Viad v. Moneygram ( 2016 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    VIAD CORP, Plaintiff/Appellee/Cross-Appellant,
    v.
    MONEYGRAM INTERNATIONAL, INC.; and MONEYGRAM
    PAYMENT SYSTEMS, INC., Defendants/Appellants/Cross-Appellees.
    Nos. 1 CA-CV 15-0053
    1 CA-CV 15-0341
    (Consolidated)
    FILED 11-1-2016
    Appeal from the Superior Court in Maricopa County
    No. CV2010-029939
    The Honorable Patricia A. Starr, Judge
    AFFIRMED IN PART; REVERSED IN PART
    COUNSEL
    Squire Patton Boggs (US) LLP, Phoenix
    By Brian A. Cabianca, Donald A. Wall and Kerryn L. Holman
    Counsel for Plaintiff/Appellee/Cross-Appellant
    Coppersmith Brockelman PLC, Phoenix
    By L. Keith Beauchamp and Roopali H. Desai
    Co-Counsel for Defendants/Appellants/Cross-Appellees
    and
    Baker & Hostetler LLP, Cleveland, OH
    By Martin T. Wymer and Michael D. Meuti
    Co-Counsel for Defendants/Appellants/Cross-Appellees
    MEMORANDUM DECISION
    Presiding Judge Andrew W. Gould delivered the decision of the Court, in
    which Judge Peter B. Swann and Judge Patricia A. Orozco joined.
    G O U L D, Judge:
    ¶1            MoneyGram International Inc., appeals from the superior
    court’s entry of summary judgment in favor of Viad Corp. Additionally,
    Viad cross-appeals the superior court’s ruling regarding pre-judgment
    interest. For the following reasons, we affirm the superior court’s grant of
    summary judgment in favor of Viad, but reverse the court’s order regarding
    pre-judgment interest.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2             MoneyGram was a wholly owned subsidiary of Viad. On
    June 30, 2004, Viad and MoneyGram agreed to spin off MoneyGram into an
    independent corporate entity. The parties executed two contracts
    governing this transaction: a Separation and Distribution Agreement
    (“SDA”), and an Employee Benefits Agreement (“EBA”). The EBA
    provided that MoneyGram would assume the obligation of paying the
    benefits for a number of current and former Viad employees.
    ¶3            On June 1, 2004, shortly before the parties executed the EBA
    and completed the spin off, Viad executed an Amended Employment
    Agreement with its CEO, Robert Bohannon. Under the Amended
    Employment Agreement, Viad and Bohannon agreed that his retirement
    benefits “shall in each case be calculated using 150% of [his] Annual Base
    Salary.” Bohannon continued to work for Viad after the spin off, retiring in
    2
    VIAD v. MONEYGRAM
    Decision of the Court
    2008. In connection with the spin off, Bohannon served as a member on
    MoneyGram’s board.
    ¶4            Following the spin off, MoneyGram performed its obligations
    under the EBA. However, in 2010, MoneyGram refused to pay retirement
    benefits to a number of prior employees of Motorcoach, a former Viad
    subsidiary. Viad filed a breach of contract claim based on the EBA. During
    the litigation, MoneyGram purportedly discovered that it was paying
    benefits in excess of its obligations under the EBA to Bohannon, Viad’s
    retired CEO, as well as a large number of other retirees. As a result,
    MoneyGram informed Viad it intended to discontinue or reduce their
    benefit payments. In response, Viad amended its complaint to include
    Bohannon and the additional employees in its breach of contract claim.
    ¶5           Viad and MoneyGram filed cross-motions for summary
    judgment. Viad argued the EBA obligated MoneyGram to pay the disputed
    employee benefits. MoneyGram argued Viad’s claims were preempted by
    ERISA and that it was not required to pay the disputed employee benefits.
    MoneyGram also objected to the inclusion of benefit claims for two
    additional former Viad employees, Bjornar Hermansen and Alice
    Smedstead.
    ¶6           The superior court granted Viad summary judgment on all its
    claims except its claims regarding the Motorcoach retirees, and denied
    MoneyGram’s motion for summary judgment. The court rejected
    MoneyGram’s preemption argument, finding that Viad’s claims arose
    under the EBA, and not an ERISA plan. The court also rejected
    MoneyGram’s arguments regarding Bohannon’s claims, finding that the
    express terms of the EBA, as well as the relevant extrinsic evidence, showed
    that MoneyGram was obligated to pay Bohannon’s benefits. The court also
    concluded the EBA required MoneyGram to pay the benefits for “105
    retirees.” The order, however, did not expressly include Hermansen and
    Smedstead in this group.
    ¶7            After the summary judgment ruling, the parties reached a
    settlement on all claims except those relating to Bohannon, Hermansen, and
    Smedstead. The court subsequently issued an order clarifying that
    Hermansen and Smedstead were included in the group of “105 retirees”
    covered by its summary judgment ruling. Thereafter, the court entered
    final judgment in favor of Viad on all remaining claims. MoneyGram filed
    a timely notice of appeal.
    3
    VIAD v. MONEYGRAM
    Decision of the Court
    ¶8           Shortly after filing its notice of appeal, MoneyGram filed a
    motion to correct the judgment pursuant to Arizona Rule of Civil Procedure
    60(c). MoneyGram argued the judgment improperly calculated pre-
    judgment interest at the rate of 10%. Viad objected, arguing the superior
    court did not have jurisdiction to amend the judgment because of the
    pending appeal. Viad also argued MoneyGram had waived its right to
    object because it had never filed an objection to the 10% interest rate when
    the proposed form of judgment was lodged with the court. The trial court
    agreed with MoneyGram that the lower interest rate applied, and amended
    the judgment to reflect a pre-judgment interest rate of 4.25%. In its cross-
    appeal, Viad challenges the superior court’s adjustment of the pre-
    judgment interest rate in the amended judgment.
    DISCUSSION
    I.     Standard of Review
    ¶9             “Summary judgment is appropriate when there is no genuine
    issue as to any material fact and the moving party is entitled to judgment
    as a matter of law.” Russell Piccoli P.L.C. v. O’Donnell, 
    237 Ariz. 43
    , 46, ¶ 10
    (App. 2015). We determine whether the court properly granted summary
    judgment de novo. 
    Id. at 46-47,
    ¶ 10. In reviewing a grant of summary
    judgment we consider the evidence and all reasonable inferences therefrom
    in the light most favorable to the non-moving party. 
    Id. at 47,
    ¶ 10.
    II.    ERISA Preemption
    ¶10          MoneyGram asserts the superior court erred because it
    applied the wrong test for determining ERISA preemption. MoneyGram
    argues the court applied the complete preemption test1 when it should have
    applied the conflict preemption test. MoneyGram concedes that Viad’s
    claims are not preempted under complete preemption; however, it asserts
    Viad’s claims are preempted under conflict preemption.
    1       Complete preemption under ERISA is not a defense to a state law
    claim. Rather, complete preemption is based on 29 U.S.C. § 1132(a), and
    mandates ‘exclusive federal jurisdiction’ over claims between ERISA
    entities that could have been brought under ERISA. Marin Gen. Hosp. v.
    Modesto & Empire Traction Co., 
    581 F.3d 941
    , 945 (9th Cir. 2009). Thus, “[n]ot
    only does complete preemption displace state substantive law, but it also
    recharacterizes state law claims as arising under federal law for purposes
    of determining federal question jurisdiction.“ Satterly v. Life Care Centers of
    Am. Inc., 
    204 Ariz. 174
    , 177, ¶ 6 (App. 2003).
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    VIAD v. MONEYGRAM
    Decision of the Court
    ¶11            The conflict preemption provision of ERISA provides that
    ERISA “shall supersede any and all State laws insofar as they may now or
    hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a) (emphasis
    added); see 
    Satterly, 204 Ariz. at 177
    , ¶ 7 (conflict preemption is a defense to
    state-law claims that “relate to any employee benefit plan.”). In addressing
    conflict preemption under ERISA, the “starting presumption” is that
    “Congress does not intend to supplant state law,” and “’that the historic
    police powers of the States were not to be superseded by [ERISA] unless
    that was the clear and manifest purpose of Congress.’” New York State
    Conference of Blue Cross & Blue Shield Plans v. Travelers, 
    514 U.S. 645
    , 654-55
    (1995) (quoting Rice v. Santa Fe Elevator Corp., 
    331 U.S. 218
    , 230 (1947)).
    ¶12            The phrase, “relate to,” is broad; indeed, it is so broad the
    Supreme Court has recognized a pure textual application of the standard is
    not “workable.” Gobeille v. Liberty Mut. Ins. Co., 
    136 S. Ct. 936
    , 943 (2016); see
    
    Travelers, 514 U.S. at 655
    (stating that if the phrase “relate to” under ERISA
    is “extend[ed] to the furthest stretch of its indeterminacy, then for all
    practical purposes pre-emption would never run its course.”). As a result,
    “uncritical literalism” in analyzing the phrase “relate to” is disfavored. 
    Id., at 656.
    Instead, “pre-emption claims turn on Congress’s intent,” and courts
    must look “to the objectives of the ERISA statute as a guide” to determine
    the scope of ERISA preemption. 
    Travelers, 514 U.S. at 655
    -56; see 
    Satterly, 204 Ariz. at 177
    , ¶ 8 (stating that in determining whether a state law claim
    is preempted because it “relates to” an ERISA plan, the Supreme Court has
    “[m]ore recently . . . looked to ERISA’s objectives when undertaking this
    analysis.”); Bui v. American Telephone & Telegraph Co. Inc., 
    310 F.3d 1143
    , 1147
    (9th Cir. 2002) (given the difficulty in construing the expansive language of
    the ERISA conflict preemption clause, application of the clause has evolved
    “to a more pragmatic interpretation, in which courts seek to preserve the
    goals of Congress when it passed ERISA, while maintaining state control in
    traditional fields of state regulation.”).
    ¶13            Congress’ stated goals for ERISA are “to ensure uniform
    administrative enforcement” of employee benefit plans and to protect plan
    participants and beneficiaries. 
    Bui, 310 F.3d at 1148
    ; see also 
    Gobeille, 136 S. Ct. at 946
    ; 
    Satterly, 204 Ariz. at 177
    , ¶ 8 (stating the objectives of ERISA
    include protecting participants in employee benefit plans and “the creation
    of a uniform body of benefits law to minimize administrative and financial
    burdens of complying with varied state laws and the advancement of
    ERISA’s broad remedial purpose”). To achieve those goals, ERISA
    provides comprehensive regulation of employee welfare and pension
    benefit plans. 29 U.S.C. § 1001; 
    Travelers, 514 U.S. at 650
    .
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    VIAD v. MONEYGRAM
    Decision of the Court
    ¶14            Viad’s claims against MoneyGram do not implicate or
    interfere with Congress’ objectives regarding ERISA. Here, there is no
    dispute that Bohannon and the subject employees are entitled to benefits
    under the Viad Plan. MoneyGram does not challenge the propriety of
    Bohannon receiving the full amount of his benefits, or calculating those
    benefits based on his amended employment contract with Viad. Rather, the
    dispute is whether the EBA obligates MoneyGram to pay for Bohannon’s
    benefits that are based on his amended employment contract.
    ¶15           Viad’s claims are further attenuated from the goals of ERISA
    because they do not affect the relationship between the traditional ERISA
    entities and plan participants/beneficiaries. 
    Bui, 310 F.3d at 1148
    -49. Viad
    is not suing as an assignee of an ERISA plan participant or beneficiary; it is
    suing in its own right pursuant to an independent contract, the EBA. No
    ERISA participant or beneficiary is a party in this case. The only
    relationship affected is the contractual relationship, as defined by the EBA,
    between Viad and MoneyGram.
    ¶16         Accordingly, we conclude Viad’s claims were not preempted
    under ERISA.
    III.   The Bohannon Benefit Claim
    ¶17           Viad contends MoneyGram breached the EBA by refusing to
    pay the full amount of Bohannon’s retirement benefits. MoneyGram
    counters the EBA does not obligate it to pay (1) Bohannon’s benefits accrued
    based on his continued employment after the spin-off date or (2)
    Bohannon’s benefits using the 150% calculator contained in his Amended
    Employment Agreement with Viad.
    ¶18             The parties agree this contract dispute is governed by
    Delaware law. “Delaware law adheres to the objective theory of contracts,
    i.e., a contract’s construction should be that which would be understood by
    an objective, reasonable third party.” Salamone v. Gorman, 
    106 A.3d 354
    ,
    367-68 (Del. 2014) (quoting Osborn ex rel. Osborn v. Kemp, 
    991 A.2d 1153
    ,
    1159 (Del. 2010)). The court’s role in interpreting a contract is to “give
    priority to the parties’ intentions as reflected in the four corners of the
    agreement.” 
    Salamone, 106 A.3d at 368
    (quoting GMG Capital Invs., LLC v.
    Athenian Venture Partners I, L.P., 
    36 A.3d 776
    , 779 (Del. 2012)). We must
    construe the agreement as a whole and give effect to all provisions in a way
    that harmonizes with the agreement’s overall scheme or plan. Riverbend
    Cmty., LLC v. Green Stone Eng’g, LLC, 
    55 A.3d 330
    , 334-35 (Del. 2012)
    (quoting GMG 
    Capital, 36 A.3d at 779
    ).
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    VIAD v. MONEYGRAM
    Decision of the Court
    ¶19             The question of whether or not a contract is ambiguous is a
    question of law for the court to determine. E.I. du Pont de Nemours & Co. v.
    Admiral Ins. Co., 
    711 A.2d 45
    , 56 (Del. 1995). A contract is not ambiguous
    merely because parties in a lawsuit disagree as to its meaning. 
    Id. at 57.
    Unambiguous contract terms control “when they establish the parties’
    common meaning so that a reasonable person in the position of either party
    would have no expectations inconsistent with the contract language.” Eagle
    Indus., Inc. v. DeVilbiss Health Care, Inc., 
    702 A.2d 1228
    , 1232 (Del. 1997).
    ¶20            However, “when there is uncertainty in the meaning and
    application of contract language, the reviewing court must consider the
    [extrinsic] evidence offered” to determine the parties’ intent. Id.; see also
    AT&T Corp. v. Lillis, 
    953 A.2d 241
    , 252-53 (Del. 2008) (stating that
    “consideration of extrinsic evidence is required to determine the meanings”
    of ambiguous contract terms). A contract is ambiguous when “the
    provisions in controversy are fairly susceptible of different interpretations
    or may have two or more different meanings.” Eagle 
    Indus., 702 A.2d at 1232
    . Additionally, a court may resolve an ambiguity in the terms of the
    contract by summary judgment where the extrinsic evidence offered by the
    moving party “is not prima facie rebutted so as to create issues of material
    fact.” 
    Id. at 1232-33.
    ¶21           Here, the issue is whether the language of Section 4.01 of the
    EBA, which addresses MoneyGram’s obligation to pay for certain Viad
    pension plans, is ambiguous. The EBA provides that MoneyGram “shall
    assume and be solely responsible for . . . all obligations to pay benefits to
    Viad employees . . . under the Viad Corp Supplemental Pension Plan.”
    Section 4.01 further states that MoneyGram’s obligation shall be
    determined based on, or “using Final Average Earnings and Covered
    Compensation at termination of employment with Viad . . . and Credited
    Service through the Distribution Date.” Section 4.01 also states the
    calculation should include “Final Average Earnings and Covered
    Compensation based on earnings on and after the Distribution Date to the
    extent applicable.”
    ¶22           While both parties contend the EBA is unambiguous, neither
    party can agree about the meaning of Section 4.01. MoneyGram argues
    section 4.01 of the EBA limits its obligation to pay Bohannon’s benefits to
    those for “Credited Service through the Distribution [spin-off] Date.”
    MoneyGram also contends section 4.01 limits its obligation to pay benefits
    based on Bohannon’s annual base salary at the time of his retirement, and
    not 150% of his annual base salary as provided for in the Amended
    Employment Agreement. Viad, on the other hand, interprets the EBA to
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    VIAD v. MONEYGRAM
    Decision of the Court
    obligate MoneyGram to pay all of Bohannon’s benefits as calculated by
    Viad.
    ¶23           We find Section 4.01 is ambiguous. The reference to
    “Credited Service through the Distribution Date” could be interpreted as
    placing a limit on MoneyGram’s responsibility to pay for accruing benefits.
    On the other hand, the fact that section 4.01 mentions “Final Average
    Earnings and Covered Compensation based on earnings on and after the
    Distribution Date to the extent applicable” seems to indicate that in some
    cases, the Distribution Date would not cut off accrual of MoneyGram’s
    obligation to pay a person’s benefit. Furthermore, Section 4.01 is silent as
    to whether Bohannon’s Amended Employment Agreement should be
    considered in calculating his Final Average Earnings. Thus, the parties’
    dispute has identified an ambiguity with regard to what is included in “all
    obligations to pay benefits to Viad Employees . . . under the Viad [Plan].”
    ¶24            “In construing an ambiguous contractual provision, a court
    may consider [extrinsic] evidence of prior agreements and communications
    of the parties as well as trade usage or course of dealing.” Eagle 
    Indus., 702 A.2d at 1233
    ; see also ThoughtWorks, Inc. v. SV Investment Partners, LLC, 
    902 A.2d 745
    , 752 (Del. Ch. 2006) (stating that where contract terms are
    ambiguous the court may consider extrinsic evidence to determine the
    parties’ intent). As noted above, where there are no genuine factual
    disputes regarding the extrinsic evidence, a court may resolve an ambiguity
    in a contract on summary judgment. Eagle Indus., at 1232-33.
    ¶25           There is no genuine factual dispute regarding the extrinsic
    evidence in this case; it clearly shows that MoneyGram is obligated to pay
    for Bohannon’s benefits accruing after the spin-off date. The deposition of
    the CEO of MoneyGram explained that the post-spin-off SERP liability for
    Viad executives would be an obligation of Viad with the exception of
    Bohannon. Bohannon himself, who was the CEO of Viad and a Viad board
    member through the spin off, and a MoneyGram board member
    immediately after the spin off, understood that Viad employee benefit
    responsibilities accruing post-spin-off were the responsibility of Viad with
    the exception of his accruing benefits.
    ¶26           Bohannon’s unique position is further reflected in his
    treatment under the Viad Plan. Of all Viad Plan participants, he is the only
    person listed in Schedule B’ of the Viad Plan. Schedule B’ contains two
    possible formulas for calculating Bohannon’s benefit: one based on
    Bohannon’s Credited Service, and one based on his retirement if he retired
    after reaching age 58. Deposition testimony supports Viad’s contention that
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    VIAD v. MONEYGRAM
    Decision of the Court
    because of the availability of an age 58 or later benefit, Credited Service,
    and thus a Credited Service cut-off, was not considered in calculating
    Bohannon’s benefit.
    ¶27           The extrinsic evidence also supports Viad’s position that
    MoneyGram is obligated to pay for Bohannon’s benefit using his Amended
    Employment Agreement. Testimony shows that Bohannon’s employment
    agreement was amended because of the spin off; the purpose of the
    amendment was to ensure that his retirement was not adversely affected by
    his salary changes resulting from the spin off.
    ¶28            Bohannon occupied a unique role in the spin off. He was the
    CEO of Viad and chairman of the Viad board prior to the spin off; for these
    roles he received a yearly salary of $900,000. In connection with the spin
    off, he retained his positions with Viad, and also served as a board member
    for MoneyGram to assist the new MoneyGram CEO. Thus, Bohannon’s
    yearly salary from Viad was reduced to $600,000, and he was paid a yearly
    salary of $300,000 by MoneyGram. This maintained Bohannon’s total
    annual salary of $900,000; however, because Bohannon’s pension benefits
    were connected to his employment at Viad, the result would have been a
    decrease in his benefits. MoneyGram board members were aware of the
    amendment and the reasons behind it—namely, to ensure that Bohannon
    would not experience a reduced pension as a result of the spin off.
    MoneyGram’s own CEO acknowledged that he knew Bohannon’s
    employment agreement would be amended in connection with the spin off.
    ¶29           Here, Viad presented uncontroverted extrinsic evidence
    supporting its interpretation of MoneyGram’s obligations under Section
    4.01 of the EBA. This evidence shows that MoneyGram was aware of its
    obligation, and in fact it contracted to pay the full amount of Bohannon’s
    benefits. MoneyGram’s response and attachments did not create a material
    fact dispute or otherwise rebut the evidence presented by Viad.
    Accordingly, the superior court correctly granted summary judgment for
    Viad on Bohannon’s benefit claims. See Eagle 
    Indus., 702 A.2d at 1232
    -33; see
    Federico v. Maric, 
    224 Ariz. 34
    , 36, ¶ 7 (App. 2010) (stating that we will affirm
    a grant of summary judgment if it is correct for any reason).
    IV.    The Hermansen and Smedstead Benefit Claims
    ¶30            MoneyGram argues the superior court erred in ordering it to
    pay benefits for former Viad employees Hermansen and Smedstead.
    Hermansen and Smedstead’s claims came to light during discovery and
    after Viad filed its Amended Complaint. MoneyGram argues that because
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    VIAD v. MONEYGRAM
    Decision of the Court
    their claims could not have been alleged in Viad’s Amended Complaint,
    they were not part of the court’s summary judgment ruling. MoneyGram
    also argues the court violated Rule of Civil Procedure 15(b) by allowing
    Hermansen and Smedstead’s claims to be tried by consent and amending
    the pleadings to conform to the evidence over its objection.
    ¶31            “Arizona is a notice pleading state, and therefore does not
    require extensive fact pleading.” Rosenberg v. Rosenberg, 
    123 Ariz. 589
    , 592-
    93 (1979). A pleading need only contain a statement of grounds for
    jurisdiction, “[a] short and plain statement of the claim showing that the
    pleader is entitled to relief,” and “[a] demand for judgment for the relief the
    pleader seeks.” Ariz. R. Civ. P. 8(a). The purpose of the pleading is to “give
    the opponent fair notice of the nature and basis of the claim and indicate
    generally the type of litigation involved.” Cullen v. Auto-Owners Ins. Co.,
    
    218 Ariz. 417
    , 419, ¶ 6 (2008) (quoting Mackey v. Spangler, 
    81 Ariz. 113
    , 115
    (1956)). “The test is whether enough is stated to entitle the pleader to relief
    on some theory of law susceptible of proof under the allegations made.”
    Verduzco v. Am. Valet, 
    240 Ariz. 221
    , 223, ¶ 9 (App. 2016).
    ¶32            Viad’s claims as pled encompassed the issue of payment for
    Hermansen’s and Smedstead’s benefits. The complaint alleged that
    MoneyGram had refused to pay for employee benefits it was obligated to
    pay under the EBA. The issue of whether MoneyGram was contractually
    bound to pay benefit plans for the more than 100 retirees involved the same
    facts and claims as the issue of Hermansen’s and Smedstead’s benefits.
    
    Verduzco, 240 Ariz. at 223
    , ¶ 11 (stating that where a party is put on notice
    of the plaintiff’s claim, the allegations in the complaint are sufficient).
    ¶33            MoneyGram received fair notice of the nature and basis of
    Viad’s claims for Hermansen and Smedstead. In its amended complaint,
    Viad alleged that pursuant to the EBA, MoneyGram agreed to “assume and
    be responsible for all payment obligations, responsibilities, and/or
    liabilities owed to certain former employees or other participants of Viad
    and/or Viad’s former subsidiaries and affiliates under the Viad SERPs,”
    which include the Viad Plan. Viad further alleged that MoneyGram
    informed Viad it would no longer make or would reduce supplemental
    pension payments under the Viad SERPS to “over 100” additional retirees.
    Additionally, Viad sought declaratory judgment “that MoneyGram is
    obligated, under the terms of the parties’ agreements, to pay pension and
    medical benefits, in amounts determined by Viad, to those retirees or other
    participants who are determined by Viad to be eligible for such benefits.”
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    VIAD v. MONEYGRAM
    Decision of the Court
    ¶34           MoneyGram reasons that the court’s summary judgment
    ruling referring to “105 retirees” could not have included Hermansen and
    Smedstead because the court’s rationale for granting judgment for this
    “group” of retirees could not factually support judgment for Hermansen
    and Smedstead. We agree that the court erred in grouping the benefit
    claims of Hermansen and Smedstead with the “individual pension
    arrangements reflected in ledger item 2650-515 on the Viad Corp General
    Ledger,” a catchall list of individuals eligible for benefits. However, “[w]e
    will affirm a grant of summary judgment if the trial court was correct for
    any reason.” 
    Federico, 224 Ariz. at 36
    , ¶ 7.
    ¶35          Based on the record, Viad was entitled to summary judgment
    regarding Hermansen’s and Smedstead’s benefits. The record contains
    undisputed facts showing that MoneyGram was obligated to pay for both
    Hermansen’s and Smedstead’s benefits under the EBA. Under Section 4.01
    of the EBA, MoneyGram assumed the obligation to pay benefits under the
    Viad SERPs and the Viad Plan. Smedstead is listed in Schedule C of the
    Viad Plan, a plan contained in the EBA’s definition of Viad SERPs.
    MoneyGram’s own internal document lists Smedstead as an individual
    covered by the Viad Corp SERP. Similarly, Hermansen is listed in the
    spreadsheet containing all SERP participants entitled to benefits.
    Hermansen is listed as a former employee of Premier Cruise Lines, and the
    record shows that MoneyGram is responsible to pay for Premier Cruise
    Lines SERPS. We find no error.
    V.     The Amended Judgment
    ¶36            In its cross-appeal, Viad argues the superior court erred in
    granting MoneyGram’s untimely request to amend the pre-judgment
    interest rate listed in the original judgment. Viad claims the court had no
    jurisdiction to amend the judgment because a notice of appeal had been
    filed before MoneyGram made its motion. Alternatively, Viad contends
    MoneyGram waived its right to challenge the interest rate in the judgment.
    Specifically, Viad argues that MoneyGram failed to object to the interest
    rate when Viad lodged its proposed final judgment with the court. Finally,
    Viad argues the superior court incorrectly applied A.R.S. § 44-1201 to
    reduce the pre-judgment interest rate.
    ¶37            We review a trial court’s grant of relief under Ariz. R. Civ. P.
    60(c) for an abuse of discretion. City of Phx. v. Geyler, 
    144 Ariz. 323
    , 328
    (App. 1985). In a case where the trial court’s decision has been appealed,
    “[a] trial court may not render any decision that would defeat or usurp an
    appellate court’s jurisdiction of a case on appeal.” State v. O’Connor, 171
    11
    VIAD v. MONEYGRAM
    Decision of the Court
    Ariz. 19, 21 (App. 1992). However, “a trial court retains jurisdiction to act
    so long as that act cannot negate the decision in a pending appeal or
    frustrate the appeal process.” 
    Id. at 22.
    ¶38           We conclude the superior court properly retained jurisdiction
    to consider Viad’s Rule 60(c) motion. MoneyGram initially appealed the
    substantive issues of whether it was obligated to pay the employee benefits
    for Bohannon, Hermansen, and Smedstead. As a result, the superior court’s
    decision to adjust the rate of pre-judgment interest did not negate the
    substantive issues pending on appeal or frustrate the appeal process.
    ¶39           The record also supports the court’s determination that
    MoneyGram did not waive its right to challenge the interest rate in the
    judgment. “Waiver generally requires a finding of intentional
    relinquishment of a known right or of conduct that would warrant such an
    inference.” Minjares v. State, 
    223 Ariz. 54
    , 58, ¶ 17 (App. 2009). Waiver is a
    question of fact; the trial court’s finding on the issue is binding on this court
    “unless we conclude that the finding is clearly erroneous.” 
    Id. ¶40 In
    its Rule 58(d) objection to Viad’s proposed final judgment,
    MoneyGram centered its arguments on whether Hermansen and
    Smedstead should be included in the final judgment. The court entered
    judgment over MoneyGram’s objections on December 5, 2014, and
    MoneyGram filed a timely notice of appeal. On January 16, 2015,
    MoneyGram filed its motion to correct the judgment seeking to change the
    interest rate to conform to its interpretation of A.R.S. § 44-1201. Based on
    these circumstances, the superior court found that MoneyGram did not
    waive its right to object to the interest rate in the judgment. We find no
    error.
    ¶41           Viad’s argument MoneyGram waived its objection
    mischaracterizes the different purposes of Rules 58(d) and 60(c). Ariz. R.
    Civ. P. 58(d) provides a party with the opportunity to object to the form of
    judgment. However, a party’s failure to object under Rule 58(d) does not
    automatically bar the party from seeking relief from a judgment under Rule
    60(c). In contrast, “[t]he purpose of [Rule 60] is to provide relief for those
    mistakes and errors which inevitably occur despite diligent efforts to
    comply with the rules.” See Maher v. Urman, 
    211 Ariz. 543
    , 550, ¶ 21 (App.
    2005) (quoting City of Phx. v. Geyler, 
    144 Ariz. 323
    , 332 (1985)).
    ¶42           Nonetheless, we conclude the superior court misconstrued
    A.R.S. § 44-1201, and, as a result, erred in reducing the rate of pre-judgment
    interest. Whether the superior court applied the correct interest rate in
    12
    VIAD v. MONEYGRAM
    Decision of the Court
    amending judgment is an issue of statutory interpretation we review de
    novo. Metzler v. BCI Coca-Cola Bottling Co. of Los Angeles, Inc., 
    235 Ariz. 141
    ,
    144, ¶ 13 (2014). When interpreting a statute “our primary purpose . . . is
    to give effect to the legislature’s intent.” 
    Id. We look
    to the plain meaning
    of the statute’s language and “construe statutes so as to give effect to the
    whole.” Villa de Jardines Ass’n v. Flagstar Bank, FSB, 
    227 Ariz. 91
    , 95, ¶ 7
    (App. 2011).
    ¶43             It is well established that pre-judgment interest is awarded as
    a matter of right on a liquidated claim. John C. Lincoln Hosp. & Health Corp.
    v. Maricopa Cty., 
    208 Ariz. 532
    , 542, ¶ 39 (App. 2004); Alta Vista Plaza Ltd. v.
    Insulation Specialists Co., Inc., 
    186 Ariz. 81
    , 82 (App. 1995). Here, section 44-
    1201(A) provides a 10% interest rate “on any loan, indebtedness or other
    obligation . . . unless a different rate is contracted for in writing.” A.R.S. §
    44-1201(A). The plain meaning of subsection (A) is that a liquidated claim
    accrues interest at 10% interest rate unless the underlying agreement
    provides for a different interest rate.
    ¶44           On the other hand, section 44-1201(B) provides “interest on
    any judgment shall be at the lesser of ten per cent per annum or at a rate
    per annum that is equal to one per cent plus the prime rate,” in this case
    4.25%. A.R.S. § 44-1201(B). Pre-judgment interest awarded under
    subsection (B) is interest on an amount that “depends on a judgment for its
    existence.” 
    Metzler, 235 Ariz. at 146
    , ¶ 19. Thus, the plain meaning of
    subsection (B) refers to unliquidated claims. See 
    Id. at 146,
    ¶ 20 (“[w]hat
    would otherwise be an unliquidated claim on which no pre-judgment
    interest is owed becomes liquidated, memorialized, and enforceable only
    when judgment is entered.”).
    ¶45            Here, MoneyGram’s contractual duty to pay employee
    benefit claims under the EBA is a liquidated claim. See John C. 
    Lincoln, 208 Ariz. at 544
    , ¶ 39 (“A claim is liquidated if the plaintiff provides a basis for
    precisely calculating the amounts owed.”). Accordingly, Viad was entitled
    to the 10% pre-judgment interest, and the court erred in amending the
    judgment.
    CONCLUSION
    ¶46           Viad was entitled to judgment on its claims for employee
    benefits due to Bohannon, Hermansen, and Smedstead. Although the court
    granted summary judgment based on an incorrect rationale as to
    Hermansen and Smedstead, these claims were encompassed in Viad’s
    pleadings and the record establishes that MoneyGram is required to pay
    13
    VIAD v. MONEYGRAM
    Decision of the Court
    these employees’ benefits under the EBA. Accordingly, we affirm the
    court’s grant of summary judgment for Viad.
    ¶47           We reverse, however, the superior court’s decision to lower
    the rate of pre-judgment interest in the amended judgment. We conclude
    that Viad is entitled to pre-judgment interest at a rate of 10% pursuant to
    A.R.S. § 44-1201(A). Thus, we reinstate the final judgment entered by the
    superior court on December 5, 2014.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    14