Opinion
2 CA-CV 2021-0069
01-24-2022
Nitin ("Bobby") Patel, an individual, Plaintiff/Appellee, v. Murphy R. Kitrell, Jr. a/k/a Murphy R. Kittrell, Jr.; and Barbara Kitrell a/k/a Barbara Kittrell, Defendants/Appellants.
Waterfall, Economidis, Caldwell, Hanshaw & Villamana P.C., Tucson By Corey B. Larson Counsel for Plaintiff/Appellee Murphy R. Kittrell Jr., Tucson Barbara Kittrell, Tucson In Propria Personae
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20160596 The Honorable Charles V. Harrington, Judge The Honorable Jeffrey T. Bergin, Judge
Waterfall, Economidis, Caldwell, Hanshaw & Villamana P.C., Tucson By Corey B. Larson Counsel for Plaintiff/Appellee
Murphy R. Kittrell Jr., Tucson Barbara Kittrell, Tucson In Propria Personae
Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 Murphy and Barbara Kittrell appeal from the trial court's imposition of ongoing sanctions against them resulting from their failure to comply with the court's September 2017 order requiring them to provide signed IRS release forms for various tax years. For the following reasons, we dismiss the Kittrells' appeal for lack of jurisdiction.
A "person who is represented by counsel in litigation has no right to personally conduct any aspect of the litigation except through counsel." Lincoln v. Lincoln, 155 Ariz. 272, 274 (App. 1987). Nonetheless, Murphy and Barbara signed the notice of appeal while represented by counsel. But, we determine the Kittrells' in propria personae notice of appeal was not defective under the circumstances of this case, including the Kittrells' assertion in their response to Patel's motion to strike the notice of appeal that counsel had been retained to represent them in ongoing trial proceedings but not appellate matters, and because Patel has not alleged any prejudice. See McKillip v. Smitty's Super Valu, Inc., 190 Ariz. 61, 62 (App. 1997) (This court "review[s] notices of appeal liberally, disregarding technical, harmless errors in favor of disposition on the merits."). And, although Barbara did not sign the opening brief, she did sign the reply brief. Therefore, we do not limit our disposition of this case to Murphy. See Ariz. R. Civ. App. P. 3(a) (affording court discretion to suspend requirements or provisions of court's rules); Ariz. R. Civ. App. P. 1(c) ("These Rules should be used and interpreted by the courts and the parties to achieve the just, speedy, and inexpensive resolution of appeals."); Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) ("courts prefer to decide each case upon its merits rather than to dismiss summarily on procedural grounds"). But see Ariz. R. Civ. App. P. 4(c) ("The party filing a document [in an appellate court] must sign it . . . .").
Factual and Procedural Background
¶2 In 2016, Patel filed a complaint against the Kittrells, asserting they had breached the express terms of a promissory note, alternatively had been unjustly enriched, and had issued a bad check with intent to defraud. In November 2016, Patel moved for summary judgment on two of these claims, and the trial court granted the motion. In April 2017, alleging he had been unsuccessful in obtaining payment of the judgment from the Kittrells, Patel filed a motion for supplemental proceedings pursuant to A.R.S. § 12-1631, requesting that the court order an examination of the Kittrells' finances. The court granted the motion.
¶3 On September 18, 2017, the trial court ordered the Kittrells to "provide a signed IRS release for the tax years 2014, 2015, and [2016], for any tax returns that were filed with the IRS" by September 29. The court also warned Murphy "it appeared] that he is waiting complying with the Court's order and continued disruptive behavior may result in further sanctions including considering criminal contempt which could include incarceration." Further, it stated it would "assess sanctions for every day (after September 29, 2017) that the release is not provided" to Patel, and such sanctions would be "in the amount of $300.00 for each day the release is not provided." Because the Kittrells claimed they had not filed tax returns for 2014, 2015, or 2016, they instead provided to Patel verification of non-filing from the IRS for tax years 2013 and 2014 and applications for extensions for filing their 2015 and 2016 returns.
¶4 Patel filed a motion to compel production and motion for sanctions, asserting the Kittrells had failed to comply with the trial court's order. On January 4, 2018, the court granted Patel's motion, noting that "[w]hile the Kit[t]rells have provided some information to [Patel], they have not provided the required signed IRS release form" in "clear violation" of its September 2017 order. Accordingly, the court awarded Patel $28,500 "as sanctions for the 95 days of [the Kittrells'] noncompliance" and ordered them to provide the signed IRS release for 2014, 2015, and 2016 by January 19, 2018, to avoid further sanctions. The parties then attempted to reach a settlement regarding debt collection and agreed to stay the proceedings, including any further action on the entry of a sanctions judgment, but the settlement was ultimately unsuccessful. In May 2018, the court entered judgment against the Kittrells in the amount of $28,500 pursuant to its January 4, 2018 ruling. And, in January 2019, the court awarded additional sanctions against the Kittrells in the amount of $69,600 based on their continued failure to provide the signed IRS release forms.
¶5 In December 2020, Patel moved for additional sanctions and relief pursuant to Rule 70, Ariz. R. Civ. P. The trial court ultimately entered an amended sanctions judgment in March 2021, awarding sanctions against the Kittrells in the amount of $224,700 "for the 749 days since [its] most recent January 17, 2019" judgment. This appeal followed.
Discussion
¶6 The Kittrells ask us to review on appeal "the foundational sanction from which the subsequent judgments arose," asserting the trial court "lacked the capacity to enter such orders and judgments, and exceeded its legal authority in so entering." Further, the Kittrells argue the court's finding that they failed to provide "the required signed IRS release form" pursuant to the court's September 2017 order "is not based upon evidence" because they "timely submitted the relevant Tax Documents to Patel" and argued as much in their December 2017 opposition to Patel's motion for sanctions. Thus, they contend, "the trial court allowed the . . . accumulation of $300 in fees per day, each day, for several years, premised upon an order [they] had reasonably complied with," and "[t]o affirm the . . . initial January 04, 2018 judgment, and the entry of the subsequent judgments, would be clearly untenable, and would amount to a 'denial of justice.'"
The Kittrells also appear to challenge the trial court's March 2021 amended order, claiming the court "expanded the scope of its September 18, 2017 order without providing notice or additional factual or legal support." However, even if we had jurisdiction to review this order, the Kittrells fail to meaningfully develop or cite any authority in support of this argument, and therefore we do not address it. See Ariz. R. Civ. App. P. 13(a)(7)(A) (opening brief must contain argument with "[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" relied upon); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (appellant waives claims by failing to provide "an argument supported by authority in his opening brief").
¶7 Addressing sua sponte our own subject matter jurisdiction, we first note that we lack jurisdiction over an appeal from a civil contempt adjudication. Eans-Snoderly v. Snoderly, 249 Ariz. 552, ¶ 8 (App. 2020); see Berry v. Superior Court, 163 Ariz. 507, 508 (App. 1989) ("The rule is well established that civil contempt adjudications are not appealable.").
Even assuming, as the Kittrells contend, that the trial court imposed the sanctions as a result of a discovery violation under Rule 37, Ariz. R. Civ. P., we still lack appellate jurisdiction. Although the judgment imposing sanctions purports to be final pursuant to Rule 54(b), Ariz. R. Civ. P., the court's inclusion of such finality language is not dispositive. See Eng'rs v. Sharpe, 117 Ariz. 413, 416 (1977) ("[T]he appealability of an order 'turns on the character of the proceedings which resulted in the order appealed from.'" (quoting Kemble v. Porter, 88 Ariz. 417, 419 (1960))); Ruesga v. Kindred Nursing Ctrs. W., L.L.C., 215 Ariz. 589, ¶ 12 (App. 2007) ("[T]he substance or effect of an order determines its character for appeal purposes."). But cf. McCleary v. Tripodi, 243 Ariz. 197, ¶ 7 (App. 2017) (Rule 54 language required for finality of order). Indeed, the court's inclusion of this language was inappropriate because the Kittrells' failure to comply with its September 2017 order is not a separate claim, and therefore the order imposing sanctions is neither final nor appealable. See Ariz. R. Civ. P. 54(b) ("If an action presents more than one claim for relief[, ] . . . the court may direct entry of a final judgment as to one or more, but fewer than all, claims . . . .").
¶8 Although we may, in our discretion, exercise special-action jurisdiction in these circumstances, we decline to do so here. See Robinson v. Kay, 225 Ariz. 191, ¶ 7 (App. 2010); A.R.S. § 12-120.21(A)(4) (court of appeals has "[j]urisdiction to hear and determine petitions for special actions brought pursuant to the rules of procedure for special actions, without regard to its appellate jurisdiction"); Arvizu v. Fernandez, 183 Ariz. 224, 226-27 (App. 1995) (although trial court's paternity testing order not appealable, this court may exercise special-action jurisdiction and treat appeal as petition for special action, even where appellant has not requested such relief). "'Special action jurisdiction is appropriate when there is no plain, speedy and adequate remedy by way of appeal' or 'in cases involving a matter of first impression, statewide significance, or pure questions of law.'" Phx. Newspapers, Inc. v. Ellis, 215 Ariz. 268, ¶ 9 (App. 2007) (quoting Roman Cath. Diocese of Phx. v. Superior Court, 204 Ariz. 225, ¶ 2 (App. 2003)); see Ariz. R. P. Spec. Act. 1(a).
¶9 Here, the trial court entered judgment awarding sanctions to Patel based on the Kittrells' failure to produce the signed IRS release form in May 2018. However, the Kittrells did not seek relief in this court until April 2021. See State ex rel. Neely v. Rodriguez, 165 Ariz. 74, 77 (1990) (delay in seeking special-action relief beyond time for appeal a factor in whether special-action jurisdiction accepted). It is because of this delay that we decline special-action jurisdiction. See Anserv Ins. Servs., Inc. v. Albrecht, 192 Ariz. 48, ¶¶ 10-11 (1998) (denying relief based on petitioner's several-month delay in filing special action and waiting sixteen months to request stay of proceedings); Dep't of Child Safety v. Beene, 235 Ariz. 300, n.5 (App. 2014) (special-action jurisdiction would ordinarily be declined due to six-month delay in filing petition).
The Kittrells filed a notice of appeal in January 2019 challenging the $69,600 sanctions judgment entered against them earlier that month. It appears, however, that the Kittrells did not otherwise pursue that appeal.
Disposition
¶10 For the foregoing reasons, we dismiss this appeal. Because we dismiss on jurisdictional grounds not raised or briefed by either of the parties, we decline Patel's request for attorney fees.