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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   MARK SCHNIZLEIN, Plaintiff/Appellant,

                                         v.

                 DEBBIE YAZZA et al., Defendants/Appellees.

                              No. 1 CA-CV 16-0305
                                FILED 4-20-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-093207
               The Honorable Robert H. Oberbillig, Judge
                  The Honorable David K. Udall, Judge

                                   AFFIRMED


                                    COUNSEL

Mark Schnizlein, Scottsdale
Plaintiff/Appellant

Udall Shumway, PLC, Mesa
By Stockton D. Banfield
Counsel for Defendants/Appellees
                       SCHNIZLEIN v. YAZZA et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.


N O R R I S, Judge:

¶1            This appeal arises out of orders entered by the superior court
dismissing all claims asserted by Plaintiff/Appellant Mark Schnizlein and
Defendants/Appellees Debbie and Alex Yazza against each other, and
awarding the Yazzas $17,500 in attorneys’ fees.

¶2            On appeal, Schnizlein argues the superior court improperly
denied his request for a jury trial and granted summary judgment against
him, thus, depriving him of an opportunity to prove his claims against the
Yazzas. Contrary to Schnizlein’s argument, the record shows the superior
court did not improperly deny his request for a jury trial or grant summary
judgment to the Yazzas. Instead, the superior court dismissed Schnizlein’s
claims against the Yazzas with prejudice pursuant to a settlement
agreement the parties, then represented by counsel, reached in “open
court” which, in accordance with what was then Arizona Rule of Civil
Procedure 80(d),1 see infra ¶ 4, they “dictated into the record.” Further, the
superior court approved the settlement agreement as a “binding
agreement,” but only after Schnizlein and Debbie Yazza testified they had
heard and understood the agreement as dictated into the record and
confirmed the agreement was “in fact, their agreement.” Because the parties
stipulated to dismissing their claims with prejudice, the superior court also
appropriately vacated the scheduled jury trial.

¶3           Further, to the extent Schnizlein is challenging the existence
or the terms of the settlement agreement,2 or asserting the superior court

              1The Arizona Supreme Court amended the Arizona Rules of
Civil Procedure effective January 1, 2017, and what was Rule 80(d) is now
Rule 80(a).

              2Schnizlein acknowledges in his reply brief that he “agreed to
allow the judge to hear the case rather than the jury” but asserts that in
agreeing to do so, he relied on the judge’s false assurances that he would



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                       SCHNIZLEIN v. YAZZA et al.
                          Decision of the Court

abused its discretion in approving the settlement agreement, Sandretto v.
Payson Healthcare Mgmt., Inc., 234 Ariz. 351, 362–63, ¶ 48, 322 P.3d 168, 179–
80 (App. 2014) (appellate court reviews superior court’s decision to approve
a settlement agreement for abuse of discretion) (citation omitted), those
arguments are not supported by the record.

¶4            Under former Rule 80(d) agreements between parties in civil
lawsuits were binding if their terms were made orally in open court and
entered in the court minutes. Here, as discussed above and as reflected in
the court’s minutes, the parties entered into a settlement agreement in open
court and “dictated” it into the record. Thus, under Rule 80(d), the
settlement agreement was and is binding on the parties.

¶5             Further, Schnizlein failed to include in the record on appeal a
transcript from the hearing in which the parties dictated their settlement
agreement into the record. See Arizona Rules of Civil Appellate Procedure
(“ARCAP”) 11(c)(1) (appellant must order transcript of court proceeding if
appellant deems it necessary for proper consideration of the issues on
appeal; if appellant will contend on appeal that a judgment is unsupported
by the evidence, appellant must include in the record the transcript of all
proceedings containing evidence relevant to that judgment). Because
Schnizlein failed to include the transcript of that hearing in the record on
appeal, we must assume it supports the factual findings, made by the
superior court on the record, that Schnizlein had agreed to settle and
dismiss his claims against the Yazzas with prejudice and to pay attorneys’
fees to the Yazzas in an amount not to exceed $17,500. See Baker v. Baker,
183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995) (in the absence of a transcript,
appellate court assumes the transcript would support the superior court’s
judgment, findings, and conclusions) (citation omitted).

¶6            Finally, on March 31, 2017, after this appeal was fully briefed
and had been assigned by the Clerk of the Court for consideration by
Department A on April 5, 2017, Schnizlein moved to dismiss this appeal
with prejudice with each party to be responsible for their costs and
attorneys’ fees. We deny that motion. Schnizlein initiated this appeal after
he had entered a binding settlement agreement and then raised arguments


give him a “fair hearing.” He also states that his “attorney said I needed to
agree to a $17,500 judgment because [the superior court judge] was going
to rule [on] summary judgment in favor of any larger amount of money”
sought by the Yazzas in attorneys’ fees. The record contains no support for
any of these accusations against the trial judge, and we reject them.



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                      SCHNIZLEIN v. YAZZA et al.
                         Decision of the Court

on appeal that were without merit and unsupported by the record. The
Yazzas incurred fees and costs in responding to these arguments, and this
court expended judicial resources in addressing them before Schnizlein
filed this motion. Under these circumstances, dismissal of this appeal upon
the terms requested by Schnizlein would be inappropriate as dismissal
would reward him for filing a frivolous appeal. See generally ARCAP 25
(appellate court may impose sanctions for frivolous appeal).

¶7            For the foregoing reasons, we affirm the orders entered by the
superior court dismissing the parties claims against each other with
prejudice and awarding the Yazzas $17,500 in attorneys’ fees. As the
successful party on appeal, and pursuant to their request, we award the
Yazzas attorneys’ fees pursuant to Arizona Revised Statutes section 12-
341.01 (2016) and costs on appeal contingent upon their compliance with
ARCAP 21.3




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




             3Schnizlein   listed Westbrook Builders and Christy Schnizlein
as plaintiffs in his notice of appeal. Although the superior court granted
Schnizlein’s motion to amend the complaint to substitute Westbrook
Builders LLC as plaintiff, the superior court vacated its order pursuant to
the parties’ stipulation. Thus, Westbrook Builders LLC was never a party
to the superior court proceedings. Christy Schnizlein was a named plaintiff,
but settled with the Yazzas, and the superior court dismissed her from the
case. Consequently, neither Westbrook Builders LLC nor Christy Schnizlein
are parties to this appeal. Accordingly, we deny Schnizlein’s motion to
substitute Westbrook Builders LLC as the plaintiff/appellant.



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