] may infer
    negligence.” The court therefore concluded that expert testimony was
    required to establish causation and that res ipsa loquitur was inapplicable.
    Further, the court found there was “an absence of admissible evidence”
    connecting Discount Tire’s alleged practices in installing the tire on
    Boland’s vehicle to the “proximate cause of the tire’s subsequent puncture
    and failure. At best there is alleged a speculative link.” Thus, the court
    concluded that Boland failed to meet her “burden of production to establish
    admissible evidence of a prima facie claim of negligence.” On appeal, Boland
    argues the court erred in (1) disregarding her supplemental response
    because it improperly applied Rule 7.1, and (2) finding that expert
    testimony was required and res ipsa loquitur was not applicable.7
    1.     Supplemental Response
    ¶16       Rule 7.1(a)8 permits the filing of a motion accompanied by a
    memorandum, an answering memorandum, and reply memorandum.
    7       Given our conclusion that Boland failed to timely present admissible
    expert witness evidence supporting her negligence claim, we need not
    specifically address the superior court’s finding that she also failed to
    present admissible evidence showing anything more than a “speculative
    link” between Discount Tire’s alleged practices in installing the tire on
    Boland’s vehicle and the cause of the blowout. Additionally, we do not
    address Boland’s argument that the court erred in failing to consider her
    motion for judgment on the pleadings filed after Discount Tire filed its
    motion for summary judgment. By granting summary judgment and
    concluding that Boland failed to meet her burden of establishing a prima
    facie case of negligence against Discount Tire, the court implicitly denied
    Boland’s motion for judgment on the pleadings.
    8   We cite the version of Rule 7.1 as it was in effect at the time of the
    summary judgment proceedings. The current version, adopted as of
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    BOLAND v. DISCOUNT TIRE, et al.
    Decision of the Court
    Additionally, “affidavits supporting the motion shall be filed and served
    together with the motion.” Rule 7.1(a). We review rulings under Rule 7.1
    for abuse of discretion, Schwab v. Ames Const., 
    207 Ariz. 56
    , 60, ¶ 17 (App.
    2004), which is discretion that is “manifestly unreasonable, or exercised on
    untenable grounds, or for untenable reasons,” Tilley v. Delci, 
    220 Ariz. 233
    ,
    238, ¶ 16 (App. 2009).
    ¶17           Without citation to authority, Boland asserts that application
    of Rule 7.1(a) is not mandatory and thus she could properly continue
    responding to Discount Tire’s motion for summary judgment before oral
    argument or the court’s ruling. But nothing in the rule permits the filing of
    supplemental evidence in support of a memorandum without a court order.
    Rule 7.1(a); see Bohmfalk v. Cochise Cnty., 2 CA-CV 2015-0137, 
    2016 WL 3434717
    , at *5, ¶¶ 29-31 (Ariz. App. June 20, 2016) (mem. decision) (finding
    the superior court did not abuse its discretion in granting a motion to strike
    supplemental facts in response to a motion for summary judgment). Given
    the plain language of the rule and the posture of the litigation, together with
    Boland’s failure to file a Rule 56(f) request for relief, the superior court did
    not abuse its discretion in declining to consider Boland’s supplemental
    response. Thus, Boland did not submit admissible expert testimony in
    response to the motion for summary judgment, which means her
    negligence claim fails if such evidence was required to support her claim.
    2.     Res Ipsa Loquitur/Expert Testimony
    ¶18           A plaintiff asserting negligence must prove: “(1) a duty
    requiring the defendant to conform to a certain standard of care; (2) a breach
    by the defendant of that standard; (3) a causal connection between the
    defendant’s conduct and the resulting injury; and (4) actual damages.”
    Gipson v. Kasey, 
    214 Ariz. 141
    , 143, ¶ 9 (2007). The plaintiff bears the burden
    of proof on the issue of proximate cause, which is described as a “natural
    and continuous sequence, unbroken by any efficient intervening cause,
    produces an injury, and without which the injury would not have
    occurred.” Robertson v. Sixpence Inns of Am., Inc., 
    163 Ariz. 539
    , 546 (1990).
    Summary judgment may be granted when the “plaintiff’s evidence does not
    establish a causal connection, leaving causation to the jury’s speculation, or
    where reasonable persons could not differ on the inference derived from
    the evidence . . . .” 
    Id. Boland argues
    that in addition to “circumstantial
    evidence, the principles of res ipsa loquitur could apply here,” asserting that
    January 1, 2017, is not materially different as it relates to the issues
    presented here.
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    BOLAND v. DISCOUNT TIRE, et al.
    Decision of the Court
    “[m]ost people could easily conclude that a tire failing from the inside
    would indicate negligence.”
    ¶19          “Res ipsa loquitur (meaning the thing speaks for itself) is a rule
    of circumstantial inference of responsibility for an injury.” Lowrey v.
    Montgomery Kone, Inc., 
    202 Ariz. 190
    , 192, ¶ 6 (App. 2002). Under Arizona
    law, the elements of res ipsa loquitur are:
    (1) the accident must be of a kind that ordinarily does not
    occur in the absence of negligence;
    (2) the accident must be caused by an agency or
    instrumentality subject to the control of the defendant; and
    (3) the plaintiff must not be in a position to show the
    particular circumstances that caused the offending agency or
    instrumentality to operate to her injury.
    
    Id. at ¶
    7. “A plaintiff who establishes the elements of res ipsa loquitur can
    avoid summary judgment and reach the jury without direct proof of
    negligence.” 
    Id. at ¶
    6. The preliminary question of whether res ipsa loquitur
    applies is a question of law for the court. 
    Id. Even assuming
    that Boland
    presented admissible evidence in the summary judgment proceedings to
    establish the second and third elements of res ipsa loquitur, she has not
    presented admissible evidence establishing the first element.
    ¶20             When there is “no fund of common knowledge” that would
    permit a layperson to reasonably conclude that an accident could not have
    occurred in absence of negligence, “the parties may provide the evidence.”
    Ward v. Mount Calvary Lutheran Church, 
    178 Ariz. 350
    , 355 (App. 1994). And
    “[u]nless it is within the layperson’s common experience, a showing that a
    plaintiff’s injury is ‘of a kind which ordinarily does not occur in the absence
    of someone’s negligence’ requires expert evidence.” 
    Id. (citation omitted)
    (emphasis added).
    ¶21             Here, we agree with the superior court that Boland needed
    expert testimony to support her claim because her theory of negligence is
    outside a layperson’s knowledge or experience. Without expert testimony,
    the causal links between a tool allegedly left in a tire and the subsequent
    tire failure is based only on speculation. Boland does not cite, nor are we
    aware of, any authority supporting the notion that a common fund of
    knowledge or experience exists involving circumstances like those alleged
    here—a tool left inside a tire that eventually punctures the tire, causing a
    blowout. See 
    id. (recognizing that
    merely because an accident is rare does
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    BOLAND v. DISCOUNT TIRE, et al.
    Decision of the Court
    not lead to the application of res ipsa loquitur.); cf. Brookover v. Roberts Enters.,
    Inc., 
    215 Ariz. 52
    , 58, ¶ 21 (App. 2007) (finding that plaintiffs failed to show,
    without expert testimony or an assumption of common knowledge, that
    their automobile collision with a cow in open range territory was the type
    of accident that would not occur absent negligence by the owner of the
    cow).
    ¶22           To survive summary judgment, Boland needed to present
    admissible evidence establishing a reasonable inference that the tire sold to
    her by Discount Tire would not have failed absent negligence by Discount
    Tire. She could not make that showing without providing expert testimony
    and thus she failed to meet that burden. See Badia v. City of Casa Grande, 
    195 Ariz. 349
    , 357, ¶ 29 (App. 1999) (“Sheer speculation is insufficient to
    establish the necessary element of proximate cause or to defeat summary
    judgment.”); 
    Ward, 178 Ariz. at 355
    (“[T]he fact that an accident occurred is
    not enough to permit an inference of negligence.”).
    CONCLUSION
    ¶23            For the foregoing reasons, we affirm the superior court’s
    judgment.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    10