IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

LOUIS YANNI; ALFRED THOMPSON;

ANTHONY AND MYRNA GUNDERSON;

MARWAN ALSAYEGH; AND HANNAH SAYEGH,

INDIVIDUALLY AND ON BEHALF OF ALL

PERSONS SIMILARLY SITUATED,

Plaintiffs/Appellants,

v.

TUCKER PLUMBING, INC., AN ARIZONA CORPORATION;

BREWER ENTERPRISES, INC., AN ARIZONA CORPORATION,

Defendants/Appellees.

No. 2 CA-CV 2013-0024

Filed November 20, 2013

Appeal from the Superior Court in Pinal County

No. CV201200476

The Honorable Gilberto V. Figueroa, Judge

AFFIRMED

COUNSEL

Kasdan, Simonds, Weber & Vaughan, L.L.P., Phoenix

By Stephen L. Weber, Michael J. White, and James W. Fleming

Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochuli, P.L.C., Phoenix

By Michael A. Ludwig, Lori L. Voepel, R. Christopher Pierce,

and Jonathan P. Barnes

Counsel for Defendant/Appellee Tucker Plumbing, Inc.
2

O’Connor & Campbell, Phoenix

By J. Daniel Campbell and Stephanie Van Splunder

Resnick & Louis, P.C., Scottsdale

By Mitchell J. Resnick and Michael G. Wales

Co-counsel for Defendant/Appellee Tucker Plumbing, Inc.

Welsh Law Group, P.L.C., Phoenix

By Kenneth W. Welsh and Keely Verstegen

Counsel for Defendant/Appellee Brewer Enterprises, Inc.

Co-counsel for Defendant/Appellee Tucker Plumbing, Inc.

Rai & Barone, Phoenix

By Adam B. Campbell and Shannon R. Guererro

Co-counsel for Defendant/Appellee Brewer Enterprises, Inc.

OPINION

Presiding Judge Kelly authored the opinion of the Court, in which 

Judge Espinosa and Judge Eckerstrom concurred.

K E L L Y, Presiding Judge:

¶1 Louis Yanni and other similarly situated homeowners

(“Yanni”) appeal from the trial court’s grant of summary judgment 

in favor of plumbing subcontractors Tucker Plumbing, Inc., and 

Brewer Enterprises, Inc. (“Subcontractors”). Yanni argues the court 

erred by concluding Subcontractors were not subject to suit for 

breach of the implied warranty of workmanship and habitability. 

For the following reasons, we affirm. 

Factual and Procedural Background

¶2 We view the facts in the light most favorable to the 

party against whom summary judgment was entered. Villa de 

Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, ¶ 2, 253 P.3d 288, 
YANNI v. TUCKER PLUMBING

Opinion of the Court

3

291 (App. 2011). Yanni filed a “construction defect state-wide class 

action”1 against Subcontractors, who were hired by and performed 

plumbing work under a general contractor of new home 

construction. The complaint alleged Subcontractors had breached 

the implied warranty of workmanship and habitability by using 

defective plumbing components in the construction of plaintiffs’ 

homes.2 Specifically, Yanni alleged Subcontractors had “select[ed], 

construct[ed], assembl[ed], and install[ed] . . . brass plumbing 

fittings . . . not suitable for their service environment, . . . resulting in 

compromised plumbing systems that have prematurely corroded, 

occluded, leaked,” and otherwise deteriorated. Yanni further 

alleged Subcontractors had “failed to follow acceptable construction 

and/or building practices” when installing plumbing in the homes. 

¶3 Subcontractors moved for summary judgment, arguing

in part that “only parties and privies to contracts can bring claims 

for breach of the implied warranty of workmanship and 

habitability.” They argued that because Subcontractors contracted 

with a general contractor or developer to perform the work—and 

not with the homeowners—there was no contractual privity 

between the parties and suit should be barred as a matter of law.3 

Yanni filed a cross-motion for summary judgment, arguing that 

contractual privity is not required to maintain an action for breach of 

the implied warranty because the warranty “arises from the 

construction of the home as a matter of law.”

 

1Although Yanni describes this suit as a “class action,” the 

trial court did not address whether the suit could be maintained as a 

class action pursuant to Rule 23(c), Ariz. R. Civ. P.

2We treat the implied warranty of workmanship and 

habitability as a single warranty. See Nastri v. Wood Bros. Homes, Inc.,

142 Ariz. 439, 444, 690 P.2d 158, 163 (App. 1984) (holding Arizona 

decisions make no significant distinction between workmanship and 

habitability), rejected on other grounds by Flagstaff Affordable Hous. Ltd. 

P’ship v. Design Alliance, Inc., 223 Ariz. 320, 223 P.3d 664 (2010).

3Yanni concedes there was no privity between the 

homeowners and Subcontractors. 
YANNI v. TUCKER PLUMBING

Opinion of the Court

4

¶4 At the conclusion of a hearing on the motion and crossmotion, the trial court granted Subcontractors’ motion for summary 

judgment. Without ruling explicitly on the privity issue, the court 

stated there were other “[d]efendants in line,” such as the builder, 

vendor, developer or contractor, that either were or should be 

“primary to” the Subcontractors and that there was an “issue of 

remoteness.”4

Discussion

¶5 Yanni claims the trial court erred in granting 

Subcontractors’ motion for summary judgment, which had argued 

that only parties and privies to contracts properly can bring claims 

for breach of the implied warranty of workmanship and habitability. 

Yanni maintains that contractual privity no longer is required in 

breach of implied warranty causes of action and that those “who 

actually constructed the homes’ defective plumbing systems” should 

be held responsible for their work. He therefore concludes the 

court’s ruling should be reversed. 

¶6 A trial court properly grants summary judgment if 

there are no genuine issues of material fact and 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, 309, 802 P.2d 1000, 1008 (1990). “‘On 

appeal from summary judgment, we must determine de novo 

whether there are any genuine issues of material fact and whether 

the trial court erred in applying the law.’” Miidas Greenhouses, LLC 

v. Global Horticultural, Inc., 226 Ariz. 142, ¶ 5, 244 P.3d 579, 581 (App. 

2010), quoting Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 8, 965 

 

4At the same time, the trial court denied Yanni’s cross-motion 

for summary judgment. Because the sole issue in both motions was 

whether privity is required, and because we conclude that it is, we 

do not review the court’s denial of Yanni’s cross-motion for 

summary judgment. We also decline to grant oral argument as 

requested by Yanni in his opening brief. Rule 18, Ariz. R. Civ. App. 

P., requires a party to file a separate instrument requesting oral 

argument on or before the earlier of the ten days after the reply brief 

is due or filed; Yanni filed no such document. 
YANNI v. TUCKER PLUMBING

Opinion of the Court

5

P.2d 47, 50 (App. 1998). We consider only the evidence that was 

before the trial court during its summary judgment deliberations. 

GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 

830 (App. 1990). We will uphold the court’s ruling if summary 

judgment is correct for any reason. See Sanchez v. Tucson Orthopaedic 

Inst., P.C., 220 Ariz. 37, ¶ 7, 202 P.3d 502, 504 (App. 2008).

¶7 The doctrine of implied warranty of workmanship and 

habitability was determined to apply to new home construction in 

Columbia Western Corp. v. Vela, 122 Ariz. 28, 33, 592 P.2d 1294, 1299 

(App. 1979). In that case, the court held, “as to new home 

construction, . . . the builder-vendor impliedly warrants that the 

construction was done in a workmanlike manner and that the 

structure is habitable.”5 Id. “A claim for breach of the implied 

warranty sounds in contract.” Lofts at Fillmore Condo. Ass’n v. 

Reliance Commercial Constr., Inc., 218 Ariz. 574, ¶ 5, 190 P.3d 733, 734

(2008); see also Woodward v. Chirco Constr. Co., 141 Ariz. 514, 516, 687 

P.2d 1269, 1271 (1984). As our supreme court has affirmed, 

generally “‘only the parties and privies to a contract may enforce 

it.’” Lofts, 218 Ariz. 574, ¶ 5, 190 P.3d at 734, quoting Treadway v. W. 

Cotton Oil & Ginning Co., 40 Ariz. 125, 138, 10 P.2d 371, 375 (1932). 

¶8 In 1984, however, the court created a narrow exception 

to the contractual privity requirement by holding that subsequent 

homebuyers, despite the lack of contractual privity, could sue the 

homebuilder for breach of implied warranty. Richards v. Powercraft 

Homes, Inc., 139 Ariz. 242, 245, 678 P.2d 427, 430 (1984). The court 

noted that latent defects are “just as catastrophic on a subsequent 

owner as on an original buyer” and “[b]ecause the builder-vendor is 

in a better position . . . to prevent occurrence of major problems, the 

costs of poor workmanship should be his to bear.” Id. at 245, 678

P.2d at 430. The court thus held that contractual privity was not 

 

5The court based its holding, in part, on the rationale that 

“[b]uilding construction by modern methods is complex and 

intertwined with governmental codes and regulations. The ordinary 

home buyer is not in a position, by skill or training, to discover 

defects . . . which [are] usually covered up and not open for 

inspection.” 122 Ariz. at 32, 592 P.2d at 1298, quoting Tavares v. 

Horstman, 542 P.2d 1275, 1279 (Wyo. 1975). 
YANNI v. TUCKER PLUMBING

Opinion of the Court

6

required for a subsequent homeowner to sue a builder-vendor for 

breach of implied warranty and that “any reasoning which would 

arbitrarily interpose a first buyer as an obstruction to someone 

equally deserving of recovery is incomprehensible.” Id.

¶9 Our supreme court further expanded the exception to 

the privity requirement, albeit narrowly, in Lofts at Fillmore 

Condominium Association. In Lofts, the court addressed two issues—

whether a non-vendor homebuilder gave an implied warranty of 

workmanship and habitability in a condominium conversion project,

and whether residential homebuyers, who had no direct contractual 

relationship with the builder, could properly bring suit for breach of 

the implied warranty. 218 Ariz. 574, ¶¶ 7, 14, 190 P.3d at 735, 736. 

The court answered both in the affirmative. As to the first issue, it 

held that the builder gave an implied warranty by constructing the 

new homes, even though it was not also the vendor. Id. ¶¶ 13-14. In 

addressing the second issue, the court cautiously expanded the 

exception to the privity requirement to allow suit, holding that 

“[i]nnocent buyers of defectively constructed homes should not be 

denied redress on the implied warranty simply because of the form 

of the business deal chosen by the builder and vendor.” Id. ¶ 17.

¶10 On appeal, Yanni first argues that contractual privity is 

not required to maintain an implied warranty claim. Relying on

Lofts, Yanni argues that “implied warranty arises out of the

construction of a new home,” rather than contract, and the claim thus 

“naturally extends to and is properly asserted against 

[subcontractors] who actually worked on the home.” Requiring 

contractual privity before a homeowner may bring suit for breach of 

implied warranty, he argues, “has been abolished in the new home 

setting.” We disagree that Richards and Lofts changed the rule 

requiring privity to bring suit for breach of the implied warranty of 

workmanship and habitability under the circumstances present 

here.

¶11 Yanni correctly states that it is the construction of the 

home that gives rise to the subject matter of an implied warranty. 

See Lofts, 218 Ariz. 574, ¶ 13, 190 P.3d at 736 (“‘It is the structure and 

all its intricate components and related facilities that are the subject 

matter of the implied warranty.’”), quoting Moxley v. Laramie Builders, 
YANNI v. TUCKER PLUMBING

Opinion of the Court

7

Inc., 600 P.2d 733, 735 (Wyo. 1979). But nothing in Richards or Lofts 

suggests that this language permits a homebuyer to assert a breach 

of the implied warranty against any subcontractor that contributed 

to the home’s construction in the absence of a contract between the

homebuyer and the subcontractor. There is a distinction between 

the creation of an implied warranty by virtue of construction of a 

structure and the contractual relationship required to assert its 

breach as a cause of action. Although an implied warranty flows 

from the construction of a residence and applies to all of its 

individual components, the exceptions to the general privity 

requirement found in Richards and Lofts have never been extended to 

a homebuyer’s claims against a builder’s subcontractors. Yanni has 

not alleged any contractual relationship between homeowners and

Subcontractors, nor does he provide any evidence establishing a 

disputed issue of material fact on this point. See Bothell, 192 Ariz. 

313, ¶ 8, 965 P.2d at 50. 

¶12 Citing Arizona’s “strong public policy of protecting 

innocent home purchasers,” Yanni further urges this court to hold 

those who “actually construct” the home accountable for their work, 

regardless of the contractual relationship. However, the policy 

reasons for creating the privity exceptions in Richards and Lofts are 

not present in this case. In both of those cases, the court recognized

that homes can be constructed and sold pursuant to different 

business arrangements, and it rejected the idea that the type of 

purchase arrangement could bar a homebuyer from obtaining a 

remedy for defective home construction. In Richards, plaintiffs 

included homebuyers who had purchased repossessed homes from 

a finance company, rather than the builder. 139 Ariz. at 243, 678 

P.2d at 428. The court determined that precluding a subsequent 

homeowner from suing a builder for breach of implied warranty 

based on lack of privity could “encourage sham first sales to insulate 

buyers from liability.” Id. at 245, 678 P.2d at 430. Similarly, in Lofts,

the court determined that “[i]nnocent buyers of defectively 

constructed homes should not be denied redress on the implied 

warranty simply because of the form of the business deal chosen by 

the builder and vendor.” 218 Ariz. 574, ¶ 17, 190 P.3d at 736.6 

 

6The courts also noted more general policy concerns, such as 

protecting innocent and less knowledgeable homebuyers and 
YANNI v. TUCKER PLUMBING

Opinion of the Court

8

Concerns over depriving homebuyers of a remedy for defective 

home construction based on arbitrarily chosen business forms,

however, are not present in this case. 

¶13 Nothing in this decision precludes Yanni from pursuing

relief for any deficiencies in Subcontractors’ work. As noted by our 

supreme court in Lofts, a party who is not permitted to bring an 

implied warranty cause of action against a subcontractor still may 

sue a developer, general contractor, or vendor, who may then seek 

indemnity from other responsible parties or assign its claim to the 

plaintiff. 218 Ariz. 574, ¶ 18, 190 P.3d at 737, referring to Webb v. 

Gittlen, 217 Ariz. 363, ¶ 6, 174 P.3d 275, 276 (2008) (unliquidated 

non-personal injury claims are generally assignable); see also 

Highland Village Partners, L.L.C. v. Bradbury & Stamm Constr. Co., 219 

Ariz. 147, ¶ 12, 195 P.3d 184, 187 (App. 2008) (implied warranty 

rights can be assigned to third party); Sullivan v. Pulte Home Corp., 

232 Ariz. 344, ¶¶ 13-14, 306 P.3d 1, 3 (2013) (neither statute of repose 

nor economic loss doctrine bars tort claims brought against builders 

by non-contracting homeowners). We thus reject Yanni’s argument 

that Lofts and Richards “ha[ve] abolished [the privity requirement] in 

the new home setting.” See Chaurasia v. Gen. Motors Corp., 212 Ariz. 

18, ¶ 19, 126 P.3d 165, 172 (App. 2006) (“[W]e leave any further 

expansion of Richards to the Arizona Supreme Court.”).7 

 

holding builders accountable for their work, as driving forces 

behind creating the privity exceptions in those cases. See Lofts, 218 

Ariz. 574, ¶ 16, 190 P.3d at 736; Richards, 139 Ariz. at 245, 678 P.2d at 

430.

7Other jurisdictions also have declined to permit homebuyer

suits against subcontractors for breach of the implied warranty in 

the absence of privity. See Vonholdt v. Barba & Barba Constr., Inc., 657 

N.E.2d 1156, 1158-59 (Ill. App. Ct. 1995) (cause of action for breach of 

implied warranty does not extend beyond action against buildervendor of new residence); Moglia v. McNeil Co., 700 N.W.2d 608, 614 

(Neb. 2005) (subcontractor not liable in absence of contractual 

privity); Cox v. Curnutt, 271 P.2d 342, 344 (Okla. 1954) (cement 

subcontractor not liable to homeowners for breach of implied 

warranty because no contractual privity); Pugh v. Gen. Terrazzo 

Supplies, Inc., 243 S.W.3d 84, 89-90 (Tex. App. 2007) (homeowner 
YANNI v. TUCKER PLUMBING

Opinion of the Court

9

¶14 Yanni also argues that definitions in certain Arizona 

statutes indicate that “Arizona’s public policy . . . recognizes implied 

warranty claims against subcontractors.” Yanni maintains that the 

Purchaser Dwelling Act (“PDA”), A.R.S. §§ 12-1361 through 12-1366, 

and Arizona’s construction defect statute of repose, A.R.S. § 12-552, 

require us to conclude Subcontractors are “seller[s]” of a “dwelling” 

and, thus, properly can be sued for breach of implied warranty. But 

the definitions and provisions of both the PDA and the statute of 

repose establish notification procedures and time limits that govern 

suits by homeowners against contractors and developers. Neither 

creates a cause of action. Breach of the implied warranty cause of 

action is a judicially created doctrine rooted in contract, and its 

scope is not affected by either the PDA or the statute of repose.

¶15 For similar reasons, we disagree with Yanni’s argument 

that because the Registrar of Contractors (“ROC”) “does not require 

privity . . . in enforcement actions,” we also should decline to require 

privity for implied warranty actions. The ROC permits a dissatisfied 

homeowner to file a complaint with the ROC as an alternative to 

litigation. A.R.S. §§ 32-1155 through 32-1157. As with the PDA and 

statute of repose, however, this is a statutorily created alternate 

remedy that does not affect our implied warranty analysis.

Disposition

¶16 For the foregoing reasons, we affirm.

 

may not recover for breach of implied warranty action against 

subcontractor in absence of contractual relationship). But see Minton 

v. Richards Grp. of Chi., 452 N.E.2d 835, 837 (Ill. App. Ct. 1983) 

(implied warranty cause of action available against subcontractor 

when builder-vendor had dissolved and was insolvent and innocent 

buyer had no recourse).