EXECUTIVE v. HEIMER/VARBEL

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE EXECUTIVE TRUSTEE SERVICES, LLC, ) ) Third Party Plaintiff/ ) Appellee, ) ) v. ) ) RAE HEIMER and DUANE VARBEL, ) husband and wife, ) ) Third Party Defendants/ ) Appellants. ) ) 1 CA-CV 11-0720 DIVISION ONE FILED: 08/07/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2009-028495 The Honorable Mark Brain, Judge AFFIRMED Ryley Carlock & Applewhite, PA by Kara A. Ricupero Kevin R. Heaphy Attorneys for Third Party Plaintiff/Appellee Phoenix Rae Heimer Duane Varbel Pro Se Third Party Defendants/Appellants Phoenix P O R T L E Y, Judge ¶1 Rae Heimer and Duane Varbel ( Appellants ) appeal the judgment entered against them pursuant to their settlement agreement with Executive Trustee Services, LLC ( ETS ). For the reasons that follow, we affirm. BACKGROUND ¶2 Derek Sullivan filed a complaint in September 2009 against ETS and Mortgage Electronic Registration Services, Inc., challenging the pending foreclosure of his home. and certified Sullivan s After legal address filing an in document the answer, preparer caption. ETS number See filed a ACJA Heimer s name appeared § under 7-208(F)(3). third-party complaint against Heimer for preparing Sullivan s complaint. 1 Although only Heimer was named in the third-party complaint, both Varbel and Heimer filed an answer, and subsequently moved for summary judgment. 2 ¶3 The court denied the motion for summary judgment, and ordered the parties to participate in a settlement conference. A judge pro conference. tempore At the conducted the conclusion of April the 19, 2011 settlement conference, ETS and Appellants executed a written settlement agreement ( Settlement Agreement ) in accordance with Arizona Rule of Civil Procedure 80(d). Appellants, in relevant part, consented to a judgment of 1 ETS alleged that the Sullivan complaint was substantively similar to other complaints Heimer had prepared that were dismissed for failure to state a claim. ETS further alleged that Heimer gave Sullivan unauthorized legal advice in connection with her preparation of the complaint. 2 By stipulation, the court dismissed Sullivan s claims against ETS. 2 $18,000.00 against them, and agreed to the filing of an amended third-party complaint naming Duane Varbel as a party prior to consenting to entry of judgment against them . . . . ¶4 After the conference, ETS lodged a proposed amended complaint, which alleged that Varbel had engaged in the unauthorized practice of law and was directly responsible for supervising Heimer in her preparation Appellants subsequently filed Agreement and that unenforceable argued because between the parties. there a Notice the was of legal of Settlement no meeting No documents. Settlement Agreement of the was minds Specifically, they argued that they had only agreed to the entry of judgment against their community property, not their separate property. that the amended allegations. 3 complaint They further asserted contained numerous false After a hearing and argument, the court found that the Settlement Agreement was binding under Rule 80(d) and that it did not give Appellants complaint. The court Settlement Agreement a veto further suggested right found that Appellants community property only. that it was over the nothing intended amended in to the bind Consequently, the court denied their motion, allowed ETS to file its amended third-party 3 Appellants were troubled that the amended third-party complaint alleged that Varbel assisted and supervised Heimer when she drafted the Sullivan complaint. Varbel, a disbarred attorney, was concerned that he could be further disciplined for his unauthorized practice of law. 3 complaint, and entered a judgment pursuant to the Settlement Agreement. This appeal followed. DISCUSSION ¶5 Appellants argue that the court erred when it entered a judgment that was not based upon the Agreement of the Parties at Mediation. They assert that the Settlement Agreement contemplated entry of judgment against their community property, not their separate property, and that the amended complaint upon which the judgment was entered contained allegations which were not presented in the mediation. 4 ¶6 Whether the Settlement Agreement is reasonably susceptible to the meaning proffered by Appellants is a matter of law. Long v. City of Glendale, 208 Ariz. 319, 329, ¶ 31, 93 P.3d 519, 529 (App. 2004). Accordingly, our review is de novo. Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593-94, ¶ 9, 218 P.3d 1045, 1050-51 (App. 2009) (citations omitted) (we independently review whether contract language susceptible to more than one interpretation). is reasonably The purpose of contract interpretation is to determine and enforce the parties 4 We exercise our discretion and address these issues even though Appellants did not support their arguments with references to the record or legal authority. See ARCAP 13(a)(6); State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (citation omitted); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62, 211 P.3d 1272, 1289 (App. 2009) (citation omitted) (failure to support argument with legal authority may constitute abandonment and waiver of that claim). 4 intent. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 152, 854 P.2d 1134, 1138 (1993) (citations omitted). ¶7 Rule 80(d) provides that [n]o agreement or consent between parties or attorneys in any matter is binding if disputed, unless it is in writing, or made orally in open court, and entered in the minutes. The policy behind Rule 80(d) is to from relieve the trial court having to resolve factual disputes as to the existence and terms of an alleged settlement agreement. Auth., 172 Canyon Ariz. Contracting 389, 393, 837 Co. v. P.2d Tohono 750, 754 O'Odham Hous. (App. 1992) (citations omitted). ¶8 The substantive portion of the Settlement states, in full: The parties have settled this case pursuant to Rule 80(D) [sic], Arizona Rules of Civil Procedure, as follows: The defendants will consent to a judgment of $18,000.00 against them in the above action. The third party plaintiff [sic] will not execute on the judgment unless the defendants have assets in excess of $5,000.00 in addition to exempt property under Arizona [l]aw. Defendants agree to submit to a [d]ebtors examination and asset search by an asset search firm selected by third-party plaintiff. If non-exempt assets are found in excess of $5,000.00, thirdparty plaintiff may execute on the consent judgment at its option. Defendants agree to submit to additional debtors[ ] exams and assets searches within a period of ten (10) months from the date of 5 Agreement entry of this judgment. Third-[p]arty [p]laintiff also reserves the right to compel future [d]ebtors examinations as allowed by Arizona law. Defendants further agree to the filing of an amended third-party complaint naming Duane Varbel as a party prior to consenting to entry of judgment against them and to not ever do business as a document preparer in any form. The counter-claim and all other claims will be dismissed and each party releases all other claims against the other party. ¶9 The Settlement Agreement does not give Appellants the right to approve the amended third-party complaint. Similarly, it is silent as to whether ETS can execute against community or separate property to satisfy the judgment. The agreement only expressly states that Appellants agree to a judgment against them. As a result, we conclude that the Settlement Agreement is not reasonably susceptible to their interpretation. ¶10 The post judgment could hoc only be hidden intention satisfied from arguments Appellants that the community property and that they had the right to approve the terms in the amended third-party complaint cannot controvert their mutual assent and the clear language of the Settlement Agreement. See Hartford v. Indus. Comm'n of Ariz., 178 Ariz. 106, 112, 870 P.2d 1202, 1208 (App. 1994) (citation omitted) ( Mutual assent is based on objective evidence, not on the hidden intent of the parties. ); J.D. Land Co. v. Killian, 158 Ariz. 210, 212, 762 6 P.2d 124, 126 (App. 1988) (citations omitted) ( A contract is not ambiguous merely because the parties disagree [about] its meaning. [Rather, a]n agreement is ambiguous only if the language can reasonably be construed in more than one sense and the construction cannot be determined within the four corners of the instrument. ). ¶11 ETS requests its attorneys fees on appeal pursuant to Arizona Revised Statutes sections 12-341.01(C) and -349 (West 2012). In the exercise of our discretion, we deny the request, and its request for double damages. costs upon compliance with Arizona We, however, award ETS its Rule of Civil Appellate Procedure 21. CONCLUSION ¶12 The judgment is affirmed. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ________________________________ PHILIP HALL, Judge /s/ ________________________________ DIANE M. JOHNSEN, Judge 7

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