N. Star Charter Sch., Inc. v. Valley Protective Servs., Inc.
| Decision Date | 13 December 2016 |
| Docket Number | No. 1 CA-CV 15-0549,1 CA-CV 15-0549 |
| Parties | NORTH STAR CHARTER SCHOOL, INC., an Arizona corporation; KURT HUZAR, as its authorized representative and individually; and PIERCE ROBINSON, Plaintiffs/Appellants, v. VALLEY PROTECTIVE SERVICES, INC., an Arizona corporation; DANIEL JAMES VOLLMER, Defendants/Appellees. VALLEY PROTECTIVE SERVICES, INC., an Arizona corporation, Counterclaimant/Appellee, v. NORTH STAR CHARTER SCHOOL, INC., an Arizona corporation, Counterdefendant/Appellant. |
| Court | Arizona Court of Appeals |
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Patricia A. Starr, Judge
AFFIRMED
Stanley M. Slonaker Attorney at Law, Phoenix
Burch & Cracchiolo P.A., Phoenix
By Gregory A. Rosenthal
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Randall M. Howe and Judge Donn Kessler joined.
¶1 North Star Charter School, Inc. (North Star), Kurt Huzar, and Pierce Robinson appeal from final judgments entered in favor of Valley Protective Services, Inc. and its employee, Daniel Vollmer (collectively, VPS), on all claims and counterclaims. For the following reasons, we affirm.
¶2 The material facts are largely undisputed. VPS is an Arizona corporation operating a security guard company licensed by the Arizona Department of Public Safety. See Ariz. Rev. Stat. (A.R.S.) § 32-2601 to -2642.2 At all relevant times, VPS employed Vollmer as a security guard.
¶3 North Star is an Arizona non-profit corporation that operates a charter school in Phoenix. At the relevant time, Huzar served as NorthStar's president and a trustee on the school's three-member Board of Trustees, Robinson was the school's security director, and non-party Aldine Dickens was also a trustee. Although Huzar was specifically tasked with North Star's day-to-day operations and served as the designated representative with respect to issues involving the school's charter, the Board retained the power, as set forth in North Star's bylaws, "[t]o conduct, manage and control the affairs and activities of the corporation," "[t]o elect and remove trustees," and "[t]o enter into contracts, leases and other agreements which are, in the Board's judgment, necessary or desirable in obtaining the purposes of promoting the interests of the corporation."
¶4 In April 2009, Dickens and another Board member noticed a special meeting for "the restoration, removal if appropriate and election of persons off and to the Board of Directors of North Star Charter School, Inc." Purporting to act on behalf of North Star, Dickens entered into a Security/Courtesy Patrol Services Agreement (the Agreement) with VPS to provide four security guards at the April 29, 2009 meeting. Dickens signed the Agreement as "Trustee" of North Star and "represent[ed] and warrant[ed] that [she] ha[d] the authority to hire VPS to render service" at the school. She later advised VPS that Huzar would be terminated at the meeting and gave detailed instructions, on North Star letterhead, regarding VPS's duties in light of how students, teachers, office staff, and board members might move around the school. The Agreement included the following indemnification clause:
THIRD-PARTY INDEMNIFICATION: In the event any person not a party to this Agreement shall make any claim or file any lawsuit against VPS for any reason relating to [VPS]'s duties and obligations pursuant to this Agreement, Customer agrees to indemnify, defend and hold VPS harmless from any and all such claims and lawsuits, including the payment of all damages, expenses, costs and attorney's fees.
Believing that the event "would lead to a heated exchange at the very least," and that it would therefore be best to have law enforcement available at the meeting to "make sure nothing crazy occurred," Robinson left a message for local law enforcement advising of the upcoming meeting.
¶5 At approximately 3:00 p.m. on April 29, 2009, Robinson observed Dickens, accompanied by four VPS security guards, including Vollmer, enter the school. At the time, Vollmer had a handgun in the holster of his duty belt. Dickens directed a guard to "keep an eye on" Robinson to make sure he did not touch anything, and Huzar arrived soonafter. The guards ignored Robinson and Huzar's requests to leave and, for a time, prevented them from entering the meeting room. At 3:09 p.m., Phoenix Police officers responded to a call of "unwanted guests" at the school. Vollmer immediately secured his handgun in his vehicle "eliminating any handguns at the facility" before the meeting began. The officers determined the dispute was a civil matter and left the premises.
¶6 Meanwhile, at 3:30 p.m., Dickens called the meeting to order. Over Huzar's objections, Dickens moved for a vote that resulted in Huzar's termination from his positions at North Star. Vollmer escorted Huzar to his office to remove his personal belongings and instructed Huzar and Robinson not to touch anything. Immediately thereafter, Dickens and other non-parties at her direction changed the school's computer access codes and door locks while the VPS guards stood by. VPS remained on scene while Dickens left the premises to change the signatory on North Star's bank accounts.
¶7 The Arizona Attorney General later determined the April 29, 2009 meeting was invalid and the actions taken therein had no legal effect. Eventually, Huzar obtained a workplace harassment injunction against Dickens, and in June 2009, Huzar and Robinson resumed their duties at North Star.
¶8 In July 2010, Appellants filed a complaint against VPS alleging they suffered damages resulting from trespass, assault, conversion, trespass to chattels, negligence, negligent supervision, and intentional infliction of emotional distress, all of which were premised on the theory that Dickens' actions during and after the meeting "occurred only because the on-scene muscle provided by VPS guards prevented interference and protected Dickens and those acting in concert with her."3 VPS counterclaimed against North Star, alleging it was obligated under the Agreement to indemnify, defend, and hold VPS harmless from the claims brought by Huzar and Robinson and was in breach of the contract for failing to do so.
¶9 Between April 2013 and January 2014, VPS moved for summary judgment on all claims and counterclaims. After briefing and oral argument, the trial court entered judgment in VPS's favor on each count except for Huzar's and Robinson's assault claims. Appellants recertified the only remaining claim as subject to compulsory arbitration, and anarbitrator was appointed in July 2014. See A.R.S. § 12-133. The parties did not proceed to arbitration within the 120-day deadline, Ariz. R. Civ. P. 74(b), and in January 2015, the court found no good cause for the delay and dismissed the assault claim for lack of prosecution. The court also awarded VPS attorneys' fees and costs as the successful party in a contract action, as well as double its taxable costs as a sanction pursuant to Arizona Rule of Civil Procedure 68. Appellants timely appealed the final judgment, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
¶10 Appellants first argue the trial court erred in entering summary judgment in VPS's favor on various claims. Summary judgment is appropriate "if the facts produced in support of the claim or defense," viewed in the light most favorable to the party against whom judgment is entered, "have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990); Ariz. R. Civ. P. 56(a). Moreover, a motion for summary judgment should not be denied simply upon speculation that some doubt, scintilla of evidence, or dispute over irrelevant or immaterial facts "might blossom into a real controversy in the midst of trial." Shaw v. Petersen, 169 Ariz. 559, 560-61 (App. 1991) (quoting Orme Sch., 166 Ariz. at 311).
¶11 Whether a genuine issue of material fact exists to preclude summary judgment is a question of law we review de novo. See Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, 289, ¶ 10 (App. 2013) (citing L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180 (App. 1997)). We also review de novo the trial court's application of the law, id., and we will affirm if judgment is correct on any basis supported by the record, Mutschler v. City of Phx., 212 Ariz. 160, 162, ¶ 8 (App. 2006) (citing Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986)).
¶12 Appellants first argue a genuine issue of material fact exists as to Dickens' authority to either: (1) bind North Star to a contract with VPS which would give rise to the breach of contract counterclaims, see Thomas v. Montelucia Villas, L.L.C., 232 Ariz. 92, 96, ¶ 16 (2013) () (emphasisadded) (citing Graham v. Asbury, 112 Ariz. 184, 185 (1975)), or (2) grant VPS permission to enter the school premises to provide security services, thereby vitiating the trespass claim, see Barry v. S. Pac. Co., 64 Ariz. 116, 120-21 (1946) () (quoting Restatement (Second) of Torts § 329 (1965)).
¶13 It is well-settled that a principal is bound only by the...
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