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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


    EVOU FITNESS LLC, et al., Plaintiffs/Counter-Defendants/Appellees,

                                         v.

     ALL IN FITNESS & WELLNESS LLC, et al., Defendants/Counter-
                       Claimants/Appellants.

                              No. 1 CA-CV 16-0240
                               FILED 5-30-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV2014-009146
                The Honorable Arthur T. Anderson, Judge

                                   AFFIRMED


                                    COUNSEL

Fennemore Craig, P.C., Phoenix
By Jessica Post, Kristi Lundstrom
Counsel for Plaintiffs/Counter-Defendants/Appellees

The Cavanagh Law Firm, P.A., Phoenix
By David A. Selden, Jennifer L. Sellers
Counsel for Defendants/Counter-Claimants/Appellants
                       EVOU, et al. v. ALL IN, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.


T H O M P S O N, Judge:

¶1            Appellants All In Fitness & Wellness LLC (All In), Quan Phu,
and Anthony DiNobile challenge the trial court’s ruling granting summary
judgment against them on two of their counterclaims, one arising under the
Arizona Wage Act and other under the Fair Labor Standards Act (FLSA).
Appellants also challenge the trial court’s refusal to award them attorneys’
fees and costs, contending that they were the successful parties in the
litigation. We affirm the trial court’s rulings on all issues raised.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             Appellees Evou Fitness, L.L.C. and Spectrum Fitness, L.L.C.
(collectively Evou) operated two Fitness Evolution fitness centers in Mesa
and Gilbert. Phu served as a Fitness Evolution manager from January 2013
to January 2014. Phu had previously worked as a manager for Spectrum
Fitness, which Evou’s owner acquired in 2013. Phu received base
compensation of $2500 per month and performance commissions while
employed by Fitness Evolution. Fitness Evolution later increased his base
compensation to $3000 per month.

¶3            In January 2014, DiNobile and Evou had discussions
regarding DiNobile potentially becoming a part-owner of the business.
While those discussions were ongoing, DiNobile worked in a managerial
capacity for Fitness Evolution for approximately one week. DiNobile and
Phu then resigned; they later opened All In approximately three miles from
Fitness Evolution’s Gilbert location. Fitness Evolution did not pay
DiNobile any wages upon his departure, but eventually paid him in
September 2014.

¶4            Evou filed suit against All In, Phu, DiNobile, and others
alleging that All In had hired away several former Fitness Evolution
employees in violation of those employees’ non-compete and
confidentiality agreements. Evou further alleged that Phu had improperly
used an Evou-owned Facebook page to solicit customers to All In.



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                        EVOU, et al. v. ALL IN, et al.
                          Decision of the Court

¶5             Evou requested a temporary restraining order and
preliminary injunction barring All In, Phu, and DiNobile from further
soliciting Fitness Evolution employees or customers. At the temporary
restraining order hearing, the parties reached the following agreement on
the record pursuant to Arizona Rule of Civil Procedure (Rule) 80(d)1:

       Appellants would not directly or indirectly solicit Fitness Evolution
        members or employees,

       Appellants would not disclose any Fitness Evolution confidential
        information, and

       Appellants would no longer use the Facebook page and would work
        with Evou to transfer over administrative rights to the page,
        although All In contended the page had already been deleted.

¶6            Appellants asserted numerous counterclaims following the
hearing. Appellants sought a declaratory judgment that Evou’s non-
compete agreements with its employees were unenforceable. DiNobile
alleged individually that Evou (1) had breached their agreement under
which DiNobile would have become a part-owner, (2) had misrepresented
its financial status, and (3) violated FLSA and the Arizona Wage Act
(Arizona Revised Statutes (A.R.S.) section 23-350 (2016), et seq.) by failing
to pay him wages for his one week of work. Phu likewise alleged that Evou
had breached its promise to make him a part-owner of Spectrum and had
violated FLSA and the Wage Act by failing to pay him overtime,
commissions earned, and health benefits. DiNobile and Phu each sought
treble damages for their Wage Act claims under A.R.S. § 23-355(A) (2012).
Appellants also moved for partial summary judgment, presenting
affidavits from thirty-six former Fitness Evolution customers and arguing
that Evou had suffered no damages because of their conduct. They also
contended that Evou’s employee handbook was not intended to be a
contract.

¶7            Evou moved for and obtained time to conduct discovery on
these issues under Rule 56(f). Evou then moved to voluntarily dismiss its
claims against appellants, stating that it was “satisfied with the agreement
that the parties reached on the record and would agree that both parties
should go their separate ways” and that it believed “the cost of proving


1 The Rules were substantially amended effective January 1, 2017. We cite
the Rules in effect at the time of this dispute unless otherwise noted.



                                      3
                        EVOU, et al. v. ALL IN, et al.
                          Decision of the Court

damages in this case will far exceed the value of the damages.” Evou noted
that it had paid DiNobile’s claimed wages.

¶8            Appellants also moved to voluntarily dismiss some of their
counterclaims, but moved for partial summary judgment on Phu’s FLSA
claim and DiNobile’s treble damages claim. Evou cross-moved for
summary judgment on each of these claims and sought summary judgment
on Phu’s Wage Act claim, which Phu did not oppose. The trial court
granted appellants’ motion for voluntary dismissal and granted summary
judgment for Evou on the three remaining counterclaims. The court found
that Phu had “performed exempt duties only under the FLSA,” he received
a sufficient salary to be deemed exempt under the relevant FLSA
regulations, and no deductions were taken from his pay. The court also
declined to treble DiNobile’s wages even though Evou did not pay them for
several months.

¶9           Both sides applied for attorneys’ fees and costs. Following
contentious briefing, the trial court declined to award attorneys’ fees to
either side:

       [Evou] argues that this litigation should have been over a year
       ago. It contends that the 10 counterclaims are meritless and
       some even frivolous. All In is equally accusatory, stressing
       that [Evou’s] lawsuit accomplished nothing. All In argues that
       the record is replete with Rule 11 issues.

       It is unfortunate that this case—with two highly qualified
       firms—festered as long as it did. Frustration, outrage, and
       accusations of unsupportable positions emanate from the
       papers. On this record, the Court is unable to identify a
       “prevailing party” or otherwise justify an award of fees to any
       party.

Appellants timely appealed. We stayed the appeal to allow appellants to
obtain a final Rule 54(c) judgment, which they did. We have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1) (2016).

                               DISCUSSION

¶10            We review de novo whether summary judgment is
warranted, including whether genuine issues of material fact exist and
whether the trial court properly applied the law. Dreamland Villa Cmty.
Club, Inc. v. Raimey, 224 Ariz. 42, 46, ¶ 16, 226 P.3d 411, 415 (App. 2010). We



                                      4
                        EVOU, et al. v. ALL IN, et al.
                          Decision of the Court

construe all facts in favor of appellants as the non-moving parties. Melendez
v. Hallmark Ins. Co., 232 Ariz. 327, 330, ¶ 9, 305 P.3d 392, 395 (App. 2013).

I.     The Trial Court Correctly Granted Summary Judgment on Phu’s
       FLSA Claim

¶11            Phu contends the trial court erred in granting summary
judgment on his FLSA claim because he was entitled to overtime
compensation.       Generally, employees are entitled to overtime
compensation for hours worked beyond forty hours per week. 29 U.S.C. §
207(a)(1). An employee may be exempted from overtime compensation,
however, under one of several regulatory exemptions. Colson v. Avnet, Inc.,
687 F. Supp. 2d 914, 918 (D. Ariz. 2010). We review Phu’s duties and salary
to see if they met the requirements of any of the regulatory exemptions.
Colson, 687 F. Supp. 2d at 918; 29 C.F.R. § 541.200.

¶12            Phu concedes that he performed exempt duties for Fitness
Evolution. He contends, however, that Evou did not pay him a salary, but
rather “non-employee compensation” as an independent contractor. This
argument is circular, as “only employees are entitled to overtime and
minimum-wage compensation” under FLSA. Keller v. Miri Microsystems
LLC, 781 F.3d 799, 806 (6th Cir. 2015). Nonetheless, “an employer’s
classification of a worker as an ‘independent contractor’ is not controlling.”
Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 350 (E.D.N.Y. 2015) (citation
omitted); see also 29 U.S.C. § 203(e)(1) (defining “employee” under FLSA
generally to mean “any individual employed by an employer”). We will
assume for purposes of this appeal that Phu would have been considered
an employee under FLSA.

¶13           The regulations in effect when Phu worked for Fitness
Evolution2 required that an exempt executive, administrative, or
professional employee3 be paid no less than $1971.66 per month and be paid
“each pay period on a weekly, or less frequent basis, a predetermined
amount constituting all or part of the employee's compensation, which


2The Department of Labor substantially revised these regulations effective
December 1, 2016. We cite the regulations in effect during Phu’s
employment with Fitness Evolution.

3 Employees who work in a “bona fide executive, administrative, or
professional capacity” are exempted from FLSA’s overtime requirement.
29 U.S.C. § 213(a)(1).



                                       5
                       EVOU, et al. v. ALL IN, et al.
                         Decision of the Court

amount is not subject to reduction because of variations in the quality or
quantity of the work performed.” 29 C.F.R. §§ 541.600(a)-(b), 541.602(a).
Phu does not dispute that Evou paid him regularly and paid him more than
the minimum required amount. He instead contends his compensation
became “subject to reductions” when Evou sought disgorgement in this
lawsuit. We reject this contention because Phu offered no evidence to show
that Evou took any deductions from his pay for any reason and because
Evou voluntarily dismissed its disgorgement claim.

¶14           Phu next cites Auer v. Robbins, 519 U.S. 452 (1997) for the
proposition that there is no requirement that he prove that Evou made any
actual deductions. In Auer, the Supreme Court held that an employee is not
paid on a salary basis for FLSA purposes if (1) there is an actual practice of
salary deductions or (2) an employee is compensated under a policy that
clearly communicates a significant likelihood of deductions. 519 U.S. at 461.
Evou points out, however, that the Department of Labor revised the
relevant regulations several years after Auer to require a showing that the
employer has an actual practice of making improper reductions. See 29
C.F.R. § 541.603(a) (“An actual practice of making improper deductions
demonstrates that the employer did not intend to pay employees on a salary
basis”); 29 C.F.R. § 541.603(b) (stating that the exemption is lost “[i]f the
facts demonstrate that the employer has an actual practice of making
improper deductions”); Baden-Winterwood v. Life Time Fitness, Inc., 566 F.3d
618, 628 (6th Cir. 2009) (explaining that these revisions marked a departure
from Auer).

¶15           Moreover, even if Auer applied, Phu presented no evidence to
show that Evou communicated any policy that created a significant
likelihood of deductions at any time. Phu also cites no relevant authority
to support his contention that Evou’s post-termination disgorgement claim
evinced any such policy. We therefore affirm the trial court’s ruling on
Phu’s FLSA claim. The Trial Court Correctly Granted Summary Judgment
on DiNobile’s Treble Damages Claim

¶16         DiNobile acknowledges that Evou paid his claimed wages in
September 2014. He contends the trial court erred by not trebling those
wages under A.R.S. § 23-355(A).4



4 “Except as provided in subsection B of this section, if an employer, in
violation of this chapter, fails to pay wages due any employee, the
employee may recover in a civil action against an employer or former



                                      6
                        EVOU, et al. v. ALL IN, et al.
                          Decision of the Court

¶17            We review the trial court’s refusal to award treble damages
for an abuse of discretion. Crum v. Maricopa Cty, 190 Ariz. 512, 514-15, 950
P.2d 171, 173-74 (App. 1997). The court may consider several factors in
exercising its discretion, including the origin and nature of the dispute,
efforts by either party to resolve the dispute short of litigation, the nature
of the parties’ relationship, and other contemporaneous acts by either party
not bearing directly on the alleged breach. D’Amico v. Structural I Co., 229
Ariz. 262, 266, ¶ 17, 274 P.3d 532, 536 (App. 2012). The court may decline
to award treble damages even if the employer did not have a good faith
basis to dispute the wages at issue. Id. at ¶ 16.

¶18           The undisputed record supports the trial court’s ruling.
DiNobile did not dispute that he approached Evou to pursue an ownership
opportunity or that he considered himself to be an owner during his brief
stay.    DiNobile also acknowledged that he never completed his
employment paperwork, that he did not expect to be paid when he left
Fitness Evolution, and that he did not demand payment until after this
litigation began. The court did not abuse its discretion in declining to
award treble damages.

II.    The Trial Court Did Not Abuse Its Discretion in Declining to
       Award Appellants Attorneys’ Fees

¶19             Appellants also contend they were the successful parties
below and therefore entitled to recover attorneys’ fees. The trial court has
discretion to determine who is a successful party under A.R.S. § 12–
341.01(A); we will not disturb its decision if there is any reasonable basis for
it. Lee v. ING Inv. Mgmt., LLC, 240 Ariz. 158, 161, ¶ 8, 377 P.3d 355, 358 (App.
2016) (citations omitted).

¶20           Appellants first contend that they succeeded on Evou’s claims
when Evou voluntarily dismissed them. See Vicari v. Lake Havasu City, 222
Ariz. 218, 224-25, ¶¶ 26-27, 29, 213 P.3d 367, 373-74 (App. 2009) (finding that
voluntary dismissal under Rule 41(a)(1) did not preclude a § 12-341.01(A)
fee award). Appellants presume, but do not establish, that Evou voluntarily
dismissed its claims because it did not want to respond to appellants’
pending motion for partial summary judgment. Even if that were true,
appellants voluntarily dismissed several counterclaims and stipulated to
most of the injunctive relief Evou sought in its complaint. Thus, even under


employer an amount that is treble the amount of the unpaid wages.” A.R.S.
§ 23-355(A).



                                       7
                       EVOU, et al. v. ALL IN, et al.
                         Decision of the Court

appellants’ reasoning, Evou also succeeded on a significant portion of the
case.

¶21           Appellants next contend DiNobile succeeded on his Wage Act
counterclaim. The results of this claim were mixed as well. DiNobile
correctly points out that Evou did not pay him wages until after this
litigation began, but Evou prevailed on DiNobile’s treble damages claim,
which we have affirmed.

¶22           Appellants next contend Evou’s “employment-based” claims
against Phu and DiNobile were groundless because Evou did not pay them
“even one penny as an employee.” This argument ignores Evou’s
undisputed payment to DiNobile. It also relies once again on appellants’
contention that Evou designated Phu as an independent contractor, which
is not dispositive under FLSA. See, e.g., Real v. Driscoll Strawberry Assocs.,
Inc., 603 F.2d 748, 754 (9th Cir. 1979) (“The common law concepts of
‘employee’ and ‘independent contractor’ are not conclusive determinants
of the FLSA’s coverage.”).

¶23            Appellants also contend the trial court should have awarded
them fees on Evou’s Facebook page claim under Rule 11, Rule 26.1, and
A.R.S. § 12-349. Appellants contend that Evou failed to disclose documents
that appellants argue would have shown that Evou did not have the
exclusive right to use the trade name “Spectrum Fitness & Wellness Center”
and would have rendered Evou’s claim groundless. Even assuming all of
this is true—and, again, appellants offer nothing more than
presumptions—appellants did not move to compel disclosure of these
documents or for sanctions under Rule 37(a)(2)(A). We will not award
discovery and disclosure sanctions on appeal that appellants did not seek
below. Cf. AG Rancho Equip. Co. v. Massey-Ferguson, Inc., 123 Ariz. 122, 123,
598 P.2d 100, 101 (1979) (“The power to impose [Rule 37] sanctions . . . is
discretionary with the trial court.”) (emphasis added). In any event,
appellants agreed to turn over the Facebook page and stipulated to dismiss
their only related counterclaim, which rendered this issue moot.

¶24             Finally, appellants contend they were entitled to recover
attorneys’ fees on the “restrictive covenant issue” because the non-compete
restrictions imposed on Evou’s employees were unenforceable. The trial
court did not address the enforceability of these covenants; as such,
appellants were not “successful” on this issue. We decline to address them
for the first time on appeal.




                                      8
                       EVOU, et al. v. ALL IN, et al.
                         Decision of the Court

¶25           In summary, the record amply supports the trial court’s
decision to decline to award attorneys’ fees. We therefore affirm.

III.   We Decline to Award Rule 25 Sanctions on Appeal

¶26           Evou requests sanctions against appellants pursuant to
Arizona Rule of Civil Appellate Procedure (ARCAP) 25, which authorizes
us to sanction those who bring frivolous appeals. See Johnson v. Brimlow,
164 Ariz. 218, 221-22, 791 P.2d 1101, 1104-05 (App. 1990). We consider
sanctions with great caution and only award them in cases that involve
wholly frivolous and meritless claims. Price v. Price, 134 Ariz. 112, 114, 654
P.2d 46, 48 (App. 1982).

¶27           Appellants’ claims in this appeal are meritless. Evou
contends this appeal was frivolous for several reasons, the most significant
of which is its contention that appellants extended the litigation for an
additional year to try to extract an attorneys’ fee award. While we are
troubled by appellants’ tactics below, those tactics are not grounds for
sanctions in this court. Moreover, we cannot attribute an improper motive
to appellants or their counsel on appeal on the record before us. We
therefore decline to award ARCAP 25 sanctions.

                               CONCLUSION

¶28         We affirm the judgment and award Evou its costs incurred on
appeal upon compliance with ARCAP 21.




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




                                        9
