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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    TERRON TAYLOR, Plaintiff/Appellant,

                                         v.

 ARIZONA PUBLIC SERVICE, an Arizona corporation; PAUL D. ROSE
    and CARRIE A. ROSE, husband and wife, Defendants/Appellees.

                              No. 1 CA-CV 14-0229
                               FILED 6-16-2015


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-000650
                   The Honorable Mark H. Brain, Judge

                                   AFFIRMED


                                    COUNSEL

Kenneth S. Countryman, P.C., Tempe
By Kenneth S. Countryman
Counsel for Plaintiff/Appellant

Gaona Law Firm, Phoenix
By David F. Gaona
Counsel for Defendants/Appellees
                              TAYLOR v. APS
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.


P O R T L E Y, Judge:

¶1             Terron Taylor appeals a summary judgment granted in favor
of Arizona Public Service, Paul Rose, and Carrie Rose (collectively “APS”).
We are asked to decide whether a compromise agreement in a theft of
electricity criminal case filed by the City of Phoenix (the “City”) can operate
as an accord and satisfaction for the months that were not prosecuted in the
amended criminal complaint. Because the trial court did not err by
determining that the compromise agreement was not an accord and
satisfaction, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             Taylor became an APS customer in late 2002. In early 2011,
noticing that Taylor had significantly lower electricity consumption than
the rest of the neighborhood, Paul Rose, an APS employee, investigated
Taylor’s meter. APS installed a submeter1 on February 1, 2011, and
recorded all of the electricity that went to Taylor’s residence. APS
compared the submeter’s recordings with Taylor’s meter for five months
and, as a result, determined that Taylor used more electricity than was
recorded, billed or paid. Using the five month information, APS estimated
that Taylor’s electricity consumption since January 1, 2003, was higher than
billed and it concluded he owed APS $33,028.32.

¶3            APS also inspected Taylor’s meter and found a hole drilled
into the side of the meter, which would affect the meter’s ability to record
the amount of electricity that passed through it. APS reported the theft of


1 A submeter is a device that records the amount of electricity as it passes
through the main service lines before reaching the residence. The device is
commonly used to measure the amount of electricity being provided to a
residence when there is reason to believe electricity is being diverted
around the meter. The recording of the submeter is then compared to the
customer’s meter.



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                             TAYLOR v. APS
                           Decision of the Court

electricity to the Phoenix police, and, using the estimated electricity
consumption, requested that Taylor be prosecuted for theft of electricity
from January 1, 2003 to June 29, 2011.

¶4            Based on the investigation, the City filed a criminal
complaint2 against Taylor for fraud and theft of electricity from January 1,
2003 to June 29, 2011, in violation of Arizona Revised Statutes (“A.R.S.”)
sections 13-3724 and -1802,3 a class 1 misdemeanor. The criminal complaint
was, however, amended without objection to allege theft of electricity for
only the five month period covered by APS’s submeter. Taylor then entered
into plea discussions with the City prosecutor, which included restitution
to APS. Eventually, the parties agreed to a misdemeanor compromise that
required Taylor to pay APS restitution of $4300. Taylor paid the restitution
by certified check, and wrote on the check “Settlement of all claims with
APS per agreement with State.” APS deposited the check as payment. A
few days later, an APS employee appeared in municipal court and stated
that APS was made whole for the injury. After taking the testimony, the
court dismissed the prosecution under the terms of the agreement and
A.R.S. § 13-3981.

¶5             A month after the criminal matter was dismissed, APS sent
Taylor a shut-off warning and demanded $17,208.72 in order to continue
electric service to his house. Taylor then filed this lawsuit alleging breach
of contract, breach of good faith and fair dealing, constructive fraud,
common law fraud, and intentional infliction of emotional distress. Taylor
also sought a temporary restraining order to prevent APS from terminating
his electric service. Before APS filed an answer, Taylor filed a motion for
declaratory judgment and partial motion for summary judgment regarding
accord and satisfaction. APS then filed its answer, filed a response to
Taylor’s motions, and sought partial summary judgment regarding accord
and satisfaction. The court, after briefing and argument, denied Taylor’s
motion for summary judgment and took APS’s motion under advisement.
The court subsequently granted APS’s motion, and requested additional
briefing on APS’s ability to disconnect Taylor considering its claim is
“inherently unliquidated” and subject to dispute.




2 The case was entitled “State of Arizona v. Terron Nathan Taylor, City of
Phoenix Municipal Court, No. 2011-9033484.” Taylor used M-0741-4470592
as the case number on his pleadings.
3 We cite to the current version of the statute unless otherwise noted.



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                              TAYLOR v. APS
                            Decision of the Court

¶6            Taylor did not brief the requested issue, but filed a motion for
new trial and moved to strike the affidavits APS had attached to its motion
for partial summary judgment. The court denied both motions. APS then
filed a motion for summary judgment seeking to terminate electric services
to Taylor. Instead of responding to the motion, Taylor filed a motion for
reconsideration of the accord and satisfaction partial summary judgment,
which was denied.

¶7            The court subsequently granted APS’s motion for summary
judgment that it could terminate electric service to Taylor because Taylor’s
dispute is about the amount of his bill, which is governed by the
administrative procedures described in Arizona Administrative Code
(“A.A.C.”) R14-2-212. Taylor then filed another unsuccessful motion for
new trial. The court entered a final judgment, and Taylor appealed. We
have jurisdiction under A.R.S. § 12-2101(1).

                                DICUSSION

¶8            Taylor contends that the trial court erred by finding that the
$4300 restitution payment was not an accord and satisfaction for all of his
debts with APS. We disagree.

¶9             We review a grant of summary judgment de novo and view
the facts in the light most favorable to the non-moving party. Andrews v.
Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). A court may grant
summary judgment “if the moving party shows that 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). The determination of whether a
genuine issue of material fact exists is based on the record made in the trial
court. Phoenix Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292, 877
P.2d 1345, 1348 (App. 1994). We can, however, affirm the judgment if the
court was “correct in its ruling for any reason.” Phelps Dodge Corp. v. El Paso
Corp., 213 Ariz. 400, 404 n.7, ¶ 17, 142 P.3d 708, 712 n.7 (App. 2006) (citation
omitted); see Dube v. Likins, 216 Ariz. 406, 417 n.3, ¶ 36, 167 P.3d 93, 104 n.3
(App. 2007) (in examining the trial court’s ruling, we noted that we may
affirm the trial court if it is correct for any reason supported by the record).

¶10          Taylor contends that the court erred by considering the
language of the misdemeanor compromise in resolving the issue. Instead,
he argues that A.R.S. § 47-3311, which governs accord and satisfaction by
instrument, was satisfied when he wrote “Settlement of all claims with
APS” on the $4300 certified check. Taylor also claims that because he




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                              TAYLOR v. APS
                            Decision of the Court

submitted the check twelve days before APS signed the misdemeanor
compromise, the compromise was not part of the accord and satisfaction.

¶11            The language on the face of the check, however, undermines
Taylor’s argument.       “Construction and enforcement of settlement
agreements, including determinations as to the validity and scope of release
terms, are governed by general contract principles.” Emmons v. Superior
Court, 192 Ariz. 509, 512, ¶ 14, 968 P.2d 582, 585 (App. 1998) (citations
omitted). Moreover, “[i]t is well established that a contract must be
construed as a whole and the intentions of the parties thereto must be
collected from the entire instrument and not from detached portions.”
O’Malley Inv. & Realty Co. v. Trimble, 5 Ariz. App. 10, 16, 422 P.2d 740, 746
(1967) (citations omitted).

¶12           Here, the language on the certified check that Taylor added
states “Settlement of all claims with APS per agreement with State.” The
clause demonstrates that Taylor’s agreement was not merely an agreement
with APS, but “per agreement with State.” The language “per agreement
with State” modifies the clause “Settlement of all claims with APS.” See
generally Phoenix Control Sys., Inc. v. Ins. Co., 165 Ariz. 31, 34, 796 P.2d 463,
466 (1990) (noting that under the rules to interpret a contract a qualifying
phrase is applied to the phrase immediately preceding the qualifying
phrase as long as there is no contrary intent indicated). Because the
“Settlement of all claims with APS” was restricted by the clause “per
agreement with State,” the question becomes what was the agreement.

¶13            The only agreement that the City prosecutor could enter into
would be relating to the criminal prosecution.4 Here, some three months
after the City amended the complaint to limit the dates of the theft of
electricity to only February 1, 2011 to June 29, 2011,5 Taylor made the

4 Although Taylor contends that the prosecutor was APS’s ostensible or
apparent agent, a prosecutor is not an agent for a victim of a crime. See
Ariz. R. Crim. P. 39.
5 Taylor asserts that the term “settlement of all claims with APS” included

the period before February 1, 2011 because, before the City amended the
complaint, Taylor made a discovery request for how APS made its
calculations from 2003 to 2010. This argument is frivolous. The City
amended the complaint before the parties negotiated a misdemeanor
compromise, and any prior discovery request did not transmute the
compromise or the amended complaint to cover the period before February
1, 2011.



                                       5
                             TAYLOR v. APS
                           Decision of the Court

following offer: “1. Mr. Taylor will pay the approximately $4,300 alleged
to be owed to APS for restitution [and] 2. The State will dismiss all charges
with prejudice.”6 The prosecutor, after acknowledging that Taylor was
seeking a misdemeanor compromise under A.R.S. § 13-3981, accepted the
compromise offer, but stated, “a certified check or money order for $4300.00
is to be delivered to any APS business office to be entered onto [Taylor’s]
APS account by 4p on Wednesday, August 15.” After Taylor made the
payment, an APS representative appeared in court, and the judge
memorialized the misdemeanor compromise. See A.R.S. § 13-3981(C) (“The
reasons for the order shall be set forth and entered of record on the minutes
and the order shall be a bar to another prosecution for the same offense.”).
In fact, the misdemeanor compromise stated that APS received full
satisfaction for injuries sustained from February 1, 2011 to June 29, 2011
and, as a result, the court then dismissed the action.

¶14            Taylor has not identified anything in the record
demonstrating that the compromise agreement and restitution payment
were supposed to represent more than the five months of electricity that he
stole as alleged in the amended criminal complaint. Moreover, Taylor’s
offer to the City demonstrates the offer was limited to allegations in the
amended complaint because he referred to the restitution payment as the
amount “alleged to be owed.” Taylor, ultimately, received what he
bargained for: (1) he would make a $4300 restitution payment, and (2) the
criminal complaint would be dismissed. Consequently, the trial court did
not err in granting summary judgment to APS on Taylor’s accord and
satisfaction argument.

¶15            Taylor also asserts that the trial court erred by applying the
exhaustion of administrative remedies sua sponte because APS did not
raise the defense. The record, however, undermines the argument. When
APS moved for summary judgment to terminate electric services, APS cited,
and quoted, in its memorandum of points and authorities various sections
of Title 14 of the Arizona Administrative Code, which regulates how a
public utility company can terminate a customer’s service. In granting the
motion, the court explained the dispute concerned the amount Taylor owed




6During negotiations with the City prosecutor, Taylor’s counsel referred to
the prosecuting agency as the State. Here, the City of Phoenix was
prosecuting the case and the criminal complaint was filed in Phoenix
Municipal Court.



                                     6
                             TAYLOR v. APS
                           Decision of the Court

on his electricity bill from 2003 to 2010 and noted the resolution of the
customer bill dispute would be covered by A.A.C. R14-2-212.7

¶16            Taylor also argues that the court failed to consider all the
evidence. He appears to assert that a genuine issue of material fact exists
because he filed a verified complaint and verified motion for partial
summary judgment with supporting exhibits. Despite the pleadings,
Taylor has not identified nor have we found anything in the record
demonstrating a genuine issue of material fact to preclude the entry of
judgment. See ARCAP 13(a)(7)(A) (“an appellant’s opening brief must set
forth . . . [a]ppellant’s contentions concerning each issue presented for
review, with . . . appropriate references to the portions of the record on
which the appellant relies”).

¶17           Finally, Taylor raises various issues contesting the court’s
reasoning in denying his motion for partial summary judgment on accord
and satisfaction. Because we have reviewed the ruling de novo and affirm
the ruling, we need not address those issues. See, e.g., McCallister Co. v.
Kastella, 170 Ariz. 455, 457, 825 P.2d 980, 982 (App. 1992) (noting that the
denial of summary judgment is not appealable when we affirm summary
judgment against that party).

                   ATTORNEYS’ FEES AND COSTS

¶18          Both parties request an award of attorneys’ fees and costs
pursuant to A.R.S. §§ 12-341.01 and -349. Because APS is the prevailing
party, we exercise our discretion under § 12-341.01 and award APS its
reasonable attorneys’ fees and costs on appeal upon compliance with
Arizona Rule of Civil Appellate Procedure 21.




7The administrative regulation provides if the customer disputes a bill, the
customer has to pay the undisputed portion, the utility has to conduct an
investigation and report to the customer in writing and inform the customer
of his rights to appeal to the Arizona Corporation Commission. Once the
customer receives the report, he has five days to pay the disputed amounts
or the utility can terminate service. A.A.C. R14-2-212(B).


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                     TAYLOR v. APS
                   Decision of the Court

                     CONCLUSION

¶19   We affirm the judgment of the trial court.




                           :ama




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