Freanel v. Wilson-Goodman

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE FREANEL & SON GILBERT, LLC, doing business as GILBERT TOWNE CENTER, ) ) ) ) Plaintiff/Appellee, ) ) v. ) ) ANGELA WILSON-GOODMAN, ) ) Defendant/Appellant. ) ) __________________________________) DIVISION ONE FILED: 03/08/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CV 11-0179 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2006-007382 The Honorable Benjamin E. Vatz, Judge Pro Tem AFFIRMED Barry Allen Reiss Attorney for Plaintiff/Appellee Freanel & Son Gilbert, LLC Phoenix Broening Oberg Woods & Wilson P.C. By Brian W. Purcell Attorneys for Plaintiff/Appellee Gilbert Towne Center Phoenix Wilson-Goodman & Fong P.C. By Angela Wilson-Goodman Defendant/Appellant In Propria Persona Gilbert D O W N I E, Judge ¶1 Angela Wilson-Goodman appeals from post-judgment orders issued by the superior court. certain Finding no error, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In 2008, obtained a judgment severally, Freanel including notice of appeal. examination & Son against Gilbert, three LLC defendants Wilson-Goodman. 1 ( Freanel ), jointly Wilson-Goodman and filed a Freanel subsequently sought a judgment debtor ( exam ) of Wilson-Goodman. Wilson-Goodman filed various motions (and a special action petition) to preclude the exam and/or limit the information she must disclose to Freanel. ¶3 Several dates were set and continued for the judgment debtor exam. March 2, At a judgment debtor exam/oral argument held on 2009, which Wilson-Goodman continued the matter to March 9, 2009. appear on March 9. attended, the court Wilson-Goodman did not The court (Commissioner Nothwehr) reset the judgment debtor exam for March 16, ordered Wilson-Goodman to appear, and cautioned that a civil arrest warrant may issue if she failed to appear. Wilson-Goodman 1 did not appear on Only Wilson-Goodman is a party to this appeal, so we confine our discussion to her. The underlying judgment awarded Freanel $36,689.71 in unpaid rent; $13,394.93 for interest on unpaid rent through April 9, 2008, plus accruing interest; $12,451.33 for renovation and leasing commissions, plus accruing interest; attorneys fees of $34,730, plus accruing interest; and $535.80 in costs. 2 March 16. The court denied Wilson-Goodman s previously filed motions to preclude the exam or limit its scope. It also held her in contempt, stating: In prior proceedings, Defendant Angela Wilson-Goodman was present in Court. The Court ordered that she post a supersedeas bond or appear for a judgment debtor examination. She failed to comply with that order. The Court renewed the order, and specifically set the bond amount. Again, Angela Wilson-Goodman failed to comply with a direct order from the Court. She failed to appear for a court-ordered judgment debtor examination. Based upon the direct orders from the Court, Defendant Angela Wilson-Goodman is in direct contempt from the Court. The court set a sanctions hearing for April 7, 2009. ¶4 At the April 7 hearing, the judgment debtor exam to April 13, 2009. contempt finding and ordered court continued the It affirmed the earlier Wilson-Goodman to pay Freanel s counsel $2,000 as a sanction. ¶5 Wilson-Goodman appeared for the judgment debtor exam on April 13, 2009. court that However, counsel for Freanel advised the Wilson-Goodman documentation to Wilson-Goodman objected had complete the to provided exam. several insufficient Additionally, questions. After considering the parties arguments, the court issued a detailed, signed minute entry ruling, overruling Wilson-Goodman s objections and ordering her to answer the questions posed and 3 produce specified documentation. 2 The court continued the judgment debtor exam and stated: Judgment Debtor was initially directed to provide documentation months ago, and further delay will not be tolerated. Absent good cause for providing the documents, this Court will consider the failure to provide documentation as contempt. ¶6 In a memorandum decision filed May 20, 2010, this Court affirmed the underlying judgment against Wilson-Goodman in part and modified it in part. Freanel & Son Gilbert, LLC v. Fashionable Expectations, LLC, 1 CA-CV 08-0853, 2010 WL 2025325, at *10, ¶ 44 (Ariz. App. May 20, 2010) (mem. decision). found no error in the calculation of Freanel s We damages, but modified the accrual date for interest and held that appellants should have received credit for their security deposit in the sum of $2750. The superior Id. court The remainder of the judgment was affirmed. thereafter entered a Judgment on Mandate reflecting the modifications ordered by this Court. ¶7 In September 2010, Freanel sought a court order for Wilson-Goodman Freanel to requested previously sought. appear the for same another categories judgment of debtor documents exam. it had After unsuccessfully seeking to vacate the exam, Wilson-Goodman appeared for a November 30, 2010 exam, but 2 Commissioner Nothwehr itemized Wilson-Goodman s objections and addressed them in turn. As we discuss infra, this appeal relates to Wilson-Goodman s attempt to re-litigate these same objections two years later before Commissioner Vatz. 4 produced only her 2009 federal objected to several questions. continued the exam and income tax return and again The court (Commissioner Vatz) ordered the parties to submit supplemental information. ¶8 After reviewing the parties filings and the case history, Commissioner Vatz issued the signed minute entry ruling that is at issue in this appeal ( the February 2, 2011 order ). Commissioner Vatz noted that Commissioner Nothwehr had been apprised of Wilson-Goodman s objections to requests identical to those that proceeding. are the subject of the current examination Commissioner Vatz further noted that Commissioner Nothwehr had denied Wilson-Goodman s objections in a detailed ruling and concluded: [Freanel] has been attempting to complete judgment-debtor examinations since November 2008. The record reflects ongoing efforts by Defendant Angela-Wilson Goodman [sic] to do all she can to block those efforts. Even after three rulings from Judge Nothwehr regarding her objections to [Freanel s] original areas of inquiry, she now disregards the law of the case by again objecting to those same areas. She does so notwithstanding her prior failure to seek appellate relief concerning the efficacy of those rulings. As a result, Plaintiff has suffered by having to incur additional attorney fees as well as delay in attempting to execute upon its judgment. The Court s resources and calendar have also been taxed by [Wilson-Goodman s] most recent objections and delaying tactics. As a pro se litigant, much more should be demanded. As a member of the Bar of Arizona, there is no excuse. 5 Commissioner Vatz ordered Wilson-Goodman to produce the documents Freanel requested and answer the questions posed. further ruled Wilson-Goodman had engaged in He unjustified conduct, unreasonably delayed the proceedings, and engaged in an abuse of discovery, awarding Freanel $2500 in attorneys fees. ¶9 Wilson-Goodman timely appealed from the February 2, 2011 order. We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(A)(4). DISCUSSION I. The February 2, 2011 Order ¶10 Commissioner Vatz s February 2, 2011 order declined to substantively Commissioner objections. resolve Nothwehr Wilson-Goodman s had previously objections ruled on because those same Whether we analyze the February 2, 2011 order under the law of the case doctrine or the policy against horizontal appeals, we find no error. ¶11 A horizontal appeal is a request that a second trial judge reconsider a decision of the first trial judge in the same matter, even though no new circumstances have arisen interim, and no other reason justifies reconsideration. in the Donlann v. Macgurn, 203 Ariz. 380, 385, ¶ 29, 55 P.3d 74, 79 (App. 2002) (citation omitted). Horizontal 6 appeals waste judicial resources by asking two judges to consider identical motions and because they encourage judge shopping. Powell-Cerkoney v. TCR-Mont. Ranch Joint Venture, II, 176 Ariz. 275, 279, 860 P.2d 1328, 1332 (App. 1993) (citations omitted). ¶12 Under within its the law of discretion in the case doctrine, refusing to a court reopen acts questions previously decided in the same case by the same court unless an error in the first decision renders it manifestly erroneous or unjust or when a substantial change occurs in essential facts or issues, in Powell-Cerkoney, evidence, 176 Ariz. or at in the 278-79, applicable 860 P.2d at law. 1331-32 (citations omitted); see also Hall v. Smith, 214 Ariz. 309, 317, ¶ 29, 152 P.3d 1192, 1200 (App. 2007) (citation omitted) ( [A] trial court s power to reconsider an earlier ruling should not be employed lightly. ). The doctrine will not generally apply if the prior decision did not decide the issue in question, is ambiguous, or does not address the merits. Powell-Cerkoney, 176 Ariz. at 279, 860 P.2d at 1332 (citation omitted). ¶13 Wilson-Goodman Commissioner Nothwehr Commissioner Vatz in advanced in 2011. 2009 the that Because same she no objections later voiced substantial to to change occur[red] in essential facts or issues, in evidence, or in the applicable law, and applying the doctrine would not result in a manifestly unjust decision, Commissioner Vatz did not abuse 7 his discretion Wilson-Goodman s by refusing to objections. revisit the Powell-Cerkoney, merits 176 Ariz. of at 279, 860 P.2d at 1332 (citations omitted). ¶14 Much of Wilson-Goodman s briefing is devoted to arguing why the superior court erred by requiring her to provide information about various business entities in which she holds an interest. However, the time to appeal Commissioner Nothwehr s final order resolving these issues expired long ago. See ARCAP 9 (a party generally must file notice of appeal within 30 days of the § 12-2101(A)(2). entry of an appealable order); A.R.S. Our jurisdiction in the instant appeal extends only to Commissioner Vatz s February 2, 2011 order - a ruling that expressly declined to revisit the substantive merits of Wilson-Goodman s objections. II. ¶15 Sanctions Wilson-Goodman asserts the superior court erred in awarding Freanel $2500 in attorneys fees because it stated no statutory basis for the award. Wilson-Goodman, though, failed to raise this argument below and, to the extent she now claims a due process violation, never afforded the superior opportunity to reconsider its sanctions order. court an See Precision Components, Inc. v. Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 555, 880 P.2d 1098, 1101 (App. 1993) ( [F]ailure of the attorney[] to request a hearing . . . for reconsideration 8 of the sanctions imposed prevents us from granting relief for an alleged deprivation of due process. ); Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) (citation omitted) ( As a general rule, a party cannot argue on appeal legal issues not raised below. ). ¶16 Even assuming arguendo that Wilson-Goodman may assert her new arguments on appeal, we find no error. We review the imposition of sanctions for an abuse of discretion. Seidman v. Seidman, 222 Ariz. 408, 411, ¶ 18, 215 P.3d 382, 385 (App. 2009) (citations omitted); Taliaferro v. Taliaferro, 188 Ariz. 333, 339, 935 P.2d 911, 917 (App. 1996). ¶17 Superior courts have the inherent power to sanction attorneys for bad faith conduct during litigation. Hmielewski v. Maricopa County, 192 Ariz. 1, 4, ¶ 13, 960 P.2d 47, 50 (App. 1997) (citation omitted). Before imposing sanctions, the court should give the party some form of notice and opportunity to be heard on the propriety of imposing the sanctions. Precision Components, (citation 179 Ariz. at 555, 880 P.2d at 1101 omitted). ¶18 Wilson-Goodman is a licensed attorney. The court found she engaged in unjustified conduct by refusing to answer questions, appearing at the 2010 judgment debtor exam with only one of the requested documents, objecting to discovery that had been previously ruled on, and causing undue and unnecessary 9 delay. The court made its findings after hearing argument, considering memoranda from both parties, protracted history of the case. refusing requested to answer documents questions to the and reviewing the Wilson-Goodman does not deny or 2010 bringing exam. only one There was of an the ample factual basis for the superior court to conclude Wilson-Goodman acted in bad faith, unreasonably delayed the . . . [p]roceedings, and . . . engaged in abuse of discovery. ¶19 The record also reveals no due process violation. Freanel requested a fee award based on Wilson-Goodman s lack of cooperation and explained why such an award was Wilson-Goodman filed a response in opposition. notice and an opportunity to be heard proper. She had both regarding Freanel s sanctions request. III. Attorneys Fees on Appeal ¶20 Freanel appeal pursuant requests to ARCAP its 21 attorneys and substantive basis for a fee award. 202 Ariz. 370, 375, ¶ 24, 45 25. fees ARCAP incurred 21 is not on a Bed Mart, Inc. v. Kelley, P.3d 1219, 1224 (App. 2002) (citations omitted). ¶21 ARCAP 25 authorizes a fee award as a sanction if an appeal is frivolous or taken solely for the purpose of delay. We impose ARCAP 25 sanctions with great reservation. Ariz. Tax Research Ass n v. Dep t of Revenue, 163 Ariz. 255, 258, 787 10 P.2d 1051, 1054 (1989) (citations omitted). Nevertheless, we will not hesitate to impose sanctions on parties . . . for burdening the court with completely specious appeals. Price v. Price, 134 Ariz. 112, 114, 654 P.2d 46, 48 (App. 1982). the case here. Wilson-Goodman did not appeal Such is Commissioner Nothwehr s 2009 order, yet sought to litigate the substantive merits of his decision in this appeal. She also raised arguments in this Court that she failed to preserve below. In the exercise of our discretion, we award Freanel its reasonable attorneys fees and its costs on appeal upon compliance with ARCAP 21. CONCLUSION ¶22 The judgment of the superior court is affirmed. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ DIANE M. JOHNSEN, Judge 11

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