Opinion
No. 1 CA-CV 11-0332
02-28-2012
RLI INSURANCE COMPANY, a foreign corporation, Plaintiff/Appellee, v. LAURIE BILYEA, Defendant/Appellant.
Hammerman & Hultgren, PC Phoenix By Stanley M. Hammerman And Jennifer R. Spiegel Attorneys for Plaintiff/Appellee Laurie Bilyea Mesa Appellant in propria persona
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
MEMORANDUM DECISION
(Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2010-032222
The Honorable Donald Daughton, Judge
REVERSED IN PART; AFFIRMED IN PART
Hammerman & Hultgren, PC Phoenix By Stanley M. Hammerman And Jennifer R. Spiegel Attorneys for Plaintiff/AppelleeGOULD, Judge
Laurie Bilyea Mesa Appellant in propria persona
¶1 Appellant, Laurie Bilyea ("Wife"), appeals from the trial court's grant of summary judgment in favor of RLI Insurance Company ("RLI"). Because Wife's signature was required to bind Wife and the marital community to the indemnity contract, we reverse. With respect to the court's summary judgment on Wife's counterclaims, however, we affirm.
Factual and Procedural Background
¶2 On February 17, 2006, Thomas Bilyea ("Husband") signed an indemnity agreement as part of a contractor license and sales tax bond application. In doing so he agreed to indemnify RLI in connection with any bond executed on behalf of Paradise Home Builders, LLC ("Paradise"), of which he was a member. The language of the agreement stated he was "signing as a PERSONAL INDEMNITOR, on behalf of [his] MARITAL COMMUNITY, and in [his] CORPORATE PARTNERSHIP or LLC CAPACITY, if any." Wife was not a member of Paradise and did not sign the indemnity agreement. ¶3 In 2010, RLI filed a complaint in San Tan Justice Court alleging it had paid a third-party claim and was entitled to $5,772.10 plus interest and costs pursuant to the indemnity agreement. RLI named Paradise, Husband, and Wife as Defendants.The complaint alleged Husband was "acting on behalf of and for the benefit of [his] marital communit[y]." Defendants filed an answer stating that Wife and the marital community could not be bound by the agreement absent joinder and a counterclaim alleging fraud on the grounds that Wife and the marital community were improperly named as parties. Because the amount requested in the counterclaim exceeded the San Tan Justice Court's jurisdiction, the case was transferred to the Maricopa County Superior Court. ¶4 In superior court, Wife, acting as an individual and on
RLI also named Lance Coleman and Jane Doe Coleman; however, the parties stipulated to dismiss the claims as to the Colemans with prejudice.
behalf of the marital community, filed a motion for summary judgment. She argued that because only Husband had signed the indemnity agreement, all claims against Wife and the marital community should be dismissed because Arizona Revised Statutes ("A.R.S.") section 25-214(C)(2) requires joinder to bind the community in indemnity agreements. Wife also requested punitive damages be awarded against RLI for its fraudulent claims against her and the community. RLI filed a cross motion for summary judgment reiterating that Husband signed the agreement on behalf of his marital community, and thus, he and the community were bound. The court granted summary judgment in favor of RLI and against Defendants and entered a judgment directing that RLI recover from Defendants. Wife appealed.
Discussion
¶5 Where cross motions for summary judgment have been filed, we may review the trial court's judgment and "enter summary judgment as a matter of law for a party if the trial court erroneously entered summary judgment against that party." Aaron v. Fromkin, 196 Ariz. 224, 227, ¶ 10, 994 P.2d 1039, 1042 (App. 2000). We view the facts in the light most favorable to the party opposing the judgment. Hartford Accident & Indem. Co. v. Fed. Ins. Co., 172 Ariz. 104, 107, 834 P.2d 827, 830 (1992). We look to determine whether there is a genuine issue of material fact, and if there is none, whether the trial court correctly applied the law. Aaron, 196 Ariz. at 227, 994 P.2d at 1042.
¶6 The material facts are undisputed. Husband signed the indemnity agreement with RLI, but Wife did not. The language of the agreement indicated Husband was signing as personal indemnitor, on behalf of his marital community, and in his corporate, partnership, or LLC capacity.
¶7 In Arizona, a spouse cannot bind the marital community without joinder of both spouses in "[a]ny transaction of guaranty, indemnity or suretyship." A.R.S. § 25-214(C)(2). We have found that the plain meaning of this statute is clear in its requirement that "both spouses must execute a guaranty in order to bind the community." Consol. Roofing & Supply Co.r Inc. v. Grimm, 140 Ariz. 452, 458, 682 P.2d 457, 463 (App. 1984); Vance-Koepnick v. Koepnick, 197 Ariz. 162, 163, ¶ 5, 3 P.3d 1082, 1083 (App. 1999) (explaining that community is not bound when guaranty is not signed by both spouses); First Interstate Bank of Ariz. N.A. v. Tatum and Bell Ctr. Assocs. , 170 Ariz. 99, 104, 821 P.2d 1384, 1389 (App. 1991) (same). Without Wife's signature, Husband's representation to be signing on behalf of the community does not bind the community. See All-Way Leasing, Inc. v. Kelly, 182 Ariz. 213, 216, 895 P.2d 125, 128 (App. 1994) ("The statute draws a bright and readily understandable line: one who wishes to bind a marital community in a statutorily designated transaction must get both spouses to sign.").
Counterclaim
¶8 Defendants' counterclaim is based primarily upon the allegation that RLI fraudulently named Wife as a party. Our review of the record indicates that the trial court's basis for dismissing Defendants' counterclaim was its conclusion that Wife was properly named as a party. "[N]o authority exists in Arizona for a fraud claim against an adversary or an adversary's attorney based on statements made during litigation." Linder v. Brown & Herrick, 189 Ariz. 398, 407-08, 943 P.2d 758, 767-68 (App. 1997). Although Wife was improperly named as a party, we affirm the court's dismissal of Defendants' counterclaim. See Ness v. Western Sec. Life Ins. Co., 174 Ariz. 497, 502, 851 P.2d 122, 127 (App. 1992) ("We may uphold a judgment on grounds different from those cited by the trial court.").
Conclusion
¶9 This appeal was filed on behalf of Wife and the marital community. Thus, the judgment for RLI against Paradise and Husband is final. Because Wife and the marital community could not be bound to the indemnity contract without Wife's signature, we reverse the grant of RLI's motion for summary judgment and direct that Wife's motion for summary judgment of RLI's claims be granted. For the reasons discussed above, however, we affirm the court's grant of RLI's motion for summary judgment with respect to Wife's counterclaims. Finally, we deny Wife's request for attorneys' fees. See Connor v. Cal-Az Props., Inc. , 137 Ariz 53, 56, 668 P.2d 896, 899 (App. 1983) ("[A] party who represents himself in litigation has no right to be compensated by the payment of attorneys' fees.").
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ANDREW W. GOULD, Judge
CONCURRING:
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MAURICE PORTLEY, Presiding Judge
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ANN A. SCOTT TIMMER, Judge