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Vazirani & Associates Financial, LLC, v. Advisors Excel, LLC

Court of Appeals of Arizona, First Division, Department D

June 13, 2013

VAZIRANI AND ASSOCIATES FINANCIAL, LLC, an Arizona limited liability company, Plaintiff/Appellant,
v.
ADVISORS EXCEL, LLC, a Kansas limited liability company; CREATIVE MARKETING INTERNATIONAL CORPORATION, a Kansas corporation; ANNEXUS DISTRIBUTORS AZ, LLC (formerly known as Shurwest Product Connection, LLC); and RONALD L. SHURTS, an individual, Defendants/Appellees.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. CV2011-002523 The Honorable Sally Schneider Duncan, Judge

Dickinson Wright/Mariscal Weeks By Timothy J. Thomason David G. Bray Attorneys for Plaintiff/Appellant

Jennings, Strouss & Salmon, PLC By John J. Egbert Garrett J. Olexa Callie N. Parkinson Attorneys for Defendant/Appellee Advisors Excel

Stinson Morrison Hecker, LLP By Michael L. Parrish Sarah K. Langenhuizen Attorneys for Defendant/Appellee Creative Marketing

Ryley Carlock & Applewhite, PA By Clarke H. Greger Rodolfo Parga, Jr. Andrea G. Lisenbee Attorneys for Defendants/Appellees Annexus and Ronald L. Shurts

MEMORANDUM DECISION

MARGARET H. DOWNIE, Judge

¶1 Vazirani & Associates Financial, LLC ("Plaintiff") appeals the superior court's grant of summary judgment to Annexus Distributors, AZ, LLC, formerly known as Shurwest Product Connection, LLC; Ronald L. Shurts; Advisors Excel, LLC ("Advisors"); and Creative Marketing International Corporation ("CMIC") (collectively, "Defendants"). Because the superior court correctly determined that Plaintiff's claims were barred by the statute of limitations, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Plaintiff is an independent marketing organization ("IMO") that contracts with insurance companies to market and distribute their products. Anil Vazirani is Plaintiff's president and CEO. In 2005, Plaintiff entered into a contract with Aviva to market its insurance products. Plaintiff subsequently contracted with "downline producers" to sell Aviva products. By 2008, approximately 100 of Plaintiff's downline producers had contracted with Aviva, and roughly 40% of Plaintiff's commissions came from the sale of Aviva insurance products.

¶3 Defendants are also involved in marketing and distributing Aviva products. In 2008, Plaintiff communicated with one of Advisors' downline producers who was interested in moving to Plaintiff's team. When Advisors learned of this, it reportedly "became infuriated" and convinced Aviva to revoke an incentive trip that Vazirani had earned. In the spring of 2008, Vazirani heard from several sources that Defendants had been encouraging Aviva to terminate its relationship with Plaintiff. Defendants purportedly told others in the industry, including Aviva personnel, that Plaintiff was engaged in illegal or unethical business practices, was being investigated by government regulators, and would be shut down. In October 2008, an industry colleague told Vazirani that Aviva executive Jordan Canfield had related that Aviva had "made up its mind" to take action against Plaintiff based on complaints from other IMOs about Plaintiff's business practices.

¶4 Plaintiff contacted CMIC on November 3, 2008, to discuss a pending transfer of a CMIC advisor to Plaintiff's team. CMIC stated that the transfer had been rejected based on Vazirani's and Plaintiff's "industry conduct and business practices."

¶5 On November 6, 2008, Canfield advised Vazirani during a telephone call that Aviva had made a "final" decision that was "not up for discussion" to terminate Plaintiff's contract, as well as those of its downline producers, effective January 30, 2009.[1] Canfield said Aviva would send Vazirani "a formal letter of termination on January 1, 2009, " but stated, "the decision's been made. We're going to go a different direction." Vazirani responded that he needed more than "30 to 60" days to make the transition.

¶6 Counsel for Vazirani wrote to Aviva on November 17, 2008, requesting reconsideration of the termination decision and, alternatively, providing Vazirani's "thirty-day notice of intent to arbitrate." The next day, Vazirani wrote to the "ACLU, " detailing an alleged conspiracy between Aviva and certain Defendants and seeking "legal assistance to fight against wrongful termination by Aviva." By letter dated December 12, 2008, Aviva's attorney advised that the contract termination would be effective December 19, 2008. Counsel later extended the date to December 26, 2008, and expressed willingness to discuss "a termination date that comports with what Mr. Verizani [sic] alleges Jordan Canfield told him." Aviva later extended the effective date of ...


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