Garsha v. Hill

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GARY GARSHA, Plaintiff/Appellant,

v.

CLAIRE HILL, et al., Defendants/Appellees.

No. 1 CA-CV 22-0109
FILED 2-2-2023

Appeal from the Superior Court in Maricopa County
No. CV2019-055926
The Honorable Sally Schneider Duncan, Judge (Retired)

AFFIRMED

COUNSEL

Nearhood Law Offices PLC, Scottsdale
By Patricia A. Premeau
Counsel for Plaintiff/Appellant

Dessaules Law Group, Phoenix
By Jonathan A. Dessaules, F. Robert Connelly, David E. Wood
Counsel for Defendants/Appellees
 GARSHA v. HILL
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Randall M. Howe joined.

P E R K I N S, Judge:

¶1 Gary Garsha appeals the entry of summary judgment in favor
of Claire Hill on multiple claims arising from an alleged loan agreement
between the parties. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties met while working together overseas. Garsha is a
United States citizen, and Hill is from the United Kingdom. They moved to
Arizona and married in 2014.

¶3 According to Garsha, he loaned Hill $36,200, and she
promised to repay him by buying a home in both their names. Garsha wired
the funds both before and during the marriage. Hill deposited the funds in
a foreign bank account. They divorced in 2018, but had not bought a home
together.

¶4 In the dissolution, Garsha signed a consent decree, which
stated that he agreed to it voluntarily and without duress or coercion. The
decree awarded Hill the foreign bank account as her separate property with
no offset to Garsha and no mention of any outstanding loan. The consent
decree also released all claims arising “by reason of the marital relationship
existing between the parties under any present or future law or that he or she
otherwise has or might have or be entitled to claim in or against the property and
assets of the other . . . . ” (Emphasis added).

¶5 The parties continued to live together after the divorce.
According to Garsha, they divorced only “on paper” and intended to
remarry and buy a home in both their names. Instead, Hill bought a
condominium in 2019 and titled it to the Claire E. Hill Trust, dated
September 14, 2016 (“the Trust”), without telling Garsha. Garsha is not a
beneficiary of the Trust. A month later, Hill ended their relationship and
moved into the condominium.

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Decision of the Court

¶6 Garsha then sued Hill, asserting ten claims related to the
$36,200 he wired to Hill, which he calls “the Loan.” He alleged breach of
this loan, fraud, promissory estoppel, unjust enrichment, conversion,
pattern of unlawful activity, intentional infliction of emotional distress
(“IIED”), equitable lien, constructive trust, and “money had and received.”
The superior court granted Hill’s motion to dismiss the claim for pattern of
unlawful activity but declined to dismiss the IIED claim or the remaining
claims, finding the release in the consent decree was ambiguous about the
parties’ intent. The court thereafter granted the Trust summary judgment
on all claims, finding it was not a proper litigant. The court granted Hill’s
motion for summary judgment on the remaining counts without comment
and awarded a portion of her attorneys’ fees and costs. Garsha timely
appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 We review the superior court’s grant of summary judgment
de novo, affirming if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. See Ariz. R. Civ. P.
56(a); Williamson v. PVOrbit, Inc., 228 Ariz. 69, 71, ¶ 11 (App. 2011). We may
affirm the grant of summary judgment on any grounds raised in the
superior court. See Zuck v. State, 159 Ariz. 37, 42 (App. 1988).

I. Claims Related to the $36,200

¶8 Hill contends that the release in the consent decree bars
Garsha’s claims related to the $36,200. In a related argument, Hill asserts
that res judicata and judicial estoppel preclude Garsha from taking positions
contrary to the consent decree. Garsha responds that the release is
ambiguous, which was the reason the superior court denied Hill’s motion
to dismiss; therefore, the release does not justify the grant of summary
judgment.

¶9 The interpretation of the consent decree, like a contract, is a
question of law or a mixed question of law and fact, both subject to de novo
review. See In re Gen. Adjudication of All Rts. to Use Water in Gila River Sys. &
Source, 212 Ariz. 64, 72, ¶ 24 n.12 (2006) (“[W]e are mindful that ‘since
consent decrees . . . have many of the attributes of ordinary contracts, they
should be construed basically as contracts.’”) (quoting United States v. ITT
Cont’l Baking Co., 420 U.S. 223, 236 (1975)). Deciding whether a contract is
ambiguous is a question of law. Hartford v. Indus. Comm’n of Ariz., 178 Ariz.
106, 111 (App. 1994).

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¶10 Hill contends the release bars all claims related to the alleged
loan. Garsha argues the release applies only to claims that arise out of the
marital relationship and does not apply here because his claims arose after
the decree. “The mere fact that the parties disagree as to the meaning of
language contained in the agreement is not sufficient to create an
ambiguity.” United California Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238,
258 (App. 1983).

¶11 The parties agreed to release all claims “by reason of the
marital relationship . . . or that he or she otherwise has or might have or be entitled
to claim in or against the property or assets of the other, . . . whether now owned or
hereafter in any manner acquired by the other party . . . .” (Emphasis added).
The release also waives the right to sue the other party “for the purpose of
enforcing any or all of the rights relinquished under this Decree.”

¶12 The release is not ambiguous. It distinguishes between claims
arising from the marital relationship and claims “otherwise” arising. Thus,
it is not limited to claims arising during the marriage. Garsha’s construction
would render meaningless the reference to claims that a party “otherwise . . .
might have[.]” This language also recognizes there may be future claims and
releases all claims one party may have against the other’s current or future
property or assets. The release also states that it is a “complete defense” to
any future suit between the parties. The unambiguous release bars all
claims related to the $36,200 or the alleged loan.

¶13 Garsha attempts to avoid the release by arguing that he was
fraudulently induced into signing the consent decree. The proper
procedure to challenge the decree on the grounds that it was fraudulently
induced is a motion to alter or amend the decree or a motion for relief from
the decree. See Ariz. R. Fam. Law P. (“Rule”) 83, 85. A separate action to
return funds awarded to Hill in the decree is an improper collateral attack
on the decree.

¶14 Garsha correctly points out that Hill did not raise this
argument based on Rule 83 or Rule 85 in the superior court. An argument
raised for the first time on appeal is generally untimely and deemed
waived. Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18 (App. 2007).
But Hill raised the release as a defense in the summary judgment
proceedings, and the waiver rule is procedural not jurisdictional. Id. “If
application of a legal principle, even if not raised below, would dispose of
an action on appeal and correctly explain the law, it is appropriate for [the
appellate court] to consider the issue.” Evenstad v. State, 178 Ariz. 578, 582

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(App. 1993). Garsha cannot seek to avoid the release in the consent decree
by filing this separate action.

¶15 The superior court did not err by entering summary judgment
against Garsha for claims related to the alleged loan because he released all
such claims in the consent decree. Having affirmed summary judgment on
these grounds, we need not address the other arguments raised in Hill’s
summary judgment motion.

II. Intentional Infliction of Emotional Distress Claim

¶16 To state a claim for IIED, the plaintiff “must show the
defendant caused severe emotional distress by committing extreme and
outrageous conduct with the intent to cause emotional distress or with
reckless disregard of the near-certainty that such distress would result.”
Shepherd v. Costco Wholesale Corp., 246 Ariz. 470, 475, ¶ 19 (App. 2019),
vacated in part on other grounds, 250 Ariz. 511 (2021). The superior court
makes a preliminary decision whether the conduct is “extreme and
outrageous,” allowing the claim to go to the jury only if reasonable minds
may differ. Nelson v. Phoenix Resort Corp., 181 Ariz. 188, 199 (App. 1994).

¶17 Assuming as true Garsha’s claim that Hill married him for
financial or other undisclosed reasons, this conduct does not approach the
level of outrageousness needed to prove intentional infliction of emotional
distress. The “conduct necessary to sustain an [IIED] claim falls at the very
extreme edge of the spectrum of possible conduct.” Watts v. Golden Age
Nursing Home, 127 Ariz. 255, 258 (1980); see also Restatement (Second) of
Torts § 46 cmt. d (1965) (“Liability has been found only where the conduct
has been so outrageous in character, and so extreme in degree, as to go
beyond all bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. . . . There is no occasion for the law to
intervene in every case where some one’s feelings are hurt.”); Ford v. Revlon,
Inc., 153 Ariz. 38, 43 (1987) (Arizona follows the standard for liability set
forth in Restatement (Second) of Torts § 46). Although Hill’s alleged
conduct was hurtful and possibly deceitful, it does not give rise to an IIED
claim. The superior court did not err in dismissing this claim.

III. Dismissal of All Claims Against the Trust

¶18 Garsha argues that the superior court erred in dismissing all
claims against the Trust instead of allowing him to amend the complaint to
name the Trust as a defendant in the correct form. Because we have
affirmed the judgment for Hill on all claims, amending the complaint to
properly name the Trust as a defendant would be futile. See Stair v. Maricopa

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County, 245 Ariz. 357, 366, ¶ 37 (App. 2018) (denial of leave to amend
complaint is appropriate when amendment would be futile). The court did
not err by dismissing the Trust.

IV. Constructive Trust Claim

¶19 Garsha sought a constructive trust for the condo on the
grounds that Hill used the $36,200 for the down payment. We review the
availability of this equitable remedy de novo. Cal X-Tra v. W.V.S.V. Holdings,
L.L.C., 229 Ariz. 377, 409, ¶ 106 (App. 2012).

¶20 “A constructive trust is typically imposed when there is a
wrongful holding of property which unjustly enriches the defendant at the
expense of the plaintiff.” Burch & Cracchiolo, P.A. v. Pugliani, 144 Ariz. 281,
286 (1985). Because Garsha released any interest in the $36,200 when he
signed the consent decree, Hill did not wrongfully retain the funds. Garsha
was not entitled to a constructive trust and the superior court did not err by
granting summary judgment on this claim.

V. Attorneys’ Fees and Costs on Appeal

¶21 Hill requests an award of attorneys’ fees and costs on appeal
under A.R.S. § 12-341.01. Garsha did not respond to the fee request. The
decision to award fees under § 12-341.01(A) is discretionary. Ader v. Estate
of Felger, 240 Ariz. 32, 45, ¶ 48 (App. 2016). After considering the relevant
factors identified in Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570
(1985), we grant Hill’s request for a reasonable amount of attorneys’ fees
upon compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶22 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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