Nunez v. Hon. porter/gordon ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JENNIFER NUNEZ f/k/a JENNIFER GORDON, Petitioner,
v.
THE HONORABLE GERALD PORTER, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,
RICHARD GORDON, Real Party in Interest.
No. 1 CA-SA 14-0067
FILED 5-22-2014
Petition for Special Action from the Superior Court in Maricopa County
No. FC2012-053899
The Honorable Jerry Porter, Judge
JURISDICTION ACCEPTED, RELIEF GRANTED
COUNSEL
Phelps Law Group, PLC, Phoenix
By Jon L. Phelps, Erica M. Fedon, Cy Hainey
Counsel for Petitioner
Hawkins & Hawkins, PLLC, Mesa
By Mark W. Hawkins
Counsel for Real Party in Interest
NUNEZ v. HON PORTER/GORDON
Decision of the Court
DECISION ORDER
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Andrew W. Gould
joined.
P O R T L E Y, Judge:
¶1 Jennifer Nunez (“Mother”) challenges the ruling that she
and Richard Gordon (“Father”) did not reach an enforceable settlement
agreement pursuant to Arizona Rule of Family Law Procedure (“Family
Rule”) 69 on his petition to modify legal decision-making, parenting time,
and child support. For the following reasons, we accept jurisdiction and
grant relief by remanding the issue for an evidentiary hearing so that the
superior court can decide the issue.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father filed a petition for ex parte emergency orders and to
modify legal decision-making, parenting time, and child support. The
parties held an informal settlement conference on January 14, 2014, and
purportedly reached a general consensus to resolve the petition. After a
series of offers and counter-offers, Father agreed to pay $9500 in attorneys’
fees to Mother as part of the “global settlement of the issues.” The parties,
however, could not agree on settlement language and, by the end of the
month, Father wanted to negotiate additional terms. The parties
eventually resolved those issues and Father, by his lawyer, sent an email
with the revised language to the settlement agreement to Mother’s lawyer
in mid-February. The email also noted that Father would sign and
notarize the settlement.
¶3 Mother signed the settlement agreement, had her signature
notarized, and emailed the signature page to Father’s attorney. Instead of
adding his notarized signature to the agreement, Father proposed
additional changes. Mother’s attorney then sent a modified agreement to
his counterpart on March 7, 2014, and two days later sent Mother’s
notarized signature page. The next day, Father’s attorney told his
counterpart that Father was ready for trial. Mother then filed a motion to
enforce the settlement agreement and vacate the trial. The court denied
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NUNEZ v. HON PORTER/GORDON
Decision of the Court
the motion because “[Family Rule 69] requires a writing signed by the
parties, and we don’t have that here.”
DISCUSSION
Special Action Jurisdiction
¶4 We have discretion to accept special action jurisdiction
where there is not an “equally plain, speedy, and adequate remedy by
appeal.” Ariz. R.P. Spec. Act. 8(a); accord Potter v. Vanderpool, 225 Ariz.
495, 498, ¶ 6, 240 P.3d 1257, 1260 (App. 2010). We have exercised our
discretion to determine whether the superior court properly rejected the
settlement agreement the parties had entered into under Arizona Rule of
Civil Procedure (“Civil Rule”) 80(d), Perry v. Ronan, 225 Ariz. 49, 51-52,
¶¶ 5-7, 234 P.3d 617, 619-20 (App. 2010), and to determine whether a trial
may be unnecessary. Harris Trust Bank of Ariz. v. Superior Court, 188 Ariz.
159, 162, 933 P.2d 1227, 1230 (App. 1996) (“[A]cceptance of special action
jurisdiction is in the interests of judicial economy.”). The issue presented
here — whether a settlement agreement under Family Rule 69(A)(1)
requires both parties to sign the writing — is a legal issue that justifies the
exercise of our discretion to accept jurisdiction. See Perry, 225 Ariz. at 51,
¶ 5, 234 P.3d at 619; cf. King v. Titsworth, 221 Ariz. 597, 598, ¶ 8, 212 P.3d
935, 936 (App. 2009) (noting that interpreting Civil Rule 54(g) is a question
of law).
Family Rule 69(A)(1)
¶5 Mother argues that the superior court erred by concluding
that the parties had not reached an enforceable settlement agreement
because both did not sign the agreement. She contends that the Family
Rule 69(A)(1) requirement that the agreement be “in writing” does not
require that both parties sign the document so long as all material parts of
their agreement, including assent, were written. As a result, she argues
that the emails between their lawyers from January 15-17, 2014, constitute
an enforceable agreement, or alternatively, the email exchange on
February 19, 2014, constitutes their agreement.
¶6 The issue of whether there was an agreement in writing that
can be enforced under Family Rule 69 presents a mixed question of law
and fact. We review whether the ruling was arbitrary, capricious, or an
abuse of discretion. See Ariz. R.P. Spec. Act. 3(c); see also In re Thomas D.,
231 Ariz. 29, 31, ¶ 9, 290 P.3d 223, 225 (App. 2012) (“The court abuses its
discretion if it misapplies the law or a legal principle.”). We review de
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NUNEZ v. HON PORTER/GORDON
Decision of the Court
novo the court’s interpretation of Family Rule 69(A)(1). See Aksamit v.
Krahn, 224 Ariz. 68, 70, ¶ 8, 227 P.3d 475, 477 (App. 2010).
¶7 Family Rule 69(A)(1) states that “[a]n Agreement between
the parties shall be valid and binding if . . . the agreement is in writing.”
The plain language of the Rule does not necessarily require the parties to
sign the agreement for it to be enforceable. 1
¶8 Because Family Rule 69 was adapted from Civil Rule 80(d),
we look to the cases interpreting Civil Rule 80(d) for guidance. Ariz. R.
Fam. L.P. 69, comm. cmt.; see Ariz. R. Fam. L.P. 1 comm. cmt; see also Ariz.
R. Civ. P. 80(d). The plain language of both Civil Rule 80(d) and Family
Rule 69(A)(1) require a settlement agreement to be in writing; namely, as
we said in Canyon Contracting Co. v. Tohono O’Odham Housing Authority,
the material terms of the agreement had to be in writing. 172 Ariz. 389,
392-93, 837 P.2d 750, 753-54 (App. 1992). We have also stated that the
“manifestation of assent” to those terms by the parties also had to be in
writing. Id. at 393, 837 P.2d at 754; cf. Donahoe v. Arpaio, 872 F. Supp. 2d
900, 906 (D. Ariz. 2012) (interpreting Civil Rule 80(d) to allow a binding
settlement agreement through email exchanges). 2
¶9 Here, the emails between the parties suggest that they may
have entered into an agreement in January 2014 or early in February 2014.
Because there is some evidence of the material terms of an agreement and
there is some evidence that Father assented to those written terms, the
superior court should have conducted an evidentiary hearing to
determine whether the parties had reached a binding agreement on any of
the issues raised in Father’s petition to modify before the announcement
that he was ready for trial. Consequently, because the court did not think
that Family Rule 69(A)(1) applied in the absence of two signatures on the
document, an evidentiary hearing is required to allow the court to
determine the terms the parties had agreed to and whether their assent
was reflected in writing.
1 Arizona Local Rule of Practice Superior Court, Maricopa County 6.5(e),
however, provides that when an agreement is a result of open
negotiations using a third-party neutral, then the agreement must be
signed by the parties to be enforceable. See Ariz. Local R. Prac. Super. Ct.
(Maricopa) 6.5(b)(2), (e).
2 We do not resolve whether a lawyer’s actions on behalf of a client binds
that client. See Restatement (Third) of Law Governing Lawyers § 27.
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NUNEZ v. HON PORTER/GORDON
Decision of the Court
Attorneys’ Fees
¶10 Mother seeks attorneys’ fees pursuant to Family Rule 69(B)
and Arizona Revised Statutes sections 25-324 and 12-341.01. 3 Although
we have statements in the briefs that there is a disparity of income
between the parties, there is no evidence in the record before us about
their financial resources and we therefore deny the § 25-324 request
without prejudice. Because the superior court will have to determine
whether the parties entered into a settlement agreement, the terms and
assents, it is premature to grant fees under § 12-341.01. We will allow the
superior court to determine whether Mother is entitled to recover her fees
to file this special action when the court resolves the issue of the
agreement. We, however, award Mother her costs to file this special
action upon compliance with ARCAP 21.
¶11 IT IS ORDERED accepting jurisdiction of Mother’s petition.
¶12 IT IS FURTHER ORDERED granting relief by remanding
for an evidentiary hearing to determine whether the parties had entered
into a settlement agreement pursuant to Canyon Contracting Co. v. Tohono
O’Odham Housing Authority, supra ¶ 8.
:MJT
3We cite to the current version of applicable statutes absent changes
material to this decision.
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