Cited by

§ 12-341.01, a fee-shifting statute granting courts the discretion to award attorney fees to successful parties in actions “arising out of a contract.” -23 (1987)

Barmat v. John & Jane Doe Partners A—D

Barmat v. John and Jane Doe Partners A–D

Barmat v. John & Jane Does Partners A-D

See Barmat v. John & Jane Doe Partners A-D, (“As a matter of public policy, attorneys, accountants, and other professionals owe 6 CAL-AM PROPERTIES, INC. V. EDAIS ENGINEERING, INC. Opinion of the Court special duties to their clients .

Co., –21, ¶ 12 (App. 2012) (quoting Barmat v. John & Jane Doe Partners A–D, ).

Barmat v. John & Jane Doe Partners A-D

and then only to the extent the claim is premised on the nonperformance of that promise;” otherwise, “a professional malpractice action does not ‘arise’ from contract, but rather from tort.”) (quoting Barmat v. John &Jane Doe Partners A-D, ).

1983) ) ); see also Barmat v. John & Jane Doe Partners , , 523, , 1222 (1987) (observing that tort duties "are often owed to all those within the range of harm or at least to some considerable class of people that can include parties to a contract" (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 92, at 655 (5th ed. 1984) ) ).

1983))); see also Barmat v. John & Jane Doe Partners, (observing that tort duties “are often owed to all those within the range of harm or at least to some considerable class of people that can include parties to a contract” (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 92, at 655 (5th ed. 1984))).

Barmat does not apply ¶13 Citing Barmat v. John & Jane Doe Partners A-D, Sirrah argues that because the Implied Warranty is imposed by law, breach of the Warranty cannot give rise to a contract-based fee award.

¶16 In Barmat, our supreme court held “attorney’s fees may be recovered in tort actions in which the victim and the tortfeasor have some type of contractual relationship.” Barmat v. John & Jane Doe Partners A-D, –22 (1987) (the court explained the distinction between express contract, contract implied-in-fact, both of which are true contracts, and a contract implied-in-law, which is not a contract at all, but an 4 At oral argument, counsel representing GSD specifically conceded the existence of

See Woodward, 141 Ariz. at 516, 687 P.2d at 1271 (holding that the six-year statute of limitations applied because the cause of action for breach of implied warranty was based on an express contract between the parties); cf. Barmat v. John & Jane Doe Partners A-D, (stating the breach of an implied covenant in an implied contract—instead of an express contract—does not necessarily arise out of contract under A.R.S.

See Barmat v. John & Jane Doe Partners A-D, (analyzing first whether express or implied contract existed before determining whether § 12-341.01 applied).

Barmat v. John & Jane Doe Partners A-D

Id.; see also Barmat v. John & Jane Doe Partners A–D, (explaining that “where the implied contract does no more than place the parties in a relationship in which the law then imposes certain duties recognized by public policy, the gravamen of the subsequent action for breach is in tort, not contract”).

Ramsey Air Meds., 198 Ariz. at 15–16 ¶¶ 25, 27, 6 P.3d at 320–21; Barmat v. John and Jane Doe Partners A- D

See Barmat v. John & Jane Doe Partners A-D, (Legal malpractice claims do not arise out of contract for purposes of § 12-341.01.); Dooley v. O’Brien, ¶ 18, (Actions to enforce fiduciary duties created by law do not arise out of contract for purposes of § 12-341.01).

See Barmat v. John & Jane Doe Partners A-D

The Arizona Supreme Court’s , is controlling.

2 State Farm suggests it is “the ‘functional equivalent’ of a liability carrier for the uninsured motorist.” ¶ 12 An action sounds in contract when the duty breached is “created by the contractual relationship, and would not exist ‘but for’ the contract.” Barmat v. John & *221 Jane Doe Partners A-D, , see also ASH, Inc. v. Mesa Unified Sch.

& Trust Co., , disapproved on other grounds by Barmat v. John & Jane Doe Partners A-D, , *281 (1987).

Architect argued that “the essence of [North Peak’s] claim is one for negligence” and that “there is no contractually-based claim for breach of implied warranty insofar as design professionals are concerned.” According to Architect, North Peak asserted the implied warranty claim in an “attempt

or more expansive language, such as “an action between parties to a contract.” And as our supreme court held, “[t]he legislature clearly did not intend that every tort case would be eligible for an award of fees whenever the parties had some sort of contractual relationship or ingenious counsel could find authority for an implied-in-law contractual claim.”

& Trust Co., -78 , -86 (App.1984), overruled on other grounds by Barmat v. John & Jane Doe Partners A-D