Cited by

§ 12-341.01 because Saia’s claim for fraudulent inducement “arose out of contract.” We review de novo whether a cause of action “arises out of a contract.” ¶ 58 (App. 2012).

§ 12-341.01(A), a court may award reasonable attorneys’ fees to the successful party in “any contested action arising out of a contract.” “Whether a cause of action arises out of contract is a question of law we review de novo.” ¶ 58 (App. 2012).

“In reviewing a motion for summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law.” ¶ 26 (App. 2012).

equired than the commission of the underlying tort, the trial court 2 While Diane’s son-in-law’s trial testimony—the substance of which was attached as an affidavit to Lindfors’ summary judgment reply—supports Lindfors’ abuse of process and punitive damages claims, we do not consider it because we are limited to the evidence presented in summary judgment motion, ¶ 26 (App. 2012), and introducing new evidence in its summary judgment reply was improper, see Wells Fargo Bank, N.A.

§ 12-341.01(A), a court may award reasonable attorney’s fees to the successful party in “any contested action arising out of a contract.” “Whether a cause of action arises out of contract is a question of law we review de novo.” ¶ 58 (App. 2012).

“Whether a cause of action arises out of contract is a question of law we review de novo.” ¶ 58 (App. 2012) (citing Schwab Sales, Inc. v. GN Constr.

¶13 We recognize this court arguably departed from this party/

See Brimet II, 231 Ariz. at 461, ¶ 22 ("This was a statutory quiet title action that turned on the application of the equitable doctrines of replacement and subrogation; it did not arise out of contract."); ¶ 57 (App. 2012) ("The contract must be the essential basis of the action and not merely a factual predicate.").

¶ 57 (App. 2012) ( ¶ 17 (App. 2003)).

For a misstatement to be material, “a reasonable person ‘would attach importance to its existence or nonexistence in determining [his or her] choice of action in the transaction in question.’” Sitton, 233 Ariz. at 221, ¶ 31, 311 P.3d at 243 (alteration in original) ( ¶ 28, ); accord Restatement (Second) of Torts § 538 (Am.

Co., 3 ¶12 Materiality is typically a question of fact, “but may be resolved as a matter of law where the information is so obviously important or unimportant to an investor that reasonable minds could not differ on the question of immateriality.” ¶ 43 (App. 2012).

A misstatement is only material for purposes of the statute “if a reasonable person would attach importance to its existence or nonexistence in determining [his or her] choice of action in the transaction in question.” ¶ 28 (App. 2012) (internal quotation marks omitted).

10 PHOENIX v. GLENAYRE, ¶ 58 (App. 2012) (citing Schwab Sales, Inc. v. GN Constr.

¶7 For a misstatement to be material, “a reasonable person ‘would attach importance to its existence or nonexistence in determining [his or her] choice of action in the transaction in question.’” Sitton v. Deutsche Bank Nat’l Trust Co., ¶ 31, (alteration in original) ( ¶ 28, ).

See, e.g., Wells Fargo Bank v. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, ¶ 36 (2002) (aiding and abetting “is 16 MORTENSEN v. GUST ROSENFELD, et al. Decision of the Court a theory of secondary liability”); ¶ 54 (App. 2012) (aiding and abetting claim properly dismissed based on dismissal of claim against alleged primary wrongdoer).

To determine whether misrepresentations in the documents at issue here were material, we apply our traditional definition of materiality from the law of fraud: “A misrepresentation is material if a reasonable person ‘would attach importance to its existence or nonexistence in determining [his or her] choice of action in the transaction in question.’ ” ¶ 28 , (quoting Restatement (Second) of Torts § 538(2)(a) (1977)) (alteration in original).