Self v. Higher Logic ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MELISSA SELF, Plaintiff/Appellant,
v.
HIGHER LOGIC LLC, et al., Defendants/Appellees.
No. 1 CA-CV 20-0079
FILED 11-24-2020
Appeal from the Superior Court in Maricopa County
No. CV2018-002287
CV2018-096003
(Consolidated)
The Honorable Daniel G. Martin, Judge
AFFIRMED
COUNSEL
Melissa Self, Mesa
Plaintiff/Appellant
Coppersmith Brockelman PLC, Phoenix
By Andrew S. Gordon, Roopali H. Desai, Koray J. Bulut
Counsel for Defendants/Appellees
SELF v. HIGHER LOGIC, et al.
Decision of the Court
MEMORANDUM DECISION
Acting Presiding Judge Maria Elena Cruz delivered the decision of the
Court, in which Judge Paul J. McMurdie and Judge David B. Gass joined.
C R U Z, Judge:
¶1 Melissa Self appeals from the superior court’s grant of
summary judgment in favor of Higher Logic LLC (“Higher Logic”) and
Socious, LLC (“Socious”) (collectively “appellees”) on her employment-
related claims against them. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Socious hired Self in 2016 as a business development
representative. Socious paid Self commissions for locating potential
customers and scheduling product demonstrations. In 2017, Higher Logic
acquired Socious. Higher Logic then hired Self as a business development
representative. Before the acquisition, Higher Logic and Socious were
business competitors.
¶3 In February 2017, Self informed Higher Logic that she was
having health problems and asked to be allowed to work from home due to
a disability.1 Higher Logic sent Self its Americans with Disability Act
(“ADA”) forms to complete, but she did not return them. Self resigned
from Higher Logic in May 2017.
¶4 In March 2018, Self filed a complaint in superior court (cause
no. CV2018-002287) against appellees alleging causes of action for breach of
contract, unjust enrichment, and statutory violations. She filed an amended
complaint in November 2018 alleging causes of action for breach of
contract, unjust enrichment, breach of the implied covenant of good faith
and fair dealing, and constructive discharge.
¶5 Meanwhile, in July 2018, Self filed a separate pro per complaint
against appellees (cause no. CV2018-096003), alleging disability
discrimination against Higher Logic. The superior court consolidated the
1 Self testified at her deposition that she suffered from a hematologic
disorder that caused her to have flu-like symptoms and to be anemic.
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Decision of the Court
cases in December 2018. Self’s attorney withdrew from the case, and she
represented herself thereafter.
¶6 In September 2019, appellees filed a motion for summary
judgment. Self failed to respond, and instead filed a pleading entitled
“Motion to Schedule Emergency Hearing for Default Judgment for Fraud
Upon Court.” In her motion, Self said she had not responded to the motion
for summary judgment because it was “void.”
¶7 The superior court denied Self’s motion because Self failed to
explain why she was entitled to relief. The court further stated, “[Self’s]
apparent failure to have responded to a motion for summary judgment as
required under the rules of civil procedure, [is] incompatible with her
obligations as the plaintiff in this lawsuit.” Despite this warning, Self still
did not respond to the summary judgment motion. Appellees subsequently
requested a ruling on the summary judgment motion, which Self opposed.
The superior court granted the motion for summary judgment, finding Self
had failed to respond despite the court’s admonition, there were no genuine
issues of material fact, and appellees were entitled to judgment as a matter
of law. Self filed a premature motion for a new trial, and the superior court
entered judgment in December 2019.
¶8 Self timely appealed. In August 2020, we issued an order
denying Self’s motion to supplement the record on appeal with “many
documents she contends are missing from the record,” including discovery
matters and email communication. We said that our review is limited to
the record before the superior court when it entered judgment. See GM Dev.
Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4-5 (App. 1990). We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1), -2101(A)(1).
DISCUSSION
¶9 Summary judgment is appropriate if “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). “We review the grant of summary
judgment on the basis of the record made in the trial court, but determine
whether the entry of judgment was proper de novo.” Phx. Baptist Hosp. &
Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292 (App. 1994). We view the evidence
in the light most favorable to the party against whom summary judgment
was entered. Espinoza v. Schulenburg, 212 Ariz. 215, 216, ¶ 6 (2006).
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¶10 To begin, Self’s opening brief fails to comply with Arizona
Rule of Civil Appellate Procedure (“ARCAP”) 13(a).2 Specifically, her
statements of the procedural path of the case and facts fail to include
appropriate references to the record. In addition, the argument section of
the brief fails to provide the applicable standard of appellate review and
appropriate citations to the record and legal authority. See ARCAP 13(a)(4),
(5), (7). We may dismiss an appeal when the appellant fails to comply with
the rules. Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342-43 (App.
1984).
¶11 Even if we overlooked the deficiencies of the opening brief,
we would still affirm. Self argues the superior court “only state[d] that [she]
failed to contest the [appellee]’s Motion for Summary Judgment” in ruling
on the summary judgment motion. Arizona Rule of Civil Procedure 56(e)
provides that a party opposing a summary judgment motion “must, by
affidavits or as otherwise provided in this rule, set forth specific facts
showing a genuine issue for trial. If the opposing party does not so
respond, summary judgment, if appropriate, shall be entered against that
party.”
¶12 An opposing party’s failure to respond to a motion for
summary judgment does not, by itself, entitle the moving party to summary
judgment. Schwab v. Ames Constr., 207 Ariz. 56, 59, ¶ 15 (App. 2004). But
nonmoving parties act at their peril. Id. at 60, ¶ 16. A court may “presume
that any uncontroverted evidence favorable to the movant, and from which
only one inference can be drawn, is true. If that uncontroverted evidence
would entitle the movant to a judgment as a matter of law, then the trial
court must grant the summary judgment motion.” Id. (internal citations
omitted). Here, the superior court did not grant summary judgment solely
because Self did not respond to appellees’ motion for summary judgment.
Instead, the court found no disputed genuine issues of material fact and
appellees were entitled to judgment as a matter of law. We agree.
2 Appellees argue we should dismiss this appeal because Self’s
opening brief was untimely. See ARCAP 15(a)(1) (“If an appellant does not
timely file an opening brief, the appellate court on motion of a party or on
its own motion may dismiss the appeal.”). In April 2020 we sua sponte
extended the deadline for Self to file her opening brief to May 11, 2020. Self
filed her opening brief on May 12, 2020, one day late. ARCAP 15(a)(1) is
permissive and we decline to dismiss this appeal on the basis that the
opening brief was one day late.
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¶13 Self’s consolidated lawsuits involved claims that appellees
breached their contractual obligations or were unjustly enriched by failing
to pay Self for services and labor, and that Higher Logic breached the
implied covenant of good faith and fair dealing, wrongfully constructively
terminated Self’s employment, and wrongfully discriminated against her.
¶14 Self alleged appellees breached her employment contracts by
“refusing to pay all funds owed” to her. “To bring an action for the breach
of [a] contract, the plaintiff has the burden of proving the existence of [a]
contract, its breach and the resulting damages.” Graham v. Asbury, 112 Ariz.
184, 185 (1975). The interpretation of the contract is a question of law for
the court. C & T Land & Dev. Co. v. Bushnell, 106 Ariz. 21, 22 (1970).
¶15 Self admitted at her deposition that she received all of her lead
commissions through December 2016 during her employment with
Socious. Under Self’s commission agreement with Higher Logic, which
governed the quota year from February 1, 2017 to December 31, 2017, Self
was eligible to receive two types of commissions—commissions for
completed demos and commissions for completed sales.3
¶16 Between February and May 2017, Higher Logic paid Self
$1400.00 for eleven quality demos. It paid her another $250.00 for two
additional demos it determined not to be quality demos. No sales resulting
from Self’s completed demos occurred before her resignation in May 2017.
¶17 The record supported Higher Logic’s assertion that it paid
Self all commissions it owed to her—specifically the declaration of Higher
3 The commission for a completed demo was $100.00 for a demo with
a prospect with an annual operating budget of $2.5 million (small prospect),
and $150.00, $200.00, or $250.00 for a demo with a prospect with annual
operating budget of over $2.5 million (large prospect), depending on how
many demos were completed in a month. The commission for a completed
sale resulting from a completed demo was .5 percent. An outside sales
representative had to confirm each demo as a “quality” demo. The
commission agreement stated that commission payments would be made
“on the last pay period of the month for demos completed and approved
by management in the previous month.” The agreement further provided
that if the agreement was “terminated, commission payments will be made
only for commissions due as of the date of your termination. You must be
employed by Higher Logic in the month immediately following a month in
which a sale is booked in order to receive payment of commissions for those
sales.”
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Logic’s Senior Human Resources Manager, Holly Keener, and the attached
business records. Self did not contradict the evidence because she failed to
respond to the motion for summary judgment. Accordingly, the superior
court was free to accept it as true and grant summary judgment to appellees
on Self’s contract claim. See Schwab, 207 Ariz. at 60, ¶ 16.
¶18 Self also claimed appellees were unjustly enriched when they
failed to pay her for “services, labor, and other benefits received.” “Unjust
enrichment occurs whenever a person has and retains money or benefits
which in justice and equity belong to another.” City of Sierra Vista v. Cochise
Enters., Inc., 144 Ariz. 375, 381 (App. 1984). However, the doctrine of unjust
enrichment has no application when there is a specific contract governing
the relationship of the parties. Brooks v. Valley Nat’l Bank, 113 Ariz. 169, 174
(1976). Here, Self’s right to commission payments and appellees’ obligation
to pay them was governed by her employment contracts. Because those
contracts controlled Self’s right to commission payments, her unjust
enrichment claim is barred, and the superior court did not err by granting
summary judgment.
¶19 Self further claimed that Higher Logic breached the implied
covenant of good faith and fair dealing by failing to comply with the
commission agreement. There is an implied covenant of good faith and fair
dealing in every contract that neither party will do anything to injure the
right of the other to receive the benefits of their agreement. Wagenseller v.
Scottsdale Mem’l Hosp., 147 Ariz. 370, 383 (1985), superseded by statute on other
grounds as recognized by Powell v. Washburn, 211 Ariz. 553, 560, ¶ 29 (2006).
Because Higher Logic did not breach the implied covenant of good faith
and fair dealing under the undisputed facts, summary judgment was
warranted.
¶20 Self claimed that Higher Logic’s “extraordinary and
egregious conduct and harassment” caused her to resign and constituted a
wrongful constructive termination in violation of Arizona law and public
policy, entitling her to punitive damages. Self’s complaint failed to state
what public policy or Arizona law appellees allegedly violated. Self based
her constructive discharge claim on Higher Logic’s alleged sabotage of her
by hiding potential client contacts from her and its alleged denial of her
request for a reasonable accommodation.
¶21 An employee may bring a claim for “constructive discharge
based on an employer’s outrageous conduct or failure to remedy objectively
difficult or unpleasant working conditions that would compel a reasonable
employee to resign.” Peterson v. City of Surprise, 244 Ariz. 247, 250, ¶ 9 (App.
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2018) (internal quotations omitted); A.R.S. § 23-1502. To bring a claim of
constructive discharge based on “objectively difficult or unpleasant
working conditions,” an employee must follow the notice procedures of
A.R.S. § 23-1502(B). Self’s text message to her supervisor did not comply
with the statutory notice requirements. Self sent her supervisor a text
message stating, “Hi Ivor this is Melissa Self and Im giving my notice of
constructive termination. My laptop will be with the security guard in the
lobby of the Mesa office this week. No need to respond please.” Further,
Self’s allegations did not rise to the level of outrageous conduct. See A.R.S.
§ 23-1502(A)(2). Constructive discharge may also be established if an
employer engaged in outrageous conduct, such as “sexual assault, threats
of violence directed at the employee, a continuous pattern of discriminatory
harassment by the employer or by a managing agent of the employer or
other similar kinds of conduct, if the conduct would cause a reasonable
employee to feel compelled to resign.” Id. The superior court did not err
by granting summary judgment on Self’s claim for wrongful constructive
discharge.
¶22 Finally, Self claimed that Higher Logic discriminated against
her after she told coworkers she had a disability. An ADA discrimination
claim “requires proof that the plaintiff: (1) is disabled within the meaning
of the ADA; (2) is qualified to perform the essential functions of the job with
or without reasonable accommodation; and (3) was discriminated against
or terminated by the employer because of the disability.” MacLean v. State
Dep’t of Educ., 195 Ariz. 235, 241, ¶ 23 (App. 1999). At her deposition, Self
testified that she believed Higher Logic sabotaged her because she had a
criminal background and the company wanted to be able to fire her for
underperforming. Self also testified that the problems she experienced at
work occurred before she disclosed her alleged disability in mid-February
2017. There was no evidence that Self was discriminated against because
of a disability, and the superior court did not err by granting summary
judgment on her claim of disability discrimination.
¶23 Appellees request attorneys’ fees and costs on appeal.
However, they cite A.R.S. § 39-121.02(B), a statute that does not apply here.
Section 39-121.02(B) allows the court to award attorneys’ fees and costs to a
person who has substantially prevailed after seeking access to public
records. We, therefore, decline to award attorneys’ fees. As the prevailing
parties, we award appellees costs upon compliance with ARCAP 21.
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Decision of the Court
CONCLUSION
¶24 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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