Rep Custom v. McBride ( 2019 )


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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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    R.E.P. CUSTOM BUILDERS INC., an Arizona corporation,
    Third Party Plaintiff/Appellant,
    v.
    MCBRIDE EXCAVATING CORPORATION, an Arizona corporation;
    MINGUS MOUNTAIN MASONRY, L.L.C., an Arizona Limited Liability
    Company, and FOXWORTHY CONCRETE, INC., an Arizona corporation,
    Third Party Defendants/Appellees.
    No. 1 CA-CV 18-0358
    FILED 6-4-2019
    Appeal from the Superior Court in Yavapai County
    No. P1300CV201600183
    The Honorable Christopher L. Kottke, Judge Pro Tempore
    AFFIRMED
    COUNSEL
    Springel & Fink, LLP, Phoenix
    By Leonard T. Fink, Thomas G. Levine
    Shorall McGoldrick Brinkmann, PC, Phoenix
    By Scott M. Zerlaut
    Co-Counsel for Appellant
    Wright Welker & Pauole, PLC, Phoenix
    By Diane L. Bornscheuer, Donald B. Petrie
    Counsel for Appellee
    REP CUSTOM v. MCBRIDE
    Decision of the Court
    MEMORANDUM DECISION
    Judge Kent E. Cattani delivered the decision of the Court, in which
    Presiding Judge David D. Weinzweig and Judge James P. Beene joined.
    C A T T A N I, Judge:
    ¶1            R.E.P. Custom Builders Inc. appeals from the superior court’s
    entry of summary judgment in favor of McBride Excavating Corporation
    based on Arizona’s eight-year statute of repose for actions arising under
    construction contracts. See Ariz. Rev. Stat. (“A.R.S.”) § 12-552. For reasons
    that follow, we affirm.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2             In January 2006, the Whiles family entered a construction
    contract with REP to build a custom home in Cornville, Arizona. REP then
    hired McBride (among others) as a subcontractor to provide certain work
    related to the house’s foundation. In conjunction with that subcontract,
    McBride executed a “Supplemental Insurance & Indemnity Agreement for
    Subcontractors” that, as relevant here, required McBride to (1) name REP
    as an additional insured on its commercial general liability insurance policy
    for liability arising out of McBride’s work under the subcontract and (2)
    indemnify REP for all claims arising from McBride’s work under the
    subcontract. The house was substantially completed as of March 14, 2008.
    ¶3           The Whiles family first noticed then-minor issues with the
    construction (e.g., doors sticking) in 2009. In January 2010, REP sent a
    representative to look at the property, and the representative did some
    minor repairs the same day—tightening balcony bolts, adjusting a door
    jamb, and spraying foam into a retaining wall—but recommended waiting
    a year for the house to settle. According to Mr. Whiles, REP did not
    complete any other repairs, provide any list of proposed repairs, or
    otherwise indicate an intent to make additional repairs after that time.
    ¶4            Over the summer of 2013, the Whiles family allegedly
    discovered substantial latent defects in the home, including movement and
    cracks in walls, floors, and retaining walls. In August 2013, the Whileses
    hired a different contractor, Arizona Ram Jack, to inspect the property to
    document and evaluate foundation issues and resulting damage. Also in
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    REP CUSTOM v. MCBRIDE
    Decision of the Court
    2013, REP contacted McBride to ask about alleged defects, but McBride did
    not offer any information, and REP did not follow up. Later, in October
    2015, REP hired a geotechnical engineering firm to inspect the Whiles
    property.
    ¶5            Meanwhile, in mid-2014, REP’s insurance carrier contacted
    McBride’s insurer to seek coverage for claims related to the alleged defects.
    In October 2014, McBride’s insurer responded that REP was not an
    additional insured under McBride’s policy. Then, in December 2015, REP
    contacted McBride directly seeking a defense and indemnity, which
    McBride denied in February 2016.
    ¶6            On March 11, 2016, the Whileses brought a construction
    defect claim against REP.
    ¶7            On August 22, 2016, REP filed a third-party complaint against
    McBride, asserting seven contract-based claims seeking indemnity, defense,
    and additional insurance coverage premised on the supplemental
    insurance and indemnity agreement, as well as claims for negligence and
    common law indemnity. McBride answered the complaint and, among
    other affirmative defenses, asserted that REP’s claims were time-barred.
    ¶8            McBride then moved for summary judgment on REP’s
    contract-based claims based on the eight-year statute of repose applicable
    to construction contracts. See A.R.S. § 12-552(A). REP opposed, urging that
    the statute of repose either did not apply to the contract for additional-
    insured coverage or was tolled while REP and the Whileses worked on
    repairs and attempted to resolve their dispute under the Purchaser
    Dwelling Act. See A.R.S. § 12-1363(F). See generally A.R.S. §§ 12-1361 to -
    1366. REP also filed a cross-motion for partial summary judgment on the
    merits of several of its claims, which McBride opposed.
    ¶9            The superior court granted McBride’s motion for summary
    judgment and denied REP’s cross-motion. The court reasoned that § 12-552
    applied to all of REP’s contract-based claims and found no evidence to
    support tolling the statute of repose.1 Approximately one month later on
    May 29, 2018, after considering McBride’s request for attorney’s fees and
    1      In addition to the judgment on REP’s contract-based claims, McBride
    moved for and the superior court granted summary judgment on the
    negligence and common law indemnity claims on other grounds, and REP
    does not challenge those facets of the ruling.
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    REP CUSTOM v. MCBRIDE
    Decision of the Court
    costs, the court entered a Rule 54(b) judgment in favor of McBride on all of
    REP’s claims. REP timely filed a notice of appeal three days later.
    ¶10           McBride then filed a timely motion to amend the judgment to
    include an award of attorney’s fees and costs, which the superior court
    denied in an unsigned minute entry. Because that ruling was unsigned, this
    court stayed the already-pending appeal and revested jurisdiction in the
    superior court to sign the order resolving McBride’s time-extending
    motion. See ARCAP 9(e); Tripati v. Forwith, 
    223 Ariz. 81
    , 84, ¶ 15 (App.
    2009). The superior court entered a signed ruling on McBride’s motion to
    amend on July 27, 2018. The appeal was automatically reinstated on July
    30 when this court received the signed order.
    ¶11           On July 31, REP filed in superior court a motion for
    reconsideration or for new trial challenging the summary judgment ruling.
    After the superior court promptly granted McBride’s request to strike REP’s
    motion, REP moved for reconsideration of that ruling, then filed an
    amended notice of appeal that included the court’s order striking REP’s
    motion.
    DISCUSSION
    I.     Scope of the Appeal.
    ¶12           REP’s appeal challenges both the summary judgment ruling
    in favor of McBride that led to a final judgment entered May 29, 2018, and
    the superior court’s post-judgment ruling striking REP’s motion for
    reconsideration or for new trial. We have jurisdiction over the appeal from
    the final judgment under A.R.S. § 12-2101(A)(1).
    ¶13            We lack jurisdiction, however, to consider REP’s challenge to
    the order striking its post-judgment motion. By the time REP filed its
    motion for reconsideration or for new trial, the appeal had been perfected
    and reinstated, divesting the superior court of jurisdiction over REP’s
    challenge to the underlying judgment. See Burkhardt v. Burkhardt, 
    109 Ariz. 419
    , 421 (1973). Although a timely filed motion for new trial would have
    extended the deadline to appeal, the 15-day deadline for filing a motion for
    new trial ran from entry of judgment (not from the post-judgment order),
    and here, REP’s motion was not filed until 63 days after entry of judgment.
    See ARCAP 9(e)(1)(D); Ariz. R. Civ. P. 59(b)(1); Jaynes v. McConnell, 
    238 Ariz. 211
    , 214, ¶ 8 (App. 2015). And rulings on motions for reconsideration are
    not time-extending and generally are not independently appealable. See
    ARCAP 9(e)(1); Arvizu v. Fernandez, 
    183 Ariz. 224
    , 226–27 (App. 1995)
    (appeal from post-judgment order must raise issues “different from those
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    REP CUSTOM v. MCBRIDE
    Decision of the Court
    that would arise from an appeal from the underlying judgment” for the
    order to be independently appealable as a special order made after final
    judgment). Accordingly, we do not further address REP’s contention that
    the superior court erred by striking its post-judgment motion.
    II.    Summary Judgment.
    ¶14            REP argues that the superior court erred by granting
    summary judgment in favor of McBride, urging both that the eight-year
    construction-contract statute of repose under A.R.S. § 12-552 does not apply
    to its claims and that, even if the statute of repose applies, its third-party
    complaint was timely filed because the limitations period was tolled under
    the Purchaser Dwelling Act.
    ¶15            Summary judgment is proper if there are no genuine issues of
    material fact and, based on those undisputed facts, the moving party is
    entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a); Orme Sch. v.
    Reeves, 
    166 Ariz. 301
    , 305 (1990). To establish entitlement to summary
    judgment, the party with the burden of proof on a claim or defense “must
    submit ‘undisputed admissible evidence that would compel any reasonable
    juror to find in its favor on every element of its claim.’” Wells Fargo Bank,
    N.A. v. Allen, 
    231 Ariz. 209
    , 213, ¶ 18 (App. 2012) (quoting Comerica Bank v.
    Mahmoodi, 
    224 Ariz. 289
    , 293, ¶ 20 (App. 2010)). In contrast, the party
    opposing a claim may establish a basis for summary judgment by simply
    “point[ing] out by specific reference to the relevant discovery that no
    evidence exist[s] to support an essential element of the [non-moving
    party’s] claim.” Orme Sch., 
    166 Ariz. at 310
    ; see also Mahmoodi, 224 Ariz. at
    292, ¶ 18. The non-moving party then must produce sufficient evidence of
    a genuine issue of material fact as to one or more essential elements of the
    claim or defense to overcome the motion. Orme Sch., 
    166 Ariz. at 310
    ; see
    also Ariz. R. Civ. P. 56(c)(3).
    ¶16            We review the grant of summary judgment de novo, viewing
    the facts in the light most favorable to the party against which judgment
    was entered. Allen, 231 Ariz. at 213, ¶ 14. We similarly review de novo
    questions of statutory construction.          Evans Withycombe, Inc. v. W.
    Innovations, Inc., 
    215 Ariz. 237
    , 239, ¶ 6 (App. 2006).
    A.     Statute of Repose.
    ¶17          Arizona’s construction-contract statute of repose limits the
    time in which any action based in contract may be brought against
    developers, builders, and certain others involved in construction of real
    property improvements:
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    REP CUSTOM v. MCBRIDE
    Decision of the Court
    Notwithstanding any other statute, no action . . . based in
    contract may be instituted or maintained against a person
    who . . . performs or furnishes the design, specifications,
    surveying, planning, supervision, testing, construction or
    observation of construction of an improvement to real
    property more than eight years after substantial completion
    of the improvement to real property.
    A.R.S. § 12-552(A); see also Maycock v. Asilomar Dev., Inc., 
    207 Ariz. 495
    , 498,
    ¶ 15 (App. 2004). The statute allows a limited extension to nine years after
    substantial completion if a latent defect is not discovered until the eighth
    year. A.R.S. § 12-552(B). For these purposes, an “action based in contract”
    includes one “based on a . . . written agreement for construction or for the
    services set forth in subsection A of this section [including design,
    specifications, surveying, planning, supervision, testing, construction or
    observation of construction].” A.R.S. § 12-552(F).
    ¶18           Here, the parties agree that the construction was
    “substantially complete” as of March 14, 2008, when Yavapai County
    issued a certificate of occupancy. See A.R.S. § 12-552(E)(3); see also Evans
    Withycombe, 215 Ariz. at 239, ¶ 8 n.2. And they agree that the Whileses
    discovered the alleged defects well before the eighth year after substantial
    completion. Accordingly, the time for filing under § 12-552 expired on
    March 14, 2016, just three days after the Whileses filed their complaint
    against REP and over five months before REP filed its third-party complaint
    against McBride.
    ¶19           REP contends, however, that § 12-552 does not apply to its
    claims premised on the indemnity and insurance agreement. But this court
    held over a decade ago that the strictures of § 12-552 apply not only to
    contract actions brought by property owners, but also to contractors’
    contract-based third-party complaints against subcontractors—including
    contract-based indemnity claims. Evans Withycombe, 215 Ariz. at 239–40,
    242, ¶¶ 10–11, 23.
    ¶20            REP suggests that we revisit that principle, positing that it is
    “grossly unfair” to apply the statute of repose to a contractor’s third-party
    indemnity claims, which may not accrue until the contractor’s liability and
    loss are established months or years after the property owner files suit (and
    likely long after expiration of the statute of repose). See MT Builders L.L.C.
    v. Fisher Roofing, Inc., 
    219 Ariz. 297
    , 302, ¶ 11 (App. 2008). But this argument
    ignores the distinction between a statute of limitations and the statute of
    repose. See Albano v. Shea Homes Ltd. P’ship, 
    227 Ariz. 121
    , 127, ¶¶ 23–24
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    REP CUSTOM v. MCBRIDE
    Decision of the Court
    (2011). While a statute of limitations is not triggered until a cause of action
    accrues, the statute of repose defines a substantive right for those it protects,
    in effect representing a legislative grant of immunity eight years after
    substantial completion of the house. Id.; see also A.R.S. § 12-552(A). Because
    it establishes a fixed time-frame “beyond which no suit may be pursued,”
    Evans Withycombe, 215 Ariz. at 240, ¶ 12, the statute of repose may
    permissibly operate to completely bar claims that do not accrue within the
    eight-year period.2 Albano, 227 Ariz. at 127, ¶ 24; see also id. at 126, ¶ 19
    (noting that the Legislature enacted § 12-552 to limit the otherwise
    “indeterminable period of liability exposure” facing developers and
    builders).
    ¶21           Moreover, even though little time remained for REP to file its
    third-party complaint against McBride after the Whileses sued, REP had
    already been aware of the alleged construction defects for several years.
    REP had also unsuccessfully sought coverage from McBride’s insurer in
    2014, leaving ample opportunity to pursue a claim for McBride’s failure to
    name REP as an additional insured. And REP knew by February 2016 that
    McBride had declined to defend or indemnify REP. REP offers no
    explanation for its failure to act to preserve its claims against McBride
    before expiration of the statute of repose despite having an opportunity to
    do so. Cf. Evans Withycombe, 215 Ariz. at 240, ¶ 13.
    ¶22           REP alternatively argues that the insurance and indemnity
    agreement at issue here is not itself a construction contract, and thus falls
    outside of the ambit of § 12-552. REP does not dispute that its subcontract
    with McBride to provide certain work related to the house’s foundation
    qualifies as a construction agreement subject to § 12-552. Rather, REP
    asserts that the Supplemental Insurance & Indemnity Agreement for
    Subcontractors is “separate from and independent of any subcontract for
    any specific construction,” so claims based on the insurance and indemnity
    2       REP also offers a cursory assertion that application of § 12-552 to
    preclude contract claims before they accrue would violate Arizona’s
    constitutional prohibition on laws impairing contractual obligations. See
    Ariz. Const. art. 2, § 25. But “[t]he contract clause only limits the state’s
    ability to impair existing contract obligations; it does not curtail application
    of proscriptive principles that existed at the time of contract creation.”
    Dobson Bay Club II DD, LLC v. La Sonrisa de Siena, LLC, 
    242 Ariz. 108
    , 116, ¶
    41 (2017). Here, the statute of repose existed at the time REP and McBride
    entered their contract and was incorporated into their agreement by
    operation of law, and thus did not impair either party’s contractual
    obligations. See 
    id.
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    REP CUSTOM v. MCBRIDE
    Decision of the Court
    agreement are not “based on a . . . written agreement for construction” as
    necessary for the statute of repose to apply. See A.R.S. § 12-552(F).
    ¶23           The terms of the insurance and indemnity agreement
    undermine REP’s assertion that it is independent of and unrelated to the
    subcontract for construction services. The indemnity provision only covers
    claims “that may arise from the performance of [McBride’s] work,” and the
    additional insured provision expressly applies to “liability arising out of
    operations performed by or on behalf of [McBride] in connection with the
    operations described within the agreement between [McBride] and [REP].”
    Moreover, the insurance and indemnity agreement situates itself as a
    supplement to “other provisions of the subcontract,” its terms provided “in
    consideration of payment to be made to [McBride] for work to be performed
    by [McBride] on behalf of [REP].” The insurance and indemnity agreement
    thus simply represents additional terms of the subcontract, and REP offers
    no authority for the proposition that reciting these terms in a separate
    document insulates it from the otherwise-applicable statue of repose. Cf.
    City of Phoenix v. Glenayre Elecs., Inc., 
    242 Ariz. 139
    , 146–47, ¶¶ 29, 32 (2017)
    (defining a written agreement “for” construction-related services covered
    by § 12-552 as one “with the purpose or object of” engaging such services);
    Evans Withycombe, 215 Ariz. at 242, ¶ 23.
    ¶24           Accordingly, the superior court did not err by determining
    that the eight-year construction-contract statute of repose under § 12-552
    applied to REP’s contract-based claims against McBride.
    B.     Tolling Under the Purchaser Dwelling Act.
    ¶25           REP filed its third-party complaint against McBride eight
    years, five months, and eight days after substantial completion of the
    Whileses’ house, outside the eight-year deadline set by § 12-552(A). REP
    nevertheless argues that its claims were not time-barred because the statute
    of repose was tolled while REP and the Whileses engaged in the notice and
    repair or replacement process under the Purchaser Dwelling Act (“PDA”).
    ¶26           The PDA imposes certain requirements before a purchaser of
    a dwelling can bring a construction defect action against the seller
    (including subcontractors and other construction professionals). See A.R.S.
    § 12-1361(5), (7), (10). See generally A.R.S. §§ 12-1361 to -1366. Unless the
    alleged defect imposes immediate safety concerns, the purchaser must first
    provide the seller written notice describing in “reasonable detail” the
    alleged defects and resulting damage to the dwelling. See A.R.S. §§ 12-
    1362(A), -1363(A), (O). The seller then has a right to repair or replace any
    8
    REP CUSTOM v. MCBRIDE
    Decision of the Court
    such defects before the purchaser may file a dwelling action. See A.R.S. §§
    12-1362(B), -1363(N).
    ¶27             This notice and repair or replacement process is delineated in
    the PDA in some detail, specifying requirements that notices (both the
    initial notice by the purchaser and the seller’s response) be given in writing
    and communicated by certified mail, and that steps in the process be
    completed within prompt timeframes. See, e.g., A.R.S. § 12-1363(A)
    (purchaser’s notice in writing, sent by certified mail), (B) (seller’s right to
    inspect the dwelling, including a requirement that the purchaser allow the
    inspection within 10 days of the seller’s request), (C) (seller’s good faith
    written notice of intent to repair, replace, or provide monetary
    compensation to be sent by certified mail within 60 days of purchaser’s
    initial notice), (E)(1) (purchaser and seller coordinate repair or replacement
    within 30 days of seller’s notice of intent to repair), (K) (authorizing
    extension of time periods by written agreement). After completion of any
    repairs or replacements, or if the seller fails to provide a response or
    otherwise comply with the specified process, the purchaser may then file a
    dwelling action. A.R.S. § 12-1363(C), (D), (E)(6), (M).
    ¶28           As relevant here, the PDA expressly tolls the § 12-552 statute
    of repose—including contractors’ claims against subcontractors—for the
    full duration of the notice and repair or replacement process, plus 30 days:
    During the notice and repair or replacement process, and for
    thirty days after substantial completion of the repair or
    replacement, the statute of limitations and statute of repose,
    including § 12-552, applicable to the purchaser, including any
    construction professionals involved in the construction or
    design, are tolled as to the seller and the seller’s construction
    professionals who were involved in the construction or
    design of the dwelling for all alleged construction defects
    described in reasonable detail in the written notice sent to the
    seller pursuant to subsection A of this section.
    A.R.S. § 12-1363(F).3 The superior court declined to toll the statute of repose
    on this basis, however, concluding that no evidence showed REP engaging
    in the PDA’s repair or replacement process.
    3     New amendments to the PDA will, going forward, include
    subcontractors in the notice and repair or replacement process and extend
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    REP CUSTOM v. MCBRIDE
    Decision of the Court
    ¶29           REP argues that strict compliance with the PDA’s detailed
    requirements is not required to support tolling and asserts that there was
    an ongoing, PDA-compatible investigation and negotiation process with
    the Whileses based on: (1) its representative’s January 2010 visit to the
    Whileses’ house to look at the property and perform some minor repairs,
    (2) REP’s August 2013 receipt of the Ram Jack report, and (3) REP’s October
    2015 site inspection by a geotechnical engineering firm.4
    ¶30           We need not address whether the PDA requires strict
    compliance with the statutorily delineated notice and repair or replacement
    process because REP offered no evidence of any compliance. Based on the
    summary judgment record, those three isolated actions were REP’s only
    responses to the alleged construction defects. To the extent the January
    2010 visit could be considered a site inspection, see A.R.S. § 12-1363(B), there
    is no evidence that REP proposed or completed any further repairs, or
    pursued any other follow-up action. See A.R.S. § 12-1363(C). Although the
    August 2013 Ram Jack report for the first time delineated the alleged
    construction defects in some detail, see A.R.S. § 12-1363(A), (O), there is no
    evidence that REP then followed up with an inspection, repair proposal, or
    other negotiation. See A.R.S. § 12-1363(B), (C), (E). And although the
    October 2015 site inspection could, in the abstract, form part of the PDA
    process, see A.R.S. § 12-1363(B), the resulting report simply documented the
    damage to the home (and commented on potential causes), but did not itself
    offer any repair proposals or lead to separate repair or compensation
    proposals from REP. See A.R.S. § 12-1363(C). Based on the absence of any
    significant repair or replacement activities evidenced in the summary
    judgment record, the superior court did not err by concluding that the
    statue of repose was not tolled under the PDA.
    ¶31           REP also argues that McBride waived any argument that PDA
    tolling does not apply by failing to plead non-compliance with the PDA
    process as a defense. But REP’s argument mistakes the interplay of the
    the tolling period for third-party indemnity or contribution claims against
    subcontractors. 2019 Ariz. Sess. Laws, ch. 60, §§ 1–2 (54th Leg., 1st Reg.
    Sess.) (S.B. 1271). These amendments are not, however, applicable to this
    case.
    4      REP also notes a May 2016 letter from the Whileses’ counsel, but REP
    did not provide that document during the summary judgment proceedings.
    And in any event, that letter only reflects discussions of alternative dispute
    resolution after March 24, 2016, by which time the statute of repose had
    already run.
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    REP CUSTOM v. MCBRIDE
    Decision of the Court
    parties’ claims and defenses. McBride’s affirmative defense—raised in the
    answer to REP’s third-party complaint—was the statute of repose under §
    12-552, not the PDA. REP then raised PDA tolling in its response to
    McBride’s motion for summary judgment. McBride had no cause to raise
    non-compliance with the PDA until REP raised PDA tolling under A.R.S. §
    12-1363(F), particularly given the Whileses’ assertion that they had never
    given PDA notice to REP. See A.R.S. § 12-1362(A).
    ¶32           Similarly, REP asserts that McBride cannot raise non-
    compliance with the PDA because McBride was not itself a party to the PDA
    process and did not accept REP’s tender of its defense (so as to assert REP’s
    rights under the PDA). Cf. Cunningham v. Goettl Air Conditioning, Inc., 
    194 Ariz. 236
    , 242, ¶ 28 (1999) (indemnitor’s failure to accept tender waives its
    right to contest issues resolved by stipulated judgment between plaintiff
    and indemnitee). This argument again mistakes the interplay of the parties’
    positions and relative burdens. Because tolling under the PDA was the
    basis for REP’s opposition to McBride’s statute of repose defense, REP bore
    the burden to prove that tolling was proper under the PDA. Cf. McCloud v.
    State, 
    217 Ariz. 82
    , 85, ¶ 8 (App. 2007); Anson v. Am. Motors Corp., 
    155 Ariz. 420
    , 421 (App. 1987). McBride’s contrary position simply pointed to an
    absence of evidence to support REP’s assertion that PDA tolling applied.
    See Orme Sch., 
    166 Ariz. at 310
    .
    ¶33          Accordingly, the superior court did not err in declining to
    apply PDA tolling and thus concluding that REP’s third-party claim against
    McBride is time-barred under § 12-552(A).
    III.   Attorney’s Fees and Costs on Appeal.
    ¶34           McBride requests an award of its attorney’s fees under A.R.S.
    § 12-341.01 and § 12-349. In an exercise of our discretion, we decline its
    request for fees. As the prevailing party, however, McBride is entitled to
    an award of costs on appeal upon compliance with ARCAP 21.
    CONCLUSION
    ¶35           The judgment is affirmed.
    AMY M. WOOD • Clerk of the Court
    FILED:    JT
    11