Opinion
No. 1 CA-CV 18-0538
05-21-2019
TOBY ALLEN HARRIS, Plaintiff/Appellant, v. GODADDY.COM INC, Defendant/Appellee.
COUNSEL Toby Allen Harris, Phoenix Plaintiff/Appellant BurnsBarton PLC, Phoenix By David T. Barton, C. Christine Burns, Benjamin J. Naylor Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2010-016149
The Honorable Pamela S. Gates, Judge
AFFIRMED
COUNSEL Toby Allen Harris, Phoenix
Plaintiff/Appellant BurnsBarton PLC, Phoenix
By David T. Barton, C. Christine Burns, Benjamin J. Naylor
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined. THUMMA, Chief Judge:
¶1 Toby Allen Harris appeals a continuing lien order entered as part of GoDaddy.com, Inc.'s efforts to collect on a judgment. Because the appeal is frivolous, the order is affirmed and GoDaddy is awarded its reasonable attorneys' fees and taxable costs incurred on appeal.
FACTS AND PROCEDURAL HISTORY
¶2 In 2010, Harris sued GoDaddy, alleging wrongful termination and other theories. In 2013, GoDaddy was awarded summary judgment in that case; the final judgment awarded GoDaddy $2,641.10 and this court affirmed the 2013 Judgment. Harris v. GoDaddy.Com, Inc. (Harris I), 1 CA-CV 14-0151, 2015 WL 276698 (Ariz. App. Jan. 22, 2015) (mem. dec.).
¶3 After the mandate issued in Harris I, Harris unsuccessfully attempted to have the judgment set aside, to reopen the case and to obtain a change of judge. In doing so, Harris repeatedly accused GoDaddy's counsel of using false evidence to obtain the 2013 Judgment. Harris also filed a "Praecipe Civil Subpoena for Post Judgment Proceedings" that, if granted, would have required GoDaddy's counsel to appear, provide documents and give testimony. The superior court quashed the Praecipe and this court dismissed Harris' appeal of that order for lack of jurisdiction. The Arizona Supreme Court denied his petition for review and ordered him to pay $6,322 in attorneys' fees and $154.81 in costs as sanctions.
¶4 In 2018, the superior court entered a final judgment, including the sanctions imposed by the Arizona Supreme Court. When GoDaddy sought to enforce both judgments via a writ of garnishment against Harris' employer, Harris filed motions to amend the 2018 Judgment that largely repeated his false evidence allegations. The court denied the motions and issued the writ and a continuing lien order. See Ariz. Rev. Stat. (A.R.S.) § 12-1598.10(F) (2019).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
¶5 Harris timely appealed from the 2018 Judgment. This court determined that, to the extent that judgment memorialized the Arizona Supreme Court's sanctions award, it was not appealable. The continuing lien order, however, is appealable. See Citibank (Ariz.) v. Bhandhusavee, 188 Ariz. 434, 435 (App. 1996). Accordingly, this court has jurisdiction over that portion of Harris' appeal pursuant to A.R.S. § 12-2101(A)(5)(c).
DISCUSSION
I. Harris Cannot Relitigate The 2013 And 2018 Judgments In This Appeal.
¶6 Although a continuing lien can be invalidated based on several exceptions, see A.R.S. § 12-1598.10(D), Harris does not assert any such exception applies. Instead, he contends the lien is invalid because it is "based on a final Judgment derived from Fraud on the Court in which the State violates AZ Constitutional victims' rights." This references the 2018 Judgment and, as noted above, that judgment is not appealable in that respect. See, e.g., Raimey v. Ditsworth, 227 Ariz. 552, 554 ¶ 1 (App. 2011) ("[A] trial court's entry of judgment 'based on an appellate court's specific mandate and opinion is not appealable.'") (citation omitted).
¶7 Harris also argues that the Commissioner who entered the continuing lien order "should have [been] allowed to hear the issues of the fraud on the Court" under A.R.S. § 12-212(A)(2). That statute, however, does not address the scope of a garnishment proceeding, describing instead the general powers of a Commissioner. Moreover, "[g]arnishment proceedings are purely statutory, and are treated in all respects . . . as an original independent action from the underlying lawsuit." Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, 207 ¶ 13 (App. 2014) (internal quotations and citations omitted). Harris also offers no support for his contention that the Commissioner "proceeded with breaching Constitutional rights."
¶8 Harris cites an October 2013 hearing transcript to again contend that GoDaddy's counsel presented false evidence to secure the 2013 Judgment. In doing so, he seeks to raise issues previously resolved in Harris I, 1 CA-CV 14-0151, at *2 ¶¶ 8, 11, which he cannot re-litigate here, see Lennar Corp. v. Transamerica Ins. Co., 227 Ariz. 238, 242-43 ¶ 12 (App. 2011); see also Bogard v. Cannon & Wendt Elec. Co., 221 Ariz. 325, 332 ¶ 24 (App. 2009). Harris also contends GoDaddy's counsel "ha[s] a history of fraud," citing an unrelated 2012 memorandum decision, and makes numerous personal allegations against GoDaddy's founder. Harris, however, fails to connect any of these allegations to the continuing lien order.
II. Attorneys' Fees on Appeal.
¶9 GoDaddy requests sanctions under Ariz. R. Civ. App. P. 25 and A.R.S. § 12-349. Sanctions may be imposed for a frivolous appeal "to discourage similar conduct in the future." Ariz. R. Civ. App. P. 25; Johnson v. Brimlow, 164 Ariz. 218, 221-22 (App. 1990). An appeal is frivolous if it is brought for an improper purpose or indisputably has no merit. Ariz. Tax Research Ass'n v. Dep't of Rev., 163 Ariz. 255, 258 (1989). Such sanctions are imposed with great caution. Price v. Price, 134 Ariz. 112, 114 (App. 1982).
Although GoDaddy also cites Ariz. R. Civ. P. 11, that rule is not a valid basis to recover fees on appeal. Villa De Jardines Ass'n v. Flagstar Bank, FSB, 227 Ariz. 91, 99 ¶ 26 n.10 (App. 2011). --------
¶10 Harris acknowledged this court's order limiting this appeal to "issues arising from the order of continuing lien." In his briefs, however, he offers no arguments regarding the continuing lien. Instead, he asserts meritless arguments against the 2013 Judgment and the existing sanctions order, many of which have been rejected previously. As a result, GoDaddy is awarded reasonable attorneys' fees and taxable costs pursuant to Ariz. R. Civ. App. P. 25, contingent upon its compliance with Ariz. R. Civ. App. P. 21. Accordingly, this court need not address GoDaddy's claim for fees under A.R.S. § 12-349(A).
CONCLUSION
¶11 The continuing lien order is affirmed.