Weber v. Kory

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

C. DOUGLAS WEBER, et al.,
Plaintiffs/Appellants,

v.

GABRIEL V. KORY, et al.,
Defendants/Appellees.

No. 1 CA-CV 24-0215
FILED 04-17-2025

Appeal from the Superior Court in Maricopa County
No. CV2022-000241
The Honorable Dewain D. Fox, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Poli, Moon & Zane, PLLC, Phoenix
By Michael N. Poli, Lawrence R. Moon
Counsel for Plaintiffs/Appellants

Quarles & Brady LLP, Phoenix
By John M. O’Neal, Alexander H. Park
Counsel for Defendants/Appellees
 WEBER, et al. v. KORY, et al.
Decision of the Court

MEMORANDUM DECISION

Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe
joined.

G A S S, Chief Judge:

¶1 In 2010, 3 law partners formed an LLC to hold a commercial
property on Portland Street in Phoenix for use as their law firm’s office.
Appellant C. Douglas Weber and the 2 appellees, Gabriel V. Kory and
Jeffrey B. Miller, were those 3 people. Though the law firm never entered
into any formal agreements with the LLC, the law firm used the Portland
Street property for its office and paid the LLC all expenses related to it until
January 2020.

¶2 This appeal arises because in 2019, Weber left the law firm.
The LLC was in discussions with a developer to sell the Portland Street
property. Appellees then formed a second LLC with a different third law
firm partner. Appellees used that second LLC to purchase a commercial
property on Third Avenue in Phoenix for the law firm to use as office space.
In January 2020, the law firm moved its offices to the Third Avenue
property and stopped making payments to the first LLC. All might have
been fine, but in late 2019, the deal to sell the Portland Street property fell
through. Even so, all was not lost. The first LLC eventually sold the
Portland Street property and split the profits between Weber, Kory, and
Miller. But the first LLC had no tenant and no income in the interim.

¶3 Weber sued appellees, alleging they breached their common-
law fiduciary duty to the first LLC, the express terms of the first LLC’s
operating agreement, and the duty of good faith and fair dealing implied in
the operating agreement. The superior court granted appellees’ summary
judgment motion on all claims and awarded appellees their attorney fees
and costs. Weber appealed.

¶4 We affirm in part, vacate in part, and remand to the superior
court. We affirm the superior court’s ruling in appellees’ favor on the
fiduciary duty claim. We vacate and remand for further proceedings on
Weber’s contract and good faith claims. We also vacate the superior court’s

2
 WEBER, et al. v. KORY, et al.
Decision of the Court

award of attorney fees and costs pending final resolution of the remaining
claims on remand.

FACTUAL HISTORY

I. In November 2010, Weber and the 2 appellees formed the first LLC
to hold a property their 3-partner law firm used as an office until
January 2020.

¶5 Weber and each appellee owned an equal, one-third interest
in the first LLC. In 2010, the first LLC bought a commercial property on
Portland Street. Section 8.5 of the first LLC’s operating agreement reads,
“Duality of Interest Transaction. Members of this Company have a duty of
undivided loyalty to this Company in all matters affecting this Company’s
interests.”

¶6 The law firm and the first LLC never entered into any lease or
agreement. Despite the absence of a contractual relationship, the law firm
paid the first LLC about $7,650 a month plus additional maintenance
expenses. The law firm used the Portland Street property as its office until
January 2020.

II. In 2019, the first LLC decided to sell the Portland Street property
and ultimately sold it, splitting the profits amongst each other.

¶7 In early 2019, a developer expressed interest in purchasing the
Portland Street property. In September 2019, the developer sent a letter of
interest to the first LLC, naming Weber and appellees collectively as the
seller. Though Weber allowed appellees to take the lead in negotiations for
the first LLC, Weber and appellees all agreed to sell. Because the developer
did not want the law firm as its tenant, the law firm began to search for
alternative office space.

¶8 Up until early December 2019, the developer and the first LLC
were discussing the sale of the Portland Street property and identified a
potential closing date of January 6, 2020, but the deal fell through. Over the
next 2 years, the first LLC sold the Portland Street property parcel-by-parcel
and the 3 members (Weber and appellees) divided the profits.

3
 WEBER, et al. v. KORY, et al.
Decision of the Court

III. By early November 2019, Weber knew appellees were working to
secure alternative office space so the law firm could vacate the
Portland Street property and leave the first LLC without a source
of income.

¶9 During the fall of 2019, Weber knew the law firm was looking
to move. As of November 5, 2019, Weber knew, as he himself said,
appellees’ plans would cause the first LLC to “lose [the] rental income”
from the law firm. Weber also knew appellees had arranged for the
purchase of the Third Avenue property to use the law firm’s office. Weber
understood appellees’ efforts were directed at having the law firm vacate
the Portland Street property and lease the Third Avenue property instead.
And as he himself said, the ultimate result of appellees’ efforts would be
the first LLC not having a tenant for—and not receiving income from—the
Portland Street property.

¶10 Initially, one of appellees’ fathers was to purchase the Third
Avenue property, which Weber knew as of September 2019. Instead, the
father lent the purchase price to appellees, who then created the second
LLC to purchase the Third Avenue property. Weber learned of the change
in the details of the purchase on January 15, 2020. Regardless of that change,
appellees’ plan remained as Weber understood it: with appellees’ help, the
law firm would abandon the Portland Street property, would use the newly
acquired Third Avenue property for the law firm’s office, and would stop
making payments to the first LLC.

¶11 And that is what came to pass. The law firm moved to the
Third Avenue property in late January 2020. At that point, the law firm
made its last monthly payment to the first LLC for the January 2020
expenses.

PROCEDURAL HISTORY

¶12 Weber filed a 2-count complaint in the superior court. The
first count was for breach of fiduciary duty. The second count combined
claims for breach of contract and breach of the covenant of good faith and
fair dealing. The parties filed cross-motions for summary judgment.

¶13 The superior court denied Weber’s motion, and Weber
appealed that ruling. Because Weber’s appellate briefing did not raise any
argument regarding the superior court’s denial of his motion, the court
treats that issue as waived. See Nelson v. Rice, 198 Ariz. 563, 567 ¶ 11 n.3
(App. 2000) (ruling party waives argument by failing to raise it in opening
brief).

4
 WEBER, et al. v. KORY, et al.
Decision of the Court

¶14 Appellees moved for summary judgment on the fiduciary
duty claim. Among other things, they argued the 2-year statute of
limitations barred that claim because Weber knew or should have known
the claim accrued no later than November 2019, but he did not file his
complaint until January 2022. Appellees also moved for summary
judgment on the contract and the good faith claims. The superior court
granted summary judgment in appellees’ favor. The superior court then
awarded appellees $240,937.00 in attorney fees and $5,625.99 in taxable
costs. The superior court later granted appellees $16,418.00 in additional
attorney fees and $6.70 in additional taxable costs.

¶15 The court has jurisdiction over Weber’s timely under Article
VI, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101.A.1.

DISCUSSION

¶16 Summary judgment is appropriate when “the facts produced
in support of the claim or defense have so little probative value . . . that
reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309
(1990); see Ariz. R. Civ. P. 56(a). As the plaintiff, Weber bears the burden of
proof as to each of his claims. See Smethers v. Campion, 210 Ariz. 167, 170
¶ 12 (App. 2005). Because the moving parties here, appellees, do not bear
the burden of proof, they need only show the absence of evidence in the
record supporting an essential element of the claim. See Nat’l Bank of Ariz.
v. Thruston, 218 Ariz. 112, 117 ¶ 22 (App. 2008). If the moving party makes
that showing, the burden “shifts to the non-moving party to present
sufficient evidence” of a genuine dispute of material fact. Id. at 119 ¶ 26.

¶17 The court reviews a superior court’s grant of summary
judgment de novo. Zambrano v. M & RC II LLC, 254 Ariz. 53, 58 ¶ 9 (2022).
When reviewing a summary judgment ruling, the court views the facts and
draws all reasonable inferences in the light most favorable to Weber as the
non-moving party. See Roebuck v. Mayo Clinic, 256 Ariz. 161, 165 ¶ 11 (App.
2023). The court will affirm “for any reason supported by the record, even
if not explicitly considered by the superior court.” See KB Home Tucson, Inc.
v. Charter Oak Fire Ins. Co., 236 Ariz. 326, 329 ¶ 14 (App. 2014).

I. The undisputed material facts establish the 2-year statute of
limitations bars Weber’s fiduciary duty claim.

¶18 Weber argues appellees, through the second LLC, breached
their common-law fiduciary duty to the first LLC by competing against the
first LLC for the law firm’s tenancy. To prevail, Weber must prove 4

5
 WEBER, et al. v. KORY, et al.
Decision of the Court

elements: (1) appellees owed a fiduciary duty to the first LLC; (2) appellees
breached that duty; (3) the breach caused damages; and (4) there are
damages. See Smethers, 210 Ariz. at 170 ¶ 12. Weber’s fiduciary duty claim
is subject to a 2-year statute of limitations. A.R.S. § 12-542; see also Coulter v.
Grant Thornton, LLP, 241 Ariz. 440, 444 ¶ 9 (App. 2017).

¶19 Courts “disfavor statute of limitations defenses, preferring
instead to resolve litigation on the merits when possible.” City of Tucson v.
Clear Channel Outdoor, Inc., 218 Ariz. 172, 178 ¶ 5 (App. 2008). But statutes
of limitations exist to “protect defendants and courts from stale claims
where plaintiffs have slept on their rights.” Gust, Rosenfeld & Henderson v.
Prudential Ins. Co. of Am., 182 Ariz. 586, 590 (1995). For that reason, claims
based on undisputed facts “clearly brought outside the relevant limitations
period are conclusively barred.” Montano v. Browning, 202 Ariz. 544, 546
¶ 4 (App. 2002); see also Hall v. Romero, 141 Ariz. 120, 125, 127 (App. 1984)
(granting summary judgment for moving party because non-moving
party’s claim was barred by the statute of limitations).

¶20 For purposes of the statute of limitations, a claim accrues
when a plaintiff “knows or, in the exercise of reasonable diligence, should
know the facts underlying the cause.” Gust, 182 Ariz. at 588–89. The key
inquiry is whether a plaintiff knew the defendant’s identity and could
connect the wrong to that defendant. See Lawhon v. L.B.J. Inst. Supply, Inc.,
159 Ariz. 179, 183 (App. 1988).

¶21 Though the trier of fact typically resolves a question of when
a limitations period begins to run, the court reviews mixed questions of fact
and law or legal conclusions de novo. See Doe v. Roe, 191 Ariz. 313, 323 ¶ 32
(1998); Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114 (1966). The
court may “substitute [its] own analysis of the record” when the facts are
undisputed. Tovrea Land & Cattle Co., 100 Ariz. at 114.

¶22 In assessing a fiduciary duty claim, the focus is on the “nature
of the defendant’s preparations to compete.” See Sec. Title Agency, Inc. v.
Pope, 219 Ariz. 480, 492 ¶ 54 (App. 2008). In Pope, the employee breached
her fiduciary duty to her employer by soliciting key managerial employees
to join a competing company while she was still employed by that
employer. See id. at 494 ¶ 63. She did not merely discuss the option with her
co-workers but actively recruited them by telling them about benefits and
compensation. Id. A person who owed a duty to an entity thus breaches
their duty by soliciting another to compete with the entity through active
preparation while that person is still a part of that entity. See id.

6
 WEBER, et al. v. KORY, et al.
Decision of the Court

¶23 To overcome appellees’ statute-of-limitations defense, Weber
originally argued his claim did not accrue until mid-January 2020 when he
learned appellees had an ownership interest in the Third Avenue property.
But Weber’s own words in his supplemental brief show the statute of
limitations bars his common-law fiduciary duty claim. He conceded the
breach occurred on October 4, 2019, because it was the date “appellees,
along with [the third partner], formed [the second LLC], . . . for the purpose
of engaging in the same business as that of the [first LLC], namely, holding
and leasing real commercial property.” And the undisputed evidence
shows Weber knew all the material facts needed to trigger the statute of
limitations by November 5, 2019.

¶24 Indeed, as of November 5, 2019, Weber knew the appellees
were preparing to move their law firm’s office to another property not
owned by the first LLC. He also knew appellees solicited one of their fathers
to purchase the property and lease it to the law firm while appellees were
still members of the first LLC. See Pope, 219 Ariz. at 494 ¶ 63. Who ultimately
owned the Third Avenue property, whether it be the father or the second
LLC, does not matter because Weber knew appellees were making
preparations to move their law firm to a property not owned by the first
LLC, which as Weber says, rendered “[the first LLC] insolvent and without
any immediate prospects.” Weber thus knew—as of November 5,
2019—the first LLC would be losing the law firm’s monthly payments even
if the law firm did not stop making payments to the first LLC until January
2020.

¶25 So, paraphrasing Hall, “[t]he undisputed facts lead to the
conclusion that [Weber] knew, or reasonably should have known of [his]
possible claim against” appellees as of November 5, 2019 or even as early
as October 4, 2019. See Hall, 141 Ariz. at 125. But Weber did not file this
action against appellees until January 7, 2022, which is outside the relevant
statute of limitations period. The undisputed facts and Weber’s own words,
thus, establish the 2-year statute of limitations bars his common-law
fiduciary duty claim.

¶26 At bottom, Weber’s fiduciary duty claim is time barred. It
accrued more than 2 years before he filed his action against appellees.

II. Weber did not waive his arguments on the contract and the good
faith claims.

¶27 Appellees argue Weber waived these claims by not
presenting the issue to the superior court. Consistently throughout the

7
 WEBER, et al. v. KORY, et al.
Decision of the Court

litigation, both at the superior court and on appeal, the parties blended their
arguments about the fiduciary duty, contract, and the good faith claims.
The superior court did the same, not even mentioning the good faith claim
in its final ruling.

¶28 Weber raised both the contract and good faith claims as 1
count in his complaint when they are 2 separate claims. He argued the same
facts supporting his common-law fiduciary duty claim also supported these
claims. Specifically, in Weber’s response to appellees’ motion for summary
judgment, he said, “In breaching their fiduciary duty of loyalty, [appellees]
breached Article [8.5] of the Company’s Operating Agreement.” And in
Weber’s attached statement of facts, he said, “Under Article [8.5] of [the first
LLC’s] Operating Agreement, each member agreed to have ‘a duty of
undivided loyalty to th[e] Company in all matters affecting th[e]
Company’s interests.’” Weber’s response to the summary judgment motion
also noted, “[appellees] do not assert that [Weber’s] breach of contract claim
is time-barred, the limitations period for which is six years.” See A.R.S. § 12-
548; Zuckerman v. Transamerica Ins. Co., 133 Ariz. 139, 143 (1982). At bottom,
Weber did not fail to present an argument for these claims. Rather, he
incorporated his argument into his fiduciary duty claim, including the
factual basis. Though admittedly thin, it is not a waiver, particularly when
the superior court considered appellees’ arguments.

¶29 Appellees’ superior court briefing on the contract claim
similarly was sparse. As Weber did, appellees relied on the discussion
about the fiduciary duty claim when they discussed the contract and good
faith claims. In their summary judgment motion, appellees addressed the 2
claims in only 2 paragraphs:

[Appellees] did not breach Section 8.5 of the operating
agreement for the reasons set forth above. In addition, there
is no express term in [the first LLC’s] operating agreement
which compelled the Law Firm to remain in the First Office.
And there is nothing in the operating agreement which
precludes [appellees] from owning real property separately
from [the first LLC]. As such, [Weber] cannot sustain a claim
that the express terms of the operating agreement were
breached.

Also, [Weber] cannot claim that the implied covenant of good
faith was breached either. There is nothing in the operating
agreement which gives [Weber] a reasonable expectation that
the Law Firm would stay in the First Office indefinitely, or

8
 WEBER, et al. v. KORY, et al.
Decision of the Court

that [appellees] could not own other real property without
[Weber]. Those are not benefits that [Weber] could have
reasonably expected to receive under [the first LLC’s]
operating agreement.

¶30 Based on that limited briefing, the superior court said:

[Appellees] contend that [Weber’s] breach of contract claim
fails as a matter of law because (among other reasons) they
did not breach Section 8.5 of [the first LLC’s] Operating
Agreement and there is no express term in the Operating
Agreement compelling the Firm to remain in the First Office
or precluding [appellees] from owning real property
separately from [the first LLC]. [Weber] did not respond to
[appellees’] arguments regarding the breach of contract claim.
The Court agrees that [Weber] has not established a viable
breach of contract claim. Accordingly, the Court will grant
summary judgment for [appellees] and against [Weber] on
this claim.

¶31 Though Weber’s arguments admittedly were thin, Weber did
not waive the claims, particularly when the superior court considered them.
Indeed, if the court were to accept appellees’ argument about the contract
claim, the court would have to conclude the superior court never resolved
the good faith aspect of Weber’s case.

¶32 Appellees further argue Weber waived his arguments on
those claims on appeal. Not so. Weber appealed the superior court’s
contract ruling. And in his opening brief, Weber discussed the elements of
the contract and the good faith claims. Appellees answered back, arguing
the court “should affirm summary judgment on the breach of contract (or
good faith and fair dealing) claim.”. Below and on appeal, Weber makes it
clear he believes appellees breached the duty of loyalty—an express
covenant—in the operating agreement—their contract. He ties it to a breach
of the covenant of good faith. And he ties both claims to the same facts
underlying his fiduciary duty claim.

¶33 In short, Weber did not waive his arguments.

9
 WEBER, et al. v. KORY, et al.
Decision of the Court

III. Weber established sufficient issues of material fact to survive
summary judgment on his contract and good faith claims.

¶34 Weber argues the undisputed facts supporting his
common-law fiduciary duty claim also support his contract and good faith
claims. Appellees argue the same undisputed facts show they did not
breach the operating agreement and Weber cannot establish damages. The
superior court granted summary judgment for appellees on the contract
claim, saying it was not viable. The superior court did not address Weber’s
good faith claim. Because the undisputed facts are subject to differing
inferences, appellees’ summary judgment arguments are unavailing. See
generally Beaudry v. Ins. Co. of the West, 203 Ariz. 86, 91 ¶ 21 (App. 2002). To
prevail on his contract claim, Weber must prove “existence of [a] contract,
its breach and the resulting damages.” See Graham v. Asbury, 112 Ariz. 184,
185 (1975). To prevail on his good faith claim, Weber must prove appellees
acted in a way inconsistent with, or adverse to, Weber’s “reasonably
expected benefit of the bargain.” See Bike Fashion Corp. v. Kramer, 202 Ariz.
420, 424 ¶ 14 (App. 2002) (quoting Wells Fargo Bank v. Ariz. Laborers,
Teamsters and Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474,
491 ¶ 64 (2002)); see also Keg Rests. Ariz., Inc. v. Jones, 240 Ariz. 64, 77 ¶ 45
(App. 2016). The 2 claims are different because “[a] party may breach an
express covenant of a contract without breaching the implied covenant of
good faith and fair dealing,” and “breach its duty of good faith without
actually breaching an express covenant in the contract.” Beaudry, 203 Ariz.
at 91 ¶ 18 (quoting Wells Fargo Bank, 201 Ariz. at 491 ¶ 64).

¶35 Because Weber’s good faith claim also sounds in contract,
“the remedy for breach of this implied covenant is ordinarily by action on
the contract.” Southwest Savs. & Loan v. SunAmp Sys., Inc., 172 Ariz. 553, 557
(App. 1992) (quoting Burkons v. Ticor Title Ins. Co. of Cal., 168 Ariz. 345, 355
(1991)); see also Beaudry, 203 Ariz. at 92 ¶ 22. This general rule applies absent
a “special relationship,” such as between an insured and an insurer. Wells
Fargo Bank, 201 Ariz. at 491 ¶¶ 60–61. Because Weber has not argued a
special relationship exists, he must show appellees exercised “discretion
retained or unforeclosed under a contract in such a way as to deny [Weber]
a reasonably expected benefit of the bargain.” See id. at 492
¶ 66 (quoting Southwest Savs. & Loan, 172 Ariz. at 558). Weber thus is limited
to contract damages. See id. at 491 ¶ 61.

¶36 The court views the facts and draws all reasonable inferences
in the light most favorable to Weber as the non-moving party. See Roebuck,
256 Ariz. at 165 ¶ 11. To begin, Weber points to the operating agreement as
the controlling contract. Appellees do not challenge that point. An analysis

10
 WEBER, et al. v. KORY, et al.
Decision of the Court

of Weber’s fiduciary duty claim shows he came forward with evidence
supporting the reasonable inference appellees breached the operating
agreement’s “duty of undivided loyalty” in section 8.5.

¶37 The undisputed facts show appellees were members of the
first LLC throughout the relevant time period. Appellees thus owed the first
LLC a contractual duty of undivided loyalty. Yet they engaged with others
and each other to discuss moving the law firm from the first LLC’s property.
And ultimately, they created the second LLC, which purchased the Third
Avenue property and leased that property to the law firm, leaving the first
LLC without a tenant for some time. And unlike the fiduciary duty claim,
the contract and good faith claims are not barred by a 2-year statute of
limitations. See A.R.S. § 12-548 (imposing a 6-year statute of limitations); see
also Zuckerman, 133 Ariz. at 142.

¶38 Based on those undisputed facts, a reasonable jury could infer
appellees did not show “undivided loyalty to [the first LLC] in all matters
affecting [its] interests.” True enough, Arizona law also says, “A member
does not violate a duty or obligation under this chapter or under the
operating agreement solely because the member’s conduct furthers the
member’s own interest.” A.R.S. § 29-3409.E. And true, the operating
agreement did not preclude appellees from owning other properties and
leasing them out. And nothing precluded the law firm from moving. But a
factfinder reasonably could infer appellees breached section 8.5 because
evidence shows appellees established the means by which the law firm
could move offices, abandon the first LLC, and thus cause the first LLC to
lose the income from the law firm. Those inferences are for a jury, not a
court on summary judgment. See Bishop v. State, Dep’t of Corr., 172 Ariz. 472,
475 (App. 1992).

¶39 And contrary to appellees’ arguments, allowing Weber to
move forward will not logically “make it unlawful for the [law firm] to
move if it benefited [appellees] in any way.” True, the law firm was not
under any legal obligation to remain. But the alleged breach was not the
law firm’s decision to move. It occurred when appellees formed the second
LLC and purchased the Third Avenue property to compete with the first
LLC for the law firm’s business.

11
 WEBER, et al. v. KORY, et al.
Decision of the Court

¶40 Also, appellees argue Weber cannot show the first LLC
sustained damages. Not so. A jury could draw varying inferences about
whether the law firm could have moved as quickly as it did if appellees had
not laid the groundwork by forming the second LLC and purchasing the
Third Avenue property. See generally Smethers, 201 Ariz. at 170 ¶ 12.
Groundwork Weber alleges violated appellees’ contractual duty. As such,
whether the first LLC incurred damages based on “lost rents” from the law
firm is a question the court must leave to the jury to resolve. See id.; see also
Harris Cattle Co. v. Paradise Motors, Inc., 104 Ariz. 66, 68–69 (1968).

¶41 At bottom, a jury reasonably could find appellees’ actions
breached the express duty of loyalty in the operating agreement because
appellees, as members of the first LLC, decided to create a competing LLC
for the same purpose as the first LLC, which was to hold property to be
used as the law firm’s office. And from that, a jury reasonably could find
the first LLC sustained damages.

¶42 Based on the above, Weber’s contract and good faith claims
survive summary judgment. See Orme Sch., 166 Ariz. at 309.

IV. The court awards no attorney fees on appeal.

¶43 Appellees seek attorney fees and costs on appeal under A.R.S.
§§ 12-341, -341.01.A, and Rule 21, Arizona Rules of Civil Appellate
Procedure. Because the court affirms in part and vacates in part, the court
denies appellees’ request for attorney fees and costs on appeal.

CONCLUSION

¶44 The court affirms the superior court’s judgment on Weber’s
fiduciary duty claim. The court vacates the superior court’s judgment on
Weber’s contract and good faith claims and remands for further
proceedings consistent with this decision. Because the court vacates and
remands the contract and good faith claims, the court vacates those awards
without prejudice for the superior court to award attorney fees and cost to
the party who ultimately prevails on remand.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

12