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S Development Company v. Pima Capital Management Co.8/30/2001
commercial contracts and knowingly bargained for agreements that contained the "as is" clauses. When the agreements expressly placed the risk as to the existence of defects on the appellees, they should be expected to have been aware of the meaning of an "as is" sale and to have taken precautions to examine the property thoroughly before buying it.
On this latter point, the appellees argue that the appellants prevented them from inspecting the buildings such as to find the defective condition. This argument is unsatisfactory. The purchase agreements expressly provided that the appellees could investigate the condition of the property as well as its "potential use, occupancy, operation, and maintenance." While the agreements barred irreparable damage to the property, investigation and inspection unlimited as to the plumbing system were permitted with only the proviso that, as was necessary, if escrow did not close, the property was to be restored "to the same condition which existed at opening of escrow."
The issue of duty usually is one for the court to decide as a matter of law, Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985); Diggs v. Arizona Cardiologists, Ltd., 198 Ariz. 198, 200 , 8 P.3d 386, 388 (App. 2001), as is a trial court's decision on a motion for judgment. Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 302 , 995 P.2d 735, 738 (App. 1999). When issues can be decided as a matter of law, this court has the authority to vacate the judgment in favor of one party and enter judgment in favor of the appropriate party. Anderson v. Country Life Ins. Co., 180 Ariz. 625, 628, 886 P.2d 1381, 1384 (App. 1994). The judgment in favor of the appellees should be vacated and judgment in favor of the appellants should be entered.
SUSAN A. EHRLICH, Judge
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