Mohr v. Murphy Elementary

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

PAUL B. MOHR, JR. and LYDIA BUSTAMANTE-MOHR, husband and
wife, Plaintiffs/Appellants,

v.

MURPHY ELEMENTARY SCHOOL DISTRICT 21 OF MARICOPA
COUNTY; WILLIAM E. GRIMES and THERESA M. GRIMES, in their
capacities as Governing Board Members; and TERI SWANSON, in her
capacity as Governing Board Member, Defendants/Appellees.

Nos. 1 CA-CV 13-0088, 1 CA-CV 13-0142
(Consolidated)
FILED 10-14-2014

Appeal from the Superior Court in Maricopa County
No. LC2010-000273
The Honorable Gary E. Donahoe, Judge Retired
The Honorable Michael J. Herrod, Judge

No. CV2009-035970
The Honorable Edward O. Burke, Judge Retired
The Honorable Arthur T. Anderson, Judge

APPEAL DISMISSED IN PART; AFFIRMED IN PART; VACATED
AND REMANDED IN PART
 COUNSEL

Law Office of Gary Lassen P.L.C., Mesa
By Gary L. Lassen
Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochuli, P.L.C., Phoenix
By Georgia A. Staton, Gordon Lewis, Eileen Dennis Gilbride
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined.

BROWN, Judge:

¶1 In these consolidated appeals, Paul B. Mohr, Jr. (“Mohr”)
challenges his termination of employment as the superintendent of the
Murphy Elementary School District (“District”).1 In CA-CV 13-0088
(“Administrative Case”), Mohr argues the District’s governing board
(“Board”) employed improper procedures to dismiss him. In CA-CV 13-
0142 (“Civil Case”), a civil action Mohr filed when the Board initiated the
administrative termination process, Mohr contends the superior court erred
in (1) finding unenforceable an “agreement” between Mohr and the Board
to accept suspension as a sanction, and (2) concluding the Board did not
violate Arizona’s open meeting law. For the following reasons, we lack
jurisdiction to consider Mohr’s arguments in the Administrative Case and
we therefore dismiss the appeal. Relating to the Civil Case, we affirm the
court’s ruling that the purported agreement between Mohr and the Board
was unenforceable. We vacate in part, however, the court’s open meeting
law ruling and remand for further proceedings.

1 Paul’s wife, Lydia Bustamante-Mohr, is also a plaintiff in these
proceedings. For ease of reference, and because Lydia does not raise any
separate issues, our decision refers only to Paul.

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BACKGROUND

¶2 In December 2007, Tempe police arrested Mohr at a grocery
store after he admitted to intentionally stealing a $125.00 bottle of wine.
Mohr was charged with shoplifting, a misdemeanor offense. He did not
disclose the shoplifting incident to the Board until several weeks later,
when he telephoned Board member William Grimes and explained he
made an “honest mistake” when he exited the grocery store accidentally
without paying for a “$25.00” bottle of wine. Grimes accepted Mohr’s
description of the event and decided not to investigate the matter. Mohr
did not inform Grimes that he was arrested and charged with a criminal
offense.

¶3 During this same time period, the Arizona Department of
Education notified Mohr’s staff that the Arizona Department of Public
Safety had suspended Mohr’s fingerprint clearance card.2 Over the course
of the following twenty months, Mohr responded to his staff’s repeated
requests to resolve the fingerprint card suspension by explaining he “would
take care of it” or he was “working on it.” He also assured his staff that the
Board was aware of the issue.3 When the District’s human resources
staffing associate questioned Mohr regarding the suspension, he informed
her that the suspension was the result of a “misunderstanding” in which he
had unintentionally failed to pay for a “$20” bottle of wine.

2 See Ariz. Rev. Stat. (“A.R.S.”) §§ 41-1758(2), -1758.03(C)(15),
-1758.04(C) (person arrested for shoplifting shall have fingerprint clearance
card suspended by Department of Public Safety). Arizona law, District
policy, and Mohr’s employment contract required Mohr, as superintendent,
to maintain a fingerprint clearance card at all times during his employment
with the District. See, e.g., Arizona Administrative Code R7-2-616(B)(3)(h).

3 In late January 2008, Mohr prepared a memo advising the Board he
had been arrested, but he misrepresented the circumstances of the
shoplifting incident by asserting it was an “honest mistake” and a
“misunderstanding.” Mohr instructed his staff to add the memo to his
personnel file, stating he would personally give the Board a copy. The
Board never received the memo, however, and only learned of its existence
after commencing an investigation into Mohr’s purported misconduct as
grounds for termination. In the memo, Mohr disclosed that his fingerprint
clearance card had been suspended, but asserted it would be reinstated
upon his completion of “community service.” The card, however, was not
“automatically reinstated;” it remained suspended until September 1, 2009.

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¶4 Meanwhile, in April 2008 Mohr’s criminal case was dismissed
after he completed a diversion program. Mohr renewed his contract with
the District in December 2008, and again in June 2009, thereby extending
his employment contract to June 30, 2012. The contract provided that Mohr
would act as the “chief executive officer of the Board” and administer the
schools under the supervision and direction of the Board. At that time,
Mohr successfully applied for a fingerprint clearance card, which was
issued on September 1, 2009.

¶5 On September 10, 2009, a local television station broadcast a
news story about Mohr’s arrest and, apparently based on the suspended
fingerprint card, his lack of a proper teaching certificate. That night, Grimes
called Mohr regarding the story and Mohr admitted the news account was
accurate. Having become aware of additional circumstances surrounding
the shoplifting incident, the Board held an executive session two days later
at which Mohr appeared. Mohr admitted he had not been truthful with the
Board regarding the shoplifting incident and “accepted full
responsibility[.]”

¶6 During its regularly scheduled meeting on September 14, the
Board placed Mohr on paid administrative leave for thirty days pending an
investigation into his alleged misconduct. As part of the investigation, the
Board learned the previously undisclosed details of the shoplifting incident,
Mohr’s subsequent arrest and the fingerprint card suspension.4 On
September 28, the Board met in executive session and, after consulting with
Mohr telephonically, suspended Mohr for thirty days without pay, effective
immediately.5

¶7 At 5:30 p.m. on October 8, the Board held an executive session
focusing, primarily, on Mohr’s employment and discipline. As reflected in
the record, Mohr received timely notice of the meeting and was informed
he could request that the discussion regarding his employment be held in
an open meeting. The conclusion of the executive session agenda stated:
“The Board may reconvene in public session to take legal action on [matters

4 The police report, which Mohr admitted to the Board accurately
reflected the circumstances of the shoplifting, details that Mohr picked up
a box of fire logs, removed one of them, replaced the missing log with the
$125 bottle of wine, and proceeded to check out, paying only for the logs.

5 We refer to the parties’ discussions and the Board’s disciplinary
action taken on September 28, 2009 as the “unpaid suspension.”

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relating to Mohr] discussed in Executive Session.” At 6:30 that evening, the
Board held a regular meeting. Nothing in the agenda indicated that the
Board would be discussing Mohr’s employment. As reflected in the
minutes, Grimes moved to add “Emergency Item E.1.1 regarding Dr. Paul
Mohr, Superintendent.” The motion carried unanimously. Later during
the meeting, Grimes moved that the board “instruct their legal counsel to
proceed with the direction discussed in Executive Session as to Dr. Mohr’s
employment a[n]d to report back to the board on the status and with the
recommendation.” The motion passed by a vote of four to one.

¶8 At an October 28 special meeting, the Board recessed for an
executive session to discuss Mohr’s employment. When the special
meeting resumed, Grimes moved to rescind Mohr’s unpaid suspension and
reinstitute paid suspension. The motion passed and the Board reimbursed
Mohr for the salary he had not received during the unpaid suspension. On
November 10, the Board adopted a “statement of charges” in support of
terminating Mohr’s employment, alleging Mohr’s misrepresentations
relating to the shoplifting incident and his suspended fingerprint card
amounted to a breach of his employment contract. The statement of charges
also found good cause for termination of Mohr’s employment because his
behavior violated various District policies, as well as state regulations.
Mohr requested a hearing to challenge the statement of charges.

¶9 In the meantime, the day before the Board adopted the
statement of charges, Mohr initiated the Civil Case by filing suit against the
District and the Board in superior court. In Count 1, Mohr sought a
declaratory judgment that the Board breached his employment contract.
Referring to the Board’s decision to seek Mohr’s termination after imposing
the unpaid suspension, in Count 2 Mohr sought injunctive relief requiring
the Board to “honor” the unpaid suspension and enjoining it from taking
“any further adverse action.” Mohr alleged the Board’s actions
“contravene[d] the principles of law of accord and satisfaction” and
violated his due process rights under the Arizona Constitution.6

¶10 The superior court denied Mohr’s request for a preliminary
injunction, finding Mohr had not exhausted his administrative remedies
and the concept of accord and satisfaction was not applicable because the
Board expunged Mohr’s suspension and paid him for the period of time he

6 Mohr initially sought a temporary restraining order but later
withdrew that request.

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spent on unpaid leave.7 Mohr sought special action relief in this court, and
we declined jurisdiction. The District filed a motion to dismiss, and Mohr
filed an amended complaint in 2010 (“First Amended Complaint”) against
the District and three individual Board members, raising the following
claims:

 Count 1, open meeting law violation (Board’s hiring of
Lewis and Roca as counsel, against individual Board
members);

 Count 2, declaratory judgment—employment contract
and settlement agreement (against the Board);

 Count 3, declaratory judgment—constitutional and
statutory rights (alleging that Board’s intended actions
would violate due process);

 Count 4, claim under 42 U.S.C. § 1983 (the Board
wrongfully deprived Mohr of his property interest in
his employment contract and deprived him of his
liberty interest to pursue a livelihood; against all
defendants); and

 Count 5, tortious interference with contract (individual
Board members’ acts outside the open meeting law
process interfered with Mohr’s employment contract).

Before the superior court ruled on pending motions, the District removed
the case to federal court.

¶11 The federal district court dismissed all of Mohr’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(6) except for a contract
claim in Count 2 seeking a declaratory judgment as to a purported
stipulation between the parties to stay the administrative proceedings
pending the outcome of the Civil Case.8 On remand, after reviewing the

7 Mohr also received his normal salary and benefits from the time the
Board rescinded his 30-day unpaid leave until his termination from
employment on March 8, 2010.

8 Mohr appealed to the Ninth Circuit Court of Appeals, which
affirmed the ruling of the District Court.

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transcripts from the hearing at which the stipulation purportedly took
place, the superior court entered a minute entry ruling on November 2, 2010
finding “there was no stipulation to stay the hearing and the termination
hearing properly proceeded on February 18, 2010.”

¶12 Despite Mohr’s attempts in the Civil Case to enjoin the
administrative proceedings, a hearing on the District’s statement of charges
was held in February 2010. Neither Mohr nor his counsel appeared at the
hearing. The hearing officer noted Mohr had notice that a failure to appear
would result in the hearing proceeding without him and that the District
would be permitted to introduce evidence and present its case. The hearing
proceeded accordingly and the hearing officer later issued his decision
recommending that the Board dismiss Mohr. On March 8, 2010, the Board
accepted the decision and terminated Mohr’s employment, effective
immediately.

¶13 Mohr then initiated the Administrative Case by filing a
special action in superior court (“Judicial Review Complaint”). Count 1
challenged the Board’s decision pursuant to A.R.S. §§ 12-901 to -914. The
other six counts included the following allegations:

 Count 2, open meeting law violations (improper hiring
of Lewis & Roca as counsel);

 Count 3, breach of employment contract and
Settlement Agreement;

 Count 4, constitutional and statutory violations (biased
Board failed to afford due process and improperly
used termination procedures in A.R.S. §§ 15-539 to
-552);

 Count 5, tortious interference with contract and
intentional infliction of emotional distress;

 Count 6, special action relief (Board “acted in excess of
statutory authority”); and

 Count 7, violation of Arizona procurement law (hiring
of Lewis & Roca).

The District moved to dismiss Counts 2 through 7. The District argued,
based on the federal court’s rulings, that res judicata barred Counts 2 and
5, and with respect to Counts 3, 4 and 6, that those claims were “subsumed

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within the determination of the administrative appeal [Count 1], and
cannot be brought as a separate action or count.” The District also
requested Count 5 be dismissed for failure to state a claim, and Count 7
dismissed based on lack of standing. The superior court granted the
District’s motion, leaving only Count 1 for resolution.

¶14 After considering the administrative record, the superior
court found that substantial evidence supported the hearing officer’s
decision and the Board’s decision to terminate Mohr’s employment was
not arbitrary, capricious or an abuse of discretion. The court affirmed the
Board’s decision but denied its request for attorneys’ fees and entered a
signed judgment on February 4, 2011. Mohr filed an untimely motion for
new trial on February 24, 2011, which was denied by an unsigned minute
entry on March 22, 2011. Mohr moved to set aside the judgment pursuant
to Arizona Rule of Civil Procedure (“Rule”) 60(c)(4) and (6). The superior
court denied the Rule 60(c) motion and Mohr filed a notice of appeal.

¶15 In April 2011, (after the superior court in the administrative
appeal dismissed six of the seven counts raised in Mohr’s Judicial Review
Complaint), Mohr proceeded to file in the Civil Case another amended
complaint (“Second Amended Complaint”), which, subject to a partially
successful motion to strike filed by the District, raised the following claims:

 Count 1, declaratory judgment (employment contract
and Settlement Agreement);

 Count 2, breach of contract (Settlement Agreement);

 Count 3, breach of covenant of good faith and fair
dealing (Settlement Agreement);

 Count 4, promissory estoppel and detrimental reliance
(Settlement Agreement);

 Count 5, intentional infliction of emotional distress;

 Count 6, libel and slander;

 Count 7, false light;

 Count 8, violation of the open meeting law;

 Count 9, fraudulent inducement (Settlement
Agreement)

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¶16 The parties cross-moved for summary judgment, and the
superior court granted summary judgment in favor of the District. Mohr
unsuccessfully moved for a new trial under Rule 59(a). The court awarded
the Board $89,216 for attorneys’ fees incurred in the Civil Case pursuant to
A.R.S. § 12-341.01 and entered a signed judgment on December 20, 2012,
and. Mohr timely appealed.

JURISDICTION

¶17 In civil matters, “a right to appeal exists only when that right
is specifically given by statute.” Pima County v. State Dep’t of Rev., 114 Ariz.
275, 277, 560 P.2d 793, 795 (1977). “If no statute provides such a right, an
appellate court lacks jurisdiction to consider the issues raised on appeal.”
Stant v. City of Maricopa Employee Merit Bd., 234 Ariz. 196, 198, ¶ 5, 319 P.3d
1002, 1004 (App. 2014).

¶18 With respect to the Civil Case, we have jurisdiction pursuant
to A.R.S. § 12-2101(A)(1) (providing a right to appeal from a final judgment
entered in an action commenced in a superior court). As to the
Administrative Appeal, however, Mohr has not cited a statutory basis for
this court’s appellate review. An appellant “has a duty to identify the
jurisdictional basis of an appeal,” but we also “have an independent duty
to confirm our jurisdiction over an appeal before us.” Anderson v. Valley
Union High School, 229 Ariz. 52, 54, ¶ 2, 270 P.3d 879, 881 (App. 2012).

¶19 The Judicial Review of Administrative Decisions Act
(“JRADA”), A.R.S. §§ 12-901 to -914, provides the superior court, and
subsequently this court, with jurisdiction to review the propriety of final
decisions made by administrative agencies. A.R.S. §§ 12-911, -913. An
“[a]dministrative decision” means “any decision, order or determination of
an administrative agency[.]” A.R.S. § 12-901(2). Political subdivisions are
specifically excluded from the definition of “administrative agency,” A.R.S.
§ 12-901(1), and Mohr has correctly maintained the District is a political
subdivision of the state. See Anderson, 229 Ariz. at 57, ¶ 13, 270 P.3d at 884.
Therefore, despite Mohr’s assertion to the contrary in his Judicial Review
Complaint, the superior court did not, nor does this court, have jurisdiction
under the JRADA to consider the Administrative Case. See id. Another
statutory basis must exist to confer jurisdiction on this court.

¶20 Pursuant to A.R.S. § 15-341(A)(22), a district governing board
shall “[p]rescribe and enforce policies and procedures for disciplinary
action against an administrator who engages in conduct that is a violation of
the policies of the governing board,” and when such conduct is “cause for

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dismissal, the provisions of notice, hearing and appeal in chapter 5, article 3
[Certification and Employment of Teachers] of this title shall apply.”
(Emphasis added). Section 15-543 sets forth the procedure for appealing
from decisions of the board under chapter 5, article 3, and states: “The
decision of the governing board may be reviewed by the court in the same
manner as the decision made in accordance with § 41-783.” (Emphasis
added).

¶21 Mohr, however, does not fall within the meaning of
“administrator,” which is defined as “any school district administrator. . .
devoting not less than fifty per cent of his time to classroom teaching.”
A.R.S. § 15-501(1). “Superintendent” is separately defined as “the
superintendent of schools of a school district.” A.R.S. § 15-501(9). The use
of these terms in other sections of chapter 5 also reflects that the title
“superintendent” is not a subset of “administrator,” but a separate and
distinct designation. See, e.g., A.R.S. § 15-503 (setting forth specific
procedures for contracting superintendents and other procedures for
contracting administrators). More importantly, as relevant here, pursuant
to A.R.S. § 15-539, a superintendent initiates disciplinary proceedings under
chapter 5, article 3, by presenting a written statement of charges to the board
of the school district, and the statute does not provide an alternative
mechanism for initiating disciplinary proceedings against a
superintendent who has committed violations warranting dismissal.
Therefore, because chapter 5, article 3, governs the termination of
administrators, as well as the appeal of such a termination to the superior
court, it does not apply to superintendents. Because no statute provided
Mohr the right to appeal to this court, we lack jurisdiction to consider the
appellate arguments arising out of the Administrative Case.9

DISCUSSION

¶22 We review de novo the grant of a motion for summary
judgment. Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 199,
¶ 15, 165 P.3d 173, 177 (App. 2007). Summary judgment is appropriate
when “there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1).
We will affirm a summary judgment if it is correct for any reason. City of

9 Even if we considered Mohr an administrator under chapter 5,
article 3, this court has held that § 15-543 provides only a limited right to
appeal to the superior court, which does not include “a right of appeal to
this court.” Anderson, 229 Ariz. at 59, ¶ 21, 270 P.3d at 886.

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Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 111, ¶ 14, 32 P.3d 31, 36 (App.
2001).

A. Jurisdiction of the Board

¶23 As a preliminary matter, Mohr contends the superior court
erred by “not question[ing] the jurisdiction of the Board to adjudicate its
own contract.” Specifically, Mohr argues the termination process was
unconstitutional because the Board acted as both the “prosecutor” and the
“adjudicator.” In addition, Mohr asserts the Board was inherently biased
due to its pecuniary interest in the outcome of the proceedings. The federal
district court squarely addressed and rejected these claims in its final order.
Therefore, Mohr was barred from re-litigating these claims under the
doctrine of issue preclusion. See 4501 Northpoint LP v. Maricopa County, 212
Ariz. 98, 103, ¶ 26, 128 P.3d 215, 220 (2006) (explaining that issue preclusion
bars the litigation of issues “that have in fact been litigated and were
essential to a prior judgment”).

B. Denial of Injunctive Relief

¶24 Mohr next argues the superior court erred by denying him
preliminary injunctive relief based on his failure to exhaust his
administrative remedies. He contends that the court, by denying the
injunction, improperly failed to consider his claim that the District breached
the Settlement Agreement. The record, however, reflects that the court
addressed this claim and rejected it based on its determination that lack of
consideration precluded enforceability of the Settlement Agreement. In
any event, Mohr did not seek timely review of the court’s order denying
preliminary injunctive relief, and the administrative proceeding that Mohr
sought to enjoin has long since occurred. This issue is therefore moot. See
ASH, Inc. v. Mesa Unified Sch. Dist. No. 4, 138 Ariz. 190, 191, 673 P.2d 934,
935 (App. 1983) (fully executed contract that was sought to be enjoined
renders challenge to denial of injunctive relief moot based on changed
circumstances); but see Pointe Resorts, Inc. v. Culbertson, 158 Ariz. 137, 140-
41, 761 P.2d 1041, 1044-45 (1988) (based on “policy considerations,”
summarily determining that appellees’ completion, during pendency of
appeal, of actions sought to be enjoined did not moot appeal).

C. Accord and Satisfaction

¶25 Next, Mohr contends the superior court erred in finding the
“Settlement Agreement” unenforceable for lack of consideration. He
asserts his thirty-day unpaid suspension constituted an accord and
satisfaction.

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¶26 As noted supra, ¶¶ 20-21, and argued by Mohr, Title 15,
Chapter 5, does not govern the discipline or termination of Mohr. Instead,
the Board’s authority for disciplining Mohr arose out of the parties’
employment contract, which states in relevant part:

D. DISCHARGE FOR CAUSE. Discharge for Cause shall
constitute conduct that is seriously prejudicial to DISTRICT,
including but not limited to neglect of duty or breach of
contract. Notice of discharge for cause shall be given in
writing and SUPERINTENDENT shall be entitled to appear
before the Board to discuss such causes. Such meeting shall
be conducted in closed executive session. If following the
closed executive session the Board decides that
SUPERINTENDENT should be discharged for cause, the
SUPERINTENDENT shall be so advised in writing.

¶27 The contract required the Board to provide Mohr with written
notice of discharge for cause, afford him the opportunity to appear at an
executive session to discuss such cause, and advise him of the discharge in
writing. Although the contract explicitly references only the authority and
procedures for terminating Mohr, the contract implicitly authorized the
Board to impose lesser sanctions, such as an unpaid suspension. Therefore,
the Board had the contractual authority to discipline Mohr for his illegal
conduct by imposing the thirty-day unpaid suspension. It is undisputed
that Board members consulted Mohr while contemplating an appropriate
sanction, but the Board nonetheless retained its unilateral authority to
impose discipline and did not need Mohr’s consent before placing him on
unpaid suspension. Finally, contrary to Mohr’s argument, the Board had
the authority to rescind the unpaid suspension and terminate his
employment.10 As explained in Zavala v. Arizona State Personeel Board, 159
Ariz. 256, 261, 766 P.2d 608, 613 (App. 1987), when a board rescinds an
unpaid suspension, reimburses lost pay, and then terminates the employee,
the termination is “not a second disciplinary action, but a substitution for
the first.” Therefore, the superior court correctly found no accord and

10 In response to the Board’s argument that he was reimbursed for all
lost wages, Mohr argues in his reply brief that he was not compensated for
the “time value of the money withheld.” Because any interest on the monies
held for less than a month would be de minimis, and because Mohr failed
to raise this issue in his opening brief, we decline to address it. See Romero
v. Southwest Ambulance, 211 Ariz. 200, 204 n.3,, ¶7, 119 P.3d 467, 471 n.3
(App. 2005) (explaining appellate court need not address issues raised for
the first time in a reply brief).

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satisfaction prevented the Board from rescinding the unpaid suspension
and substituting the termination of Mohr’s employment.

D. Open Meeting Law

¶28 Mohr next challenges the legality of the procedures followed
by the District to terminate him. Throughout his briefing, Mohr raises
various claims of open meeting law violations, which we distill to five
discrete issues: (1) whether Lewis and Roca was improperly hired; (2)
whether the Board’s discussion and consideration of Mohr’s employment
as “Emergency Item E.1.1” to the October 8 regularly scheduled meeting
violated A.R.S. § 38-431.02; (3) whether the October 8 and October 28
notices, agendas, and minutes provided the statutorily required notice; (4)
whether the Board’s final decision to terminate Mohr’s employment was
made during a closed, executive session on October 28; and (5) whether the
Board failed to ratify its actions after violating the open meeting laws. Our
review is governed by the overarching statutory principle that “[a]ll legal
action transacted by any public body during a meeting held in violation of
any provision of the [open meeting law] is null and void” unless timely
ratified, as directed by statute. A.R.S. § 38-431.05.

¶29 Mohr contends the Board violated the open meeting law
when individual members, outside of a regular meeting and without
official action of the Board, consulted with the law firm of Lewis & Roca.
The federal district court rejected this claim. Thus, the superior court
properly found in favor of the District on this claim based on issue
preclusion. See 4501 Northpoint LP, 212 Ariz. at 103, ¶ 26, 128 P.3d at 220.

¶30 Mohr further argues that the Board violated A.R.S. § 38-431.02
by including discussions and decisions regarding Mohr’s employment as
an “emergency item” at the Board’s October 8 regular meeting, which
immediately followed an executive session. On the limited record before
us, we conclude that granting summary judgment as to Count 8 was
improper.

¶31 Pursuant to A.R.S. § 38-431.02(C), board meetings may not be
held “without at least twenty-four hours’ notice to the members of the
public body and the general public.” The requisite notice “shall include an
agenda of the matters to be discussed or decided at the meeting” and the
“public body may discuss, consider or make decisions only on matters
listed on the agenda[.]” A.R.S. § 38-431.02(G), (H). “In case of an actual
emergency,” however, the statute provides a limited exception and allows
a meeting to be “held on such notice as is appropriate to the circumstances.”

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A.R.S. § 38-431.02(D). If the emergency exception “is utilized” to conduct
“an emergency session” or consider “an emergency measure,” the “public
body must post a public notice within twenty-four hours declaring that an
emergency session has been held and setting forth” the agenda outlining all
matters that were discussed and decided. A.R.S. § 38-431.02(D).

¶32 As previously noted, on the evening of October 8, the Board
first held an executive session focusing, primarily, on Mohr’s employment
and discipline. The conclusion of the executive session agenda stated: “The
Board may reconvene in public session to take legal action on [matters
relating to Mohr] discussed in Executive Session.”

¶33 At 6:30 that evening, the Board held a regular meeting.
Nothing in the meeting agenda indicated that the Board would discuss,
consider, or take any action on any matter relating to Mohr. According to
the minutes, however, at the outset of the October 8 regular meeting, the
Board accepted the noticed agenda and adopted, at the recommendation of
Grimes, Emergency Item E.1.1 “regarding Dr. Paul Mohr, Superintendent.”
The minutes do not reflect that any explanation was given for adding the
agenda item as an emergency matter. See Carefree Improvement Ass’n v. City
of Scottsdale, 133 Ariz. 106, 113, 649 P.2d 985 (1982) (finding that the
circumstances asserted by a public body justifying an emergency meeting
did not create an actual emergency). When the Board reached that item on
the agenda, upon Grimes’ motion, the Board agreed to “instruct their legal
counsel to proceed with the direction discussed in Executive Session as to
Dr. Mohr’s employment.” The minutes, however, do not reflect which
executive session the Board was referring to, and the minutes from the
October 8 executive session have not been included in the appellate record.
We also note that neither party has addressed and the record does not
establish, whether the Board complied with A.R.S. § 38-431.02(D) and
posted a public notice within twenty-four hours after the meeting declaring
that an emergency measure had been discussed. Based on this incomplete
record, we cannot conclude as a matter of law that the Board fulfilled its
obligation to comply with the pertinent sections of Arizona’s open meeting
law. Therefore, we vacate that portion of the superior court’s summary
judgment ruling and remand for further proceedings consistent with this
decision.11

11 Because we are remanding to the superior court to determine
whether the Board complied with the statutory procedures for considering
an emergency measure, we do not reach Mohr’s other open meeting law

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Decision of the Court

E. Attorneys’ Fees

¶34 The superior court awarded fees in the Civil Case pursuant to
A.R.S. § 12-341.01(A), which authorizes a discretionary award of reasonable
attorneys’ fees to the successful party in a contested action arising out of
contract. We review an award of fees under the statute for an abuse of
discretion, and will affirm unless the record indicates no reasonable basis
for the award. Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265, ¶ 18, 99
P.3d 1030, 1035 (App. 2004).

¶35 The Civil Case arose primarily out of Mohr’s allegations that
the Board breached his employment contract and the Settlement
Agreement. Mohr does not argue the amount of the fee award was
unreasonable. Instead, he argues the fee award was improper because
insurance covered the fee expense, and thus the Board did not incur fees in
this case. Mohr’s premise is contrary to Arizona law. See id. at 267, ¶ 27, 99
P.3d at 1037 (“[T]hat some portions of appellees’ attorney fee expense was
covered by insurance does not preclude the fee awards to appellees or
otherwise establish any abuse of discretion in those awards.”). Although
we are vacating in part the superior court’s grant of summary judgment in
favor of the District, the Board has prevailed on appeal relating to Mohr’s
claims arising out of contract. Thus, we affirm the superior court’s award
of attorneys’ fees.

¶36 Both parties have requested an award of attorneys’ fees
incurred on appeal pursuant to A.R.S. § 12-341.01. Mohr has not prevailed
and we therefore deny his request. As to the District, we award reasonable
attorneys’ fees incurred on appeal upon compliance with Arizona Rules of
Civil Appellate Procedure 21.

claims challenging the adequacy of the October 8 and October 28 notices,
agendas, and minutes and asserting the Board took illegal action during the
October 28 executive session. Nor do we express any opinion as to whether
a violation of A.R.S. § 38-431.02’s emergency exception procedures would
affect action taken at any subsequent meetings concerning Mohr’s
employment. With a fully developed record, the superior court will be able
to evaluate the nature of the alleged claims and take appropriate steps to
address the open meeting law violations, if any. See A.R.S. § 38-431.07
(providing that a court may review in camera the minutes of the executive
session, impose civil penalties, award attorneys’ fees, and order equitable
relief as the court deems appropriate).

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 MOHR v. MURPHY ELEMENTARY et al.
Decision of the Court

¶37 Mohr also requests an award of attorneys’ fees on appeal
pursuant to A.R.S. § 38-431.07, which provides that a court may award
reasonable attorneys’ fees to a plaintiff who prevails on a claim of an open
meeting violation. We defer this request for fees to the superior court,
following a final determination of the merits on remand. See Tierra Ranchos
Homeowners Ass’n, 216 Ariz. at 204, ¶ 37, 165 P.3d at 182 (deferring party’s
request for attorneys’ fees on appeal “to the trial court’s discretion pending
resolution of matter on the merits”).

CONCLUSION

¶38 Based on the foregoing, the appeal in the Administrative Case
is dismissed. The superior court’s judgment in the Civil Case is affirmed in
all respects except for the opening meeting law claims (Count 8) that are not
tied to the allegations relating to the hiring of Lewis & Roca. We vacate the
court’s ruling as to those claims and remand for further proceedings.

:gsh

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