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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HTA-SCW WEBB MEDICAL A LLC, et al.,

Plaintiffs/Appellees,

v.

ROSKAMP MANAGEMENT COMPANY,

Defendant/Appellant.

No. 1 CA-CV 16-0632

Appeal from the Superior Court in Maricopa County

No. CV2013-000645

The Honorable J. Richard Gama, Judge Retired

The Honorable Dawn M. Bergin, Judge

AFFIRMED

COUNSEL

Quarles & Brady, LLP, Phoenix

By Michael S. Catlett

Co-Counsel for Plaintiffs/Appellees

O'Melveny & Myers, LLP, San Francisco

By Randall W. Edwards

Co-Counsel for Plaintiffs/Appellees

Law Offices of Michael J. Farrell, PLLC, Phoenix

By Michael J. Farrell

Co-Counsel for Defendant/Appellant 

FILED 10-31-2017
2

Kaufman, Coren & Ress, PC, Philadelphia

By Douglas Evan Ress

Co-Counsel for Defendant/Appellant 

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

J O H N S E N, Judge:

¶1 Roskamp Management Company appeals the superior court's 

entry of summary judgment in favor of HTA-Sun City, LLC and its 17 

affiliates (collectively "HTA").1 For the reasons stated below, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On December 31, 2009, HTA paid $107 million to buy 17 office 

buildings from four related entities: KRW MOB-A, LLC; KRW MOB-B,

LLC; KRW MOB-C, LLC and KRW MOB-D, LLC. In addition to paying the 

$107 million stated purchase price, HTA also agreed to guarantee a $2.5 

million debt ("Make-Whole Note") that two of the entities (together "KRW")

owed a creditor. As part of the overall transaction, KRW agreed to a $7 

million four-year lease-back of certain of the office suites ("Master Lease")

it had sold to HTA. KRW did not intend to occupy any of the leased 

premises; instead, the lease-back was a means to lower HTA's effective 

purchase price to $100 million.2 The parties agreed that during the four-

 

1 The other entities are HTA-SCW Webb Medical A, LLC; HTA-SCW 

Webb Medical B, LLC; HTA-SCW Webb Medical C, LLC; HTA-SCW 

Granite Valley MOB, LLC; HTA-SCW Mountain View, LLC; HTA-SCW 

West Medical Arts, LLC; HTA-SCW Colonnade, LLC; HTA-SC Lakes 

Medical Plaza I, LLC; HTA-SC Lakes Club, LLC; HTA-SC 13041 DWB, LLC; 

HTA-SC Cardiac Care, LLC; HTA-SC Eye Institute, LLC; HTA-SC Boswell 

Medical, LLC; HTA-SC Boswell West, LLC; HTA-SC Royal Oaks, LLC;

HTA-SC Lakeview Medical Arts, LLC; and HTA-SC Lakeview Plaza 

Centre, LLC.

2 As KRW explained in its opening brief, the "underlying real estate 

transaction involved the sale of 17 medical office buildings . . . 
HTA-SCW, et al. v. ROSKAMP

Decision of the Court

3

year term of the Master Lease, HTA would be able to market the suites to 

third parties. The Master Lease and an accompanying Cash Collateral 

Agreement required KRW to deposit $2.5 million in cash and a $2 million 

promissory note into an escrow account from which KRW's lease payments 

would be drawn. In addition, the parties agreed that any rents collected 

from third-party tenants on the leased premises would secure payment of 

amounts owed on the Make-Whole Note.

3 Roskamp Management 

Company, LLC ("Roskamp"), the parent of the various KRW companies, 

guaranteed KRW's obligations under the Master Lease.

¶3 At closing, HTA had concerns that KRW and Roskamp would 

not complete all the so-called "Post-Closing Documents" in a timely 

manner. As an incentive to complete the documentation, HTA negotiated 

to require KRW to deposit an additional $500,000 into escrow, which would 

be returned to KRW upon completion of all the deal's documents. One of 

the Post-Closing Documents was Roskamp's guarantee of KRW's 

obligations under the Master Lease. At closing, Roskamp executed a

version of a Master Lease Guaranty that named HTA-Sun City as the 

guaranteed lessor ("2009 Guaranty"). Immediately after closing, the parties 

amended the Master Lease to name the 17 HTA entities as lessors instead 

of HTA-Sun City. They then prepared a corresponding revised guaranty 

that correctly listed the lessors in the amended Master Lease—the 17 HTA 

entities—as beneficiaries of the guaranty ("2010 Guaranty"). Roskamp 

executed the 2010 Guaranty on April 9, 2010.

¶4 KRW paid HTA the rent due under the Master Lease for more 

than two years, but then stopped. HTA then sued KRW and Roskamp. An 

arbitrator awarded HTA $4.6 million against KRW in unpaid rent, late fees, 

 

accomplished through a series of complicated interrelated agreements, . . . 

by which the sellers ultimately would net no less than $100 million and the 

buyer would pay no more than $107 million."

3 The sale of the 17 buildings rendered KRW entities subject to a $5 

million pre-payment penalty on an existing loan encumbering the property. 

When the creditor refused to waive the penalty, HTA agreed to guarantee 

$2.5 million of the penalty in exchange for receipt of the third-party rents.
HTA-SCW, et al. v. ROSKAMP

Decision of the Court

4

interest, litigation costs and attorney's fees. The superior court reduced the 

award to a judgment, which KRW did not appeal.

4

¶5 After exhausting the escrow account, HTA then turned to its 

claim against Roskamp, KRW's guarantor, to recover the roughly $3.6 

million remaining on the KRW judgment. Although HTA's initial 

complaint had alleged a claim under the 2009 Guaranty, it amended its 

complaint after arbitration to state a claim under the 2010 Guaranty. In due 

course, the superior court granted summary judgment in favor of HTA.

5 

We have jurisdiction over Roskamp's timely appeal pursuant to Article 6, 

Section 9 of the Arizona Constitution and Arizona Revised Statutes 

("A.R.S.") sections 12-120.21(A)(1) (2017) and -2101(A)(1) (2017).6

DISCUSSION

A. General Principles.

¶6 Summary judgment is appropriate when "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. 

56(a). "We review de novo a grant of summary judgment, viewing the 

evidence and reasonable inferences in the light most favorable to the party 

opposing the motion." Ochser v. Funk, 228 Ariz. 365, 369, ¶ 11 (2011). We 

also review issues of contract interpretation de novo, with the purpose of 

ascertaining and enforcing the parties' intent. ELM Retirement Ctr., LP v. 

Callaway, 226 Ariz. 287, 290, ¶ 15 (App. 2010). "Any agreement must be 

construed as a whole, and each part must be read in light of all other parts." 

Autonumerics, Inc. v. Bayer Indus., Inc., 144 Ariz. 181, 188 (App. 1984).

B. The Validity of the 2010 Master Lease Guaranty.

¶7 Roskamp first argues the superior court erred by ruling that 

the 2010 Guaranty was enforceable, disregarding Roskamp's contention 

that the only operative document is the 2009 Guaranty, the beneficiary of 

which is HTA-Sun City, which was not a party to the Master Lease. 

 

4 That case was HTA-SCW v. KRW MOB-A; KRW MOB-B, No. CV

2015-002628 (Maricopa County Super. Ct. Mar. 10, 2015).

5 The motion by appellees to make the transcript of the oral argument 

on summary judgment a part of the record on appeal is granted.

6 Absent material revision after the relevant date, we cite a statute's 

current version.
HTA-SCW, et al. v. ROSKAMP

Decision of the Court

5

Roskamp argues it submitted evidence sufficient to establish that the 2010 

Guaranty was not enforceable because Roskamp did not deliver the 

guaranty and HTA did not accept it.

¶8 "Arizona . . . has always allowed a trial court to admit parol 

evidence that a contract, fully executed and unconditional on its face, is 

subject to an oral condition precedent which does not vary or contradict the 

terms of the written contract." Anderson v. Preferred Stock Food Mkts., Inc., 

175 Ariz. 208, 214 (App. 1993). Merely viewing the proffered evidence does 

not create a genuine dispute of fact as "the judge need not waste much time 

if . . . the offered evidence is not persuasive." Taylor v. State Farm Mut. Auto. 

Ins. Co., 175 Ariz. 148, 155 (1993).

¶9 In support of its contentions, Roskamp points to an email 

from its lawyer, Stacie Gollata, which it asserts constituted a conditional 

delivery of the 2010 Guaranty and which invited acceptance of the 2010 

Guaranty only through specific conduct. In an email exchange in March 

2010, however, Gollata confirmed that the 2010 Guaranty was the "final 

form" of the document to which the parties had agreed. On April 9, 2010, 

she emailed to HTA the Post-Closing Documents executed by Roskamp, 

including the executed 2010 Guaranty, and asked HTA's lawyer to have 

HTA "countersign" and instruct the escrow agent to release the $500,000 to 

which KRW was entitled upon completion of all of the closing documents. 

Roskamp argues that because the $500,000 was never released, the 2010 

Guaranty did not go into effect. But by executing the 2010 Guaranty, 

Roskamp expressly waived "notice of acceptance," and the document did 

not require (or even provide for) countersignature by any HTA party. 

Additionally, as noted, Gollata confirmed that the 2010 Guaranty was the 

final form of the document to which the parties had agreed.

¶10 Roskamp also argues that the fact that the 2009 Guaranty, 

rather than the 2010 Guaranty, appeared in the parties' closing binders is 

evidence the parties intended to adopt the 2009 Guaranty and not the 2010 

Guaranty. This argument fails in light of the fact that the "closing" was on 

December 31, 2009, and Roskamp delivered the signed 2010 Guaranty to 

HTA in April 2010. When Roskamp signed the 2009 Guaranty contained in 

the binders, the operative Master Lease named only HTA-Sun City as 

lessor. Roskamp does not dispute that after the parties amended the Master 

Lease, they needed to make a corresponding change to the 2009 Guaranty.

Nor does Roskamp challenge the express language in both the sale 

agreement and the 2010 Guaranty that Roskamp offered to guarantee the 

lease-back obligations in order to induce HTA to enter the overall realestate transaction.
HTA-SCW, et al. v. ROSKAMP

Decision of the Court

6

¶11 More to the point, it is undisputed that Roskamp's guaranty

of the Master Lease was an integral component of the parties' complex 

series of transactions. Roskamp offered no evidence on summary judgment 

why the 2010 Guaranty should not be enforced. It instead offered only an

"interpretation of [its] liability under the Guaranty [which] would render it 

meaningless ab initio. We will not construe a contract so as to render it 

meaningless." Provident Nat'l Assurance Co. v. Sbrocca, 180 Ariz. 464, 465–66 

(App. 1994).

C. Roskamp's Obligations under the 2010 Guaranty.

¶12 The superior court entered summary judgment for HTA in 

the amount of $4,125,973, including the entirety of the award HTA won 

against KRW in arbitration, less the amount HTA subsequently recovered

from the escrow, plus HTA's costs and attorney's fees. On appeal, Roskamp 

argues that even if the 2010 Guaranty is enforceable, the judgment exceeds 

the amount it owes under the guaranty. We address each of its arguments

in turn.

1. KRW's obligations and reductions.

¶13 The 2010 Guaranty states in unequivocal terms that Roskamp 

guaranteed KRW's obligations under the Master Lease, and if KRW 

defaulted at any time, Roskamp would perform KRW's obligations "in the 

place and stead" of KRW. It also states, however, that Roskamp's

obligations "shall be reduced by any amounts contained in the Escrow 

Account or paid to [HTA] outside of the Escrow Account." Roskamp argues

the latter phrase ("paid to [HTA] outside of the Escrow Account") reduces 

its obligations under the 2010 Guaranty by the amount HTA collected in 

third-party rent payments.

¶14 As described above, however, KRW and HTA agreed that 

those third-party rents would be reserved to cover the $2.5 million 

prepayment penalty created when KRW sold the office buildings, and 

which HTA had agreed to guarantee. See ¶ 2 supra. As recited in the 

"Agreement Regarding Make-Whole Note" entered as part of the overall 

transaction, KRW owed the creditor a $2.5 million prepayment penalty. As 

part of the overall purchase and sale transaction, HTA agreed to guarantee 

that debt on behalf of KRW. In turn, KRW agreed to reimburse HTA for 

whatever portion of the prepayment penalty HTA might have to pay. 

Importantly, KRW further agreed that any rents HTA collected from third 

parties during the four-year lease term would secure KRW's agreement to 

reimburse HTA.
HTA-SCW, et al. v. ROSKAMP

Decision of the Court

7

¶15 Accordingly, as the arbitrator found in resolving the HTAKRW claim, rent collected on third-party leases on the Master Lease 

property were not to be credited against the $7 million KRW owed to HTA 

under the Master Lease. Instead, when HTA paid KRW's creditor on the 

Make-Whole Note, HTA was entitled to reimburse itself from those thirdparty rents. By the same token, the 2010 Guaranty did not extend to or 

encompass KRW's obligations under the Make-Whole Note. As security for 

KRW's agreement to reimburse HTA for anything HTA might have to pay 

under the Make-Whole Note, HTA could look only to the third-party rents. 

This is why the arbitrator described the situation as one in which "HTA's 

net purchase price [was] $102.5 million less any lease payments that might 

be received from third parties under the Master Lease." The two obligations 

— the $7 million owed under the Master Lease, guaranteed by Roskamp, 

and the $2.5 million HTA agreed to pay on the Make-Whole Note, secured 

by the third-party rents—were distinct components of the overall 

transaction. Accordingly, we reject Roskamp's argument that rents HTA 

received from third-party tenants on the property should reduce 

Roskamp's obligations under the 2010 Guaranty. That contention finds no 

support in the language of the agreements. See Miller v. Hehlen, 209 Ariz. 

462, 466, ¶ 12 (App. 2005) ("[C]ourts are not constrained by textual 

omissions to abandon common sense and experience or to ignore the 

surrounding circumstances of an agreement.").

2. The Paragraph 9 cap.

¶16 Roskamp further argues that the judgment against it exceeds 

the cap imposed by Paragraph 9 of the 2010 Guaranty. According to 

Roskamp, Paragraph 9 establishes a cap that, under the circumstances, is at 

most $2 million. We read Paragraph 9 de novo so as to give effect to the 

parties' intent at the time of agreement and within the context of the entire 

agreement. See ELM Retirement Ctr., 226 Ariz. at 290–91, ¶ 15.

¶17 Paragraph 9 of the 2010 Guaranty states in full:

9. Notwithstanding anything to the contrary contained 

herein, the liability and obligations of [Roskamp] shall be 

limited to an amount not to exceed Seven Million and No/100 

Dollars ($7,000,000.00) minus the sum of (a) the amount of any 

payments made to [HTA] under the Lease that have not been 

made from amounts deposited in the Escrow Account, and (b) 

the amount of any Permitted Investments (as defined in the 

Cash Collateral Agreement) that have been deposited into the 

Escrow Account.
HTA-SCW, et al. v. ROSKAMP

Decision of the Court

8

Thus, Paragraph 9 establishes a cap on the Guaranty of $7 million, less (1) 

payments "made . . . under the Lease that have not been made from 

amounts deposited in the Escrow Account" and (2) "Permitted Investments" 

deposited into escrow.

¶18 Roskamp asserts, and HTA does not dispute, that the $7 

million cap was reduced by some $2 million in "Permitted Investments" 

deposited in escrow. Roskamp also argues that the cap was further reduced 

by $3 million in cash that it deposited into escrow. The language of the 2010 

Guaranty, however, cannot sustain that interpretation. The provision at 

issue allows the cap to be reduced by "payments made to [HTA] . . . that 

have not been made from amounts deposited in the Escrow Account."

(Emphasis added). We cannot construe that language to mean just the 

opposite, namely, payments that have been made from amounts deposited 

in the Escrow Account. Moreover, the record shows that KRW made no 

payments directly to HTA (i.e., outside of the escrow account). Nor can

Paragraph 9 be construed as an agreement that the $7 million cap would be 

reduced by rents HTA collected from third parties on the Master Lease 

space. See ¶ 15 supra. Rents from third parties are not "payments made to 

Lessor under the Lease," as Paragraph 9 provides. (Emphasis added).

¶19 For these reasons, the superior court did not err in granting 

summary judgment to HTA in the amount of $4,125,973, well below the 

negotiated cap of $5 million. See ELM Retirement Ctr., 226 Ariz. at 290–91, ¶ 

15; Voight v. Ott, 86 Ariz. 128, 133–34 (1959) (doctrine of expressio unius est 

exclusio alterius applies to contracts).

D. Attorney's Fees.

¶20 The 2010 Guaranty states that the prevailing party in a 

dispute "concerning the performance, meaning or interpretation" of the 

guaranty "shall be awarded any and all costs and expenses incurred," 

including "court costs and attorneys . . . fees." "It is well-settled in Arizona 

that contracts for payment of attorneys' fees are enforced in accordance 

with the terms of the contract." Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 

204, 206, ¶ 8 (App. 2014); see also A.R.S. 12-341.01(A) (2017). Under the 2010 

Guaranty, and applying Schweiger v. China Doll Restaurant, 138 Ariz. 183, 

187–88 (App. 1983), the superior court awarded HTA $490,694 in attorney's 

fees and $24,243 in costs. In its award, the superior court reduced the fees

HTA sought by $6,820, representing the work its lawyers performed but 

later abandoned after HTA amended its complaint to reference the 2010 

Guaranty rather than the 2009 Guaranty.
HTA-SCW, et al. v. ROSKAMP

Decision of the Court

9

¶21 On appeal, Roskamp argues the superior court should have 

awarded it all the fees it incurred before HTA amended the complaint 

because Roskamp was the prevailing party in that part of the litigation. It 

cites a comment the superior court made in its fees award that Roskamp

"did not breach the 2009 [Guaranty]," and argues based on that remark that 

Roskamp must have been the prevailing party up until the point HTA 

amended the complaint. Determination of the prevailing party for 

purposes of a fee award, however, is within the sole discretion of the 

superior court, and we will not disturb its finding "if any reasonable basis 

exists for it." Bobrow v. Bobrow, 241 Ariz. 592, 598, ¶ 25 (App. 2017). The 

superior court determined in its discretion that Roskamp was not the 

prevailing party under the original complaint because Roskamp obtained 

no relief under that complaint. We cannot conclude the superior court 

abused its discretion in that determination. Accordingly, and "[i]n light of 

the totality of the litigation, there is a reasonable basis for the superior 

court's conclusion," and we therefore affirm it. Lee v. ING Inv. Mgmt., LLC, 

240 Ariz. 158, 161, ¶ 10 (App. 2016).

CONCLUSION

¶22 We affirm the superior court's judgment. We grant HTA its 

costs on appeal and its reasonable attorney's fees pursuant to the 2010 

Guaranty and A.R.S. § 12-341.01(A), contingent on its compliance with 

Arizona Rule of Civil Appellate Procedure 21.