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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL WAYNE SAXTON, Plaintiff/Appellant,

v.

MAUREEN A. BERKNER, Defendant/Appellee.

No. 1 CA-CV 18-0275

Appeal from the Superior Court in Maricopa County

No. CV2017-053099

The Honorable Aimee L. Anderson, Judge (Retired)

AFFIRMED

COUNSEL

Schern Richardson Finter, PLC, Mesa

By Aaron M. Finter, Yusra Batool Bokhari

Counsel for Plaintiff/Appellant

Margrave Celmins, P.C., Scottsdale

By Michael L. Kitchen

Counsel for Defendant/Appellee

FILED 10-1-2019
SAXTON v. BERKNER

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in 

which Judge Kent E. Cattani and Judge Jennifer B. Campbell joined.

C R U Z, Judge:

¶1 Michael Wayne Saxton appeals from the superior court’s 

grant of summary judgment in favor of Maureen A. Berkner and the court’s 

denial of his motion for reconsideration. For the following reasons, we 

affirm.

FACTS AND PROCEDURAL HISTORY

¶2 As trustee of the Maureen A. Berkner Living Trust 

Agreement, Maureen A. Berkner owns a ten-acre property located in New 

River. Berkner split the property in half and decided to sell the northern 

half of the property with a residence. On March 7, 2017, Berkner and Saxton 

executed a purchase contract (“the Contract”) for the sale of the property 

for $416,000 with a closing date of March 31, 2017. Saxton paid $5,000 

earnest money. The terms of the Contract provided that the survey 

dividing the property into northern and southern halves, and a well sharing 

agreement to divide the usage of the well between the parcels, would be 

conducted and provided to Saxton during the inspection period.

¶3 Berkner provided the survey and well sharing agreement to 

Saxton. The survey divided the parent property into two parcels, and it 

provided the northern parcel, which Saxton contracted to purchase, an 

easement for ingress and egress. The well sharing agreement provided that 

each parcel would receive a fifty-percent interest in the well. Saxton 

disapproved of both the survey and the well sharing agreement, and 

demanded that the parcel be split differently to include additional portions 

of the southern parcel and to change the well sharing agreement to provide 

additional well capacity.

¶4 Berkner declined to make the requested changes, and

Saxton’s realtor told Saxton he could cancel the contract and get his earnest 

money back. Saxton instead demanded mediation and threatened 

litigation. On March 27, 2017, Saxton notified Berkner that he would not 

close on March 31, 2017, the contracted closing date. In reply, on March 30, 
SAXTON v. BERKNER

Decision of the Court

3

2017, Berkner sent Saxton a “cure period notice.” After Saxton failed to 

deposit the purchase price in escrow on March 31, 2017, Berkner canceled

the purchase contract.

¶5 Saxton filed suit for breach of contract and specific 

performance. Saxton argued that the parcels were not divided in 

accordance with the parties’ intent, asking the superior court to enforce

alternative contract terms and have the survey “re-drawn.” Saxton also 

placed a lis pendens on the entire property. Berkner filed an answer and a 

counterclaim for wrongful recording of the lis pendens. After Berkner filed 

a motion for summary judgment, the superior court heard oral argument 

and granted summary judgment in Berkner’s favor as to both issues. 

Saxton filed a motion for reconsideration, which the court denied. Saxton 

timely appealed and now argues that he was at all times willing to move 

forward with the purchase of the property pursuant to the Contract, well 

sharing agreement, and survey.

¶6 We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 12-120.21(A)(1).

DISCUSSION

¶7 Summary judgment may be granted when “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. 56(a). In reviewing a motion 

for summary judgment, we determine de novo whether there are any 

genuine issues of material fact and whether the trial court properly applied 

the law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4 (App. 2000).

We view the facts and inferences to be drawn from those facts in the light 

most favorable to Saxton, the party against whom judgment was entered.

See AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 293 (App. 1993).

We review the denial of a motion for reconsideration for an abuse of 

discretion. Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16 (App. 2009).

¶8 Saxton argues that the superior court erred because there is 

insufficient evidence showing that (1) Saxton breached the Contract, (2) 

Berkner terminated the Contract according to its terms, and (3) Berkner 

provided Saxton with required disclosures. Saxton contends the Contract

has not been canceled and that he is still entitled to purchase the property.

We disagree.

¶9 Issues pertaining to contract interpretation present questions 

of law, which we review de novo. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 

(2003). We interpret a contract to make it effective and reasonable, giving 
SAXTON v. BERKNER

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4

its words their ordinary meaning and construing its provisions from the 

language of the parties in view of all the circumstances. Cty. of La Paz v. 

Yakima Compost Co., 224 Ariz. 590, 599, ¶ 16 (App. 2010). We give preference 

to an interpretation that gives “a reasonable meaning to the manifested 

intent of the parties rather than an interpretation that would render the 

contract unreasonable.” Bryceland v. Northey, 160 Ariz. 213, 216 (App. 1989). 

An unambiguous contract is “interpreted according to its terms.” Isaak v. 

Mass. Indem. Life Ins. Co., 127 Ariz. 581, 584 (1981). A contract is not 

ambiguous simply because the parties disagree as to its meaning. Chandler 

Med. Bldg. Partners v. Chandler Dental Grp., 175 Ariz. 273, 277 (App. 1993). If 

the parties’ intent is clear from the contract language and the surrounding 

circumstances, then the contract is not ambiguous. Harris v. Harris, 195 

Ariz. 559, 562, ¶ 15 (App. 1999).

¶10 Under the “Additional Terms and Conditions” of the 

Contract, Berkner was required to provide a survey and shared well 

agreement during the inspection period. Saxton could then approve or 

disapprove them. If Saxton disapproved of the survey or the well sharing 

agreement, Section 6(j) of the Contract provided that Saxton “shall deliver 

to [Berkner] a signed notice of the items disapproved and state in the notice 

that [Saxton] elects to either (1) Immediately cancel this Contract, in which 

case . . . the Earnest Money shall be released to [Saxton]. . . . OR (2) Provide 

[Berkner] an opportunity to correct the items disapproved.” Further, 

Section 6(j)(2)(c) provides:

If Seller is unwilling or unable to correct any of the items 

disapproved, Buyer may cancel this Contract within five (5) 

days after delivery of Seller’s response or after expiration of 

the time for Seller’s response, whichever occurs first, and the 

Earnest Money shall be released to Buyer. If Buyer does not 

cancel this Contract within the five (5) days as provided, 

Buyer shall close escrow without correction of those items 

that Seller has not agreed in writing to correct.

¶11 Forcing Berkner to offer a modified version of the survey and 

shared well agreement was not an option available to Saxton under the 

Contract. Instead, Section 6(j) of the Contract clearly provides that Saxton’s 

choice in the event of a disagreement was to either cancel the contract or go 

forward under Berkner’s proposed terms. Saxton’s time to act expired on 

March 31, 2017, and it is undisputed that instead of canceling the contract 

or closing escrow, Saxton notified Berkner that Saxton would seek 

mediation. Moreover, Saxton later failed to satisfy the Contract’s 

requirement to either cancel the Contract or to tender the remaining 
SAXTON v. BERKNER

Decision of the Court

5

purchase price and close escrow. Section 8(e) of the Contract included a 

“time is of the essence” clause. Saxton failed to timely act, materially 

breached the Contract, and therefore Berkner canceled the sale. See Mining 

Inv. Grp. v. Roberts, 217 Ariz. 635, 639-40, ¶¶ 17-18 (App. 2008) (failure to 

close on real estate transaction when “time is of the essence” is a material 

breach).

¶12 Saxton further argues that Berkner failed to comply with the 

Contract’s procedure for cancellation in the event of a breach. Under 

Section 7(a) of the Contract:

A party shall have an opportunity to cure a potential breach 

of this Contract. If a party fails to comply with any provision 

of this Contract, the other party shall deliver a notice to the 

non-complying party specifying the non-compliance. If the 

non-compliance is not cured within three (3) days after 

delivery of such notice (“Cure Period”), the failure to comply 

shall become a breach of Contract.

¶13 Saxton argues that Berkner’s alleged “notice to cure” was sent 

on March 30, 2017, but in order to be effective, the notice could not be sent 

until April 1, 2017, three days after the closing date passed. In other words, 

Saxton argues that it was not possible for him to be in breach on March 30, 

2017, prior to closing, and so a timely notice to cure was never sent. While 

a contract generally cannot be breached until the date of the performance, 

if one party unequivocally indicates he will not perform when the date 

arrives, he has committed an anticipatory breach. Aboud v. DeConcini, 173 

Ariz. 315, 318 (App. 1992). On March 27, 2017, Saxton unambiguously and 

emphatically communicated his refusal to perform under the contract and 

close on March 31, 2017, unless Berkner agreed to a different version of the 

survey and well sharing agreement. Saxton’s communication put Berkner 

on notice of Saxton’s intention not to exercise either option under Section 

6(j)(2)(c) of the Contract. Saxton’s refusal to close according to the terms of 

the well sharing agreement and survey constituted an anticipatory breach,

and Berkner was not required to wait until after the closing date to send her 

notice to cure. See United Cal. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 

238, 278 (App. 1983) (finding that “one party’s ‘insistence upon terms which 

are not contained in a contract constitutes an anticipatory repudiation 

thereof’”) (citation omitted).

¶14 Saxton also claims that Berkner’s correspondence “falls short” 

of the content requirements for a notice to cure, but he previously 

recognized in email exchanges that the correspondence at issue was a “cure 
SAXTON v. BERKNER

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6

period notice.” Moreover, Saxton’s argument fails to explain why the 

notice was substantively deficient.

¶15 Finally, Saxton argues that Berkner breached the contract by 

failing to provide additional required disclosures. Specifically, Saxton 

alleges that Berkner failed to disclose: (i) the Affidavit of Disclosure; (ii) the 

Domestic Water Well/Water Use Addendum to Seller Property Disclosure 

Statement (“DWWA SPDS”); (iii) an inspection report of the septic system; 

(iv) the Seller Property Disclosure Statement (“SPDS”); and (v) title 

insurance. However, the disclosures Saxton references were either timely 

disclosed or were not required until closing, and here, Saxton’s rejection of 

Berkner’s version of the survey and well agreement caused the contract to 

be canceled and relieved Berkner of the duty to continue to perform in 

accordance therewith. A party’s failure to perform under a contract excuses 

the other party’s obligation to perform. Ceizyk v. Goar Serv. & Supply, Inc.,

21 Ariz. App. 119, 122 (1973). As a result of Saxton’s breach of the Contract, 

Berkner properly canceled the same and was no longer required to make 

further disclosures.

CONCLUSION

¶16 For the foregoing reasons, we affirm the superior court’s grant 

of summary judgment in favor of Berkner and the denial of Saxton’s motion 

for reconsideration. Both parties request their attorneys’ fees pursuant to 

A.R.S. § 12-341.01 and Section 7(e) of the purchase contract, and costs. In 

the exercise of our discretion, we grant Berkner her attorneys’ fees. Upon 

compliance with Arizona Rule of Civil Appellate Procedure 21, Berkner 

may recover her costs on appeal.