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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LINDA GREEN, et al., Plaintiffs/Appellants,

v.

CARA JEAN WOOLERY, Defendant/Appellee.

No. 1 CA-CV 19-0735

Appeal from the Superior Court in Maricopa County

No. CV2018-096693

The Honorable Janice K. Crawford, Judge

REVERSED AND REMANDED

COUNSEL

Udall Shumway PLC, Mesa

By Bradley D. Gardner, David R. Schwartz

Counsel for Plaintiffs/Appellants

MacQueen & Gottlieb PLC, Phoenix

By Patrick R. MacQueen, Brandon P. Bodea, Patrick T. Nackley

Counsel for Defendant/Appellee

FILED 1-28-2021
GREEN, et al. v. WOOLERY

Decision of the Court

2

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which 

Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

S W A N N, Chief Judge:

¶1 Linda Green and Larry Kammerzell (“Buyers”) asserted 

various contract and tort claims against Cara Jean Woolery (“Seller”) based 

on her failure to disclose plumbing defects before selling them her house. 

The superior court granted Seller summary judgment on all claims,

concluding that Buyers had provided insufficient evidence to show that 

Seller knew the nature of the underlying defects.

¶2 We hold that the superior court applied an incorrect legal 

standard. Buyers did not have to provide evidence that Seller knew the 

technical details of the plumbing failure; they only had to provide evidence 

from which a reasonable juror could conclude that Seller knew of a 

plumbing problem—and Buyers met that burden. We therefore reverse 

and remand.

FACTS AND PROCEDURAL HISTORY

¶3 Seller sold her two-bathroom Phoenix house to Buyers in 

September 2017. Seller disclosed in connection with the sale that she was 

not “aware of any past or present plumbing problems,” and by way of 

explanation stated that a “new clean-out line [was] installed in 2012.” She 

disclosed nothing further concerning plumbing. She warranted in the 

purchase contract that she had “disclosed to Buyer[s] . . . all material latent 

defects and any information concerning the Premises known to Seller,

excluding opinions of value, which materially and adversely affect the 

consideration to be paid by Buyer[s].”

¶4 Soon after the close of escrow, Buyers became aware of a 

problem with one of the toilets in the house. They engaged a plumbing 

contractor, who discovered that severe deterioration in the relevant 

bathroom’s sewage and drain lines was causing sewage and water to 

discharge into the ground beneath the foundation.

¶5 Buyers paid to repair the defective pipes, and then brought an 

action against Seller. Buyers’ complaint alleged six counts: (1) breach of 
GREEN, et al. v. WOOLERY

Decision of the Court

3

contract, (2) breach of the covenant of good faith and fair dealing, (3) 

negligent misrepresentation, (4) negligence per se, (5) consumer fraud, and 

(6) fraud.

¶6 Seller moved for summary judgment, arguing that Buyers 

had failed to produce sufficient evidence to show that Seller knew of the 

plumbing defects and, additionally, that the economic loss rule barred 

Buyers’ negligent misrepresentation, negligence per se, and fraud claims. 

Buyers argued in response that the economic loss rule did not apply. They 

also pointed to multiple items of evidence (disputed in relevant parts by 

Seller) as directly or inferentially establishing Seller’s knowledge.

¶7 First, Buyers provided the declaration of an expert who 

opined that the pipes had deteriorated over the course of years and that the 

deterioration would have caused “very noticeable” sewage odors inside the 

house for, assuming reasonable occupant use, a “very long time.” The 

expert further opined that he would not expect most buyers or home 

inspectors to discover the deterioration, which would not be visible to 

anyone who did not either unearth the pipes or insert a camera inside of 

them, and that the odors could have come and gone depending on use and 

could have been covered up with scented products.

¶8 Second, Buyers provided the declaration of Seller’s former 

housekeeper, who had regularly cleaned the house throughout the year 

before the sale. The housekeeper stated that signs in the relevant bathroom 

had indicated “not to flush the toilet or use the sink” and that Seller had 

told her that the bathroom could be used but the housekeeper “had to be 

careful what [she] flushed down it.” The housekeeper further stated that 

she observed air freshener packets and candles throughout the house on 

multiple occasions, and that after Buyers repaired the plumbing the 

property smelled better.

¶9 Third, Buyers provided a declaration in which one of them 

stated that Seller had candles going when he inspected the house and that 

he later discovered air freshener packets in the bathroom cabinets as well 

as discolored grout around the toilet. Finally, Buyers provided excerpts 

from Seller’s deposition. Seller first testified that though she had on 

multiple occasions experienced problems with the toilet and companion

shower backing up, the problems ceased after the disclosed clean-out was 

installed in 2012. She then testified, however, that she was “sure [she] had 

something going on in the bathroom” thereafter that had prompted her to 

contact her home warranty company, though she could not remember 

“what it would have been.”
GREEN, et al. v. WOOLERY

Decision of the Court

4

¶10 At oral argument, the superior court suggested that Buyers 

had to prove that Seller knew—specifically—that defects in the buried 

pipes were the cause of the malodors and her efforts to restrict use of the 

bathroom:

THE COURT: . . . [Y]our expert is saying you’re not going to 

know this unless you’ve dug up the pipes or you have a 

camera. But you’re—you’re telling me that there can be a 

reasonable inference that a homeowner who has a toilet that 

is not flushing properly knew there was something wrong 

with the sewer line?

[BUYERS’ COUNSEL]: That’s right.

THE COURT: That’s a big leap to me. . . .

. . . .

THE COURT: It’s like you’ve got some evidence that 

contradicts your own position. . . .

. . . . 

THE COURT: . . . What my concerns are is you’re telling me 

that because the toilet didn’t flush right, because when the 

toilet was flushed, there was a horrendous smell, because it 

clogged before, she should have known that. But then your 

very evidence says the only way you’re going to know this is 

if you dig it up or you have a scope. And so we—we know 

that most ordinary people aren’t going to know that. . . .

. . . . 

THE COURT: [And h]ow is it that a homeowner is going to 

know more than the plumbers because the plumbers did not 

know what it was right away. They did not go out, flush a 

toilet, see it rise, go we have—we have a defective line.

¶11 The court granted summary judgment for Seller on the 

ground that Buyers “failed to come forward with any admissible evidence 

by which a reasonable fact finder could find that [Seller] knew of, or even 

should have known of, corrosion in the sewer line that allowed leakage of 

sewage and sewer gas under the residence.” Buyers appeal. 
GREEN, et al. v. WOOLERY

Decision of the Court

5

DISCUSSION

¶12 We review the grant of summary judgment de novo. Andrews 

v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). Summary judgment should be 

granted “if the moving party shows that there is no genuine dispute as to 

any material fact and the moving party is entitled to judgment as a matter 

of law.” Ariz. R. Civ. P. (“Rule”) 56(a). Summary judgment is appropriate 

“if the facts produced in support of the claim . . . have so little probative 

value, given the quantum of evidence required, that reasonable people 

could not agree with the conclusion advanced by the proponent of the 

claim.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). The evidence and all 

reasonable inferences therefrom must be viewed in the light most favorable 

to the non-moving party. Andrews, 205 Ariz. at 240, ¶ 12.

¶13 Buyers presented ample admissible evidence that Seller was 

aware of but did not disclose a “past or present plumbing problem” that 

constituted “information concerning the Premises known to Seller . . . 

which materially and adversely affect[ed] the consideration . . . paid by 

Buyer[s].” Most notably, they presented evidence that the pipes’ defects 

would have caused longstanding, very noticeable sewage odors inside the 

house and that Seller, knowing the bathroom had a history of problems,

had taken action to restrict its use. We reject the superior court’s conclusion

that Buyers had to prove more specialized knowledge regarding the 

defects’ nature. A seller cannot disclaim knowledge of an obvious 

plumbing problem based on her failure to obtain a professional diagnosis. 

Cf. Maycock v. Asilomar Dev., Inc., 207 Ariz. 495, 499, ¶¶ 20–22 (App. 2004) 

(holding that whether original homeowner’s observations of transient 

unevenness in the floors constituted discovery of soil-compaction defect 

was a question for the finder of fact). We conclude the superior court erred 

by granting summary judgment to Seller on the grounds of a failure of

proof.1

CONCLUSION

¶14 We reverse the grant of summary judgment, and we remand 

for further proceedings. Subject to Buyers’ compliance with ARCAP 21, we 

grant Buyers’ request for attorney’s fees and costs on appeal in view of the 

purchase contract’s provision that “[t]he prevailing party in any dispute or 

1 Because the superior court did not address Seller’s alternate 

argument that the economic loss rule entitled her to summary judgment on 

the negligent misrepresentation, negligence per se, and fraud claims, we 

decline to address that argument for the first time on appeal.
GREEN, et al. v. WOOLERY

Decision of the Court

6

claim between Buyer[s] and Seller arising out of or relating to this Contract 

shall be awarded their reasonable attorney fees and costs.”