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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 MESA AIRLINES, INC., Plaintiff/Appellee,

                                        v.

                  PAUL CONDRON, Defendant/Appellant.

                             No. 1 CA-CV 16-0326
                                  FILED 10-17-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2015-005341
                The Honorable Douglas Gerlach, Judge

                                  AFFIRMED


                                   COUNSEL

Polsinelli PC, Phoenix
By Eric E. Lynch, Craig M. Waugh
Co-Counsel for Plaintiff/Appellee

Ford & Harrison LLP, Washington, DC
By Dannie B. Fogleman, appearing pro hac vice
Co-Counsel for Plaintiff/Appellee

Baird, Williams & Greer, LLP, Phoenix
By Daryl M. Williams
Counsel for Defendant/Appellant
                     MESA AIRLINES v. CONDRON
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


W I N T H R O P, Presiding Judge:

¶1            Paul Condron (“Condron”), a pilot, appeals the superior
court’s summary judgment in favor of Mesa Airlines, Inc. (“Mesa
Airlines”). Condron argues the superior court erred in finding the Jet
Training Event Promissory Note (“the Note”) that Condron signed was an
enforceable, stand-alone contract and did not impermissibly modify his
oral employment agreement. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            On September 4, 2014, Mesa Airlines hired Condron as a
prospective EMB 175 First Officer, with the understanding that he would
be part of a crew that would fly the Embraer 175 aircraft. Mesa Airlines
requires all employees who operate an EMB 175 aircraft be trained in
accordance with its Federal Aviation Administration (“FAA”) approved
training program. At the time of his hire, Condron did not have the
requisite FAA rating; accordingly, Mesa Airlines offered Condron the
training necessary to comply with company policy and to qualify for the
FAA rating.

¶3            Previously, Mesa Airlines and The Air Line Pilots
Association, of which Condron is a member, entered a Collective
Bargaining Agreement (“CBA”). Pursuant to the CBA, Mesa Airlines may
require pilots with less than four years’ longevity to “execute training
agreements as a condition for entering into initial, upgrade or transition
training.” Mesa Airlines offers such pilots the required training in exchange
for execution of a promissory note to be paid: in full upon demand, by
completion of twelve months’ employment, or by a combination of the two.
Thus, the CBA expressly allows Mesa Airlines to require new and/or less
experienced pilots to reimburse Mesa Airlines for the cost of such training
by signing the Note in a set amount. The CBA also provides that the balance
owed “will be subject to straight line amortization beginning from the date
of successful completion of the check ride,” declining to zero at the end of




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                     MESA AIRLINES v. CONDRON
                         Decision of the Court

twelve months, and reduced by half if a pilot gives forty-five days’ notice
of his resignation.

¶4             As relevant here, the CBA sets the amount owed for the
training provided to Condron at $11,470.00 and requires the amount to
increase annually with the Consumer Price Index.1 Consistent with the
amortization provision of the CBA, the Note further provides that Condron
receive “credit against the principal amount of the Note based on the length
of [his] service” with Mesa Airlines. The Note expressly states it is “not
intended to, and shall not be construed to, constitute a contract of
employment for a definite period of time or otherwise alter [Condron’s] at-
will employment status with Mesa Airlines.” The Note also grants Mesa
Airlines the power to offset the unpaid balance on the Note from “any
compensation owed to [Condron]” if he voluntarily leaves Mesa Airlines.

¶5           Condron signed the Note on September 3, 2014. After signing
the Note, Condron was officially hired, completed the training, and
eventually flew as a first officer under the supervision of a line check
airman. He resigned after flying only twelve hours for Mesa Airlines.2

¶6           Mesa Airlines deducted $764.08 from Condron’s final
paycheck, pursuant to the Note’s terms, and demanded Condron pay the
remaining balance on the Note. Condron did not comply with the demand,
and Mesa Airlines sued Condron for breach of contract. The parties filed
cross motions for summary judgment.

¶7           Following oral argument, the superior court found the Note
was a “stand-alone promissory note without any accompanying
employment agreement.” The court considered, but expressly rejected,
Condron’s argument that the Note’s principal amount was similar to a
liquidated damages provision and operated as an unenforceable penalty.
Accordingly, the court denied Condron’s motion and granted summary
judgment in favor of Mesa Airlines.

¶8            Condron moved for reconsideration, and argued that,
contrary to the superior court’s finding, the note was “part and parcel of the


1       Based on that adjustment, the face value of Condron’s Note was
$12,712.00. According to Mesa Airlines, the amount of the Note is
significantly less than the actual cost of providing the training.

2     Condron notified Mesa Airlines on December 5, 2014, that he had
accepted other employment and was resigning effective December 19, 2014.


                                      3
                     MESA AIRLINES v. CONDRON
                         Decision of the Court

employment agreement Mesa Airlines had with Condron.” Condron
additionally argued the Note cannot be considered a stand-alone
agreement because it was entered contemporaneously with his
employment agreement and because it included Arizona statutory terms.

¶9             The superior court denied Condron’s motion for
reconsideration, and in doing so, noted the case was “a freedom of contract
case,” and that no statute prohibited Mesa Airlines from charging Condron
for the expense of providing the requisite training. The court further found
in the alternative that even if one erroneously assumed that “the
promissory note impaired Condron’s right to terminate an at-will
employment arrangement . . . that is a result to which he voluntarily
assented, and it is well-understood that statutory, indeed even
constitutional rights designed for an individual’s protection can be
waived.” The court awarded costs and attorneys’ fees to Mesa Airlines in
its final judgment.

¶10           Condron timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2016) and 12-2101(A)(1) (2016).

                                ANALYSIS

       I.     Standard of Review

¶11           Summary judgment is proper if there is no genuine dispute as
to any material fact, and the moving party is entitled to judgment as a
matter of law. Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 305
(1990). We review the grant of summary judgment de novo, and view the
evidence in the light most favorable to the party opposing the motion. Wells
Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension
Trust Fund, 201 Ariz. 474, 482, ¶ 13 (2002). Rulings regarding contract
interpretation are matters of law, which we review de novo. Miller v. Hehlen,
209 Ariz. 462, 465, ¶ 5 (App. 2005).

¶12           On appeal, Condron argues that: (1) the Note was a part of his
employment contract; (2) the Note is void as contrary to public policy; (3)
the Note is void because it is a penalty; and (4) Mesa Airlines was not
authorized to withhold his wages to reduce the unpaid balance of the Note.
These arguments largely stem from the same incorrect premise—that the
Note is integrated in and impermissibly modifies the parties’ oral
employment contract. Condron’s arguments are thus best addressed in the
context of determining whether the Note and employment agreement are
separate contracts.


                                      4
                     MESA AIRLINES v. CONDRON
                         Decision of the Court

       II.    The Note as a Separate Contract

¶13            The essential question of contract formation is whether the
parties manifest assent or intent to be bound to the contract. Schade v.
Diethrich, 158 Ariz. 1, 9 (1988). Generally, the fact finder determines the
intent of the parties. Tabler v. Indus. Comm’n, 202 Ariz. 518, 521, ¶ 12 (App.
2002). Additionally, for a court to determine that parties entered a contract,
there must be evidence of an offer, acceptance, and consideration. Id. at 520,
¶ 8.

¶14           The Note constitutes a separate contract from the
employment agreement. As noted above, the CBA explicitly authorized
Mesa Airlines to charge a pilot for required training and contemplated that
the pilot would be allowed to pay for the training by executing a
promissory note. Condron and Mesa Airlines did, in fact, enter such an
agreement, as reflected by the Note. The Note recites Condron’s promise
to pay $12,712.00 in consideration of “value received,” meaning the flight
training Mesa Airlines provided him. Under the CBA, and as it relates to
Mesa Airlines, the amount due on such a note declines on a straight line to
zero after the pilot completes twelve months’ employment with Mesa
Airlines. Mesa Airlines offered Condron the training, and Condron
accepted the offer, before beginning his employment. All the terms
necessary for an enforceable contract are present. The Note was not
integrated into nor conditioned in any respect on the concurrent separate
oral at-will employment agreement. To the contrary, the Note expressly
recited it was not intended to, and did not serve to, alter the terms of any
at-will employment agreement with Mesa Airlines. Mesa Airlines fulfilled
its contractual obligation by providing the requisite training; however,
Condron did not fulfill his promise to pay.

       II.    Whether the Note Modifies Condron’s At-Will Employment Status

¶15          Condron argues the Note impermissibly modified the at-will
employment relationship. In his view, the Note effectively required him to
work for Mesa Airlines for twelve months, until he paid off the principal
amount, and penalized him if he terminated employment before then. The
record does not support Condron’s argument of a modification; however,




                                      5
                      MESA AIRLINES v. CONDRON
                          Decision of the Court

even assuming the Note modified the employment agreement, it was
permissible under Arizona law.3

¶16            Employment agreements are contractual in nature; thus,
parties “are free to create a different relationship beyond one at will.”
Demasse v. ITT Corp., 194 Ariz. 500, 505, ¶ 12 (1999). Although employment
“contracts without express terms are presumptively at will,” this
presumption may be overcome “by establishing a contract term that is
either expressed or inferred from the words or conduct of the parties.”4 Id.
at 505, ¶ 13. The burden of proof for establishing a contract modification is
on the party claiming a modification. Alexander v. O’Neil, 77 Ariz. 91, 98
(1954) (recognizing the “settled rule” that “the burden of proving an
express or implied contract is upon the party asserting it.” (citation
omitted)); Thermo-Kinetic Corp. v. Allen, 16 Ariz. App. 341, 345 (1972). Thus,
Condron has the burden of establishing that the Note modified his at-will
employment agreement with Mesa Airlines.

¶17            This court has previously held that whether a separate
provision becomes “part of the employment contract is a question of fact.”
Jeski v. Am. Express Co., 147 Ariz. 19, 21 (App. 1985). For instance, provisions
in personnel manuals generally do not affect the employment relationship
if the manual “clearly and conspicuously tells [the] employees that the
manual is not part of the employment contract.” Id. (quoting Leikvold v.
Valley View Cmty. Hosp., 141 Ariz. 544, 548 (1984)); see also Hart v. Seven
Resorts Inc., 190 Ariz. 272, 278 (App. 1997) (stating that a personnel manual
will not turn an at-will relationship into a relationship for a definite term if
the employer includes clear and conspicuous language that informs
employees their positions are terminable at-will). To forestall summary
judgment, however, a party must offer evidence sufficient to create a
genuine issue of fact.

¶18          Here, the operative language of the Note—as consented to by
Condron—is clear and conspicuous. The Note states it “is not intended to,
and shall not be construed to, constitute a contract of employment for a

3      To the extent Condron argues any modification of an at-will
employment agreement violates public policy, this argument, as more fully
discussed below, is without merit. See A.R.S. § 23-1501(A)(2).

4     This presumption may be overcome by establishing provisions that,
for example, offer an employee job security, set the duration of
employment, or limit the reasons for which an employee can be fired.
Demasse, 194 Ariz. at 505, ¶ 13.


                                       6
                      MESA AIRLINES v. CONDRON
                          Decision of the Court

definite period of time or otherwise alter Pilot’s at-will employment status
with Mesa Airlines.” Moreover, the Note did not establish, let alone
expand, any grounds upon which Mesa Airlines could fire Condron, nor
did it give Condron any assurances that he would be employed for a set
time period. It also did not limit Condron’s own option, as an at-will
employee, to voluntarily terminate his employment with Mesa Airlines.
Correspondingly, the Note gave Condron three options to repay the Note.
Condron could pay the Note in full on demand; could work for Mesa
Airlines for at least twelve months and have the training fees completely
forgiven; or could work for Mesa Airlines for less than twelve months and
pay the remaining balance due on the Note based on the length of time he
worked. Regardless of which option he chose, Condron always possessed
the legal right of an at-will employee to quit his job at any time. The only
effect of Condron’s decision to voluntarily end employment before a year’s
time was that he would forfeit the right to have the debt forgiven over time.
Even assuming the Note somehow restricted Condron’s ability to
unilaterally terminate the employment, the very statute Condron relies
on—A.R.S. § 23-1501(A)(2)—expressly allows for such an agreement, if that
agreement is in writing, signed by the party to be charged and/or is
authorized by a collective bargaining agreement. All of the required
conditions exist here.

       IV.    Whether the Note Constitutes a Penalty and Thereby Violates
              Public Policy

¶19           Condron argues the Note violates public policy because it
creates a penalty for quitting. This argument is not supported by the record
or by applicable law.

¶20          Condron relies on Med+Plus Neck & Back Center v. Noffsinger
(Med+Plus), to support his contention that the Note operates as an
unenforceable penalty. 311 Ill. App. Ct. 3d 853 (2000).5 In Med+Plus, the
court found an early termination clause in the written employment
agreement operated as a liquidated damages provision because it required
the employee to pay a sum certain if he ended his employment before
completing his two-year contract. 311 Ill. App. Ct. at 860. The court found

5      Illinois law presumes that “an employment relationship of indefinite
duration is terminable ‘at will’ by either party with or without cause.”
Chesnick v. Saint Mary of Nazareth Hosp., 211 Ill. App. Ct. 3d 593, 547 (1991).
This presumption, however, may be overcome by demonstrating that the
parties contracted to the contrary. Id.



                                      7
                      MESA AIRLINES v. CONDRON
                          Decision of the Court

the provision was unenforceable because it bore no relation to the
employer’s training costs and because the testimony demonstrated that the
employee was hired because of his experience, received very little training,
and immediately saw patients upon starting work. Id. at 856, 860.6

¶21            Unlike the plaintiff in that case, who was already qualified for
the job when he was hired, Condron was required to undergo training in
order to fly the aircraft for which he was hired.

¶22            Mesa Airlines argues the Note should be construed as a
means to secure reimbursement of its reasonable training costs and not as a
penalty. In support of this argument, Mesa Airlines relies on three cases
that required former employees to repay training costs. See Gordon v. City
of Oakland, 627 F.3d 1092, 1096 (9th Cir. 2010) (finding employer could
collect training costs if an employee resigned before five years’ service, so
long as employer paid the employee a minimum wage)7; Heder v. City of
Two Rivers, 295 F.3d 777, 781-82 (7th Cir. 2002) (finding employer had a right
to be reimbursed for training costs associated with training employees who
left within three years of training, so long as reimbursement did not affect
the statutory floor for wage requirements); Pittard v. Great Lakes Aviation,
156 P.3d 964, 974 (Wyo. 2007) (upholding a training agreement requiring a
pilot to repay the airline his training costs plus interest if he left
employment before working fifteen months.).8

¶23           The requirement that Condron repay Mesa Airlines for
training costs was not a penalty for ending his at-will employment. Rather,
Condron agreed to repay Mesa Airlines for his training when he began his

6      Condron additionally relies on Dobson Bay Club II DD, LLC v. La
Sonrisa de Siena, LLC (Dobson Bay), to support his argument that the Note
violates public policy because it operates as a penalty. 242 Ariz. 108 (2017).
However, Dobson Bay examines the enforceability of a liquidated damages
provision that did not reasonably relate to actual or anticipated damages.
It does not govern whether, in this business setting, a separately executed
promissory note is enforceable.

7    Under California law, there is a presumption in favor of at-will
employment. See Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 336 (Cal. 2000).

8      Under Wyoming law, if a contract for employment is for an
indefinite period it is presumed to create an at-will employment
relationship. Brodie v. Gen. Chem. Corp., 934 P.2d 1263, 1265 (Wyo. 1997).



                                      8
                     MESA AIRLINES v. CONDRON
                         Decision of the Court

employment, and his remaining obligation on the Note was merely a
consequence of his decision to leave the job before the balance of the Note
declined to zero. His subsequent refusal to honor his contractual promise
to pay the Note’s balance resulted in a breach, triggering liability for the
remaining amount due on the Note.

       V.     Whether Mesa Airlines had the Power to Withhold Amounts Due
              Under the Note from Condron’s Wages

¶24            Condron argues that Mesa Airlines “had no right to deduct
wages from [his] final paycheck . . . because the note was and is void.”
Condron cites A.R.S. § 23-352 to support his contention; however, an
exception to that general principle, as provided in subsection (2) of the same
statute, is that an employer may withhold an employee’s wages if it has
“prior written authorization from the employee.” A.R.S. § 23-352(2) (2012).

¶25           Condron gave Mesa Airlines prior written authorization to
withhold his wages when he signed the Note, which provided that “Mesa
Airlines has the right to offset the unpaid balance of this Note against any
compensation owed to Pilot in the event Pilot voluntarily leaves
employment with Mesa Airlines prior to the expiration of twelve (12)
months from the date of successful completion of Mesa Airlines’ Pilot
Training Program.” Accordingly, Mesa Airlines did not breach A.R.S. § 23-
352 in withholding his wages.9

       VI.    Attorneys’ Fees

¶26           Condron and Mesa Airlines both request attorneys’ fees on
appeal pursuant to A.R.S. § 12-341.01 (2016). Mesa Airlines additionally
requests attorneys’ fees pursuant to the Note’s provisions.10 Mesa Airlines
is the prevailing party on appeal. Accordingly, Condron’s request is
denied, and Mesa Airlines is awarded its taxable costs and reasonable
attorneys’ fees, to be determined upon compliance with Rule 21, ARCAP.



9       Condron did not file a counterclaim for unpaid wages at the superior
court, and is not entitled to treble damages pursuant to A.R.S. § 23-355
(2012).

10     The Note provides that the endorser “agree[s] to pay, in addition to
all other sums due hereunder, all costs and expenses of collection of this
Note and/or enforcement of the same including reasonable attorney’s
fees.”


                                      9
                   MESA AIRLINES v. CONDRON
                       Decision of the Court

                           CONCLUSION

¶27            The superior court’s summary judgment in favor of Mesa
Airlines is affirmed.




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




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