Opinion
No. 1 CA-CV 17-0183
03-07-2019
12TH STREET PROPERTY TRUST, et al., Plaintiffs/Appellees, v. LINDA V. LYNAUGH, Defendant/Appellant.
APPEARANCES Linda V. Lynaugh, Phoenix Defendant/Appellant Hull Holliday & Holliday PLC, Phoenix By Andrew M. Hull, Denise M. Holliday, Kevin W. Holliday, Matthew Schlabach Counsel for Plaintiffs/Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV 2017-052422
The Honorable Brian S. Rees, Commissioner
AFFIRMED IN PART, VACATED IN PART; REMANDED
APPEARANCES Linda V. Lynaugh, Phoenix
Defendant/Appellant Hull Holliday & Holliday PLC, Phoenix
By Andrew M. Hull, Denise M. Holliday, Kevin W. Holliday,
Matthew Schlabach
Counsel for Plaintiffs/Appellees
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined. BROWN, Judge:
¶1 Linda Lynaugh appeals the superior court's judgment in favor of 12th Street Property Trust (the "Trust") in a forcible entry and detainer ("FED") action, asserting the court erred by denying her motions for relief from judgment and declaring her a vexatious litigant. For the following reasons, we affirm the court's orders denying her post-judgment motions, but we vacate the vexatious-litigant order and remand the related supplemental award of attorneys' fees.
BACKGROUND
¶2 The Trust obtained a trustee's deed upon sale for the residential real property at issue (the "Property") in December 2016. Shortly thereafter, Steve Villarreal posted a written demand of surrender and possession on the Property's door, giving notice that the Property had been sold at a trustee's sale and if possession was not surrendered, the owner would bring an FED action. The Trust filed an FED complaint when possession was not surrendered.
¶3 At the FED trial, the superior court requested the parties state their appearances for the record. Gregory Best, Lynaugh, Denise Holliday (the Trust's counsel), and Villarreal, who the court allowed to "testify as a witness or . . . beneficiary owner," were present. The court addressed numerous extraneous issues before considering the merits despite Lynaugh's request that the court continue the trial so that "the sub-tenant resident" could testify. Finding Lynaugh and Best guilty of forcible detainer, the court awarded the Trust (1) possession of the Property, (2) a fair market rental rate of $750 per month, and (3) attorneys' fees and costs.
Gregory Best claimed he was a co-owner, developer, broker, and Lynaugh's lessee. The superior court allowed Best to join as a party for trial purposes but told him to file a notice of appearance and pay an appearance fee before the deadline to appeal. Best did not comply with the court's order and his name was later stricken from the pleadings.
¶4 After Lynaugh filed various post-judgment motions in quick succession, including a notice of appeal followed by her first motion for relief from judgment under Arizona Rule of Civil Procedure ("Rule") 60(c), the Trust asked the superior court to declare Lynaugh a vexatious litigant. This court stayed the appeal and re-vested jurisdiction in the superior court, stating the appeal was premature because the court had not entered a final judgment with Rule 54(c) certification, nor had it ruled on Lynaugh's post-judgment motions.
¶5 The superior court denied Lynaugh's motions, declared her a vexatious litigant, and granted the Trust's request for supplemental attorneys' fees and costs. The appeal was reinstated after the court entered amended judgments. A month later, Lynaugh filed a second Rule 60(c) motion. This court again stayed the appeal and the Trust filed a motion to strike. Granting the Trust's motion, the court ruled all other issues moot. Lynaugh timely filed a notice of amended appeal.
DISCUSSION
¶6 Lynaugh argues the superior court erred on matters of both procedure and substance; however, many of her arguments only generally claim error without any explanation of how she was prejudiced by the court's conduct. Accordingly, this decision only addresses the arguments developed sufficiently for appellate review: whether the court erred in (1) denying Lynaugh's Rule 60(c) motions and (2) declaring her a vexatious litigant. See ARCAP 13(a)(7) (explaining that opening briefs must present "[a]ppellant's contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies"); MT Builders, L.L.C. v. Fisher Roofing Inc., 219 Ariz. 297, 304, ¶ 19 n.7 (App. 2008) (stating arguments not sufficiently argued on appeal are generally waived).
¶7 Lynaugh asserts the superior court abused its discretion when it denied her first Rule 60(c) motion, which claimed the deed upon trust was invalid, the Trust knew it was invalid, and the judgment "came as a result of extrinsic fraud." Lynaugh essentially repeats this argument in support of her second Rule 60(c) motion, stating the court erred by not honoring a judgment that allegedly declares the Trust's ownership document "a sham." We review the court's denial of each motion for an abuse of discretion. Vortex Corp. v. Denkewicz, 235 Ariz. 551, 555, ¶ 8 (App. 2014); Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40 (App. 1982) ("An 'abuse of discretion' is discretion [that is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.").
¶8 The statute governing FED trials is clear: "On the trial of an action of . . . forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into." Ariz. Rev. Stat. ("A.R.S.") § 12-1177(A). Even assuming Lynaugh had evidence proving the trustee's deed upon sale was a "sham document" and the Trust knew it was such when it sought possession, the FED trial was not the appropriate forum to make such arguments because they are challenges to the validity of the Trust's title. Id.; see also Curtis v. Morris, 186 Ariz. 534, 535 (1996) (holding that litigating title in an FED action would "convert [the action] into a quiet title action and defeat its purpose as a summary remedy"). Thus, the court did not abuse its discretion when it denied both motions.
¶9 Lynaugh also challenges the superior court's vexatious-litigant order, asserting none of her filings were frivolous. We treat the court's order as granting injunctive relief, Madison v. Groseth, 230 Ariz. 8, 13, ¶ 16 n.8 (App. 2012), and review for an abuse of discretion, Ahwatukee Custom Estates Mgmt. Ass'n v. Turner, 196 Ariz. 631, 634, ¶ 5 (App. 2000).
¶10 In addition to a court's inherent power to curtail vexatious litigants, Madison, 196 Ariz. at 639, ¶ 10, the legislature enabled "the presiding judge of the superior court or a judge designated by the presiding judge . . . [to] designate a pro se litigant a vexatious litigant" upon a finding that the litigant "engaged in vexatious conduct," A.R.S § 12-3201(A), (C), (E)(1)(a)-(f) (defining "vexatious conduct"). In Madison, we advised trial judges to exercise their discretion on this issue "sparingly and appropriately" because "access to courts is a fundamental right." Madison, 230 Ariz. at 14, ¶ 17. We explained that courts must (1) provide the litigant "notice and an opportunity to oppose the order;" (2) "create an adequate record for appellate review" by listing the cases and/or motions influencing the court's decision; (3) make "substantive findings" explaining why the litigant's conduct is frivolous or harassing; and (4) narrowly tailor the order "to closely fit the specific vice encountered." Id. at ¶ 18 (quoting De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990)). Although Lynaugh only challenges the court's finding that she filed frivolous motions, given the fundamental right at stake, we review the order for compliance with Madison's four requirements. See Azore, LLC v. Bassett, 236 Ariz. 424, 427, ¶ 7 (App. 2014) (explaining appellate courts have discretion to apply waiver).
¶11 The superior court declared Lynaugh a vexatious litigant after finding she "defended without merit and for an inappropriate purpose, to retaliate against [the Trust] for other debts or disputes." The court, however, did not address the impact of its order. By declaring Lynaugh a vexatious litigant without explicitly setting forth appropriate consequences—i.e., narrowly-tailored restrictions on her future filings in the FED action—the court did not comply with the fourth requirement of Madison. Such restrictions, as well as the court's other findings, must be included in a written order or judgment to satisfy due process and permit effective appellate review given that the mere designation of "vexatious litigant" might effectively bar Lynaugh's right of access to the court. See Madison, 230 Ariz. at ¶ 18; see also De Long, 912 F.2d at 1148. Accordingly, we vacate the portion of the judgment declaring Lynaugh a vexatious litigant.
¶12 Lynaugh requests we reverse the supplemental attorneys' fees "awarded as a result of [the vexatious litigant] label." We review an award of attorneys' fees and costs for an abuse of discretion and will affirm if the award has "any reasonable basis." State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, 261, ¶ 27 (App. 1998).
¶13 The Trust's application for supplemental attorneys' fees sought an award pursuant to the vexatious litigant order and A.R.S. § 12-1178. The superior court granted the Trust's application but did not distinguish between the fees awarded as a sanction and those awarded pursuant to § 12-1178(A). Although § 12-1178(A) mandates an award of fees and costs, see Bank of N.Y. Mellon v. Dodev, 804 Ariz. Adv. Rep. 6, 9, ¶ 36 (App. Nov. 20, 2018), because we are vacating the vexatious litigant order we vacate the award of supplemental attorneys' fees. On remand, the court shall reconsider whether all fees requested in the supplemental application should be awarded based solely on § 12-1178(A).
¶14 Finally, the Trust requests attorneys' fees and costs on appeal. We deny the request for attorneys' fees because the Trust failed to "specifically state the statute, rule, decisional law, contract, or other authority" for such an award. ARCAP 21(a)(2) ("This Rule only establishes the procedure for claiming attorneys' fees and does not create any substantive right to them."). As the successful party on appeal, however, the Trust is awarded taxable costs upon compliance with ARCAP 21.
CONCLUSION
¶15 We affirm the superior court's FED judgment and the denial of Lynaugh's Rule 60(c) motions, but we vacate the court's order declaring Lynaugh a vexatious litigant and remand for reconsideration of the supplemental award of attorneys' fees.