High Stakes v. Garver

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HIGH STAKES COMMUNICATION, LLC, Plaintiff/Appellee,

v.

STEVEN M. GARVER, et al., Defendants/Appellants.

No. 1 CA-CV 23-0792
FILED 09-10-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-000138
The Honorable John R. Hannah Jr., Judge

AFFIRMED

COUNSEL

Limon-Wynn Law PLLC, Tempe
By Monica A. Limon-Wynn
Counsel for Plaintiff/Appellee

James M. Mack PLC, Phoenix
By James M. Mack
Counsel for Defendant/Appellant
 HIGH STAKES v. GARVER, et al.
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MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe
joined.

C A T L E T T, Judge:

¶1 Garver Law Offices, P.C. (“Garver Law”), a Virginia law firm,
appeals the superior court’s final judgment in favor of High Stakes
Communication, LLC (“High Stakes”). The superior court concluded
Arizona has specific personal jurisdiction over Garver Law, Garver Law is
liable to High Stakes for breach of contract, and High Stakes was entitled to
the full amount of its attorney fees. Garver Law challenges all three
decisions. We agree with the superior court across the board and affirm the
judgment.

FACTS AND PROCEDURAL HISTORY

¶2 High Stakes is an Arizona corporation that assists attorneys
in preparing witnesses for depositions and trials. Deborah Johnson
(“Johnson”) is its principal. Garver Law is a Virginia professional
corporation, which operates as a law firm.

¶3 In January 2020, Johnson gave a presentation in Virginia
discussing High Stakes’ services and providing tips and strategies for
dealing with challenging witnesses. Steven Garver (“Garver”), a Virginia
attorney who works for Garver Law, attended the presentation. Nine
months later, Garver called High Stakes’ Arizona phone number, which
was included on the presentation materials, and requested assistance with
Garver Law’s client, who had a deposition scheduled the following month.
Johnson agreed to provide witness-preparation services at a rate of $275 per
hour and estimated it would take a total of “15-20+” hours to complete the
work. High Stakes sent Garver Law an agreement reflecting those terms
and requesting a $1,000 retainer. Garver Law signed the agreement and
sent a check for the retainer to High Stakes in Arizona.

¶4 Johnson began her work by meeting with Garver Law’s client
three times a week for two hours at a time. Johnson sent frequent emails to

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Garver and his associate, Deb Mayer (“Mayer”), updating them on the work
she was doing with the client and the progress being made.

¶5 Throughout the year, the deposition was rescheduled
multiple times. At one point, Johnson informed Garver that it would not
be beneficial for her to continue working with Garver Law’s client until
closer to the rescheduled deposition date, but Garver requested that
Johnson maintain at least weekly contact with the client. Johnson complied,
conducting numerous sessions with the client, each lasting between one
and two hours, and keeping Garver and Mayer apprised of her work.

¶6 In August 2021, High Stakes sent Garver Law a partial invoice
reflecting approximately 49 hours of work; Garver Law refused to pay.
High Stakes ceased further work.

¶7 After Garver Law continued refusing to pay, High Stakes
sued it and Garver in Maricopa County to recover the amounts owed under
the agreement. Garver Law moved to dismiss the complaint for lack of
personal jurisdiction. The superior court held an evidentiary hearing and
concluded Arizona has specific personal jurisdiction over Garver Law.
High Stakes then moved for summary judgment on the merits, which the
court granted as to High Stakes’ breach of contract claim against Garver
Law. High Stakes voluntarily dismissed its remaining claims and Garver
as a defendant. The superior court awarded High Stakes its attorney fees
and entered final judgment against Garver Law.

¶8 Garver Law timely appealed. We have jurisdiction. See A.R.S.
§§ 12-2101(A)(1), 12-120.21(A)(1).

DISCUSSION

I. Specific Personal Jurisdiction

¶9 Garver Law argues Arizona lacks specific personal
jurisdiction over it. In Garver Law’s view, it lacked the necessary minimum
contacts with Arizona because its conduct was a “direct result” of High
Stakes’ “unilateral acts.” We review de novo the superior court’s decision
on personal jurisdiction. Ariz. Tile, L.L.C. v. Berger, 223 Ariz. 491, 493 ¶ 8
(App. 2010).

¶10 Arizona courts “exercise personal jurisdiction to the
maximum extent allowed by the United States Constitution.” Plan. Grp. of
Scottsdale, L.L.C. v. Lake Mathews Min. Props., Ltd., 226 Ariz. 262, 265 ¶ 12
(2011) (citing Ariz. R. Civ. P. 4.2(a)). Personal jurisdiction can take one of

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two forms: general or specific. Id. ¶ 13. High Stakes relies only on specific
personal jurisdiction.

¶11 Specific jurisdiction is limited to a particular claim and only
arises when a defendant’s activities in the forum state have established
“sufficient contacts” “such that the maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’” Id. at 266 ¶ 14
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Thus, a court
must determine if a defendant’s contacts with the forum “make it
reasonable . . . to require the [defendant] to defend the particular suit which
is brought there.” Id.

¶12 “To determine whether [a defendant] is subject to the
jurisdiction of Arizona, we examine the totality of its jurisdictional
contacts.” Hoag v. French, 238 Ariz. 118, 123 ¶ 20 (App. 2015). Jurisdiction
is proper only when a defendant’s actions “create a ‘substantial connection’
with” Arizona—a plaintiff’s unilateral actions cannot create specific
jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); Batton
v. Tenn. Farmers Mut. Ins. Co., 153 Ariz. 268, 271 (1987). There must also be
a “causal nexus between the defendant’s forum contacts and the particular
claims asserted[.]” Beverage v. Pullman & Comley, LLC, 232 Ariz. 414, 420
¶ 24 (App. 2013). While entering a contract with a resident of the forum
does not automatically create specific jurisdiction, if a defendant “reach[es]
out beyond one state and create[s] continuing relationships and obligations
with [a] citizen[] of another state,” that defendant is “subject to regulation
and sanctions in the [forum state] for the consequences of their activities.”
Burger King, 471 U.S. at 473.

¶13 Garver Law claims it “did not engage in purposeful conduct
in, or directed to, Arizona” because High Stakes solicited Garver Law’s
business in Virginia and there was never any indication that High Stakes is
an Arizona corporation. The record demonstrates otherwise.

¶14 Nine months after Garver attended an event in Virginia
where Johnson described High Stakes’ services, he contacted High Stakes
at its Arizona phone number and requested its services. Garver admitted
he called the 602-area code associated with High Stakes’ phone number. He
also admitted he knew Johnson, High Stakes’ principal, was an Arizona
resident. The proposed agreement High Stakes sent to Garver Law listed
High Stakes’ Arizona phone number and an Arizona business address. To
finalize the contractual relationship, Garver Law sent the retainer check to
High Stakes’ Arizona address.

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¶15 Garver Law, through Garver and Mayer, and High Stakes,
through Johnson, then worked together for almost a year. During that time,
Garver and Mayer repeatedly communicated with Johnson over email.
Notably, the signature line in Johnson’s emails touted her affiliations with
Arizona associations, including the Maricopa County Bar Association and
the Maricopa County Association of Family Mediators.

¶16 High Stakes did not unilaterally control the length or scope of
the business relationship. To the contrary, Garver Law repeatedly reached
out to ask for more or different assistance from High Stakes. In May 2021,
Garver asked Johnson to speak and work with the client’s therapist. And
on other occasions, Garver asked Johnson to continue working for the client
despite delays in the client’s deposition. At one point, Garver told Johnson
that he thought “keeping the connection [with the client] at least 1x per
week is important . . . maybe even 2x per week.”

¶17 While Garver Law learned of High Stakes and its services at
a conference in Virginia, High Stakes did nothing more to solicit Garver
Law’s business. Rather, the parties’ contractual relationship was formed
only after Garver Law contacted High Stakes and requested its services.
Garver Law then entered an agreement with High Stakes, knowing it had
an Arizona phone number and address and that its primary contact
(Johnson) was an Arizona resident. Garver Law then maintained that
relationship with High Stakes for almost a year, during which Garver Law
continued to request High Stakes’ services. Garver Law, therefore,
knowingly created a continuing contractual relationship with an Arizona-
based business and established the necessary minimum contacts for
Arizona to exercise personal jurisdiction. See Burger King, 471 U.S. at 473.

¶18 There also was a causal nexus between the claims High Stakes
asserted and Garver Law’s actions, and it was reasonable for Arizona to
exercise personal jurisdiction. See Beverage, 232 Ariz. at 420 ¶ 24. High
Stakes’ claims sought to recover amounts owed for services High Stakes
performed under a contract Garver Law requested, approved, and
benefitted from. And there was no evidence that requiring Garver Law to
defend High Stakes’ claims in Arizona would be burdensome. See id. ¶ 27.
The superior court did not err by exercising specific personal jurisdiction
over High States’ claims against Garver Law. See id.

II. Summary Judgment

¶19 Next, Garver Law argues the superior court erred in granting
High Stakes’ summary judgment motion because, while Garver law

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acknowledges the facts are undisputed, it contends there was a dispute
about whether High Stakes’ conduct was reasonable. We review the
superior court’s grant of summary judgment de novo, affirming if there are
no genuine disputes 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 view the record in the light most
favorable to Garver Law, the non-moving party. Dinsmoor v. City of Phoenix,
251 Ariz. 370, 373 ¶ 13 (2021).

¶20 Garver Law claims it was unreasonable for High Stakes to
exceed the “15-20+” hour estimate included in the contract without
expressly informing Garver Law it was doing so. High Stakes contends its
actions were reasonable because the contract stated the “15-20+” hours was
only an estimate. And High Stakes contends Garver Law was aware of the
work High Stakes was doing and consistently requested additional
services. We agree with High Stakes.

¶21 We start with the language in the contract. As High Stakes
points out, that language did not list a maximum number of hours High
Stakes could or would spend on the engagement. The contract instead
reflected only that High Stakes estimated that 15-20 hours would be required
and that Garver Law would charge $275 per hour worked. But High Stakes
expressly indicated—by using the “+” sign next to the estimate—that the
hours could exceed the estimate, and Garver Law agreed. The contract also
did not require High Stakes to inform Garver Law how many hours had
been expended at any point or require High Stakes to obtain approval
before exceeding a certain number of hours. The contract also did not
require High Stakes to provide an invoice to Garver Law on a periodic basis.
Rather, it stated only that “[f]inal payment is due within 10 days of receipt
of invoice.”

¶22 Garver Law does not cite authority supporting its argument
that High Stakes cannot recover under its breach of contract claim if the
hours charged were unreasonable. High Stakes was, however, required to
act in good faith in carrying out the contract with Garver Law. If, for
example, High Stakes exercised discretion under the contract to bill hours
in such a manner as to deprive Garver Law of “a reasonably expected
benefit of the bargain,” Garver Law might be excused from performance, at
least in part. See Southwest Sav. & Loan Assoc. v. SunAmp Sys., Inc., 172 Ariz.
553, 558 (App. 1992). “The question is whether the jury might reasonably
have found that [High Stakes] wrongfully exercised” its power to bill on a
per-hour basis “for a reason beyond the risks” that Garver Law assumed in

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its agreement with High Stakes, “or for a reason inconsistent with [Garver
Law’s] ‘justified expectations.’” Id. at 559. (citations omitted).

¶23 Garver Law did not establish that a jury could reasonably find
that High Stakes wrongfully exercised its discretion under the contract to
work the number of hours needed to prepare Garver Law’s client for her
deposition. Garver Law has never disputed that it requested all services
High Stakes provided or that High Stakes contemporaneously informed it
what those services were. Those services included numerous sessions, over
a period of months, between Johnson and the client or her therapist, many
of which Garver Law requested. As Garver Law requested more and more
services, and the length of the contractual relationship extended, Garver
never requested an interim invoice or an update as to the number of hours
expended. Thus, Garver Law knew about, and assumed, the risk that High
Stakes had performed more than 15-20 hours to prepare its client for her
deposition, and that it would eventually have to pay for those services. And
no jury could reasonably conclude that requiring Garver Law to pay $275
per hour for the time expended to prepare its client is inconsistent with
Garver Law’s justified expectations under the contract. The superior court
did not err in granting summary judgment in favor of High Stakes on its
breach of contract claim.

III. Attorney Fees

¶24 Finally, Garver Law argues that the superior court abused its
discretion by failing to reduce High Stakes’ attorney fees award because
High Stakes did not succeed on all of its claims, including its claims against
Garver personally. We will not reverse an attorney fee award absent an
abuse of discretion. Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265 ¶ 18
(App. 2004). The superior court awarded High Stakes its attorney fees
under A.R.S. § 12-341.01, which permits an award to the prevailing party in
an action arising out of contract. When awarding fees under A.R.S. § 12-
341.01, the superior court “may consider the portion of fees that contributed
to the prevailing party’s success.” Henry v. Cook, 189 Ariz. 42, 44 (App. 1996)
(emphasis added).

¶25 High Stakes voluntarily dismissed its non-contract claims
against Garver Law and its claims against Garver after obtaining summary
judgment on its contract claim against Garver Law. To the extent that
voluntary dismissal means High Stakes did not prevail against Garver
(which we do not decide), Garver Law did not identify for the superior
court (or us) any fees that High Stakes incurred solely in connection with
its non-contract claims or its claim against Garver. In other words, Garver

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Law did not establish that High Stakes’ attorneys spent additional time
above that required to succeed on High Stakes’ contract claim against
Garver Law. The superior court did not abuse its discretion in awarding
High Stakes the full amount of attorney fees requested.

¶26 Finally, Garver Law argues that High Stakes failed to disclose
the terms of its fee agreement with its attorney as required by Arizona Rule
of Civil Procedure 54(g)(4). This is inaccurate. In an affidavit in support of
its application for attorney fees, one of High Stakes’ attorneys disclosed that
“[t]he Firm billed High Stakes . . . on an hourly basis” and disclosed the
hourly rate of each attorney and paralegal who worked on this matter.

ATTORNEY FEES

¶27 Both parties request their attorney fees on appeal under
A.R.S. § 12-341.01. As the prevailing party on appeal, we award High
Stakes its reasonable attorney fees and costs upon compliance with Arizona
Rule of Civil Appellate Procedure 21. Because Garver Law is not the
prevailing party on appeal, we deny its request for attorney fees.

CONCLUSION

¶28 We affirm the superior court’s judgment.

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

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