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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                      EMILY VIVIAN, Plaintiff/Appellant,

                                         v.

                   CASIE RHAE COBB, Defendant/Appellee.

                              No. 1 CA-CV 18-0240
                                FILED 1-29-2019


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-011596
              The Honorable Hugh E. Hegyi, Judge (retired)

                                   AFFIRMED


                                    COUNSEL

Piekarski & Brelsford P.C., Phoenix
By Christopher J. Piekarski
Counsel for Plaintiff/Appellant

Jennings, Strouss & Salmon, P.L.C., Phoenix
By Jennifer R. Erickson, Ryan B. Johnson
Counsel for Defendant/Appellee
                             VIVIAN v. COBB
                            Decision of the Court




                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


M c M U R D I E, Judge:

¶1          Emily Vivian challenges the superior court’s summary
judgment ruling finding she had released her negligence claim against
Casie Rhae Cobb. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             This case arises out of an October 2015 motor vehicle accident.
Vivian was injured while driving when her vehicle collided with Cobb’s
vehicle. Cobb’s vehicle was registered to Cory Baber. Vivian made a
demand through counsel on Baber’s insurer, Allstate Fire and Casualty
Insurance Company (“Allstate”), in June 2016. Vivian accepted Allstate’s
policy limits of $15,000 and signed a “Release of All Claims” (the “Release”)
that stated in relevant part:

       This Indenture Witnesseth that we in consideration of the
       sum of fifteen thousand 00/100 dollars ($15,000.00), receipt
       whereof is hereby acknowledged, do hereby for our heirs,
       personal representatives and assign [sic], release and forever
       discharge Carolyn Baber, Cory Baber, Casie Cobb, and
       Allstate Fire and Casualty Insurance Company and any other
       person, firm or corporation charged or chargeable with
       responsibility of liability, their heirs, representative [sic] or
       assigns, form [sic] any and all claims, demands, damages,
       costs, expenses, loss of service, action and causes of action
       arising from any act or occurrence up to the present time, and
       particularly on account of all personal injury, disability,
       property damage, loss or damage of any kind sustained or
       that we may hereafter sustain in consequence of an accident
       that occurred on or about the 20th day of October, 2015 . . . .

Vivian then made a demand on Cobb’s insurer, GEICO. When GEICO
refused to pay the claim, Vivian sued Cobb.



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                             VIVIAN v. COBB
                            Decision of the Court

¶3           Cobb moved for summary judgment, arguing Vivian had
released her claim via the language quoted above. The court agreed and
entered judgment for Cobb. Vivian timely appealed. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

                               DISCUSSION

¶4             On review of a grant of summary judgment, we determine de
novo whether any genuine issues of material fact exist and whether the
superior court properly applied the law. Sign Here Petitions LLC v. Chavez,
243 Ariz. 99, 104, ¶ 13 (App. 2017). We view the facts and reasonable
inferences therefrom in the light most favorable to the non-prevailing party.
Rasor v. Nw. Hosp., LLC, 243 Ariz. 160, 163, ¶ 11 (2017). Summary judgment
should be granted only “if the facts produced in support of [a]
claim . . . have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim.” Orme Sch. v. Reeves, 166 Ariz. 301,
309 (1990).

¶5             We also review the superior court’s interpretation of the
Release de novo. See ELM Retirement Ctr., LP v. Callaway, 226 Ariz. 287, 290,
¶ 15 (App. 2010). Our goal is to ascertain and enforce the parties’ intent by
“look[ing] to the plain meaning of the words as viewed in the context of the
contract as a whole.” Id. at 290–91, ¶ 15 (quoting United Cal. Bank v.
Prudential Ins. Co., 140 Ariz. 238, 259 (App. 1983)).

A.     The Release Is Not Ambiguous.

¶6             Vivian contends the Release was ambiguous because it “only
[made] reference to [the] Allstate claim number . . . and did not incorporate
or reference [Cobb’s] GEICO policy in any way.” Language in a contract is
ambiguous if it can reasonably be construed to have more than one
meaning. In re Estate of Lamparella, 210 Ariz. 246, 250, ¶ 21 (App. 2005). Such
is not the case here. While the Release did not reference Cobb’s GEICO
policy, it expressly named Cobb and therefore included Vivian’s claims
against her. See A.R.S. § 12-2504(1) (a release “given in good faith to one of
two or more persons liable in tort for the same injury . . . does not discharge
any of the other tortfeasors from liability for the injury or wrongful death
unless its terms so provide” (emphasis added)).

¶7           Vivian also contends the parties’ pre-Release settlement
discussions “explicitly confirm her right to pursue further recovery against
GEICO.” She maintains the parties “had no intention of releasing . . . Cobb
or her insurance carrier” and that they “stated the opposite in their


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                              VIVIAN v. COBB
                             Decision of the Court

communications,” broadly citing her entire controverting statement of
facts. But we only consider the surrounding circumstances if the contract is
ambiguous. Desarrollo Immobiliario y Negocios Industriales De Alta Tecnologia
De Hermosillo, S.A. De C.V. v. Kader Holdings Co. Ltd., 229 Ariz. 367, 371, ¶ 12
(App. 2012). And parol evidence of pre-release discussions only is
admissible if the Release is reasonably susceptible to Vivian’s
interpretation. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 154
(1993). The contention that the Release did not extend to Cobb flatly
contradicts its plain language; as such, parol evidence is inadmissible. See
Long v. City of Glendale, 208 Ariz. 319, 329, ¶ 34 (App. 2004) (“[O]ne cannot
claim that one is ‘interpreting’ a written clause with extrinsic evidence if the
resulting ‘interpretation’ unavoidably changes the meaning of the
writing.”).

¶8             Moreover, even if the correspondence attached to Vivian’s
controverting statement of facts was admissible, nothing therein supports
her interpretation of the Release. At most, the correspondence establishes
that Allstate told her Cobb had set up a claim with GEICO, a fact that has
no bearing on the Release.

B.     Cobb is a Third-Party Beneficiary of the Release.

¶9            Vivian also contends the parties did not intend to make Cobb
a third-party beneficiary of the Release, citing Spain v. General Motors Corp.,
171 Ariz. 226 (App. 1992). There, the plaintiff signed a release as part of a
motor vehicle injury settlement that discharged the insurer, its insureds,
“and any other person, firm or corporation charged or chargeable with
responsibility or liability.” Id. at 226–27. The plaintiff then sued the
manufacturers of the insureds’ vehicle, alleging a defective seat belt
contributed to her injury. Id. at 227. This court concluded the release did not
include the manufacturers because: (1) neither party expressed any
intention to release them; and (2) the release did not expressly name them.
Id.

¶10            This case differs from Spain because the Release expressly
named Cobb. Cf. Norton v. First Fed. Sav., 128 Ariz. 176, 178 (1981) (“[I]n
order for a person to recover as a third-party beneficiary of a contract, an
intention to benefit that person must be indicated in the contract itself.”).
Vivian thus asks us to rewrite the Release to exclude Cobb, which we cannot
do. See Shattuck v. Precision-Toyota, Inc., 115 Ariz. 586, 588 (1977) (“The intent
of the parties, as ascertained by the language used, must control the
interpretation of the contract. It is not within the province or power of the
court to alter, revise, modify, extend, rewrite or remake an agreement.”).


                                        4
                             VIVIAN v. COBB
                            Decision of the Court

C.     Neither Cobb nor Vivian Are Entitled to Attorney’s Fees on
       Appeal.

¶11            Cobb requests her attorney’s fees on appeal pursuant to
A.R.S. § 12-349, contending Vivian filed this appeal without substantial
justification. A.R.S. § 12-349(A)(1). An appeal lacks substantial justification
“if it is groundless and is not made in good faith.” A.R.S. § 12-349(F). Both
elements must be established by a preponderance of the evidence to recover
fees. See Johnson v. Mohave County, 206 Ariz. 330, 334, ¶ 16 (App. 2003) (party
seeking fees pursuant to prior version of § 12-349(F) must prove that a claim
“constitutes harassment, is groundless and is not made in good faith”).
Cobb does not show that either of the elements are met. We therefore
decline to award fees under § 12-349(A)(1).

¶12          Cobb also requests attorney’s fees pursuant to Arizona Rule
of Civil Appellate Procedure (“ARCAP”) 25, under which we may sanction
an appellant who brings a frivolous appeal. Johnson v. Brimlow, 164 Ariz.
218, 222 (App. 1990). An appeal is frivolous if it is brought for an improper
purpose or indisputably has no merit. Ariz. Tax Research Ass’n v. Dep’t of
Revenue, 163 Ariz. 255, 258 (1989). But sanctions are unwarranted if the
issues raised are supportable under any legal theory or if reasonable
attorneys could differ. In re Levine, 174 Ariz. 146, 153 (1993). We thus
consider ARCAP 25 sanctions with great caution. Price v. Price, 134 Ariz.
112, 114 (App. 1982). In our discretion, we decline to award fees under
ARCAP 25.

¶13          Cobb also requests attorney’s fees under Arizona Rule of Civil
Procedure 11, which is not a proper basis for a fee award on appeal. Villa
De Jardines Ass'n v. Flagstar Bank, FSB, 227 Ariz. 91, 99, ¶ 26, n.10 (App.
2011).

¶14           We also reject Vivian’s attorney’s fees request.

                               CONCLUSION

¶15           We affirm the judgment. Cobb may recover her taxable costs
incurred in this appeal upon compliance with ARCAP 21.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA
                                         5
