Parsons v. Harris

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT PARSONS, et al., Plaintiffs/Appellees,

v.

TOBY HARRIS, Defendant/Appellant.

No. 1 CA-CV 24-0324
FILED 12-10-2024

Appeal from the Superior Court in Maricopa County
No. CV2023-002276
The Honorable Katherine Cooper, Judge

AFFIRMED IN PART AND REVERSED IN PART

COUNSEL

Toby Harris, Phoenix
Defendant/Appellant

Holloway Odegard & Kelly, PC, Phoenix
By Sally A. Odegard, Stephen M. Hopkins
Counsel for Plaintiffs/Appellees
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Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.

W E I N Z W E I G, Judge:

¶1 Toby Harris appeals his designation as a vexatious litigant
and the superior court’s order granting summary judgement in favor of
Robert Parsons and his wife Renee (“Parsons”). We affirm in part and
reverse in part, remanding for further proceedings consistent with this
decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 Harris sued his former employer, GoDaddy Inc., for wrongful
termination in 2010. Mr. Parsons was the executive chairman of GoDaddy
at the time. Mr. Parsons left GoDaddy to start Parsons Xtreme Golf (“PXG”)
during the lawsuit, and Harris created the website boycottpxg.com, which
accused Parsons of fraud, theft, bribery and embezzlement.

¶3 Parsons sued Harris for defamation. Harris filed six motions
in the ten-month period after he was served with the defamation complaint.
None of these motions had merit, so Parsons moved to designate Harris a
vexatious litigant, which also happened in Harris’s wrongful termination
lawsuit against GoDaddy. The superior court granted the motion, so Harris
must get court approval for new filings.

¶4 During discovery, Harris subpoenaed PXG for financial
records to prove his accusations. PXG moved to quash the subpoena, but
missed the deadline by a week and offered no excuse. See Ariz. R. Civ. P.
45(e)(2)(D) (recipient has 14-days after service to file a motion to quash).
Even so, the superior court quashed the subpoena.

¶5 Parsons later moved for partial summary judgement, which
the superior court granted. Harris timely appealed. We have jurisdiction.
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 Harris raises three issues on appeal: (1) the superior court
abused its discretion by designating him a vexatious litigant, (2) the

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Decision of the Court

superior court abused its discretion by considering the untimely motion to
quash, and (3) the superior court erred by granting summary judgment
because Parsons failed to prove damages. We address issues one and two
but need not reach issue three.

I. Vexatious Litigant Designation.

¶7 Harris first challenges the superior court’s designation of him
as a vexatious litigant. We accept special action jurisdiction over the
vexatious litigant order because there is no other “equally plain, speedy,
and adequate remedy by appeal.” Ariz. R.P. Spec. Act. 1(a). We review a
vexatious litigant designation for abuse of discretion. Contreras v. Bourke,
___ Ariz. ___, ___, ¶ 21, 556 P.3d 291, 298 (App. 2024).

¶8 A self-represented litigant may be designated as a vexatious
litigant when they (1) unreasonably expand or delay the proceedings, or (2)
defend actions without substantial justification. A.R.S. § 12-3201(C),
(E)(1)(b)–(c). Before designating a litigant vexatious, the court must (1) give
the litigant notice and an opportunity to oppose the order, (2) create an
adequate record leading to the order, and (3) make substantive findings of
the litigant’s frivolous or harassing actions. See Madison v. Groseth, 230 Ariz.
8, 14, ¶ 18 (App. 2012). The order must be narrowly tailored to address the
litigant’s vexatious conduct. Id.

¶9 We discern no error. Harris had notice of the motion to
designate him a vexatious litigant and he filed a response. The court
created an adequate record leading to the order. It pointed to six motions
filed by Harris that had no merit, did not further the resolution of the case
and expanded the claims without moving it forward. It also cited his prior
designation as a vexatious litigant in the wrongful termination lawsuit.
And lastly, the order was narrowly tailored because the pre-filing
restrictions address Harris’s vexatious conduct and are limited to this
lawsuit. See Contreras, 556 P.3d at 300, ¶ 29. We affirm the court’s
designation of Harris as a vexatious litigant.

II. Motion to Quash.

¶10 Harris next argues the superior court erroneously granted
PXG’s motion to quash his subpoena because that motion was filed late.
We review for abuse of discretion, but the meaning and effect of court rules
are reviewed de novo. Perguson v. Tamis, 188 Ariz. 425, 427 (App. 1996). A
court abuses its discretion when it misapplies the law. Blazek v. Superior
Court, 177 Ariz. 535, 537 (App. 1994).

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Decision of the Court

¶11 Arizona Rule of Civil Procedure 45(e)(2)(D) directs that a
motion to quash a subpoena must be filed within 14 days after the subpoena
is served. Ariz. R. Civ. P. 45(e)(2)(D). A court may consider an untimely
motion only if the moving party shows excusable neglect. Ariz. R. Civ. P.
6(b)(1)(B). A party’s neglect is excusable when it “might be the act of a
reasonably prudent person under the same circumstances.” City of Phoenix
v. Geyler, 144 Ariz. 323, 331 (1985).

¶12 The superior court abused its discretion. PXG filed its motion
to quash 23 days after the subpoena was served and it never moved to
extend that deadline. The record indicates that PXG offered no proof or
argument to show excusable neglect. We remand for the superior court to
entertain a motion to extend the deadline to file a motion to quash.

III. Summary Judgment.

¶13 Given our reversal on an evidentiary issue, we reverse the
entry of summary judgment, too. See Perguson, 188 Ariz. at 430.

CONCLUSION

¶14 We affirm the superior court’s designation of Harris as a
vexatious litigant, but reverse and vacate the orders quashing PXG’s
subpoena and granting summary judgment. We remand to the superior
court for further proceedings consistent with this decision.

¶15 Parsons requests an award of attorney fees and costs on
appeal under A.R.S. §§ 12-349, -331 and ARCAP 21. We decline that request
in our discretion.

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

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