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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 6-4-2019
REP CUSTOM v. MCBRIDE

Decision of the Court

2

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 
REP CUSTOM v. MCBRIDE

Decision of the Court

3

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 additionalinsured 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.
REP CUSTOM v. MCBRIDE

Decision of the Court

4

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
REP CUSTOM v. MCBRIDE

Decision of the Court

5

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:
REP CUSTOM v. MCBRIDE

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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 
REP CUSTOM v. MCBRIDE

Decision of the Court

7

(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.
REP CUSTOM v. MCBRIDE

Decision of the Court

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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 
REP CUSTOM v. MCBRIDE

Decision of the Court

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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 
REP CUSTOM v. MCBRIDE

Decision of the Court

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¶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.
REP CUSTOM v. MCBRIDE

Decision of the Court

11

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 noncompliance 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.