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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 MICHAEL TARASKA, Plaintiff/Appellant,

                                        v.

                   ARINA TARASKA, Defendant/Appellee.

                             No. 1 CA-CV 18-0391
                               FILED 4-2-2019


           Appeal from the Superior Court in Maricopa County
                          No. CV2017-009146
                    The Honorable Rosa Mroz, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Michael Taraska, Phoenix
Plaintiff/Appellant

Arina Taraska, Surprise
Defendant/Appellee
                         TARASKA v. TARASKA
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.



C R U Z, Judge:

¶1          Michael Taraska (“Michael”) appeals from the dismissal of his
defamation complaint. For the following reasons, we reverse and remand.

                  FACTS AND PROCEDURAL HISTORY

¶2             Michael sued his ex-wife Arina Taraska (“Arina”) for
defamation. Michael alleged that Arina published a post on social media
containing false information about his care of their minor child shortly after
the parties’ divorce was finalized.

¶3           Arina moved to dismiss the complaint, contending that
Michael’s complaint was precluded by the consent decree in their divorce
case (the “Consent Decree”). Specifically, in the Consent Decree, the parties
stipulated that “[e]ach party hereby releases all past and future claims
against each other. Neither party shall use information obtained during
these proceedings to sue the other party” (the “Release”).

¶4             Additionally, Arina contended that Michael violated
Arizona’s Anti-SLAPP law, Arizona Revised Statutes (“A.R.S.”) section 12-
751, et seq., and requested her reasonable attorneys’ fees and costs under
§§ 12-752(D), -341, -341.04, -349, -3201 and Arizona Rule of Civil Procedure
(“Rule”) 41(d). Arina also requested that Michael be declared a vexatious
litigant.

¶5             In response, Michael relied on the court’s ruling in a previous
defamation complaint he filed against Arina (the “First Case”). In the First
Case, Arina’s motion to dismiss was denied. Michael alleged that the
superior court found that the allegations in that complaint were sufficient
to survive a motion to dismiss, but it dismissed his complaint on procedural
grounds. Michael also argued that the Release does not preclude him from
filing the instant defamation lawsuit.




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                           Decision of the Court

¶6            In this case, the superior court granted Arina’s motion,
finding that Michael’s defamation claim was precluded by the Release. The
court noted that not all types of future claims may be reasonably
contemplated by the Release, such as criminal activity. The court denied
Arina’s request for fees and costs under § 12-752(D) because the Anti-
SLAPP law was inapplicable. The court also denied Arina’s request to have
Michael deemed a vexatious litigant. The court entered a signed minute
entry containing a certification of finality pursuant to Rule 54(c) (the “First
Judgment”).

¶7            After the court dismissed Michael’s claim, Arina applied for
attorneys’ fees and costs under §§ 12-341, -341.01 and -349, noting that the
superior court only denied her fees and costs request under § 12-752(D).
Michael moved to strike the fee request, arguing Arina failed to request an
amended judgment under Rule 54(h)(2)(c) and failed to request her fees on
a timely basis.

¶8            Michael filed a notice of appeal, and Arina filed a notice of
cross-appeal.

¶9            The superior court treated Michael’s motion to strike as a
response to Arina’s fee application. The court ultimately denied Arina’s fee
request as untimely but noted that if timely, it would have treated the
request as a motion to amend the judgment and granted fees under §§ 12-
341 and -341.01, but not -349.

¶10           We dismissed the appeal and cross-appeal because Arina’s
request for attorneys’ fees was not fully resolved prior to entry of the First
Judgment. We held the First Judgment’s Rule 54(c) finality language was
inappropriate, and, therefore, we lacked jurisdiction over the appeal.

¶11         Arina then moved to reconsider her fee request because the
First Judgment was not final, and under Rule 54(g)(2), her fee request was
timely. The superior court granted Arina’s motion to reconsider and
ordered Arina to submit a fee application.

¶12          Michael also moved to reconsider, arguing he should have
been afforded the opportunity to amend his complaint. In response, Arina
argued that any amendment to the complaint would be futile because the
Release precludes Michael’s defamation action. The court denied Michael’s
motion, and also clarified that it did not consider any of the attachments to
Arina’s motion to dismiss other than the Consent Decree.




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¶13           The superior court ultimately awarded Arina $10,000 in
attorneys’ fees and $596.21 in costs pursuant to A.R.S. §§ 12-341 and -341.01
and entered final judgment in Arina’s favor. Michael timely appealed. We
have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

                               DISCUSSION

¶14            We review de novo the dismissal of a complaint under Rule
12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We assume
the truth of all well-pleaded factual allegations and resolve all reasonable
inferences in favor of the plaintiff. Yahweh v. City of Phoenix, 243 Ariz. 21,
22, ¶2 (App. 2017). Dismissal is appropriate under Rule 12(b)(6) only if, “as
a matter of law . . . plaintiffs would not be entitled to relief under any
interpretation of the facts susceptible of proof.” Coleman, 230 Ariz. at 356,
¶ 8 (citation omitted).

I.     We Do Not Have Enough Information to Determine If the Release
       Precludes Michael’s Cause of Action.

¶15            We must take Michael’s allegation that Arina’s social media
post “stated false information about Plaintiff with respect to his care of his
minor child and served to solicit potential readers to harm and/or injure
Plaintiff” as true when evaluating Arina’s motion to dismiss. Yahweh, 243
Ariz. at 22, ¶2. Neither Michael nor Arina provided the superior court or
this court with the actual language of the social media post.

¶16          The superior court dismissed Michael’s complaint because it
determined that Michael’s defamation claim was precluded by the Release.
In the Release, the parties stipulated that “[e]ach party hereby releases all
past and future claims against each other. Neither party shall use
information obtained during these proceedings to sue the other party.”

¶17            Considering the first sentence of the Release in the abstract,
“[e]ach party hereby releases all past and future claims against each other,”
we reach the same conclusion as the superior court. That is, Michael’s
defamation claim was precluded by the Release. However, in interpreting
a contract, we do not construe one term in a way that renders another
meaningless. Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 478, ¶ 56 (App.
2010). As a corollary, each part of a contract must be read together, “to
bring harmony, if possible, between all parts of the writing.” Gesina v. Gen.
Elec. Co., 162 Ariz. 39, 45 (App. 1988). Therefore, we must read the two
sentences of the Release together.




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                           Decision of the Court

¶18           The second sentence of the Release, “[n]either party shall use
information obtained during these proceedings to sue the other party”
(emphasis added), clearly limits the Release to conduct that occurred
during the divorce proceedings. Accordingly, read together, we read the
Release as limiting the parties’ future claims release to claims that relate to
events which occurred during the divorce proceedings.

¶19           Without knowing the exact language of the social media post,
we do not have enough information to determine whether the Release
precludes Michael’s claim. For example, although we assume as true that
Arina made the allegedly defamatory social media post after the Consent
Decree was entered, we do not know when the alleged conduct related to
Michael’s care of the parties’ child occurred. If the conduct announced in
the social media post related to Michael’s care of his son occurred before
the Consent Decree was entered, the Release would preclude the
defamation claim because it was based on “information obtained during”
the divorce proceedings. If, however, the conduct Michael is said to have
engaged in and Arina subsequently published occurred after the entry of
the Consent Decree, Michael’s defamation claim could survive a motion to
dismiss. Because we do not know when the conduct referenced in the social
media post is said to have occurred, we cannot conclusively determine
whether the Release precludes Michael’s claim. Therefore, we must reverse
the superior court’s dismissal and remand for further proceedings.

II.    To the Extent the Consent Decree is Ambiguous, Extrinsic Evidence
       Must Be Reviewed to Determine the Parties’ Intent.

¶20          Alternatively, assuming the Consent Decree can be read in a
manner different than we read it, we must also reverse the dismissal and
remand to determine the intent of the parties.

¶21            Arina argued that the parties unambiguously agreed to
release all future claims, including the instant defamation claim. Arina
argued that the Release was added “to hopefully impede plaintiff from
filing harassing claims such as the instant action[.]” Arina admitted that
not all future claims would be covered by the Release, specifically naming
personal injury claims or criminal activity.

¶22           On the other hand, Michael argued that the superior court’s
interpretation was the opposite of his understanding of the Release.
Michael alleged that he understood the Release to bar any claims that could
have been brought whether known or unknown based upon the past
divorce proceedings, “never contemplat[ing] a release of claims which



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                           Decision of the Court

could accrue in the future[.]” Given the differing opinions, Michael argued
that the Consent Decree is “inherently and objectively ambiguous.”

¶23            Our role in interpreting a contract is to ascertain and enforce
the parties’ intent. ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 290, ¶ 15
(App. 2010). To determine the parties’ intent, we “look to the plain meaning
of the words as viewed in the context of the contract as a whole.” United
Cal. Bank v. Prudential Ins. Co., 140 Ariz. 238, 259 (App. 1983). When the
terms of a contract are plain and unambiguous, its interpretation is a
question of law for the court. Chandler Med. Bldg. Partners v. Chandler Dental
Grp., 175 Ariz. 273, 277 (App. 1993). If the contract language is reasonably
susceptible to more than one meaning, extrinsic evidence may be admitted
to interpret the contract. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz.
148, 158-59 (1993).

¶24           Both Arina’s attorney and Michael filed affidavits providing
the superior court with their respective understanding of the divorce
negotiations. The superior court specifically stated that it relied only on the
Consent Decree in considering the motion, and we have no reason to doubt
the court’s assertion. However, to determine the intent of the parties, the
court must look to extrinsic evidence, which would require the court to treat
Arina’s motion to dismiss as one for summary judgment. Ariz. R. Civ. P.
12(d) (stating if the court considers “matters outside the pleading” on a
motion to dismiss, it must treat the motion as one for summary judgment).

¶25          Since the motion to dismiss was not converted into one for
summary judgment, we also reverse the court’s dismissal of Michael’s
complaint on this basis and remand for further proceedings.

¶26            Because we are reversing the court’s dismissal order, we also
reverse its fee award to Arina without prejudice to the court’s consideration
of her fee request upon its resolution of Michael’s defamation claim.

III.   The Superior Court Did Not Abuse Its Discretion in Denying
       Michael’s Requests for Oral Argument.

¶27           Finally, Michael argues that the superior court violated
Maricopa County Rule (“Local Rule”) 3.2(d) by failing to grant oral
argument. Local Rule 3.2(d) provides, in relevant part, that if in a motion,
response or reply a party requests oral argument, the court “may, in its
discretion, order, allow, or deny oral argument . . . consistent with the
Arizona Rules of Civil Procedure.”




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                          TARASKA v. TARASKA
                           Decision of the Court

¶28             Local Rule 3.2(d), however, does not require the superior
court to hold oral argument upon request. Courts may rule “without oral
argument, even if oral argument is requested.” Ariz. R. Civ. P. 7.1(d). See
also Cristall v. Cristall, 225 Ariz. 591, 597, ¶ 29 (App. 2010). Thus, the court
has discretion to, as it did here, grant or deny a request for oral argument.

                                CONCLUSION

¶29           For the foregoing reasons, we reverse and remand this matter
to the superior court for proceedings consistent with this decision.




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




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