Robertson v. Alling
| Decision Date | 05 August 2014 |
| Docket Number | No. 2 CA–CV 2013–0148.,2 CA–CV 2013–0148. |
| Citation | 332 P.3d 76,235 Ariz. 329 |
| Parties | Don C. ROBERTSON, as Successor Trustee of the Viola I. Robertson Trust Dated October 1, 2009; Charlotte G. Hardy as Successor Trustee of the Viola I. Robertson Trust Dated October 1, 2009; James H. Hardy and Charlotte G. Hardy, Husband and Wife; Bonita Sue Escobedo and James D. Sumpter, as Successor Trustees of the Sumpter Trust; W. Michael Addington and Cheryl Addington, Husband and Wife and Trustees of the W. Michael and Cheryl Addington Trust, Plaintiffs/Appellees, v. Robert E. ALLING and Jacqueline R. Alling, Individually and as Husband and Wife; Melissa L. Moore, Individually; Doyle K. Warner and Deanna K. Warner, Individually and as Husband and Wife; Harry L. Viezens and Marcia L. Viezens, Individually and as Husband and Wife and as Trustees of the Viezens Trust; Frederick and Calista Washburn, Individually and as Husband and Wife; Mgf Funding, Inc., an Arizona Corporation; Brian A. Mortensen and Oxana Mortensen, Individually and as Husband and Wife; Robert R. Hicks and Nicole Hicks, Individually and as Husband and Wife; Karl F. Kohlhoff and Joan M. Kohlhoff, Individually and as Husband and Wife and as Trustees of the Kohlhoff Family Trust; William D. Lawrence, Individually; Lawrence Properties, A General Partnership; William Glaunsinger and Lorna Glaunsinger, Individually and as Husband and Wife; Thomas Graham and Regina Graham, Individually and as Husband and Wife; Graham Homes, LLC, an Arizona Limited Liability Company; Gerald L. Graham, Individually and as Trustee of the Graham Family Trust, and Velma Graham, His Wife, Defendants/Appellants. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Grasso Law Firm, P.C., By Robert Grasso, Jr. and Jenny J. Winkler, Chandler, for Plaintiffs/Appellees.
Clark Hill PLC, By Russell A. Kolsrud and Mark S. Sifferman, Scottsdale for Defendants/Appellants.
OPINION
¶ 1 Appellants, collectively “the Allings,” appeal from the trial court's grant of a motionto enforce settlement in favor of Appellees, collectively “the Robertsons.” 1 On appeal, the Allings argue that the trial court erred in concluding their attorney had authority to settle the matter, that Rule 80(d), Ariz. R. Civ. P., was inapplicable, and that material facts of the agreement were not in dispute. Because we conclude reasonable minds could differ about whether the Allings' counsel had apparent authority to settle the case based on the undisputed facts presented, and whether Rule 80(d) applies, we reverse in part, vacate in part, and remand for further proceedings.
¶ 2 We view the facts in the light most favorable to the Allings, the nonmoving party on the motion to enforce the settlement. See Canyon Contracting Co. v. Tohono O‘Odham Hous. Auth., 172 Ariz. 389, 390, 837 P.2d 750, 751 (App.1992) (). In 2011, the Robertsons sued the Allings to quiet title, for a prescriptive easement, and for a permanent injunction regarding the Allings' real property through which a diversion ditch and water pipe drew water from Bonita Creek to the Robertsons' properties. Pretrial litigation continued until January 29, 2013, when the parties attended a settlement conference. The Robertsons expressly conditioned attending the settlement conference on all of the Allings' presence, and all of the Allings or their representatives with settlement authority were present. Although the parties did not reach a settlement agreement at the conference, the Allings and their counsel agreed, through the mediator, to leave its last conveyed settlement offer open for an additional forty-eight hours. That offer expired on January 31 without an acceptance from the Robertsons.
¶ 3 The Allings' counsel sent an e-mail to the Allings on February 2 recommending that, although their offer had expired, they leave the offer open until he had a further opportunity to speak with opposing counsel. On February 4, however, five of the twenty-seven Allings e-mailed their counsel, telling him they no longer wished to settle with the terms they had offered at the settlement conference. The Allings' counsel received the e-mail and “may have seen it” but “did not read it.” Thus, on February 6 when asked by the Robertsons' counsel on the telephone, the Allings' counsel stated that “the offer was still open for acceptance.”
¶ 4 The Robertsons' counsel e-mailed the Allings' counsel after their phone conversation to confirm that the offer was still open and listed the terms of the offered settlement. The Allings' counsel responded simply, “Confirmed.” On February 8, the Robertsons' counsel e-mailed and faxed the Allings' counsel the Robertsons' acceptance of the offer. The Robertsons' counsel filed a notice of case resolution with the trial court, which was distributed to counsel for all parties, and the court vacated the April trial date.
¶ 5 Several weeks later, the Allings' counsel responded to the acceptance and inquiries from opposing counsel regarding draft settlement documentation with a “counter-draft” and explained that some of the Allings had been disputing his settlement authority. The Robertsons then filed the motion to enforce the settlement. After oral argument, but without an evidentiary hearing, the trial court ruled that the February 6 e-mail exchange constituted a reoffering of the first offer from the Allings, and granted the motion to the extent necessary to enforce the settlement described in that exchange.
¶ 6 In its conclusions of law filed after the hearing, the court determined that the attempted revocation of authority was ineffective, and therefore the Allings' counsel had both the actual and apparent authority of his clients to settle the matter. Thus, the court concluded the settlement was enforceable against the Allings and the Allings were estopped to claim otherwise. It also concluded Rule 80(d) did not apply or was satisfied by an e-mail exchange between counsel on February 6 and 8. We have jurisdiction over the Allings' appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1).
¶ 7 Regarding the Rule 80(d) arguments of the parties,2 we review de novo the interpretation and application of court rules. Haroutunian v. ValueOptions, Inc., 218 Ariz. 541, ¶ 22, 189 P.3d 1114, 1122 (App.2008). We review the grant of a motion to enforce a settlement using the same standards as for summary judgment. Canyon Contracting, 172 Ariz. at 390, 837 P.2d at 751. Under that standard, we determine de novo whether the trial court correctly applied the law and whether any genuine disputes exist as to any material fact. See Dayka & Hackett, LLC v. Del Monte Fresh Produce N.A., 228 Ariz. 533, ¶ 6, 269 P.3d 709, 712 (App.2012). The trial court should grant summary judgment when “the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). Summary judgment is inappropriate, however, where “conflicting inferences are possible” from the undisputed facts. Orme Sch. v. Reeves, 166 Ariz. 301, 308, 309, 802 P.2d 1000, 1007, 1008 (1990).
¶ 8 The Robertsons, however, claim this court is bound by the trial court's findings of fact under Rule 52(a), Ariz. R. Civ. P., unless they are clearly erroneous. But Rule 52(a) applies “[i]n all actions tried upon the facts without a jury or with an advisory jury.” The trial court here did not conduct a trial, but an oral argument. And, under Canyon Contracting, the summary judgment standard applies.3172 Ariz. at 390, 837 P.2d at 751.
¶ 9 The Robertsons further assert the Allings failed to identify any facts in dispute and never requested the trial court to take evidence. But the Allings do identify a factual dispute concerning apparent authority in their brief and, at the hearing below, specifically told the trial court, Accordingly, we review the arguments on appeal as though the court's ruling was one granting summary judgment, despite language in the court's ruling to the contrary. See John Munic Enters., Inc. v. Laos, 235 Ariz. 12, ¶ 9, 326 P.3d 279, 283 (App.2014) ().
¶ 10 Due to the intertwined nature of the requirements of Rule 80(d) and the determination of apparent authority, we summarize our analysis of that issue before proceeding. We conclude that a genuine dispute of material fact exists concerning the Allings' attorney's authority to extend the time for the Robertsons to accept the settlement offer and prevented the entry of summary judgment. That conclusion normally would require us to vacate the summary judgment and remand the case for trial or evidentiary hearing on the disputed factual issue or other proceedings. But we further conclude that the genuine dispute of fact means the agreement is “in dispute” and makes Rule 80(d) applicable. Because the Allings' assent to the contract is not in writing, the requirements of Rule 80(d) were not met, and the agreement is unenforceable as a matter of law. See Canyon Contracting, 172 Ariz. at 392–93, 837 P.2d at 753–54. This conclusion requires reversing the judgment in favor of the Robertsons on that issue and not a remand for proceedings on the issue of the Allings' counsel's authority. We explain these conclusions below, analyzing the issue of the Allings' attorney's authority within the context of Rule 80(d).
¶ 11 The Allings first argue their attorney had no actual or apparent authority to settle the case, and the trial court erred in...
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