Sarber v. La Paz

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KELLY SARBER,
Plaintiff/Appellant,
v.
LA PAZ COUNTY,
Defendant/Appellee.
No. 1 CA-CV 22-0045
FILED 11-10-2022
Appeal from the Superior Court in Maricopa County
No. CV2019-006977
The Honorable Timothy J. Thomason, Judge
AFFIRMED
COUNSEL
Dalimonte Rueb Stoller, LLP, Phoenix
By Paul L. Stoller, Ashley Carrington Crowell
Counsel for Plaintiff/Appellant
Gust Rosenfeld, PLC, Phoenix
By Charles W. Wirken
Counsel for Defendant/Appellee
SARBER v. LA PAZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Randall M. Howe and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Kelly Sarber appeals the superior court’s grant of La Paz
County’s motion for summary judgment. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Landfill Project
¶2 Ms. Sarber is a business consultant, doing business as
Strategic Management Group. On September 17, 2012, during an open
meeting, the La Paz County Board of Supervisors unanimously authorized
County Administrator Dan Field “to enter into a consulting agreement with
[Sarber] for preparation of the Request for Proposals for the operation of
the La Paz County Landfill, to manage the bidder meetings and inquiries,
[and] to assist the County with negotiation of a Landfill host agreement and
marketing economic development opportunities on contiguous Landfill
lands.”
¶3 Sarber contends she and the County entered a consulting
agreement (“2012 Agreement”) after the vote, but the County contends she
never signed or returned the agreement. At any rate, the 2012 Agreement
defined the scope of engagement:
ENGAGEMENT AND SCOPE. La Paz County hereby
retains [Sarber] to provide the advice and services related to
the development, operation and management of the 160-acre
permitted Subtitle D La Paz County Landfill (“Landfill”) and
the contiguous land 480 acres of land owned by the County
(“Additional Land”) and to provide for on-going consulting
services with the goal of optimizing the economic value of the
Landfill and the Additional Land to the County.
¶4 The 2012 Agreement contained a merger clause. The
“compensation” section provided: “For services rendered by Consultant
under the Agreement, the County will require that the Operator [of the
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landfill] pay the Consultant an amount equal to 10% of all fees, royalties,
rents or similar amounts payable to the County under the Operating
Agreement, for the term of the Operating Agreement.” But this section was
unfinished, using a placeholder to “[ADD FEE LANGUAGE].”
¶5 After a few months, Sarber asked Administrator Field to
change her compensation from commission to monthly fees. She and the
County thus entered a second consulting agreement in February 2013,
(“2013 Agreement”), which restated much of the 2012 Agreement, adding
that Sarber would be paid $12,500 per month “for each calendar month
during the term of this Agreement.” Six months later, Sarber and the
County entered a third agreement, the “Fee Agreement,” which explained
the County would pay Sarber a percentage of fees received under a landfill
operation agreement.
Solar Energy Project
¶6 Four years after the 2012 Agreement, Sarber pitched a new
project to the Board of Supervisors involving a solar energy development.
She explained that the Bureau of Land Management (BLM) was close to
approving an interstate electric power transmission line that would cross
from California into the County. And so, she advised the County to buy
federal land near the power line on which to build a solar energy project,
and to then retain a solar energy developer to build and operate the solar
energy project. The Board of Supervisors told Sarber to “move forward”
with the land purchase in November 2016.
¶7 As she continued to work on this project in 2017, Sarber asked
the County to enter into a new consulting agreement that would cover the
solar energy project. The County refused.
¶8 The Board of Supervisors later approved the solar energy
project, awarding the development to a solar energy developer in
December 2017. The solar energy project was built about 26 miles away
from the landfill. Sarber expects the solar energy project to generate more
than $500 million for the County.
This Lawsuit
¶9 Sarber sued the County for a declaratory judgment that
Sarber and the County had an oral agreement, formed in 2013, for Sarber to
receive a 10% commission on the solar energy project. Sarber twice
amended her complaint, pointing each time to the oral agreement.
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¶10 The County eventually moved for summary judgment,
arguing the alleged oral agreement was unenforceable because it was never
approved in an open meeting under Arizona law. At that point, for the first
time, Sarber claimed she sued under the 2012 Agreement, which did meet
the open meeting laws. On reply, the County argued that summary
judgment was still appropriate under the plain and unambiguous terms of
the 2012 Agreement, which was limited to Sarber’s consulting services on
the landfill “and the contiguous land 480 acres.” Only then, after the briefs
were in, did Sarber supply the newly minted declaration of Administrator
Field, who said that “contiguous” meant “not contiguous,” and his
definition would include “all County-owned land other than the other
encumbered properties then owned by the County on which development
was not feasible.”
¶11 The superior court granted summary judgment to County
based in part on the plain and unambiguous terms of the 2012 Agreement,
which limited consulting services to “the landfill or the contiguous 480
acres,” and “[t]he renewable energy project has nothing to do with landfill
operations.” The court considered Administrator Field’s belated
declaration and rejected it, recognizing it contradicted the 2012
Agreement’s plain language and Field’s prior sworn testimony.
¶12 Just days later, Sarber moved for reconsideration, offering
new theories and her own new affidavit. The superior court denied the
motion upon a careful and detailed analysis, recognizing that Sarber’s
argument had changed from “the County promised to sign an agreement
to compensate Sarber for the [solar project] and failed to do so,” to the
County breached the 2012 Agreement. The court then reiterated but refined
the issue:
Despite all of the rhetoric, the case comes down to one simple
premise. In order for plaintiff to prevail, the Court would
conclude that “contiguous” does not mean “contiguous.” The
2012 Consulting Agreement is not reasonably susceptible to
plaintiff’s interpretation. The Consulting Agreement does
not, under any reasonable interpretation, entitle plaintiff to
compensation for a project located many miles away from the
Landfill and the contiguous parcel. Indeed, plaintiff’s own
position during the bulk of this case acknowledged that there
was no written agreement that entitled her to compensation.
¶13 Sarber appeals. We have jurisdiction. See A.R.S. § 12-
2101(A)(1).
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DISCUSSION
¶14 Sarber argues the superior court erroneously granted
summary judgment to the County because the 2012 Agreement required
the County to compensate her for consulting services on the solar energy
project, and the 2012 Agreement complied with Arizona’s open meeting
laws. Because we hold that the 2012 Agreement does not promise
compensation for consulting services on the solar energy project, we do not
reach the open meeting issue. See Rancho Pescado, Inc. v. Nw. Mut. Life Ins.
Co., 140 Ariz. 174, 178 (App. 1984) (appellate court need not decide other
issues if it can resolve the case on the first issue).
¶15 We review de novo the superior court’s grant of summary
judgment, Jackson v. Eagle KMC LLC, 245 Ariz. 544, 545, ¶ 7 (2019),
construing the facts in the light most favorable to the non-moving party,
Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 14 (App. 2012).
Summary judgment is appropriate when “the moving party shows that
there is no genuine dispute as to any material fact and [it] is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a).
¶16 Contract interpretation is a question of law we review de
novo. Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593, ¶ 9 (App.
2009). We construe a contract to determine and enforce the parties’ intent.
Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 152 (1993). Arizona
courts consider “the plain meaning of the words” of a contract in the context
of the whole contract to determine the meaning of the document. Terrell v.
Torres, 248 Ariz. 47, 49-50 (2020).
¶17 Sarber waived most of her arguments by first raising them on
a motion for reconsideration before the superior court. See Evans
Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, 240, ¶ 15 (App. 2006)
(“Generally we do not consider arguments on appeal that were raised for
the first time at the trial court in a motion for reconsideration.”). Even when
considered, however, Sarber’s arguments fail under the 2012 Agreement’s
plain language.
¶18 Sarber contends the 2012 Agreement included her consulting
services for the solar energy project. Her arguments cannot withstand the
plain and unambiguous scope of the 2012 Agreement, which does not
envision or contemplate the solar energy project. According to the first
paragraph of the 2012 Agreement, the County hired Sarber to provide
consulting services on the “[l]andfill” and “contiguous 480 acres of land
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owned by the County.” The solar energy project is not located or operated
on the landfill or the contiguous 480 acres.
¶19 Given that language, Sarber relies on extrinsic evidence of the
parties’ intent to contradict the 2012 Agreement. But that evidence is
inadmissible under Arizona law, which has adopted a two-part test to
determine the admissibility of extrinsic evidence that would vary or
contradict the meaning of a contract’s written words.
¶20 The superior court must “first consider the allegations made
by the proponent of the extrinsic evidence as to the appropriate
interpretation of the writing in light of the extrinsic evidence alleged.” Long
v. City of Glendale, 208 Ariz. 319, 328, ¶ 28 (App. 2004). Here, like Humpty
Dumpty, Sarber insists: “When I use a word, it means just what I choose it
to mean—neither more nor less.” Lewis Carroll, Alice’s Adventures in
Wonderland & Through the Looking Glass 124-25 (N.Y., The MacMillan Co.
1897). She offered Field’s declaration as external evidence that
“contiguous” meant “not contiguous” in the 2012 Agreement, and the
parties instead intended the word to subsume “all County-owned land
other than the other encumbered properties then owned by the County on
which development was not feasible.”
¶21 Next, the court must decide if the contract’s language is
“reasonably susceptible to the interpretation suggested by the proponent of
the extrinsic evidence.” Long, 208 Ariz. at ¶ 28. If yes, “the court should
admit the extrinsic evidence,” but if not, “the court must preclude
admission of any extrinsic evidence or argument.” Id. at ¶ 29.
¶22 The 2012 Agreement is not reasonably susceptible to Sarber’s
interpretation, which reimagines the word “contiguous land” to capture an
unknown universe of land that might or might not be acquired in the future.
“Contiguous” is defined in Black’s Law Dictionary as “[t]ouching at a point
or along a boundary.” Contiguous, Black’s Law Dictionary (11th ed. 2019).
And the record shows the solar energy project was not built on or aside the
landfill and contiguous 480 acres. And as the superior court noted, “[the
solar] energy project has nothing to do with landfill operations.” Because
the 2012 Agreement is not reasonably susceptible to Sarber’s interpretation,
we do not consider her external evidence.
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Decision of the Court
CONCLUSION
¶23 We affirm. We grant the County’s request for attorney fees as
the prevailing party on appeal under A.R.S. § 12-341.01. We also grant the
County its costs upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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