Harris v. Mathews ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
WESLEY W. HARRIS, Plaintiff/Appellant,
v.
BETH MATHEWS, et al., Defendants/Appellees.
No. 1 CA-CV 20-0134
FILED 12-10-2020
Appeal from the Superior Court in Maricopa County
No. CV2019-092815
The Honorable Tracey Westerhausen, Judge
AFFIRMED
COUNSEL
Law Offices of Kimberly A. Eckert, Tempe
By Kimberly A. Eckert
Counsel for Plaintiff/Appellant
Elley Law PLC, Gilbert
By Richard D. Elley
Counsel for Defendants/Appellees
HARRIS v. MATHEWS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.
C R U Z, Judge:
¶1 Wesley W. Harris (“Harris”) appeals a superior court order
dismissing his claims against Beth Mathews (“Beth”) and her husband,
Harold Mathews (“Harold”). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This case arises from a settlement agreement, which the
parties entered to resolve a prior lawsuit. The Mathewses obtained a
harassment injunction against Harris after an incident between Beth and
Harris in 2017. When Harold obtained a judgment against Harris for just
over $2,700, Harris responded by filing a civil suit against the Mathewses,
alleging defamation, malicious prosecution, and intentional infliction of
emotional distress. At around this time, the City of Gilbert charged Harris
with a misdemeanor for violating the harassment injunction; the trial began
in late May 2018.
¶3 The parties, represented by counsel, negotiated a settlement
agreement in which Harris agreed to dismiss the civil suit with prejudice.
In return, the Mathewses agreed to sign an affidavit declining interest to
pursue the pending criminal case against Harris and to “call the prosecutor
and advise the prosecutor that [the Mathewses are] behind the affidavit and
[do] not want the prosecution to go forward.” Harold also agreed to release
his judgment against Harris. The Mathewses signed the affidavit and
forwarded it to the Gilbert prosecutor. Their attorney called the prosecutor
on their behalf and left a voicemail regarding their “intent to drop their
involvement” in the injunction against harassment prosecution.
¶4 The civil suit was dismissed with prejudice, but the State
refused to dismiss the criminal proceedings against Harris. The Mathewses
were subpoenaed to testify and did so. Harris was convicted and
sentenced.
¶5 Harris then filed a complaint against the Mathewses, alleging
breach of contract, breach of the covenant of good faith and fair dealing,
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and intentional infliction of emotional distress. Harris argued that the
attorney’s voicemail for the prosecutor did not satisfy the contract’s terms
and that the Mathewses should have done more to convince the prosecutor
to drop the criminal charges. The Mathewses filed a motion to dismiss
pursuant to Arizona Rule of Civil Procedure (“Rule”) 12(b)(6), and after oral
argument, the superior court dismissed all of Harris’ claims.
¶6 In its order, the court found three independent reasons to
dismiss the breach of contract claims. First, contrary to Harris’ position, a
jury could not find the settlement agreement was to result in the dismissal
of the criminal charges against Harris. Second, since victims in a criminal
prosecution are not parties to the criminal case, they have no decision-
making power. Therefore, there existed “no enforceable contract between
the parties at all.” Third, the settlement agreement attempted to confer on
the Mathewses a power they did not have because only the judge can
dismiss a prosecution with prejudice. As to the emotional distress claim,
the court also found their actions did not constitute “extreme and
outrageous” conduct as a matter of law. See Ford v. Revlon, Inc., 153 Ariz.
38, 43 (1987).
¶7 Harris timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and
-2101(A)(1).
DISCUSSION
¶8 We review the grant of dismissal pursuant to Rule 12(b)(6) de
novo. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8 (2012). “[W]e assume
as true the facts alleged in the complaint” and will affirm the superior
court’s dismissal of a complaint only if the plaintiff “would not be entitled
to relief under any interpretation of the facts susceptible of proof.” Fid. Sec.
Life Ins. Co. v. Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998). We may affirm the
order if it is correct for any reason. Fappani v. Bratton, 243 Ariz. 306, 309,
¶ 8 (App. 2017).
¶9 When interpreting a contract, we look to the four corners of
the agreement to determine the parties’ intent unless some language is
vague or ambiguous. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148,
152 (1993). “Whether contract language is reasonably susceptible to more
than one interpretation . . . is a question of law for the court.” Id. at 158-59.
The disputed portion of the settlement agreement states the Mathewses
agreed to execute an affidavit and “will call the prosecutor and advise the
prosecutor that [the Mathewses are] behind the affidavit and [do] not want
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Decision of the Court
the prosecution to go forward.” We find nothing ambiguous about the
language in that provision and thus rely on the agreement’s plain language.
¶10 Harris argues that whether the Mathewses breached the
contract was a question of fact for the jury. He acknowledges that the
Mathewses prepared the affidavit and sent it to the prosecutor, and that
their attorney called the prosecutor on their behalf and left a voicemail. In
his reply brief, Harris contends that the fact that the Mathewses’ attorney
placed the call and left a voicemail constitutes a breach of the contract,
because the contract required the Mathewses to contact the prosecutor
directly and not via their attorney. But whether an attorney may act on
behalf of his or her client is a question of law, not a question of fact. See
Robertson v. Alling, 237 Ariz. 345, 348, ¶ 16 (2015) (“The relationship between
an attorney and client is governed by agency law principles.”); Salvation
Army v. Bryson, 229 Ariz. 204, 211, ¶ 23 (App. 2012) (explaining whether an
agency relationship exists is a question of law where material facts are not
in dispute). Nowhere in the written settlement agreement is there an
explicitly stated requirement that the Mathewses must personally call the
assigned prosecutor to request dismissal of the misdemeanor charge
against Harris. Moreover, Harris does not argue, and the record does not
indicate, that the Mathewses’ attorney did not have the authority to call the
prosecutor on their behalf. Thus, as a matter of law, we find the Mathewses
acted within their rights when they directed their attorney to contact the
prosecutor on their behalf. As such, no breach of contract may be found on
this basis.
¶11 In his complaint, Harris alleged he agreed to dismiss the civil
case against the Mathewses because “he was assured that the [Mathewses]
would do all they could to obtain dismissal of the criminal case.” But Harris
does not explain how the language in the settlement agreement could be
interpreted to mean that the Mathewses were obligated to do more than
they did: execute the affidavit and contact the prosecutor by phone. See
Long v. City of Glendale, 208 Ariz. 319, 329, ¶ 33 (App. 2004). “[T]he court
can accept as true the allegations in the complaint and still determine that
the written language is not reasonably susceptible of the meaning asserted.”
Id. at ¶ 32. To the extent Harris argues the Mathewses should have made
additional or different efforts, such terms are outside the four corners of the
settlement agreement.
¶12 A victim has no authority to direct the prosecution of a
criminal case, and “in some cases the wishes of the victim may be adverse
to those of the prosecution.” State v. Superior Court (Wilkinson), 181 Ariz.
378, 381-82 (App. 1995); see Lynn v. Reinstein, 205 Ariz. 186, 191, ¶ 15 (2003)
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(finding a victim has no “party status” in criminal proceedings). A
prosecutor has broad discretion in conducting criminal proceedings. State
v. Murphy, 113 Ariz. 416, 418 (1976). Even so, the discretion to dismiss a
case remains with the court. See State v. Gilbert, 172 Ariz. 402, 404 (App.
1991). Accordingly, as the superior court found, if the agreement required
the criminal case against Harris to be dismissed, such a contract would be
invalid.1
¶13 As to Harris’ claim that the Mathewses breached the implied
covenant of good faith and fair dealing, we find dismissal appropriate.
“The covenant requires that neither party ‘act to impair the right of the
other to receive the benefits which flow from their agreement or contractual
relationship.’” Keg Rests. Ariz., Inc. v. Jones, 240 Ariz. 64, 77, ¶ 45 (App. 2016)
(quoting Beaudry v. Ins. Co. of the W., 203 Ariz. 86, 91, ¶ 18 (App. 2002)). The
Mathewses satisfied the terms of the settlement agreement—as
acknowledged by Harris—and testified at the criminal trial pursuant to a
subpoena. That the Mathewses complied with a court directive to appear
at trial and give testimony does not establish sufficient evidence from which
a jury could reasonably conclude the Mathewses breached the covenant. As
a matter of law, Harris is not entitled to relief. To the extent Harris alleges
the settlement agreement contemplated an additional benefit to him—the
Mathewses refusing to cooperate with the criminal court or the dismissal of
the criminal case—we find such a contract would be invalid.
¶14 Finally, Harris’ complaint alleged intentional infliction of
emotional distress. To prove a claim of intentional infliction of emotional
distress, Harris must establish three elements: the Mathewses’ conduct
must be “extreme” and “outrageous”; the Mathewses must intend to cause
emotional distress or “recklessly disregard the near certainty” of such
distress; and such distress must occur as a result of the Mathewses’ actions.
Ford, 153 Ariz. at 43. Whether the conduct goes “beyond all possible bounds
of decency” and must be regarded as “atrocious and utterly intolerable in a
civilized community” is a determination for the court, and Harris misstates
the law in arguing otherwise. Shepherd v. Costco Wholesale Corp., 246 Ariz.
1 On appeal, Harris also alleges that without the agreed-upon efforts
to dismiss the criminal case, “there was no consideration for [Harris]
dismissing his civil case against [the Mathewses].” This argument
overlooks the agreement provisions in which Harold agreed to release his
judgment against Harris and agreed to not renew the injunction against
harassment.
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HARRIS v. MATHEWS, et al.
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470, 475, ¶¶ 19-20 (App. 2019) (quoting Mintz v. Bell Atl. Sys. Leasing Int’l,
Inc., 183 Ariz. 550, 554 (App. 1995)).
¶15 Here, Harris alleged the Mathewses “fail[ed] to actually tell
the prosecutor they wanted the matter dismissed, wait[ed] until right
before the trial to leave a voicemail, and [testified] such that there was no
conveyance to the judge that they did not want to proceed.” We agree with
the superior court that such alleged conduct does not remotely rise to the
“extreme” or “outrageous” standard. The superior court did not err in
dismissing this claim.
¶16 Both parties request their attorneys’ fees and costs on appeal.
In support of their request for attorneys’ fees, the Mathewses argue this
appeal was unjustified. On appeal, we note that Harris misrepresented the
terms of the settlement agreement when he claimed the efforts to dismiss
the criminal charges were the sole consideration for his agreement to
dismiss his civil suit. In our discretion, we award the Mathewses a portion
of their reasonable attorneys’ fees, and deny Harris’ request. See ARCAP
25 (this court “may impose sanctions that are appropriate in the
circumstances of the case, and to discourage similar conduct in the future”);
A.R.S. § 12-341.01(A) (the court may award successful party reasonable
attorneys’ fees in an action arising out of a contract). As the prevailing
party, the Mathewses are entitled to their taxable costs upon compliance
with ARCAP 21.
CONCLUSION
¶17 For the foregoing reasons, we affirm the superior court’s
order dismissing Harris’ claims against the Mathewses for failure to state a
claim upon which relief could be granted, and award the Mathewses a
portion of their attorneys’ fees and their taxable costs on appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
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