Holmes v. Allens Auto

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DONALD D. HOLMES, Plaintiff/Appellant,

v.

ALLENS AUTO SERVICES 2 LLC, Defendant/Appellee.

No. 1 CA-CV 19-0808
FILED 9-10-2020

Appeal from the Superior Court in Maricopa County
No. LC2018-000481-001
The Honorable Amy Michelle Kalman, Judge Pro Tempore

AFFIRMED

COUNSEL

Donald D. Holmes, Sun City West
Plaintiff/Appellant

Mushkatel, Robbins & Becker P.L.L.C., Surprise
By Lisa K. Misner-Skozen
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

G A S S, Judge:

¶1 Donald Holmes sued Allens Auto Services 2 LLC in justice
court regarding work done on his automobile. Holmes appealed some of
the justice court’s orders to the superior court. A superior court
commissioner, acting as a judge pro tempore, affirmed the orders in part and
remanded to the justice court for further proceedings. In its ruling, the
superior court rejected Holmes’ constitutional challenge to A.R.S. § 12-349
and awarded attorney fees against him. Holmes appeals, arguing the
superior court commissioner (1) lacked authority to preside over his case,
(2) erred in finding A.R.S. § 12-349 constitutional, and (3) abused her
discretion in ruling against him on procedural and substantive matters.
This court affirms and remands to the justice court for further proceedings.

¶2 Procedurally, this case has taken a few turns. Holmes filed an
appeal before the superior court entered the orders discussed above. This
court dismissed for lack of jurisdiction. After the commissioner entered the
above orders, Holmes again appealed. This court stayed that appeal
because the order did not contain Rule 54(b) or (c) language. The
commissioner then entered an order saying, “As to the appealed issue
regarding the Motion to Dismiss Defendants and the Resulting Request for
Attorney’s Fees, there are no further matters remaining pending and the
judgment is entered under Rule 54(b).”

¶3 This court’s appellate jurisdiction is limited to (1) Holmes’
challenge to the commissioner’s authority to preside over his case and (2)
Holmes’ constitutional challenge to A.R.S. § 12-349. See Baker v. Bradley, 231
Ariz. 475, 478–79, ¶ 8 (App. 2013) (this court must independently examine
its jurisdiction in every appeal and cannot act if it lacks jurisdiction). Rule
14(b) of the Superior Court Rules of Civil Appellate Procedure prohibits
any appeal “from a final decision or order of the superior court [on review
of a judgment of the justice court], except where the action involves the
validity of a tax, impost, assessment, toll, statute or municipal ordinance.”
See Ariz. Const. art. VI, § 9; A.R.S. §§ 12-120.21.A.1, 22-375.B; see also Roubos
v. Miller, 213 Ariz. 36, 37, ¶ 2 (App. 2006).

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Decision of the Court

¶4 Holmes argues no authority allowed the commissioner to
preside over his case. To the contrary, a superior court commissioner, acting
as a judge pro tempore, has the authority to rule on matters such as Holmes’
appeal. See Ariz. Const. art. VI, § 31(B); see also Vera v. Rogers, 246 Ariz. 30,
35, ¶ 19 n.5 (App. 2018). In short, “[a]s a pro tempore judge, [the
commissioner] had the same authority as a full-time regularly seated
superior court judge” and acted within that authority to preside over
Holmes’ case. See State of Netherlands v. MD Helicopters Inc., 248 Ariz. 533,
537, ¶ 8 n.2 (App. 2020).

¶5 Because this matter began in justice court, this court limits any
further review to Holmes’ challenge to § 12-349’s facial validity. See A.R.S.
§ 22-375; State v. McMahon, 201 Ariz. 548, 550, ¶ 3 (App. 2002). “If the statute
is constitutional, our inquiry is at an end.” State v. Singer, 190 Ariz. 48, 50
(App. 1997). This court reviews de novo a facial challenge to a statute’s
validity. See McMahon, 201 Ariz. at 550, ¶ 5. A statute is presumed
constitutional, and the party challenging its constitutionality bears the
burden of persuasion to the contrary. See State v. Russo, 219 Ariz. 223, 225,
¶ 4 (App. 2008). Holmes cites general authority regarding equal protection
standards but cites no authority directly supporting his contention § 12-349
is facially unconstitutional. Here, as in the superior court, Holmes “makes
bare assertions, unsupported by any analysis, that [§ 12-349] grants
attorneys special privileges and immunities that non-attorneys do not
have.” He does not meet his burden of establishing—beyond a reasonable
doubt—that § 12-349 runs afoul of equal protection guarantees under either
the United States or Arizona Constitutions.

¶6 This court declines to exercise special action jurisdiction over
Holmes’ remaining issues. “Special action jurisdiction is highly
discretionary but may be appropriate when no equally plain, speedy, and
adequate remedy by appeal exists.” Prosise v. Kottke, 249 Ariz. 75, 77, ¶ 10
(App. 2020) (quotation omitted). “Jurisdiction is also appropriate in matters
of statewide importance, issues of first impression, cases involving purely
legal questions, or issues that are likely to arise again.” Id. (quotation
omitted). Holmes argues the judge pro tempore abused her discretion in
denying his motion for sanctions, his request for oral argument, and his
request for more time. Holmes also argues she did not fully consider his
supplemental briefing. These issues do not meet the criteria for special
action jurisdiction. See id.

¶7 Allens Auto seeks an award of attorney fees as a sanction
under ARCAP 25, which authorizes appellate courts to impose sanctions—
including an award of fees—if the appeal was frivolous or was filed solely

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Decision of the Court

for the purpose of delay. A narrow line sits between a frivolous appeal that
justifies sanctions and a meritless appeal that does not. Hoffman v. Greenberg, 159 Ariz. 377, 380 (App. 1988). This court exercises its authority to punish
litigants for frivolous appeals “most sparingly.” Price v. Price, 134 Ariz. 112,
114 (App. 1982) (citation omitted).

¶8 Holmes’ litigation techniques at the justice and superior court
were not appropriate. The merit of the issues Holmes raised in his appeal
are concerning. This court, however, cannot say Holmes crossed the narrow
line. And Allens Auto does not establish Holmes brought the appeal solely
to delay the proceedings in the justice court. This court, therefore, awards
Allens Auto its costs on appeal as the prevailing party under A.R.S. § 12-
342 but declines in its discretion to impose sanctions against Holmes under
ARCAP 25.

¶9 For the above reasons, this court affirms the superior court’s
ruling and remands to the justice court for further proceedings consistent
with this decision.

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

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