Holmes v. Spector

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HOLMES ENTERPRISES LLC, Plaintiff/Appellee,

v.

MARC SPECTOR, SYRI K. HALL, Defendants/Appellants.

No. 1 CA-CV 22-0381
FILED 5-18-2023

Appeal from the Superior Court in Yavapai County
No. V1300CV202280108
The Honorable Linda Wallace, Judge Pro Tempore

AFFIRMED

COUNSEL

Robert A. Miller, PLC, Prescott
By Robert A. Miller
Counsel for Plaintiff/Appellee

Marc Spector, Syri K. Hall, Cottonwood
Defendants/Appellants

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Daniel J. Kiley joined.
 HOLMES v. SPECTOR, et al.
Decision of the Court

C R U Z, Judge:

¶1 Marc Spector and Syri K. Hall appeal the superior court’s
forcible detainer judgment in favor of Holmes Enterprises LLC (“Holmes”).
For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2007, Spector refinanced a home in Sedona (“the
property”). The loan was secured by a deed of trust, and in 2013 the deed
of trust was assigned to Wells Fargo Bank. Spector defaulted on the loan.

¶3 Wells Fargo foreclosed and acquired the property at a
trustee’s sale in 2017. Spector and Hall sued Wells Fargo and other
defendants to set aside the trustee’s sale. The superior court granted
summary judgment to the defendants, and we affirmed on appeal. Spector
and Hall subsequently filed four more complaints in superior court
challenging the sale. All four lawsuits were dismissed by the court. In
January 2022, the superior court designated Spector and Hall vexatious
litigants pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-3201
and ordered that they not be allowed to file any “new pleading, motion or
other document” in Yavapai County superior court without leave from the
court.

¶4 In 2022, Wells Fargo sold the property to Holmes. In April
2022, Holmes served Spector and Hall with a notice to vacate the property,
and when they failed to do so, brought a forcible detainer action. Spector
and Hall requested leave to file an answer and counterclaim. The court
initially denied the request, but after Spector and Hall filed a second request
for leave, the court granted the request in part, allowing Spector and Hall
to file an answer but not a counterclaim.

¶5 After an evidentiary hearing, the superior court entered
judgment in favor of Holmes. Spector and Hall timely appealed, and we
have jurisdiction pursuant to A.R.S. § 12-1182.

DISCUSSION

¶6 Spector and Hall argue the superior court violated their due
process rights by deeming them vexatious litigants and by not allowing
them to file a counterclaim. They ask us to overturn the court’s finding that
they were vexatious litigants and remand for new proceedings in the
superior court.

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 HOLMES v. SPECTOR, et al.
Decision of the Court

¶7 As a preliminary matter, we note that the opening brief fails
to comply with Arizona Rule of Civil Appellate Procedure (“ARCAP”) 13.
ARCAP 13(a)(4) requires a “statement of the case” containing appropriate
references to the record. ARCAP 13(a)(5) requires a “’statement of facts’
that are relevant to the issues presented for review, with appropriate
references to the record.” ARCAP 13(a)(7) requires an argument section
setting forth the appellant’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,” and “the applicable standard of appellate
review with citation to supporting legal authority.” This court may dismiss
an appeal when the appellant fails to comply with the rules. Adams v. Valley
Nat’l Bank of Ariz., 139 Ariz. 340, 342-43 (App. 1984).

¶8 The opening brief’s statements of facts and of the case contain
no citations to the record. Nor do Spector and Hall provide appropriate
citations to the record in their argument section. Even if we overlook the
deficiencies of the opening brief, we cannot give Spector and Hall the relief
they seek. Arizona courts have both inherent and statutory powers to
curtail vexatious litigation with pre-filing restrictions. Madison v. Groseth, 230 Ariz. 8, 14, ¶¶ 17-18 (App. 2012); A.R.S. § 12-3201. Here, the superior
court made its vexatious litigant determination on January 20, 2022, in
cause no. V-1300-CV-202180146, a lawsuit filed by Spector and Hall more
than two years after this court affirmed the superior court’s grant of
summary judgment to the Wells Fargo defendants. Spector and Hall did
not appeal the January 20, 2022 order dismissing their complaint in cause
no. V-1300-CV-202180146 and designating them vexatious litigants.
Because they did not appeal the superior court’s decision in that case, they
cannot collaterally challenge it in a separate action. See Roberson v. Teel, 20
Ariz. App. 439, 445 (1973) (affirming summary judgment against
granddaughter of decedent who filed separate suit to challenge probate
court’s unappealed order distributing decedent’s assets; probate court’s
order “is conclusive except on appeal, and is not subject to collateral
attack.”) (citation omitted).

¶9 As to the court’s order allowing Spector and Hall to file an
answer and not a counterclaim, we note that counterclaims are not allowed
in eviction actions unless there is a statutory basis for the counterclaim. See
Arizona Rule of Procedure for Eviction Actions 8(a). Spector and Hall
provided no statutory basis for a counterclaim in their pleadings filed in the
superior court, nor do they do so in their opening brief.

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 HOLMES v. SPECTOR, et al.
Decision of the Court

¶10 Holmes requests attorneys’ fees pursuant to A.R.S. §§ 12-349
and -1178(A), and costs pursuant to A.R.S. § 12-342. “Section 12-1178(A)
addresses the components of a trial court’s judgment and neither expressly
authorizes nor compels attorney fees on appeal.” Montano v. Luff, 250 Ariz.
401, 407, ¶ 18 (App. 2020). We decline to award Holmes attorneys’ fees as
a sanction under § 12-349. As the prevailing party, Holmes is entitled to
costs upon compliance with ARCAP 21(b).

CONCLUSION

¶11 For the foregoing reasons, we affirm.

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

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