Flagel v. Southwest Clinical Physiatrists, P.C.
| Decision Date | 31 March 1988 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 157 Ariz. 196,755 P.2d 1184 |
| Parties | Donald FLAGEL, Plaintiff-Appellant, v. SOUTHWEST CLINICAL PHYSIATRISTS, P.C., Defendant-Appellee. 9377. |
| Court | Arizona Court of Appeals |
Our primary consideration is whether the trial court erred in granting summary judgment based on its conclusion that the payment by defendant-appellee, Southwest Clinical Physiatrists, P.C. ("Southwest"), by check, with "Paid in Full" noted on its face, to plaintiff-appellant, Donald Flagel ("Flagel"), of the undisputed part of Flagel's disputed claim constituted an accord and satisfaction of Flagel's whole claim. First, however, we consider whether the trial court erred in denying Flagel a change of judge based on waiver. Finally, we consider whether the trial court erred in striking Flagel's amended motion for partial summary judgment based on the lack of citations to the record in his statement of facts.
Flagel agreed to work as a physical therapist for Southwest as an independent contractor. Under his contractor agreement, Flagel would receive $26,000 as base pay for services rendered from April 21, 1983 to April 20, 1984. Under the addendum to the agreement, Flagel would receive a percentage of the revenue collected from Southwest Rehabilitation Services as incentive pay within one month of the contract termination date. The independent contractor agreement also provided that Flagel would indemnify Southwest for all costs including attorneys' fees incurred by Southwest in enforcing the agreement. The agreement was renewed for the next year, but a different addendum was attached. It provided that Flagel would receive one-third of the revenue collected from Southwest Rehabilitation Services in excess of $100,000 as incentive pay, but the addendum did not address when Flagel would receive the incentive pay. The addendum provided:
Yearly incentive shall be based on the following formula:
Mr. Flagel shall receive additional salary for the 1984-1985 contract year, payable as mutually agreed upon, the amount which shall be equal to 33 1/3% of the amount of revenue collected from Physical Therapy Services, (Southwest Rehabilitation Services) over and above the initial $100,000 collected from such services. This formula shall be revised yearly, or more often as necessary, based on Southwest Clinical Physiatrists expense profiles.
In March 1985, Flagel and Southwest met, and Southwest decided not to renew the agreement. Flagel was upset that Southwest was not going to pay its accounts receivable:
A. ... [Flagel] I asked them about the accounts receivable at that time. They said if it isn't in by the end of my contract, I would not receive any reimbursement for it.
Q. What do you mean if it doesn't end by the end of your contract, you wouldn't receive any reimbursement for it?
A. According to the doctors, if the money wasn't collected by April 20, then I had no rights to it according to them even though I did the work on them.
On April 8, 1985, Southwest wrote Flagel, stating that "[t]he final payment due you will be paid at the end of your contract, April 20, 1985, based on the collections of the first three weeks of April, 1985." Flagel testified that he understood by the term "final payment" that the doctors at Southwest "were wiping out their obligation" to Flagel:
Q. Was your understanding of Adrianna [who wrote the April 8, 1985 letter on behalf of Southwest], the that [sic] author's use of the word "final payment" to be that they were sending you the final payment due you under the contract?
A. [Flagel] She might have thought that. I didn't.
Q. I'm just asking what you interpreted her understanding to be. I realize that that is not your interpretation. I'm just asking you for your interpretation of what she was saying here.
A. That's what it says.
Q. You thought, then, that according to the doctors, that by sending you this check, that they were wiping out their obligation to you; is that correct? The final check, the final payment due you referred to in Exhibit 8.
A. That's what they are referring to in that paragraph, yes.
Q. And you knew that that's what they were--that was their understanding?
A. Yes.
In its letter of April 26, 1985 to Flagel, Southwest enclosed "a check for full payment of your 1984-85 Independent Contract with Southwest Clinical Physiatrists." Southwest explained in the letter that the amount of the check was based on "all payments received through April 20, 1985." On the enclosed check for $2,803.00, Southwest noted, "1984-1985 Independent Contract--Paid in Full." Flagel testified that he understood that by this notation on the check, Southwest was submitting the check in total satisfaction of its obligations to Flagel:
Q. That was my question. So it was your understanding that the doctors and Southwest Clinical Physiatrists were submitting to you [a] check marked as Exhibit 10 as final payment, total satisfaction of all of their obligations to you?
A. Yes, that's what they say.
Flagel blacked out the notation on the check and cashed the check:
Q. I see something, a black square on Exhibit 10. Did you make that black square?
A. Yes. It had written paid in full or paid in full or something, something on that amount and I wasn't going to sign a check and agree that I was paid in full which is the reason of the proceedings that we're going through right now.
Q. Did you understand that they had sent you Exhibit as your payment in full?
A. That's what they think, yes.
Q. But that isn't what you think?
A. Correct. 1
In June 1985, Flagel filed a complaint for breach of contract seeking $37,810.71 from Southwest. This amount of damages claimed was one-third of the amount in the accounts receivable on April 15, 1985, minus the amount collected at the expiration of the agreement. ($122,119.65 - $8,687.53) / 3 = $37,810.71.
On October 28, 1985, Flagel filed a motion for partial summary judgment. He argued that the addenda to the agreement were unambiguous and that Southwest was obligated to pay him a percentage of the amounts remaining in the accounts receivable on April 20, 1984 and on April 20, 1985. In response, Southwest moved to strike Flagel's motion for partial summary judgment, based on Flagel's failure to set forth any statement of facts in support of his motion, contrary to Rule 3.2(g)(1), Local Rules of Practice for the Superior Court of Maricopa County. On November 13, 1985, Flagel filed an amended motion for partial summary judgment, setting forth the following statement of facts:
The parties hereto, entered into a written contract called "Independent Contractor Agreement" and "Employment Contract Addendum" on April 21, 1983, and an Employment Contract Addendum II on April 21, 1984, copies of which are attached to the Court's copy of this motion and are on file in the Clerk's office attached to the Complaint as Exhibit A.
On or about April 20, 1985, the Employment agreement was terminated by the Defendants. Plaintiff has made demand upon the Defendants to pay him his share of his salary collected by Defendants after April 20, 1985, but Defendants have refused to pay.
On November 19, 1985, in its reply in support of its motion to dismiss, Southwest objected to Flagel's amended motion for partial summary judgment. Southwest argued that his statement of facts did not contain facts stated in numbered paragraphs with references to specific portions of the record, contrary to Rule IV(f), Arizona Uniform Rules of Practice of the Superior Court. On the same day, Southwest filed its own motion for summary judgment, arguing that its payment and Flagel's negotiation of its check constituted an accord and satisfaction.
On December 4, 1985, the trial judge set Southwest's motion to strike Flagel's motion for summary judgment and Southwest's motion for summary judgment for oral arugment on December 13, 1985. On December 13, both counsel conferred with the trial judge. No court reporter was present. According to the minute entry, there was legal discussion at that conference:
Legal discussion is held between Court and counsel.
IT IS ORDERED setting Plaintiff's Motion to Compel; Plaintiff's Motion for Summary Judgment; Defendant's Motion to Strike for oral argument on January 20, 1986 at 10:00 a.m.
On December 18, 1986 Flagel filed a notice of change of judge. On January 16, 1986, the trial court denied Flagel's notice of change of judge, "as untimely and waived by participation in the Pretrial Conference." On January 27, 1986, the trial court ordered that Southwest need not respond to Flagel's motions for partial summary judgment and granted Southwest's motion to strike Flagel's motions for partial summary judgment. On April 7, 1986, the parties had oral argument on Southwest's motion for summary judgment, and on April 23, 1986, the trial court granted Southwest's motion for summary judgment. On June 4, 1986, the trial court awarded Southwest its attorneys' fees.
On appeal, Flagel argues that the trial court erred in denying him a change of judge, in granting summary judgment on the issue of accord and satisfaction, and in striking his amended motion for partial summary judgment.
Flagel argues that the trial court erred in finding that he waived his right to a change of judge and in denying him a change of judge.
Rule 42(f)(1)(D)(i), (ii), Arizona Rules of Civil Procedure provides that a party waives his right to a change of judge as a matter of right when the party participates in any judicial proceeding which concerns "the merits of the action" and involves consideration of evidence, or participates in a pretrial conference. This means that the...
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