GRK Holdings, LLC v. First American Title Insurance Company et al

Filing 171

ORDER. Reaffirming trial set for 5/22/2012 at 9:00 a.m. Counsel shall be in the courtroom ready to proceed no later than 8:30 a.m. on 5/22/2012. Signed by Judge David G Campbell on 4/23/2012. (NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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GRK Holdings, LLC, a Nevada limited
liability company,

No. CV10-0050 PHX-DGC
ORDER

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Plaintiff,

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v.

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Security Title Agency, Inc.,

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Defendant.

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The parties have submitted a Proposed Final Pretrial Order (Doc. 170) as required

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by the Court’s Order Setting Trial (Doc. 168). The proposed order identifies various

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issues of law to be determined by the Court. This order will address those issues.

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1.

Plaintiff contends that it may recover damages from Defendant to

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compensate Plaintiff for attorneys’ fees incurred in defending separate state court actions

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allegedly caused by Defendant’s breach. Plaintiff is correct. As the Arizona Court of

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Appeals has explained, “the overwhelming general rule is that the victim of a breach of

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contract may recover damages from the breaching party to compensate for attorneys’ fees

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and costs expended by the victim to defend a separate suit brought against it as a

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foreseeable result of the breach.” Fairway Builders, Inc. v. Malouf Towers Rental Co.,

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603 P.2d 513, 529 (Ariz. Ct. App. 1979). The Court does not conclude that the attorneys’

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fees claimed in this case were foreseeable as a matter of law. Foreseeability will be a fact

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determination to be made by the jury.

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2.

The Court previously precluded Defendant from presenting any evidence

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that Plaintiff’s debt was paid in full. Doc. 168 at 3. Plaintiff contends in the proposed

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order that Defendant has identified two witnesses, Veronica Belifore and Nicole Zorn,

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who will testify that Plaintiff received payment in full. Doc. 170 at 9-10. Defendant

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does not address these witnesses in its response to this legal issue, but does contend that

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Plaintiff’s loan was satisfied in full as a matter of law. Id. at 14-15. This issue was

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decided in the Court’s previous order. Defendant will not be permitted to present any

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evidence at trial, or to argue to the jury, that Plaintiff’s debt has been paid in full.

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3.

Defendant argues that Plaintiff has waived or released its claim for damages

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on Unit 122 by virtue of a release of the deed of trust. Defendant quotes release

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language, but provides no citation for the quoted language and otherwise fails to identify

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evidence in the record in support of its position. Nor does Defendant cite any legal

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authority in support of its requested ruling. As a result, Defendant has provided no basis

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for the Court to rule on this issue as a matter of law.

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4.

Defendant argues that Plaintiff released its claim for lost proceeds on

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Unit 122 by virtue of a settlement agreement entered in the state court litigation.

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Doc. 170 at 14. Again, Defendant does not cite to a document or portion of the record in

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support of this argument, or provide a copy of the settlement agreement that purportedly

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effectuated this release. As a result, Defendant has provided no basis for the Court to rule

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in its favor as a matter of law.

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5.

Defendant contends that Plaintiff was junior to $912,500 in secured

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obligations covering Units 119 and 122 and therefore would have been entitled to no

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sales proceeds from these units. Doc. 170 at 15. Defendant again fails to provide any

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exhibit or citation to the record in support of this assertion. As a result, the Court cannot

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rule in its favor as a matter of law.

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6.

Defendant contends that Plaintiff’s damages were reduced by $100,000

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through a March 26, 2006 agreement, but does not provide a copy of, or a citation to, the

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agreement. As a result, the Court cannot rule in Defendant’s favor as a matter of law.
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As previously stated by the Court, trial will begin on May 22, 2012 at 9:00 a.m.

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The parties should be in the courtroom and ready to proceed no later than 8:30 a.m. on

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May 22, 2012.

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Dated this 23rd day of April, 2012.

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