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Broemmer v. Otto5/9/1991
its answers to interrogatories, ASP denied that Otto was its employee but admitted that it had a contract with Otto to provide services. We find nothing in the briefs on appeal concerning whether this relationship made Otto an agent of ASP. Otto avoided taking a position on his status as an agent in the memoranda filed with the motion to dismiss. ASP and Otto both deny that he was an agent or employee. Otto argues that he is a party to the arbitration agreement by virtue of the following provision:
2. This agreement shall be binding not only upon the parties hereto, but also as appropriate their respective heirs, devisees, personal representatives, guardians or any person deriving any claim through or on behalf of them. (Emphasis added.)
He contends that he is covered by this clause because he is a person who could derive a claim through them, meaning through the parties to the contract. He asserts that his legal status is derived through ASP. Broemmer contends that the word them refers to "heirs, devisees, personal representatives or guardians" and that the phrase limits the beneficiaries of the contract to successors in interest of those four identified groups. She argues that this phrase, ambiguous in her view, should have been construed in her favor.
The interpretation of a contract must be made anew in this court independently of the trial court's findings. Stika v. Albion, 150 Ariz. 521, 523, 724 P.2d 607, 609 (App.1986). Whether a contract is ambiguous is initially a question of law for the court to decide. Autonumerics, Inc. v. Bayer Industries, 144 Ariz. 181, 186, 696 P.2d 1330, 1335 (App.1985). The fact that the parties to an agreement disagree over its meaning does not establish its ambiguity. Id.
The above-quoted provision is not ambiguous. The word their clearly refers to "the parties." It precedes a list of categories of parties to be bound. Each group is separated by commas and the conjunction or precedes the final grouping "any person deriving any claim through or on behalf of them." The parallel use of the word them grammatically refers back to the subject to which the entire list relates, i.e., "the parties." The quoted provision makes the agreement binding on persons who derive their claims from one of the parties to the agreement.
The consent to operation document gives ASP the right to designate a physician to perform the termination procedure. The agreement to arbitrate renders a dispute over services subject to arbitration. The most plausible interpretation of these provisions is that disputes over services provided by ASP through the designated physician are subject to arbitration. We conclude that this dispute over the adequacy of the services provided by Otto is covered by the agreement to arbitrate.
RULE 60 RELIEF
The parties stipulated to the form of judgment which dismissed the complaint.
The judgment did not order arbitration proceedings or stay the superior court proceedings pending arbitration. Almost one month after judgment was entered, Broemmer filed a Rule 60 motion to set aside the judgment on grounds that it violated A.R.S. ยง 12-1502. The motion did not identify any grounds in Rule 60, Arizona Rules of Civil Procedure.
On appeal Broemmer asserts that Rule 60(a), which permits correction of judgments for clerical mistakes, entitles her to relief. Her position is inconsistent with the substantive nature of her argument both in the trial court and on appeal. Her motion and briefs argue that the
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