12th Street v. Lynaugh

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

12TH STREET PROPERTY TRUST, et al., Plaintiffs/Appellees,

v.

LINDA V. LYNAUGH, Defendant/Appellant.

No. 1 CA-CV 19-0449
FILED 7-21-2020

Appeal from the Superior Court in Maricopa County
No. CV 2017-052422
The Honorable Steven K. Holding, Commissioner (Retired)

VACATED AND REMANDED

APPEARANCES

Linda V. Lynaugh, Phoenix
Defendant/Appellant

Hull Holliday & Holliday, Phoenix
By Denise M. Holliday
Counsel for Plaintiffs/Appellees
 12TH STREET, et al. v. LYNAUGH
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge D. Steven Williams and Judge Lawrence F. Winthrop1 joined.

B R O W N, Judge:

¶1 Linda Lynaugh appeals the superior court’s order awarding
attorneys’ fees based on a mandate from this court. Because the record
before us lacks any support for the court’s fee award, we vacate the order
and remand for further proceedings.

BACKGROUND

¶2 In 2017, Lynaugh was found guilty of forcible entry and
detainer (“FED”), and 12th Street Property Trust (“the Trust”) was awarded
possession of the property, unpaid rent, attorneys’ fees, and costs. After
Lynaugh filed several post-judgment motions, the superior court declared
her a vexatious litigant and awarded the Trust $1925 in supplemental
attorneys’ fees. Lynaugh appealed to this court, and we affirmed the
superior court’s denial of her post-judgment motions but vacated the
vexatious litigant order. 12th Street Prop. Trust v. Lynaugh, 1 CA-CV 17-0183,
2019 WL 1076220, at *1, ¶ 1(Ariz. App. Mar. 7, 2019) (mem. decision). We
also vacated the supplemental fee award because the court had not
specified whether the award was based on the vexatious litigant order or
the FED judgment under A.R.S. § 12-1178(A). 12th Street, 1 CA-CV 17-0183,
at *3, ¶ 13. We therefore directed the court to “reconsider whether all fees
requested in the supplemental application should be awarded based solely
on [A.R.S.] § 12-1178(A).” Id.

¶3 After issuance of the mandate by this court, and the day
before a hearing set to address attorneys’ fees, the Trust filed an amended
supplemental application requesting an award of $1275. The application
stated that a sworn statement of counsel was attached, but no such
document was filed with the superior court.

1
Judge Lawrence F. Winthrop replaces the Honorable Kenton D.
Jones, who was originally assigned to this panel. Judge Winthrop has read
the briefs and reviewed the record.

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 12TH STREET, et al. v. LYNAUGH
Decision of the Court

¶4 At the hearing, although Lynaugh questioned how the Trust
came up with the award it was requesting, the Trust presented no evidence
or exhibits supporting its amended supplemental fee application. Counsel
for the Trust did explain, however, that its fee request was reduced by $750
for the time spent in pursuing the vexatious litigant order. After the
hearing, the superior court entered an order awarding the Trust $1175 in
attorneys’ fees pursuant to A.R.S. § 12-1178(A). Lynaugh timely appealed.

DISCUSSION

¶5 After Lynaugh filed her notice of appeal in the superior court,
the Trust moved to strike it, arguing Lynaugh could not appeal a final order
based upon a “specific” mandate from this court. The superior court
granted the Trust’s motion. Lynaugh then filed an amended notice of
appeal. On appeal, the Trust seeks dismissal of the appeal for lack of
jurisdiction for the same reason asserted in its motion to strike.

¶6 In addition to addressing the Trust’s argument, we have an
independent duty to determine our jurisdiction. See Sorenson v. Farmers Ins.
Co. of Ariz., 191 Ariz. 464, 465 (App. 1997). The superior court’s entry of a
judgment based on a specific mandate from this court is not appealable.
Scates v. Ariz. Corp. Comm’n, 124 Ariz. 73, 75–76 (App. 1979). Instead, a party
challenging the judgment must do so by special action. See Tovrea v.
Superior Court, 101 Ariz. 295, 297 (1966).

¶7 In Scates, we reversed the superior court’s order approving a
rate increase and remanded with instructions to “set aside the order of the
Corporation Commission entered December 12, 1978.” Id. In the superior
court on remand, the appellants requested an award of attorneys’ fees and
costs. Id. at 75. The court denied the request for attorneys’ fees, set aside
the commission’s order, and assessed costs. Id. In their subsequent appeal,
the appellants argued the court erred in entering a judgment without
granting attorneys’ fees. Id. We dismissed the appeal because the superior
court’s entry of the order setting aside the commission’s order was merely
a ministerial act. Id. at 76 (citing Gusick v. Eyman, 81 Ariz. 182, 184 (1956)
(explaining that if the trial court “is performing a mere ministerial act rather
than a judicial act when it enters an order pursuant to the specific directions
of an appellate court,” then the issue is not appealable), and State v. Griffith, 54 Ariz. 436, 441 (1939) (stating that the trial court “was absolutely without
jurisdiction” to render a judgment that was any different from the one
“which this court directed it to render”)).

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 12TH STREET, et al. v. LYNAUGH
Decision of the Court

¶8 Unlike Scates, the superior court in this case was not simply
engaging in a ministerial act. Instead, we directed the court to reconsider
the amount of the supplemental fee award, which necessarily required the
court to exercise its discretion in considering on remand the Trust’s revised
supplemental request to determine which fees could properly be awarded
under § 12-1178(A). Thus, the court’s order reducing the previous award
of supplemental attorneys’ fees to the Trust did not arise from a specific
mandate. We therefore reject the Trust’s argument that we lack jurisdiction
to consider Lynaugh’s appeal.

¶9 Turning to the merits, Lynaugh stated at the outset of the
hearing that she did not “see any foundation for a calculation [of] . . . how
[the Trust] got to these numbers.” Notwithstanding that specific objection,
the Trust provided no evidence or documentation in response. Nor did the
superior court inquire further into how the Trust calculated its fee request.
It is possible the Trust provided the court with a courtesy copy of the sworn
statement that should have accompanied the amended supplemental fee
application, but nothing in the transcript or the record on appeal confirms
that is the case. And even assuming that occurred, there is no indication
the sworn statement was given to Lynaugh. Accordingly, the Trust failed
to meet the minimum requirements for a fee award, and Lynaugh was
deprived of a meaningful opportunity to object to the Trust’s fee request.
See Nolan v. Starlight Pines Homeowners Ass’n, 216 Ariz. 482, 491, ¶ 38 (App.
2007) (“Once a party establishes its entitlement to fees and meets the
minimum requirements in its application and affidavit for fees, the burden
shifts to the party opposing the fee award to demonstrate the impropriety
or unreasonableness of the requested fees.”).

¶10 We therefore vacate the award and remand to the superior
court to reconsider whether all fees requested in the supplemental
application should be awarded solely based on A.R.S. § 12-1178(A). The
Trust shall be directed to file and serve its “supplemental” fee application
and affidavit, along with a proposed order, at least seven days before any
hearing so that appellant has the opportunity to review and respond with
specific objections to the affidavit and proposed order. The court may then
consider the Trust’s request and issue its ruling.

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 12TH STREET, et al. v. LYNAUGH
Decision of the Court

CONCLUSION

¶11 We vacate the superior court’s order awarding supplemental
attorneys’ fees to the Trust and remand for further proceedings consistent
with this decision. We deny the Trust’s request for attorneys’ fees because
it has not prevailed on appeal. As the successful party on appeal, Lynaugh
is entitled to an award of taxable costs subject to compliance with ARCAP
21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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