Fisher v. Rondo Pools
1 CA-CV 18-0343
| Ariz. Ct. App. | May 16, 2019Background
- Fisher contracted with Rondo Pools in Nov. 2013 to redesign and remodel her pool; she terminated the contract in Jan. 2014 after disputes.
- Fisher hired Brandenburg Pools to finish the work, filed an ROC complaint, and sued Rondo for consumer fraud, breach of contract, breach of implied warranty, and breach of the covenant of good faith and fair dealing.
- Fisher sought return of her $17,723.63 deposit, the additional cost paid to Brandenburg, and punitive damages. Rondo counterclaimed for wrongful termination.
- After a six-day jury trial, the jury rejected Fisher’s claims and found for Rondo on its counterclaim; the superior court awarded Rondo damages, costs, large attorney’s fees, and Rule 68 sanctions.
- On appeal Fisher challenged (1) the jury instructions (especially that the jury could consider Rondo’s ability or assurances to “cure” breaches) and (2) admission of certain evidence (settlement offers and an email from Brandenburg).
- The Court of Appeals affirmed, rejecting Fisher’s arguments that the cure language misinstructed the jury or that admission of the challenged evidence caused reversible prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction permitting consideration of defendant’s ability/assurances to "cure" when deciding material breach | Fisher: instruction effectively gave Rondo a right to cure and was improper/confusing because contract contained no right to cure | Rondo: instruction merely permitted the jury to consider cure as a factor in assessing materiality (consistent with Restatement §241) | Held: No error — court may instruct jury to consider ability/assurances to cure when evaluating material breach; instructions viewed as a whole were not misleading |
| Alleged inconsistency between cure instruction and instruction on Rondo’s counterclaim/right to cure | Fisher: conflict existed between cure-factor instruction and counterclaim instruction requiring Rondo to prove a right to cure | Rondo: no conflict — counterclaim required proof Rondo was ready, willing and able to perform; cure-factor instruction concerned materiality of breach | Held: No reversible conflict; instructions taken together were correct |
| Admission of Rondo’s post-termination settlement offers (Exs. 143, 159) | Fisher: offers were inadmissible under Ariz. R. Evid. 408 and prejudiced jury by suggesting Fisher refused a reasonable settlement | Rondo: offers were admitted for permissible purposes (e.g., to show Fisher’s motive or to impeach conduct), not to prove liability or amount | Held: No error — Rule 408 did not bar admission for the purposes for which Rondo offered the evidence; admission not prejudicial |
| Admission of Brandenburg email (Ex. 151) and testimony about it | Fisher: Exhibit 151 was hearsay and Rondeau was not an expert to interpret it; admission prejudiced Fisher | Rondo: offered the email to rebut Fisher’s damage calculation and to show differences in the work Brandenburg performed | Held: Even if erroneous, admission was not prejudicial (jury awarded no damages to Fisher and there was other competent evidence supporting Rondo’s position); no reversal warranted |
Key Cases Cited
- Found. Dev. Corp. v. Loehmann's, 163 Ariz. 438 (1990) (adopts Restatement §241 factors to determine triviality/materiality of breach)
- Zancanaro v. Cross, 85 Ariz. 394 (1959) (victim of material breach may terminate; victim of partial breach must continue performance)
- Mining Investment Grp., LLC v. Roberts, 217 Ariz. 635 (App. 2008) (Refused to apply Restatement §241 when contract expressly defined materiality)
- A Tumbling-T Ranches v. Flood Control Dist., 222 Ariz. 515 (App. 2009) (standard of review for jury instructions; de novo review whether instruction states law)
- Maleki v. Desert Palms Prof'l Props., L.L.C., 222 Ariz. 327 (App. 2009) (substantial evidence may support conclusion that a party did not materially breach)
- Am. Pepper Supply Co. v. Fed. Ins. Co., 208 Ariz. 307 (2004) (reversal on instruction challenge requires showing the error prejudiced appellant)
- Dykeman v. Ashton, 8 Ariz. App. 327 (1968) (error in admitting evidence is not reversible unless prejudicial)