Antonson v. Red Mtn ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
GWYNN ANTONSON and BRETT ANTONSON, wife and husband,
Plaintiffs/Appellees,
v.
RED MOUNTAIN MED SPA, LLC, an Arizona limited liability company,
Defendant/Appellant.
No. 1 CA-CV 14-0389
FILED 6-11-2015
Appeal from the Superior Court in Maricopa County
No. CV2012-006056
The Honorable Lisa Daniel Flores, Judge
AFFIRMED
COUNSEL
Rose Law Group, PC, Scottsdale
By Christopher Ingle and Logan V. Elia
Counsel for Plaintiffs/Appellees
Sherman & Howard, LLC., Scottsdale
By Michael W. Wright, Arthur W. Pederson, and Gabriel A. Peraza
Counsel for Defendant/Appellant
ANTONSON v. RED MTN.
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Acting
Presiding Judge Samuel A. Thumma and Chief Judge Diane M. Johnsen
joined.
K E S S L E R, Judge:
¶1 Red Mountain Med Spa, LLC (“Red Mountain”) appeals from
the superior court’s summary judgment and award of attorneys’ fees in
favor of Gwynn and Brett Antonson (“the Antonsons”). For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Red Mountain is a medical spa and general family medical
practice with seven locations in Arizona. Red Mountain’s physician-
assisted services are provided through Suzanne Bentz Jewell, D.O. (“Dr.
Bentz”), the Medical Director and part owner of Red Mountain, and two
additional physicians.
¶3 Gwynn Antonson (“Dr. Antonson”) completed medical
school in 2008 and was finishing the last year of her residency in New Jersey
in 2011. Dr. Antonson contacted Red Mountain regarding potential
employment. After Dr. Antonson interviewed with Red Mountain, the
parties exchanged a series of emails. On March 16, 2011, Mark Bentz, Red
Mountain’s Chief Executive Officer (the “CEO”), emailed Dr. Antonson
with an employment proposal:
It was nice seeing you and getting to know you a little better.
We appreciate your interest in Red Mountain, and look
forward to the possibility of working together. [Dr. Bentz]
and I have thought further about how to integrate you into
the practice, and I think we can simplify the process a bit.
Here’s what we would propose.
Training—We would offer you an initial 90 day trial period,
where you would work with [Dr. Benz] and a number of other
providers in our practice to acquire the skills necessary to
perform effectively as a Physician in our practice. We will pay
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you at a rate of $50 per hour (or $104,000 annualized) during
this training period.
Transitional period—After the initial 90 days, if you’re
comfortable in the position, and we feel your progress is satisfactory,
we would raise your hourly rate to $60 or $125,000 annualized.
You would work for an additional 90 day transitional period
in order to get more comfortable with our customer service
style, processes, and procedures.
Six month review—Upon completing your first six months,
we will conduct a review, and present you with a more
formalized offer for joining Red Mountain Med Spa as a full
time Medical Provider.
Let me know if this plan sounds good to you, and we can
coordinate your start date, and training itinerary.
(Emphases added.) Dr. Antonson responded, stating, “I have had time to
look over your email and I think that your plan looks great.” In subsequent
emails, Red Mountain agreed to contribute towards Dr. Antonson’s moving
expenses, Arizona licensing application fee, and health insurance
premiums. The parties ultimately agreed that Dr. Antonson would begin
working at Red Mountain on August 15, 2011.
¶4 On June 28, 2011, Red Mountain’s CEO sent an email to Dr.
Antonson informing her that there had been “developments” at the
company related to internal staffing issues. As a result, because it would
be a challenge to get her enough hours in one of the medical spas, Red
Mountain asked Dr. Antonson if she “would be willing to do a day or two
at the Family Practice as well.” Dr. Antonson responded, noting that
although she was not excited about working in the family medicine office,
she was willing to fulfill those hours:
As you know, I never wanted to practice family medicine and
I wasn’t planning on doing so at all after finishing my
residency, I feel very strongly about this. When I read your
email I have to admit I wasn’t excited to hear your proposition
about taking hours at the family practice and I felt like I was
put into a difficult situation. I already feel like my husband
and I are going out on a limb by moving out to Arizona
without anything in writing, just an agreement via email, but
I feel very comfortable with you and Dr. Bentz, and I felt like
it would be a great fit at Red Mountain Med Spa. . . . I know I
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am the new employee coming in, and we are still feeling each
other out, I do understand that. I am a reasonable person and
I really do want to be able to help you and Dr. Bentz fill your
needs. I am willing to take hours at the family practice office.
That being said, I also don’t want to be seen as a pushover and
I think there are a lot of issues I’d like to clarify and discuss
before fully agreeing to anything.
The email also included a list of questions regarding the amount of work
and time she would be expected to spend in the family medicine office. Red
Mountain replied that, based on Dr. Antonson’s comments, Red Mountain
would not be hiring her:
We had hoped that since you’ve just completed your
residency in Family Medicine, we may be able to utilize your
skills in that area until we can fully integrate you into the Med
Spa, as patient demand permits. . . . Your strong feelings
against practicing Family Medicine raises serious questions
about whether this would be a suitable way to utilize your
skills in the interim, since your heart is clearly not in accepting
this assignment.
Your suggestion that we allow you to see derma patients only
on a specific day is not acceptable to us. It further raises the
question of what kind of team player you would be if you
joined us. Would you be someone who pitches in where
needed, or someone who has to make up their own rules? . . .
My experience has been that when there are difficulties and
misunderstandings such as these “going in to a business
relationship,” it rarely gets better.
Since we have no need for an additional Physician in our Med
Spa, and you’re not interested in working in the Family
Practice, there is really no opportunity at Red Mountain for
you at this time. I’m sorry for the misunderstanding, and the
timing of this news, but based on your response this is the
only reasonable business decision we can make.
¶5 The Antonsons filed suit against Red Mountain alleging
anticipatory breach of contract and breach of the implied covenant of good
faith and fair dealing. The Antonsons certified that the matter was required
to go to court-ordered arbitration and the arbitrator awarded them $39,990
for both claims. Red Mountain appealed that award. Presented with cross-
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motions for summary judgment, the trial court granted summary judgment
for the Antonsons on their claim of anticipatory breach of contract and for
Red Mountain on the claim of breach of the implied covenant of good faith
and fair dealing. As to the anticipatory breach of contract, the court
reasoned that the emails agreeing on a 90-day trial period:
meet[] the statutory requirements for a contract for specific
duration of employment, as contemplated by [Arizona
Revised Statutes section] 23-1501. The contract was in
writing, and the e-mailed offer was “signed” by Red
Mountain’s CEO . . . when he placed his name at the end of
the offer. Bentz testified that the e–mail was an offer, that [Dr.
Antonson] accepted it by e-mail and the parties had an
employment agreement.
The court concluded that the “inclusion of the word ‘trial’ to describe the
90-day period does not change the fact that the employment term is for a
specific duration. Refusing to allow [Dr. Antonson] to start work is classic
anticipatory breach.” It awarded the Antonsons $29,990 in compensatory
damages (based on 90-days employment, the moving costs, and Dr.
Antonson obtaining a medical license). After denying Red Mountain’s
motion for reconsideration and overruling its objection to the Antonsons’
application for attorneys’ fees, the superior court entered a final judgment
awarding the Antonsons the above damages, $49,033 in reasonable
attorneys’ fees, and $2,012.50 in taxable costs.
¶6 Red Mountain timely appealed We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1)
(Supp. 2014).1
DISCUSSION
¶7 On appeal, Red Mountain argues the court should have
granted its motion for summary judgment on the claim for anticipatory
breach. Specifically, it argues: (1) the exchange of emails did not create a
contract because specific terms were lacking; (2) if there was a contract of
employment it was not for a specific duration to allow a breach of contract
action under the Employment Protection Act, A.R.S. § 23-1501 (Supp. 2014)
(the “EPA”); and (3) the exchange of emails was not signed for purposes of
the EPA. It also argues the superior court erred in awarding attorneys’ fees
1 We cite the current version of applicable statutes if no revisions material
to this decision have since occurred.
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because the Antonsons did not provide the court with the actual billing
statements to show what was billed and paid by the Antonsons and
approximately $10,000 of the fees were expended in the court-ordered, but
assertedly unnecessary, arbitration.2
¶8 “We review a trial court’s grant of summary judgment de
novo, viewing the facts and reasonable inferences therefrom in the light
most favorable to the nonmoving party.” Hourani v. Benson Hosp., 211 Ariz.
427, 432, ¶ 13, 122 P.3d 6, 11 (App. 2005). “We review issues of statutory
interpretation de novo, attempting to fulfill the legislature’s intent in
enacting the statute.” State v. Barnett, 209 Ariz. 352, 354, ¶ 7, 101 P.3d 646,
648 (App. 2004). “If the language of a statute is clear and unambiguous, we
must give it effect without resorting to any rules of statutory construction.”
Id. (quoting State v. Johnson, 171 Ariz. 39, 41, 827 P.2d 1134, 1136 (App.
1992)). “An award of attorney fees is left to the sound discretion of the
trial court and will not be reversed on appeal absent an abuse of discretion.”
Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265, ¶ 18, 99 P.3d 1030, 1035
(App. 2004). “A court abuses its discretion if it commits an error of law in
reaching a discretionary conclusion, it reaches a conclusion without
considering the evidence, it commits some other substantial error of law, or
‘the record fails to provide substantial evidence to support the trial court’s
finding.’” Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 27,
156 P.3d 1149, 1155 (App. 2007) (quoting Grant v. Ariz. Pub. Serv. Co., 133
Ariz. 434, 456, 652 P.2d 507, 529 (1982)).
I. The Parties Agreed to Sufficient Material Terms to Form an
Enforceable Contract
¶9 Red Mountain argues that the parties did not agree upon all
of the material terms for a contract, and as a result, a contract was never
formed. Red Mountain argues the agreement lacked specificity of terms
because Dr. Antonson identified issues regarding her involvement in the
family practice that still needed to be discussed and the parties had not
2 Red Mountain also conclusorily argues the complaint failed to state a
cause of action upon which relief can be granted because the complaint did
not specifically allege that the contract met the requirements of the EPA.
Red Mountain cites no authority for the proposition that a claim for
anticipatory breach of contract must include such specificity. See Rowland
v. Kellogg Brown and Root, Inc., 210 Ariz. 530, 533, ¶ 13, 115 P.3d 124, 127
(App. 2005) (explaining that Arizona is a notice pleading state).
Accordingly, we will not further address this argument except in the
context of the motions for summary judgment.
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agreed on the exact days and hours Dr. Antonson would work during the
initial 90-day trial period.
¶10 “It is elementary that for an enforceable contract to exist there
must be an offer, an acceptance, consideration, and sufficient specification of
terms so that the obligations involved can be ascertained.” Savoca Masonry
Co. v. Homes & Son Constr. Co., 112 Ariz. 392, 394, 542 P.2d 817, 819 (1975)
(emphasis added); see also K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass’n,
139 Ariz. 209, 212, 677 P.2d 1317, 1320 (App. 1993) (“An offer cannot be
accepted so as to form a contract unless there is sufficient specification of
terms so that the obligations involved can be ascertained.”). However,
“certainty of terms relates to the parties’ intent to contract: ‘[T]he
requirement of certainty is not so much a contractual validator as a factor
relevant to determining the ultimate element of contract formation―the
question whether the parties manifested assent or intent to be bound.’
Thus, the overriding question is whether the parties intended to contract.”
AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 295, 848 P.2d 870,
874 (App. 1993) (alteration in original) (quoting Schade v. Diethrich, 158 Ariz.
1, 9, 760 P.2d 1050, 1058 (1988)). “The old ‘formalist’ view limited the
agreement to written terms and emphasized rules of contract, such as the
requirement that the agreement include all material terms. This has long
since given way to the ‘realist’ approach . . . . [The realist approach]
emphasizes standards rather than rules, and assigns to courts the task of
upholding the agreements parties intended to make.” Id. The
determination of intent is a factual question, and “must be based on
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objective evidence, not the hidden intent of the parties.” Tabler v. Indus.
Comm’n, 202 Ariz. 518, 521, ¶¶ 12-13, 47 P.3d 1156, 1159 (App. 2002).3
¶11 Thus, in determining whether the terms are sufficient to make
a binding contract, if the terms that are set forth are sufficient to show the
intent, the court can supply any missing terms consistent with the intent of
the parties. See Restatement (Second) of Contracts § 33 cmt. a (“But the
actions of the parties may show conclusively that they have intended to
conclude a binding agreement, even though one or more terms are missing
or are left to be agreed upon.”); see also Schade, 158 Ariz. at 8-11, 760 P.2d at
1057-60 (finding sufficient manifested mutual assent to be bound despite
the absence of basic terms); AROK Constr. Co., 174 Ariz. at 297, 848 P.2d at
876 (“If the parties have concluded a transaction in which it appears that
they intend to make a contract, the court should not frustrate their intention
if it is possible to reach a fair and just result, even though this requires a
choice among conflicting meanings and the filling of some gaps that the
parties have left. . . . The fact that the parties have left some matters to be
determined in the future should not prevent enforcement, if some method
of determination independent of a party’s mere wish, will, and desire exists,
either by virtue of the agreement itself or by commercial practice or other
usage or custom.” (internal quotation marks and citation omitted)).
¶12 Here, Red Mountain’s CEO testified in his deposition that the
parties had agreed to the terms of Dr. Antonson’s employment:
3 Restatement (Second) of Contracts § 33 cmt. a (1981) provides:
It is sometimes said that the agreement must be capable of
being given an exact meaning and that all the performances
to be rendered must be certain. Such statements may be
appropriate in determining whether a manifestation of
intention is intended to be understood as an offer. But the
actions of the parties may show conclusively that they have
intended to conclude a binding agreement, even though one
or more terms are missing or are left to be agreed upon. In
such cases courts endeavor, if possible, to attach a sufficiently
definite meaning to the bargain. . . . Where the parties have
intended to conclude a bargain, uncertainty as to incidental or
collateral matters is seldom fatal to the existence of the
contract.
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Q. Okay. What I get from [the March 16, 2011 email] is that
Red Mountain was talking with [Dr.] Antonson about her
possibly joining Red Mountain as an employee, correct?
A. Correct.
Q. All right. And then later on it says, “Here is what we
propose.”
....
Q. Okay. To me, this appears to be an offer. This is kind of
the terms and conditions that we’re thinking about you
joining Red Mountain. Is it your testimony that this is not an
offer?
A. No, it’s an offer.
....
Q. . . . [In Dr. Antonson’s response] [i]t says, “I’ve had time
to look over your e-mail and I think that your plans looks
great.” . . . Do you think that’s her accepting the offer?
A. Yes.
....
Q. Do you think that somebody reading [your email response
to Dr. Antonson] would understand, “We look forward to
working with you,” as it being a done deal?
....
[A.] Yeah, I can understand that.
....
Q. Okay. Does this indicate to you that [Dr. Antonson] was
planning on starting working for Red Mountain in August?
A. Yes.
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Q. And it’s your position that you didn’t have an agreement
with -- that Red Mountain didn’t have an employment
agreement with [Dr.] Antonson, right?
A. Yes.
Q. So why didn’t you set her straight when she says, “I’m
going to be starting in August”? Why didn’t you say, whoa,
we don’t have a deal yet?
A. We have an agreement, not an employment agreement.
You mean like a contract?
Q. Well, you said we have an agreement but not an
employment agreement. What kind of agreement did you
have?
A. We had an agreement to terms for her to come work for us. I
don’t dispute that.
Q. Okay. So Red Mountain said you come -- how about you
come work for us. [Dr. Antonson] said, sure, that sounds
good. When do I start? You guys say let’s start in August.
You don’t dispute any of this?
A. No. It’s all here in the e-mail.
Q. In your mind that doesn’t form an agreement for her to
come work at Red Mountain?
A. At this point in time, she had an agreement to come work at Red
Mountain.
(Emphases added.)
¶13 Not only did Red Mountain’s CEO admit that the parties had
an agreement for Dr. Antonson to begin working for Red Mountain in
August 2011, but according to Red Mountain, the only term left to be
negotiated at the time of the formation of the initial contract was Dr.
Antonson’s specific work schedule. “The standard for contract
enforceability is not whether the agreement included a resolution of every
matter and anticipated every contingency.” AROK Constr. Co., 174 Ariz. at
297, 848 P.2d at 876. Instead, “[t]he terms of a contact are reasonably certain
if they provide a basis for determining the existence of a breach and for
giving an appropriate remedy.” Restatement (Second) of Contracts § 33(2).
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If the trial court can determine whether there was a breach by Red
Mountain and create an appropriate remedy for Dr. Antonson, then the
terms of the contract are reasonably certain and enforceable. “Thus, ‘gaps’
or omitted terms, or vague or indefinite terms, are not invariably fatal to
the rights of the parties to obtain enforcement of their bargain.” AROK
Constr. Co., 174 Ariz. at 298, 848 P.2d at 877. “Only ‘[i]f the essential terms
are so uncertain that there is no basis for deciding whether the agreement
has been kept or broken’ does a contract not exist.” Id. (alteration in
original) (quoting Restatement (Second) of Contracts § 33 cmt. a). Because
the later decision by Red Mountain not to allow Dr. Antonson to start work
was a purported total breach of the contract, the absence of terms pertaining
to her specific work schedule is not fatal to her claim. See id.
¶14 Therefore, the trial court did not err in concluding that Red
Mountain failed to offer evidence sufficient to create a genuine issue of
material fact in support of its contention that the parties failed to enter into
a contract.
II. The Contract Established a Specified Duration of Employment under
A.R.S. § 23-1501(A)(2).
¶15 Red Mountain argues that the exchange of emails did not
constitute a contract of employment for a “specified duration of time”
under A.R.S. § 23-1501(A)(2) and thus created, at most, an at-will
employment agreement, precluding an action for breach of contract. The
emails established an agreed-upon 90-day “trial” period. Red Mountain
argues that the use of the term “trial” period in its offer of employment
meant there was no specified period of duration under the EPA because the
term “trial” is equivalent to “at-will.” Red Mountain also argues that to
avoid being at-will, a contract must include language from the statute that
“the contract shall remain in effect” for the specific period of time.
Antonson argues that the term “trial” in the contract is meaningless under
the terms of the statute because the exchanged emails made it clear that Dr.
Antonson was to be employed for 90 days.
¶16 Generally, when parties disagree about the terms of a contract
or there is ambiguity about the material terms of the contract, summary
judgment would be inappropriate. If that were true here, what the parties
meant by a “trial period for 90 days” would have to be determined by a
factfinder after a trial. However, both parties take the position on appeal
that the only issue as to the meaning of the 90-day trial period is whether
the contract, as construed by its four corners, is at-will under A.R.S. § 23-
1501(A)(2). Thus, the parties have limited the issue to one of statutory
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construction; if the language of the contract meets the requirements of
A.R.S. § 23-1501(A)(2), the Antonsons were entitled to summary judgment,
and if not, Red Mountain was entitled to summary judgment.
¶17 The EPA establishes that except under certain statutory
provisions not applicable here, an employment relationship is at-will and
severable by either party unless the parties “have signed a written contract
to the contrary setting forth that the employment relationship shall remain
in effect for a specified duration of time.” A.R.S. § 23-1501(A)(2). “An
employee has a claim against an employer for termination of employment
only if . . . (a) The employer has terminated the employment relationship of
an employee in breach of an employment contract, as set forth in paragraph
[(A)(2)], in which case the remedies for the breach are limited to the
remedies for a breach of contract.” A.R.S. § 23-1501(A)(3).
¶18 Taken as a whole, the contract here specified a duration under
A.R.S. § 23-1501(A)(2). We apply the plain language of the statute to reflect
the legislative intention. See Barnett, 209 Ariz. at 354, ¶ 7, 101 P.3d at 648.
The EPA expressly states that an employee may bring an action for breach
of contract only if the written contract provides “the employment
relationship shall remain in effect for a specified duration of time.” A.R.S.
§ 23-1501(A)(2). The statute thus establishes a black-letter rule requiring
the contract to state “a specified duration of time.” Id. The agreed-upon
emails by the parties in this case established a 90-day period, which satisfies
the requirement of the statute.
¶19 Red Mountain relies on various dictionary definitions, cases
from other jurisdictions, and one case from Arizona which interpret a
clause providing for a trial or probationary period as either being at will or
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not entitling the employee to a hearing before being fired.4 That reliance is
misplaced for several reasons. First, none of those cases address the
statutory language used in the EPA.
¶20 Second, even if we applied the reasoning of those cases to help
us interpret A.R.S. § 23-1501, we have to construe the entire contract to
ascertain its terms. See Duenas v. Life Care Ctrs. of Am., Inc., 236 Ariz. 130,
141, ¶ 35, 336 P.3d 763, 774 (App. 2014) (applying the rule that in
interpreting a contract, we must give meaning to all material terms and
render none of them superfluous); Tabler, 202 Ariz. at 521, ¶ 13, 47 P.3d at
1159 (“The determination of the parties’ intent must be based on objective
evidence, not the hidden intent of the parties.”).
¶21 Under certain circumstances, a 90-day “trial” period could
mean that the contract is at-will. However, Red Mountain’s argument
ignores that the agreement characterizes the first 90-day period as a training
period at $50 per hour and immediately thereafter provides, “After the initial
90 days, if you’re comfortable in the position, and we feel your progress is
satisfactory, we would raise your hourly rate to $60 or $125,000 annualized.”
(Emphasis added.) See supra ¶ 3. This clause gives meaning to the term
“trial period,” and makes plain that after the “90-day trial period,” the
parties would decide whether to carry on their relationship. That, in turn,
indicates the parties agreed to undertake this contractual relationship for a
period of no less than 90 days.
4 A “probationary employee” is “[a] recently hired employee whose ability
and performance are being evaluated during a trial period of employment,”
Black’s Law Dictionary 564 (8th ed. 2004), and “probationary” can be
defined as “exploratory” or “serving to test,” Bryan A. Garner, A Dictionary
of Modern Legal Usage 694 (2d ed. 1995). See Smith v. Pima County Law
Enforcement Council, 113 Ariz. 154, 157, 548 P.2d 1151, 1154 (1976) (equating
a probationary term to a trial period precluding a right to a hearing under
county law enforcement merit system rules); Kosulandich v. Survival Tech.,
Inc., 997 F.2d 431, 432 (8th Cir. 1993) (noting that probationary employees
“were clearly at-will employees”); Moe v. E. Air Lines, Inc., 246 F.2d 215, 219
(5th Cir. 1957) (“In effect, the employment relationship during the
probationary period is an employment at will, or so long as is mutually
agreeable to both of the parties.”); Schwarz v. Adm’rs of Tulane Educ. Fund,
699 So. 2d 895, 898 (La. Ct. App. 1997) (“[I]mplicit in the status of non-
tenured/probationary employee is the assumption that protection against
arbitrary or repressive dismissal is absent, i.e., the doctrine of employment
at will prevails.”).
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¶22 At oral argument, Red Mountain also contended that to be
other than an at-will contract, the contract must contain the language of the
statute, providing that “the employment relationship shall remain in effect
for a specified duration of time” (or equivalent language) followed by the
time period. It is true that expressly including such language, or expressly
negating such language, would remove any issue to be resolved by
litigation. That said, Red Mountain’s argument fails. The clear language of
the statute is that if a contract states a specific duration, or a specific
minimum duration, it is not at-will. The legislature did not suggest that a
contract would have to mimic the language of the statute, and accepting
Red Mountain’s argument would place form over substance. If employers
desire to provide a durational period but want to maintain that it is at-will,
they can expressly state it is at-will in the written terms of the agreement.
Particularly given that an employer controls the terms of its offer, the fact
that Red Mountain used the language it did here―using an express
minimum duration of time for employment without stating that the
employment was at-will employment―is telling. Accordingly, the trial
court did not err in concluding the contract established a specified duration
of employment under A.R.S. § 23-1501(A)(2).
III. The Offer Was Deemed Signed
¶23 Red Mountain also argues that the offer was not signed by
both parties as required by the EPA because the parties had not agreed that
their names at the ends of the email offer and acceptance would constitute
their signatures.
¶24 We disagree. First, Red Mountain misreads the EPA. Section
23-1501(A)(2), while not a model of clarity, does not require both parties to
sign the agreement. Rather, a breach of contract action can be brought if all
parties signed or if “this written contract . . . [is] signed by the party to be
charged.” A.R.S. § 23-1501(A)(2). Thus, if Red Mountain’s CEO’s name at
the end of the email offer was sufficient to bind Red Mountain, and the
other terms of the EPA are met, a breach of the contract is actionable.
¶25 Second, Red Mountain’s CEO effectively admitted during his
deposition that the offer and acceptance were binding. As he testified,
based on the offer and acceptance in the emails, there was an agreement:
Q. Well, you said we have an agreement but not an
employment agreement. What kind of agreement did you
have?
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A. We had an agreement to terms for her to come work for us. I
don’t dispute that.
Q. Okay. So Red Mountain said you come -- how about you
come work for us. [Dr. Antonson] said, sure, that sounds
good. When do I start? You guys say let’s start in August.
You don’t dispute any of this?
A. No. It’s all here in the e-mail.
Q. In your mind that doesn’t form an agreement for her to
come work at Red Mountain?
A. At this point in time, she had an agreement to come work at Red
Mountain.
(Emphases added.) See supra ¶ 12.
¶26 A party is bound by his sworn statements and testimony and
cannot contradict that evidence to avoid summary judgment unless he can
show he was confused when he testified or additional facts have come to
light. See Wright v. Hills, 161 Ariz. 583, 587-88, 780 P.2d 416, 420-21 (App.
1989), abrogated in part on other grounds by James, Cooke & Hobson, Inc. v. Lake
Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319, 868 P.2d 329, 332 (App.
1993). Red Mountain’s CEO admitted the offer and acceptance in the
emails amounted to an agreement. Red Mountain may not defeat summary
judgment by attaching a declaration to its statement of facts in which its
CEO contradicts his testimony and avers he never intended his signature to
be effective.
IV. The Court Did Not Abuse Its Discretion by Awarding Attorneys’
Fees
¶27 Red Mountain argues that the superior court erred by
awarding the Antonsons attorneys’ fees because in filing their fee
application, the Antonsons never submitted the actual billings and
payments. It also contends the fee award was excessive because the fee
request included time spent in the mandatory arbitration when the
Antonsons sought an amount in excess of the ceiling for mandatory
arbitration when they filed their summary judgment motion.
¶28 In filing their application, the Antonsons’ attorney averred
the terms of the agreement, provided detailed itemized billings by attorney,
verified that the Antonsons were obligated to pay those amounts, and
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ANTONSON v. RED MTN.
Decision of the Court
offered to submit the billings if the court requested. Moreover, and
particularly given such detail, Red Mountain cites no authority for the
proposition that a party seeking a fee award has to submit the actual
attorney bills for the court’s review. The court did not abuse its discretion
in relying on the verified statements and itemization of billings.
¶29 Red Mountain also argues that although the Antonsons
certified compulsory arbitration was required, after prevailing at
arbitration and after Red Mountain appealed, they asked for more than
$115,000 in damages. Thus, according to Red Mountain, the fees sought for
the arbitration were unnecessary because the damages exceeded the ceiling
for mandatory arbitration.
¶30 Red Mountain’s argument ignores that at arbitration, the
Antonsons only requested under $50,000 in damages and were awarded
$39,990 for both claims. The Antonsons explained to the trial court that to
keep matters simple, they had kept their damage claims in the arbitration
to less than $50,000. Red Mountain did not dispute that statement. Thus,
the arbitration proceedings were not useless or unnecessary because if Red
Mountain had not appealed, the matter would have been resolved. Red
Mountain cannot complain that by its appealing the award for a trial de
novo and the Antonsons then increasing their damage demand that the
court abused its discretion in awarding the fees incurred in the arbitration.
CONCLUSION
¶31 For the reasons stated above, we affirm the judgment in favor
of the Antonsons. Both parties request an award of attorneys’ fees and costs
on appeal pursuant to A.R.S. § 12-341.01(A) (Supp. 2014). Red Mountain
has not prevailed on appeal and is not entitled to an award of fees. In the
exercise of our discretion, we award the Antonsons attorneys’ fees and
taxable costs on appeal upon their timely compliance with ARCAP 21.
:ama
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