Court of Appeals of Arizona,

Division 1.

George H. LARSON, Plaintiff/Appellant,

v.

UNITED NATURAL FOODS WEST INC., Defendant/Appellee.

 

No. 1 CA–CV 12–0477.

Feb. 13, 2014.

 

Appeal from the Superior Court in Maricopa County; No. CV2009–052800, CV2009–055084 (Consolidated), The Honorable Michael J. Herrod, Judge. AFFIRMED IN PART; RULING ON MOTION FOR NEW TRIAL AND ATTORNEYS’ FEES MODIFIED IN PART.

Douglas M. Schumacher, Esq., Fountain Hills, Counsel for Plaintiff/Appellant.

 

Gallagher & Kennedy, Phoenix, By DonaldPeder Johnsen, Jodi R. Bohr, Counsel for Defendant/Appellee.

 

Judge SAMUEL A. THUMMA delivered the decision of the Court, in which Presiding Judge RANDALL M. HOWE and Judge PATRICIA A. OROZCO joined.

 

MEMORANDUM DECISION

THUMMA, Judge.

*1 ¶ 1 Plaintiff George H. Larson appeals from the grant of summary judgment against him on four claims, the denial of his motion for new trial on a fifth claim and an award of attorneys’ fees in favor of defendant United Natural Foods West, Inc. (UNFI) on Larson’s claims arising out of termination of his employment with UNFI. Because the superior court properly granted UNFI summary judgment on four of Larson’s claims, those rulings are affirmed. For the fifth claim (a statutory wage claim), based on representations UNFI made to the court and UNFI’s post-verdict actions, Larson is entitled to a conditional new trial, unless UNFI pays Larson wages and related amounts as described below. Accordingly, the superior court’s denial of Larson’s motion for new trial and award of attorneys’ fees in favor of UNFI are modified in part as set forth below.

 

FACTS AND PROCEDURAL HISTORY

¶ 2 Larson worked as a commercial truck driver for Sysco Foods from 1994 to 2003. In 2003, a random drug test showed Larson had an alcohol concentration level of .032. Sysco had a zero tolerance policy and gave Larson the choice to either resign or be terminated. Larson resigned.

 

¶ 3 In May 2003, Larson applied to work as a truck driver for Mountain People’s Warehouse (MPW), the predecessor to UNFI. In his employment application, Larson indicated that he resigned from Sysco. MPW made timely contact with Sysco to request employment verification and drug testing information relating to Larson. In response, Sysco stated Larson’s drug tests showed an alcohol concentration level of .04 and that Larson had been terminated, statements the parties in this case agree were incorrect. Notwithstanding this erroneous information from Sysco, MPW hired Larson as a truck driver in June 2003.

 

¶ 4 UNFI later acquired MPW. Larson received handbooks that contained employer rules and policies, first for MPW and (after UNFI acquired MPW) for UNFI. These handbooks stated Larson’s employment was “at-will” and contained disclaimers stating the provisions in the handbooks did not create contracts. Larson never tested positive for drugs or alcohol while employed by MPW or UNFI.

 

¶ 5 In October 2008, during a random file audit, UNFI discovered the disparity between Larson’s employment application (stating he resigned from Sysco) and Sysco’s indication that he had been terminated. UNFI also noted in the Sysco report that Larson’s testing revealed an alcohol concentration of .04 or greater without any resulting evaluation or rehabilitation. UNFI contacted Sysco to verify the termination and alcohol test results. Sysco confirmed that, in 2003, Larson had a positive alcohol test, that he had been terminated and that Sysco did not have any record that he had undergone any substance abuse evaluation or rehabilitation.

 

¶ 6 As a result, UNFI first suspended Larson with pay. Based on the .04 alcohol concentration test report from Sysco in 2003, UNFI told Larson that United States Department of Transportation (DOT) regulations required him to go through an assessment, evaluation and/or treatment with a substance abuse counselor before he could return to driving.FN1 Although the parties later disputed the meaning of the statement, UNFI representatives told Larson he had “thirty days to get a rehab treatment/ completion certificate.” UNFI then told Larson he would be suspended without pay, not with pay as originally represented.

 

FN1. Under DOT regulations, an alcohol test result showing a concentration of between .02 and .04 requires the driver to “stand down” for 24 hours. Any reading more than .04 requires a Substance Abuse Professional evaluation. See 49 C.F.R. § 40.285 (discussing when evaluations required); 49 C.F.R. § 40.305 (discussing “stand down” requirement).

 

*2 ¶ 7 Larson found a Substance Abuse Professional (SAP), underwent an evaluation and provided a copy of the written evaluation report to UNFI. The SAP diagnosed Larson as “alcohol dependent” and prescribed an initial six-month treatment regimen. After receiving the SAP report, UNFI terminated Larson’s employment on November 24, 2008. UNFI noted that Larson could not complete the SAP recommendations within thirty days. See 49 C.F.R. § 391.41(b)(13) (driver with diagnosis of alcoholism is disqualified from driving). In addition, UNFI indicated that Larson had been dishonest in his employment application.

 

¶ 8 Larson sued UNFI alleging five counts: (1) wrongful termination in violation of Arizona Revised Statutes (A.R.S.) section 23–1501 (2014); FN2 (2) breach of contract; (3) breach of the implied duty of good faith and fair dealing; (4) invasion of privacy and (5) a wage claim under A.R.S. § 23–355. After discovery and full briefing, the superior court granted UNFI’s motion for summary judgment on the first three claims, finding that the policies and handbooks did not create a contract, and denied Larson’s motion for reconsideration. The superior court granted UNFI’s subsequent motion for summary judgment on the invasion of privacy claim, finding Larson consented to the SAP evaluation and the disclosure of that evaluation to UNFI.

 

FN2. Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.

 

¶ 9 The superior court denied UNFI’s motion for summary judgment on the wage claim, which was resolved at a two-day jury trial held in January 2012. In April 2011, UNFI sent Larson a check for $8,139.60 (representing $2,034.90 Larson sought in the wage claim trebled pursuant to A.R.S. § 23–355) and a check for $2,412.57 (representing interest on the $8,139.60 from “termination through the present” and a $301 filing fee). Those checks and a cover letter were received in evidence at trial. UNFI told the court and the jury that Larson had been paid and he would be able to keep the money regardless of the outcome of the trial. A few days after the jury returned a defense verdict, however, UNFI stopped payment on the checks. To date, UNFI has not paid Larson these amounts.

 

¶ 10 Larson filed a motion for new trial, claiming UNFI had made misrepresentations at trial regarding his ability to keep the payment of the amounts reflected in the checks. After full briefing, the superior court denied Larson’s motion for new trial and granted UNFI’s request for attorneys’ fees, awarding UNFI attorneys’ fees and costs totaling $152,230.74. The superior court then entered final judgment and this court has jurisdiction over Larson’s timely appeal pursuant to A.R.S. §§ 12–2101(A)(1) and (A)(5)(a).

 

DISCUSSION

¶ 11 Larson argues the superior court erred in granting UNFI’s summary judgment on Larson’s claims of: (1) wrongful termination (2) breach of contract (3) breach of the implied duty of good faith and fair dealing and (4) invasion of privacy. Larson also argues the superior court erred in (5) denying his motion for a new trial on the wage claim and (6) granting UNFI attorneys’ fees. The court addresses these issues in turn.FN3

 

FN3. Larson’s opening brief does not contain proper references to the record, meaning the factual recitations in the brief properly could be stricken. See Sholes v. Fernando, 228 Ariz. 455, 457 n .2, ¶ 2, 268 P.3d 1112, 1114 n. 2 (App.2011). Given the preference to decide matters on the merits, however, the court considers the parties’ briefs but limits Larson’s factual recitations to those properly supported by the record. See Adams v. Valley Nat’l. Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App.1984).

 

Similarly, although Larson’s opening brief states the superior court precluded his DOT trucking expert Brooks Rugemer from testifying at trial, by failing to cite authority to support any claim that such exclusion was error, Larson waived any such claim. See State v. Moody, 208 Ariz. 424, 452 n. 9, ¶ 101, 94 P.3d 1119, 1147 n. 9. (2004); State v. Guytan, 192 Ariz. 514, 520, ¶ 15, 968 P.2d 587, 593 (App.1998). Moreover, because Rugemer was to testify on matters disposed of by summary judgment, and Larson’s opening brief fails to show how that testimony would have been relevant to the statutory wage claim, even on the merits, Larson fails to show an abuse of discretion in excluding Rugemer’s testimony.

 

I. The Superior Court Properly Granted Summary Judgment In Favor Of UNFI And Against Larson.

*3 ¶ 12 Summary judgment is appropriate “if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.”   Wells Fargo Bank v. Ariz. Laborers, 201 Ariz. 474, 482, ¶ 14, 38 P.3d 12, 20 (2002). This court reviews the grant of summary judgment de novo, “view[ing] the evidence and reasonable inferences in the light most favorable to” Larson.   Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).

 

A. Wrongful Termination Claim.

¶ 13 Enacted in 1996, the Arizona Employment Protection Act (AEPA) codifies, at A.R.S. § 23–1501, Arizona’s public policy regarding employment relationships. See Cronin v. Sheldon, 195 Ariz. 531, 540–41, ¶ 41, 991 P.2d 231, 240–41 (1999); see also White v. AKDHC, LLC, 664 F.Supp.2d 1054, 1061 (D.Ariz.2009). The AEPA not only applies to employee’s breach of contract claims resulting from termination, it “governs [such claims] exclusively.”   White, 664 F.Supp.2d at 1061.

 

¶ 14 Displacing the common law, “[t]he [A]EPA codifies the atwill [employment] presumption and specifies very few situations in which the presumption may be rebutted.” Id. Claiming an exception to this presumption of employment at will, Larson relies upon the following AEPA provision:

 

The employment relationship is severable at the pleasure of either the employee or the employer unless both the employee and the employer have signed a written contract to the contrary setting forth that the employment relationship shall remain in effect for a specified duration of time or otherwise expressly restricting the right of either party to terminate the employment relationship. Both the employee and the employer must sign this written contract, or this written contract must be set forth in the employment handbook or manual or any similar document distributed to the employee, if that document expresses the intent that it is a contract of employment, or this written contract must be set forth in a writing signed by the party to be charged. Partial performance of employment shall not be deemed sufficient to eliminate the requirements set forth in this paragraph.

 

A.R.S. § 23–1501(A)(2) (emphasis added). In the AEPA, “[t]he word ‘expressly’ means in direct or unmistakable terms; … directly and distinctly stated; expressed, not merely implied or left to inference.” Johnson v. Hispanic Broadcasters of Tucson, Inc., 196 Ariz. 597, 601, ¶ 9, 2 P.3d 687, 691 (App.2000) (citations and quotations omitted). Larson claims three documents constitute express written contracts signed by both parties as contemplated by the AEPA that alter the presumptive employment at will relationship: (1) MPW’s employee handbook; (2) UNFI’s employee handbook and (3) handwritten notes.

 

i. MPW’s Employee Handbook.

¶ 15 Larson claims the following MPW employee handbook provision is an express written contract prohibiting UNFI from terminating him at will: “[a]n employee with a substance abuse problem that comes forward to the [Employee Assistance Program] officer may not be subject to suspension or termination.” This argument fails as a matter of law for two primary reasons.

 

*4 ¶ 16 First, it is undisputed that Larson was an employee of UNFI (not MPW) when he was terminated. UNFI’s handbook, expressly states “[t]his handbook supersedes and replaces all previous personnel policies, practices, and guidelines.” Accordingly, because MPW’s handbook was superseded by UNFI’s handbook, Larson could not properly assert a claim based on MPW’s handbook.

 

¶ 17 Second, even if MPW’s handbook applied, Larson did not identify himself to an Employee Assistance Program officer, meaning he would not be entitled to claim any protection provided by the MPW handbook provision quoted above. Thus, it is undisputed that Larson did not complete the necessary steps to be protected under the MPW handbook, and thus no contract could have been formed that would allow Larson to be entitled to protection under A.R.S. § 23–1501(A)(2). Accordingly, the superior court did not err in rejecting Larson’s wrongful termination claim to the extent it was based on MPW’s handbook.

 

ii. UNFI’s Employee Handbook.

¶ 18 Larson claims the following UNFI employee handbook provision is an express written contract prohibiting UNFI from terminating him at will: “[a]n employee who voluntarily identifies himself/herself as a substance abuser prior to being notified or requested to take a drug test will be considered ‘self-identified’ and will be referred for counseling and rehabilitation where appropriate.” This argument also fails as a matter of law for two primary reasons.

 

¶ 19 First, UNFI’s employee handbook expressly states that it “is not intended to be a contract (express or implied), nor is it intended to otherwise create any legally enforceable obligations on the part of [UNFI] or its employees.” The handbook states elsewhere that UNFI is an at-will employer, and that “either the Company or its employees may terminate the employment relationships at any time, with or without cause or advance notice.” These express provisions and disclaimers make clear as a matter of law that Larson could not properly rely on the handbook to create a contract of employment. See Robertson v. Wal–Mart Stores, Inc., 202 Ariz. 286, 291–92, 44 P.3d 164, 169–70 (App.2002) (“Disclaimers in personnel manuals that clearly and conspicuously tell employees that the manual is not part of the employment contract and that their jobs are terminable at will ‘instill no reasonable expectations of job security and do not give employees any reason to rely on representations in the manual.’ ”) (citation omitted).

 

¶ 20 Second, Larson did not voluntarily identify himself as a substance abuser before taking a drug test, as would be required to claim protection of the handbook provision quoted above. Similarly, although Larson claims that he self-identified his alcohol-dependent condition when he directed the SAP to send a copy of her findings to UNFI, UNFI’s request that Larson see a SAP was not a request “to take a drug test.” Thus, this handbook provision does not apply to Larson. Accordingly, the superior court did not err in rejecting Larson’s wrongful termination claim to the extent it was based on UNFI’s handbook.

 

iii. Handwritten Notes.

*5 ¶ 21 Larson contends that handwritten notes taken and signed by UNFI’s Mike Harper during meetings with Larson created a contract under the AEPA. One entry in these notes, which appear to reflect events taken over several weeks, states that Larson’s “termination was considered. But due to [Larson’s] excellent service records, it was agreed that [Larson] should be suspended from duties and given 30 days to get a rehab treatment/completion certificate.” Another entry states “decision made to terminate” Larson.

 

¶ 22 The notes do not purport to be a contract and were not signed by Larson. Moreover, the notes do not expressly limit UNFI’s ability to terminate Larson during his 30 day suspension or in any other way. Thus, the notes do not change the at-will nature of Larson’s employment with UNFI under A.R.S. § 23–1501(A)(2). Accordingly, the superior court did not err in granting summary judgment to UNFI on Larson’s wrongful termination claim.

 

B. Breach Of Contract Claim.

¶ 23 Larson’s breach of contract claim is governed by the AEPA. See White, 664 F.Supp.2d. at 1061. To assert a breach of contract claim under the AEPA, Larson was required to “show that both parties entered into a written contract that either (1) states that the employment relationship has specified duration, or (2) otherwise expressly restricts the right of either party to terminate the employment relationship.” Id. at 1062. In his breach of contract claim, Larson relied on the same three documents he relied upon in asserting his wrongful termination claim: (1) MPW’s handbook; (2) UNFI’s handbook and (3) the handwritten notes. As discussed above, those documents did not state Larson’s employment relationship had a specific duration or otherwise restrict the right to terminate the employment relationship at any time. Accordingly, and for the same reasons the superior court properly granted summary judgment against Larson on the wrongful termination claim, the court properly rejected his breach of contract claim. See id. at 1061 (citing Johnson, 196 Ariz. at 599, 2 P.3d at 689).

 

C. Breach Of Implied Duty Of Good Faith And Fair Dealing.

¶ 24 The duty of good faith and fair dealing is implied in every contract, including employment at will contracts. See Wagenseller v. Scottsdale Mem’l Hosp., 147 Ariz. 370, 385, 710 P.2d 1025, 1040 (1985), superseded in part by A.R.S. § 23–1501. As noted in White, which Larson agrees sets forth the proper analysis, the implied duty of good faith and fair dealing “ ‘requires that neither party do anything that will injure the right of the other to receive the benefits of their agreement.’ Therefore, it protects an employee only to the extent that the employer denied the terminated employee benefits agreed to in the employment contract.” White, 664 F.Supp.2d at 1065 (quoting Wagenseller, 147 Ariz. at 383, 385, 710 P.2d at 1038, 1040 (citations omitted)). As applied

 

*6 [i]n the context of a pure at-will employment contract with no agreed-to benefits and no promise of continued employment or tenure, a termination without cause does not breach the implied covenant of good faith and fair dealing. However, a viable claim for breach of the implied covenant may lie if a plaintiff is alleging that conduct other than the termination itself breached the covenant.

 

White, 664 F.Supp.2d at 1065 (citations omitted).

 

¶ 25 Larson was an at-will employee, meaning his termination by UNFI, alone, did not breach the implied duty of good faith and fair dealing. Instead, Larson contends UNFI breached the implied duty because “UNFI did not perform its DOT obligations within 30 days of hiring Larson; and had they done so, they would have learned that Larson … was not required to undergo a SAP evaluation.” However, neither UNFI’s or MPW’s handbook nor the handwritten notes discuss any promise with respect to the applicable DOT regulations, nor has Larson shown that any such contractual promise regarding DOT regulations existed under A.R.S. § 23–1501. Furthermore, the damages Larson sought for the purported wrong in his good faith and fair dealing claim were for the termination of his employment, not denial of other benefits agreed to in the employment contract. Thus, for these additional reasons (as well as those discussed above in addressing his wrongful termination and breach of contract claims), the superior court properly granted UNFI summary judgment with respect to Larson’s good faith and fair dealing claim. See White, 664 F.Supp.2d at 1065–68.

 

D. Invasion Of Privacy Claim.

¶ 26 Larson’s invasion of privacy claim arises out of UNFI’s requirement to submit to the SAP evaluation that resulted in the disclosure of his alcohol dependency. Arizona recognizes the tort of invasion of privacy, called, as applicable here, the intrusion upon seclusion, allowing for liability for “ ‘intentionally intrud[ing], physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, … if the intrusion would be highly offensive to a reasonable person.’ “ Hart v. Seven Resorts Inc., 190 Ariz. 272, 279, 947 P.2d 846, 853 (App.1997) (quoting RESTATEMENT (SECOND) OF TORTSS § 652B (1977). Consent is an absolute defense to an invasion of privacy claim. See RESTATEMENT (SECOND) OF TORTS § 652(F)(1977).

 

¶ 27 Larson argues that UNFI “did not have a legal right to require the SAP evaluation which revealed the disability upon which Larson was terminated,” and “whether or not there was informed consent by Larson is a question of fact that should have been evaluated and decided” by the jury. The superior court granted summary judgment in favor of UNFI, finding that Larson had consented to the SAP evaluation and that the evaluation was not “highly offensive to a reasonable person.”

 

¶ 28 It is undisputed that Larson consented to see a SAP and send the resulting report to UNFI. Larson argues, however, that his consent was not informed because it was based on assurances by UNFI that the SAP evaluation was only necessary to “document the file” and his consent “was in response to UNFI’s promise of continued employment with compensation.” FN4 However, Larson failed to show how his consent was not informed. An assurance by UNFI as to how the SAP report would be used does not impact the issue of informed consent by Larson to see the SAP and have the SAP’s report sent to UNFI. In the end, Larson agreed to see the SAP, arranged the appointments with the SAP he selected and then instructed the SAP to send her report to UNFI. Thus, because there was no dispute as to material facts, and Larson could not prevail as a matter of law, the superior court properly granted UNFI summary judgment on Larson’s invasion of privacy claim.

 

FN4. Larson also argues for the first time in his reply on appeal that UNFI exceeded the boundaries of any consent when UNFI used the SAP report to terminate Larson, not just file it as documentation. Larson cannot properly raise such an issue in his reply on appeal, meaning it is waived. See, e.g., Moody, 208 Ariz. at 452 n. 9, ¶ 101, 94 P.3d at 1147 n. 9 (2004); State v. Guytan, 192 Ariz. at 520, ¶ 15, 968 P.2d at 593 (App.1998).

 

II. The Superior Court’s Denial Of Larson’s Motion For New Trial On The Statutory Wage Claim.

*7 ¶ 29 Larson’s statutory wage claim went to trial, with the jury returning a verdict for UNFI. Pre-verdict, UNFI told the superior court and the jury that Larson could keep more than $10,500 in payments UNFI made to Larson to resolve the claim. Days after the defense verdict, however, UNFI stopped payment on the checks tendered to Larson. These facts were the sole basis upon which Larson moved for a new trial. This court reviews the denial of a motion for new trial for an abuse of discretion. Dawson v. Withycombe, 216 Ariz. 84, 95, ¶ 25, 163 P.3d 1034, 1045 (App.2007).

 

¶ 30 On April 18, 2011, UNFI sent Larson a check dated April 8, 2011 for $8,139.60 (representing $2,034.90 Larson sought in the wage claim, trebled pursuant to A.R.S. § 23–355) and a check dated April 18, 2011 for $2,412.57 (representing interest on the $8,139.60 from “termination through the present” and Larson’s $301 filing fee). UNFI’s letter accompanying the checks stated:

 

By making these payments [UNFI] does not admit that it is liable to Mr. Larson, on his wage claim or on any other claim. Nor by making these payments does [UNFI] waive any right to assert any defense to all or any portion of the wage claim or any other claim, including without limitation the defense of payment. Please note, however, that these payments are not conditioned upon Mr. Larson’s own release or waiver of any claim.

 

As trial began, outside of the presence of the jury, the following discussion took place between the superior court and UNFI’s counsel addressing whether the tendered checks and accompanying letter should be admitted into evidence:

THE COURT: Just let me understand this. Is this tender a contingent tender or are you just—

 

[UNFI’S COUNSEL]: Non contingent

 

THE COURT: [O]kay. So you’ve made the payment the only issue is—

 

[UNFI’S COUNSEL]: The only issue is whether we were legally obligated to make that payment. That’s the question, Your Honor.

 

THE COURT: So what happens if the jury finds you weren’t?

 

[UNFI’S COUNSEL:] Then we win. We win count five like we won counts one through four.

 

THE COURT: And that means you get the money back?

 

[UNFI’S COUNSEL]: No, sir.

 

THE COURT: Okay. Then I will allow the introduction of the check with the cover letter.

 

¶ 31 Consistent with this factual avowal by UNFI to the court that Larson could keep the money no matter what the verdict, during closing arguments, UNFI reminded the jury of the checks provided to Larson. UNFI also noted to the jury that Larson had not yet accepted the money and he persisted with the suit because UNFI did not admit liability, adding

 

Well, you know, the money ain’t going to get any greener if we admit liability. The cash is the cash. So I have to ask why are we here? Why are we deliberating this case? Why are we taking you all out of circulation for a couple of days here when he’s had the cash in hand for seven, eight months? … The company paid [Larson] a hundred percent and more of what he’s looking for, and yet he has persisted in the case even though he doesn’t meet the definition of wages under Arizona State law.

 

*8 Notwithstanding these avowals to the court and the jury, days after the defense verdict, UNFI stopped payment on the checks, preventing Larson from receiving the money. UNFI makes two arguments seeking to defend its actions: (1) UNFI made no misrepresentation and (2) Larson has not shown that UNFI’s representations influenced the verdict.

 

¶ 32 In arguing there was no misrepresentation, UNFI claims it thought Larson had cashed the checks when avowing to the court and the jury that Larson could keep the money. UNFI, however, knew or should have known whether the checks it wrote months earlier had been cashed. Moreover, UNFI told the court without reservation that payment was “[n]on contingent,” not that Larson could keep the money only if the checks had been cashed. UNFI stopping payment on the checks days later is squarely contrary to these representations.FN5

 

FN5. UNFI also argues that, because the checks were dated more than ninety days before trial, they were stale under A.R.S. § 47–3304(A)(2). That argument, however, ignores the fact that UNFI knew of the date of the checks, and knew or should have known whether they had been cashed, but still made the unqualified representation to the court that payment to Larson was “[n]on contingent.”

 

¶ 33 UNFI’s claim that Larson has not shown the representations influenced the verdict is answered by UNFI’s avowal to the court that the payment was “[n]on contingent.” That claim also is answered by UNFI’s closing argument leading to the defense verdict, where UNFI told the jury: “Why are we taking you all out of circulation for a couple of days here when he’s had the cash in hand for seven, eight months? … The company paid [Larson] a hundred percent and more of what he’s looking for.” As noted by Larson, “UNFI, through its counsel, affirmatively represented to the court, the jury and to Mr. Larson that the money was unconditionally [Larson’s] regardless of the outcome at trial,” but nevertheless stopped payment on the checks days after trial.

 

¶ 34 Although not discussed by name in the briefs, this issue invokes the “application of the maxim ‘allegans contraria non est audiendus’ i.e., that a litigant shall not be permitted to blow hot and cold with reference to the same transaction. The doctrine which is denominated ‘judicial estoppel’ … is well-recognized” in Arizona. Mecham v. City of Glendale, 15 Ariz.App. 402, 404, 489 P.2d 65, 67 (1971) (citing cases). Under judicial estoppel, a party “having obtained judicial relief by asserting one set of facts may not thereafter obtain other relief by asserting a contrary set of facts.” Black v. Perkins, 163 Ariz. 292, 293, 787 P.2d 1088, 1089 (App.1989); see also Hrudka v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App.1995) (similar). Three requirements must be present for judicial estoppel to apply: (1) the parties must be the same; (2) the question involved must be the same and (3) the party asserting the inconsistent position must have been successful previously in taking a contrary position. State v. Towery, 186 Ariz. 168, 182, 920 P.2d 290, 304 (Ariz.1996). “Prior success is a prerequisite to the application of judicial estoppel because absent judicial acceptance of the prior position, there is no risk of inconsistent results.” Towery, 186 Ariz. at 183, 920 P.2d at 305.

 

*9 ¶ 35 As applied, the parties are the same and the issue (the “[n]on contingent” payment) is the same. UNFI was successful (in arguing to the superior court that the checks and cover letter were admissible in evidence) by taking the position that payment was “[n]on contingent” and that Larson could keep the payment. Because UNFI was previously successful in arguing, as a factual matter, that Larson would keep the money no matter what, UNFI is judicially estopped from taking an inconsistent position after the defense verdict. See Towery, 186 Ariz. at 183, 920 P.2d at 305.

 

¶ 36 Given this judicial estoppel, unless UNFI pays Larson the amounts it said he could keep, with interest, a new trial on the statutory wage claim is required. Accordingly, applying the doctrine of judicial estoppel, UNFI is required to pay Larson the $10,552.17 (representing Larson’s lost wages and treble damages under A.R.S. § 23–355 and filing fees) plus interest on $8,139.60 at the statutory rate applicable under A.R.S. § 44–1201 from April 18, 2011 until paid in full. Should UNFI make such a payment to Larson within 30 days from the date of the issuance of the mandate in this case, the order denying the motion for new trial is affirmed. Should UNFI fail to make such a payment of that amount by that date, the order denying the motion for new trial is reversed, with Larson’s statutory wage claim to be set for a new trial.

 

III. The Award Of Attorneys’ Fees To UNFI.FN6

 

FN6. If UNFI fails to timely make the payment mentioned in paragraph 36, the superior court’s award of attorneys’ fees is vacated pending the resolution of the new trial on the statutory wage claim (recognizing that UNFI’s failure to timely make that payment would be the cause of the parties incurring additional attorneys’ fees leading up to and at the new trial). If, however, UNFI timely makes that payment, the court addresses the propriety of the award of attorneys’ fees by the superior court to obviate the need for any subsequent appeal.

 

¶ 37 As relevant here, UNFI sought attorneys’ fees incurred in superior court totaling $149,049.50 pursuant to A.R.S. § 12–341.01. The superior court granted UNFI attorneys’ fees in that amount, which the court found “would not cause an extreme hardship, and having determined that the fees that the defendant seeks are reasonable.” The court also granted UNFI’s costs in the amount of $3,181.24. Larson claims that his breach of contract claim is the only claim eligible for an award of attorneys’ fees under A.R.S. § 12–341.01 and that the superior court improperly failed to recognize that limitation and, as a result, failed to properly apportion fees.

 

¶ 38 A prevailing party can recover reasonable attorneys’ fees “[i]n any contested action arising out of a contract.” A.R.S. § 12–341.01(A). Whether a party can recover fees for claims arising out of contract is a question of statutory interpretation which this court reviews de novo. Bennett v. Baxter Grip., Inc., 223 Ariz. 414, 419, ¶ 19, 224 P.3d 230, 235 (App.2010). Where authorized by A.R.S. § 12–341.01(A), this court will not reverse the superior court’s fee award absent an abuse of discretion. Rogus v. Lords, 166 Ariz. 600, 603, 804 P.2d 133, 136 (App.1991).

 

¶ 39 Larson argues his wrongful termination, good faith and fair dealing and invasion of privacy claims do not arise out of contract, meaning they were not subject to a fee award under A.R.S. § 12–341.01 and that apportionment excluding fees incurred for those claims was required.FN7 The wrongful termination and good faith and fair dealing claims, however, clearly “aris[e] out of a contract, express or implied” and, accordingly, are subject to a fee award under A.R.S. § 12–341.01(A). Among other things, Larson’s complaint alleges that the wrongful termination claim arose out of the alleged “breach of an express and/or implied contract.” The complaint similarly alleges that “Arizona law incorporates the duty of good faith and fair dealing in every employment agreement.” Accordingly, Larson’s wrongful termination and good faith and fair dealing claims are eligible for an award of attorneys’ fees pursuant to A.R.S. § 12–341.01(A). See also Nelson v. Phx. Resort Corp., 181 Ariz. 188, 201, 888 P.2d 1375, 1388 (App.1994) (noting “facts which show a breach of contract, the breach of which may also constitute a tort” may support an award of attorneys’ fees under A.R.S. § 12–341.01(A)).

 

FN7. Although UNFI sought fees in federal court in the federal litigation between the parties after summary judgment was granted in UNFI’s favor on Larson’s ADA and FMLA claims, UNFI made clear in its motion for attorney fees in the superior court that “the fee application in this case does not seek to recover any fees that were incurred in the federal case.” Accordingly, the federal court’s ruling on the request for different fees incurred in a different court arising out of different claims is not preclusive here.

 

*10 ¶ 40 In the abstract, an invasion of privacy claim is properly described as a tort. See Hart, 190 Ariz. at 279, 947 P.2d at 853 (quoting RESTATEMENT (SECOND) OF TORTS § 652B (1977)). As applied, however, Larson’s invasion of privacy claim arises out of his employment with UNFI, asserting “UNFI, when it required Larson to submit to the SAP evaluation, [sic] did not have a legal right to require the SAP evaluation which revealed the disability upon which Larson was terminated.” Moreover, Larson’s complaint alleged each of his claims (including the intrusion upon seclusion claim) “arises out of contract” making them eligible “pursuant to A.R.S. § … 12–341.01” for an award of “reasonable attorneys’ fees.” For these reasons, on the unique facts of this case, the superior court properly could find that Larson’s invasion of privacy claim either arose out of contract or was inextricably interwoven with his contract claims. See Modular Mining Sys., Inc. v. Jigsaw Techs., Inc., 221 Ariz. 515, 522–23, ¶¶ 22–23, 212 P.3d 853, 859–60 (App.2009) (finding superior court properly awarded attorneys’ fees pursuant to A.R.S. § 12–341.01(A) where “fees were ‘incurred in litigating interwoven and overlapping contract and tort claims’ ”). As a result, the superior court did not err in finding UNFI eligible for an award of attorneys’ fees for all of Larson’s claims pursuant to A.R.S. § 12–341.01(A). See, e.g., id.; Campbell v. Westdahl, 148 Ariz. 432, 441, 715 P.2d 288, 297 (App.1985) (“Attorney’s fees may be awarded under [§ 12–341.01] for tort claims that are intertwined with contract claims.”). Accordingly, and recognizing that Larson does not challenge the amount of attorneys’ fees awarded (as opposed to whether the claims were eligible for a fee award), the superior court’s award of attorneys’ fees in favor of UNFI is affirmed.

 

¶ 41 UNFI requests an award of attorneys’ fees and costs on appeal, citing A.R.S. §§ 12–341 to –342, –349. In exercising the court’s discretion, and given the outcome of this appeal, neither party is awarded attorneys’ fees incurred on appeal. Given that Larson prevailed in part on appeal, he is awarded costs incurred on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.

 

CONCLUSION

¶ 42 The superior court’s grant of summary judgment in favor of UNFI on Larson’s claims of (1) wrongful termination (2) breach of contract (3) breach of implied duty of good faith and fair dealing and (4) invasion of privacy is affirmed. The superior court’s denial of Larson’s motion for new trial on the statutory wage claim is affirmed as issued if UNFI pays Larson, within 30 days of the issuance of the mandate, $10,552.17 (representing Larson’s lost wages and treble damages under A.R.S. § 23–355 and filing fees) plus interest on $8,139.60 at the statutory rate applicable under A.R.S. § 44–1201 from April 18, 2011 until paid in full. In addition, should that payment by UNFI to Larson be made in a timely fashion, the superior court’s award of attorneys’ fees in favor of UNFI is affirmed. Should UNFI fail to timely make that payment to Larson, the superior court’s denial of Larson’s motion for new trial on the statutory wage claim is reversed, the superior court’s award of attorneys’ fees in favor of UNFI is reversed and Larson’s statutory wage claim is to be set for a new trial.