Attorney At Law Magazine Vol 5 Issue 10 - Page 11

thus leaving intact other rulings impacting construction defect law. First, the court of appeals confirmed that Arizona’s statute of repose applies to claims for the breach of the implied warranty of good workmanship and habitability, and held that it barred the Sullivans’ warranty claim brought over nine years after substantial completion. The court also reiterated that the statute of repose does not violate the Arizona Constitution’s anti-abrogation clause. The court also held that equitable tolling cannot extend the statutory period because of the legislature’s clear intent to establish an outer cutoff for breach of contract and breach of implied warranty claims. Second, the court of appeals held that the private right of ac- Personal Touch Transportation executive town car limousine service Where Can We Take You Today? 480-559-7135 tion afforded to consumers under Arizona’s Consumer Fraud Act does not extend to subsequent home purchasers. In contrast to the public policy allowing subsequent homeowners to pursue a breach of implied warranty claim, the court of appeals found inapplicable to subsequent purchasers the act’s legislative purpose of protecting consumers in transactions involving disproportionate bargaining power. The court upheld the dismissal of the Sullivans’ fraudulent concealment claim on similar grounds. Third, the court of appeals applied a prior holding that attorney’s fees are not available for breach of implied warranty claims under Ariz. Rev. Stat. § 12-341.01. That decision rested originally on an Arizona Supreme Court legal malpractice decision holding that the fees statute applies only to express and implied-in-fact contracts, and not to contractual remedies implied in law. See also, Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 519, 521, 747 P.2d 1218, 1220 (1987). At first glance, the Sullivan ruling appears narrow in its ap- All the facts on legal salaries, one definitive resource. Download your 2013 Salary Guide today at plication of the economic loss doctrine and in its desire to protect the public policies underlying contract law. Practically, the decision extends the time period in which subsequent homeowners may pursue a claim for construction defects against a homebuilder beyond the statutory repose period for a breach of implied warranty claim. The statute of limitations would circumscribe that extension to two years following the discovery of any latent defects. Ariz. Rev. Stat. § 12-542. Some practitioners may believe the decision also allows homeowners to bring direct tort claims against other parties not in privity, such as the subcontractors who worked on a home. Whether the Arizona Supreme Court meant to allow such a broad expansion may have to await the next decision. Homeowners will not be able to collect their attorney’s fees, however, in any direct action lacking a contract. Phoenix • 602.977.0505 2375 E. Camelback Rd., Ste. 290 © 2012 Robert Half Legal. An Equal Opportunity Employer. 0912-5306 Vol. 5 No. 10 Attorney at Law Magazine® Greater Phoenix | 11