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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 25-0285
FILED 10-10-2025

Appeal from the Superior Court in Maricopa County
No. CV2023-002276
The Honorable Scott Sebastian Minder, Judge

AFFIRMED

COUNSEL

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

Toby Harris, Phoenix
Defendant/Appellant

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Vice Chief Judge David D.
Weinzweig joined.
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Decision of the Court
B A I L E Y, Judge:

¶1 Toby Harris (“Harris”) appeals superior court orders
quashing a subpoena and entering summary judgment for Robert Parsons
and his wife, Renee (collectively, “the Parsons”). For the reasons stated
below, the superior court correctly granted summary judgment in favor of
the Parsons.

FACTS AND PROCEDURAL HISTORY

¶2 GoDaddy terminated Harris from his employment in 2010.
At that time, Robert Parsons was an executive at GoDaddy. In a different
matter, Harris unsuccessfully sued GoDaddy for wrongful termination and
other employment-related claims.

¶3 In 2014, Mr. Parsons left GoDaddy and founded Parsons
Xtreme Golf, LLC (“PXG”). Shortly after, Harris created a website called
boycottpxg.com, which accused Mr. Parsons of fraud, theft, bribery, and
embezzlement.

¶4 The Parsons filed a complaint against Harris for defamation
and sought injunctive relief. While the case was proceeding, the Parsons
filed a motion to designate Harris as a vexatious litigant. After full briefing
on the issue, the superior court issued an order declaring Harris a vexatious
litigant.

¶5 During discovery, Harris subpoenaed PXG for documents he
contends supported the accusations on the website. PXG moved to quash
the subpoena outside the deadline allowed by Arizona Rule of Civil
Procedure (“Rule”) 45(e)(2)(D). The superior court nevertheless granted
the motion to quash.

¶6 Before the superior court quashed the subpoena, the Parsons
moved for summary judgment. Harris did not respond to the summary
judgment motion or request relief under Rule 56(d) to obtain other
evidence. Because the superior court received no response or request for
relief, it granted the motion for summary judgment on liability for
defamation. After the Parsons withdrew the claim for monetary damages,
the court entered a final judgment and found Harris liable for defamation.
It permanently enjoined Harris from maintaining the website and making
any defamatory comments.

¶7 We remanded Harris’ first appeal from this ruling (1 CA-CV
24-0324) to the superior court to determine whether PXG was entitled to an

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Decision of the Court
extension of the deadline to file its motion to quash. The first appeal also
reversed and vacated the summary judgment given the remand for
reconsideration of the discovery issue.

¶8 On remand, PXG moved to extend the deadline to file its
motion to quash the subpoena. Over Harris’ objection, the superior court
granted PXG’s motion and reinstated the prior order quashing the
subpoena and granting summary judgment. The Parsons submitted a
proposed form of judgment, to which Harris objected. The court entered a
final judgment and permanent injunction, implicitly overruling Harris’
objections. Harris timely appealed. We have jurisdiction under A.R.S. § 12-
2101(A)(1) and (5)(b).

DISCUSSION

¶9 Harris challenges the superior court’s order granting PXG an
extension to file the motion to quash the subpoena. We need not reach that
issue because the Parsons are entitled to summary judgment regardless of
how the court ruled on the subpoena. Summary judgment is appropriate
if “there is no genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). We review
the superior court’s grant of summary judgment de novo. Glazer v. State, 237 Ariz. 160, 167, ¶ 29 (2015).

¶10 In a defamation action between two private parties, the
speaker may be liable for publishing a falsehood that injures the plaintiff’s
reputation. Rogers v. Mroz, 252 Ariz. 335, 339, ¶ 12 (2022). If the plaintiff is
a public figure or public official, the First Amendment also requires a
showing that the statements were made with actual malice. Id. at 340, ¶ 17
(citing N. Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)); see also Peagler
v. Phx. Newspapers, Inc., 114 Ariz. 309, 312 (1977).

¶11 The Parsons moved for summary judgment because Harris
admitted to publishing statements impeaching Mr. Parsons’ reputation and
integrity to third parties on his website. The Parsons asserted that Harris
made these statements knowing they were false or with reckless disregard
for whether they were true. In his deposition, Harris stated that his
evidence of truthfulness consisted of the documents attached to his answer.
He also claimed that pending discovery requests to the Parsons would
support his statements. The superior court implicitly determined that the
documents attached to the answer did not relate to the truthfulness of the
defamatory statements but instead related to the already-dismissed
employment action. Moreover, Harris’ deposition testimony does not
address the PXG subpoena because he referred to anticipated discovery

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Decision of the Court
responses from Mr. Parsons. Harris also admitted the statements
impeached Mr. Parsons’ honesty, integrity, and reputation.

¶12 The superior court granted summary judgment because
Harris neither responded to the motion for summary judgment, nor
requested relief under Rule 56(d) to obtain other evidence to respond to the
motion. The court found the motion and statement of facts provided a
factual and legal basis to find Harris liable for defamation and grant a
permanent injunction. Later, the Parsons’ attorney advised the court they
would forgo monetary damages.

¶13 Harris objected to the proposed final judgment. In his
objection, Harris argued for the first time that the quashed subpoena would
have produced evidence showing a business relationship between Parsons
and the superior court judge named in the dismissed employment case.
Harris did not elaborate on this point, nor did he press this argument on
appeal. Instead, Harris argued, as he does on appeal, that the vexatious
litigant order violated his constitutional rights and prevented him from
filing unspecified pleadings. The superior court entered the final judgment
and permanent injunction over Harris’ objection. Harris appealed.

¶14 On remand from the first appeal, the superior court
confirmed the summary judgment ruling. Harris again objected and
argued summary judgment was improper because the Parsons had not
shown damages. Harris took a different position in his reply and raised a
new argument—that Mr. Parsons must show malice because he is a public
figure. Harris also conceded that monetary damages were not required,
and a private figure can show defamation per se. The superior court again
quashed the subpoena and re-affirmed the prior entry of summary
judgment, implicitly overruling Harris’ new public figure argument.

¶15 Harris contends the superior court erred by finding liability
per se because the Parsons are public figures and therefore must show
actual malice. See Rogers, 252 Ariz. at 340, ¶ 17. This argument is untimely.
Harris acknowledges that he did not make this argument in the original
summary judgment proceedings. In fact, Harris did not respond to the
summary judgment motion, nor did he request relief under Rule 56(d) to
obtain more evidence to respond to the summary judgment motion.
Further, Harris did not raise the public figure argument until the superior
court reconsidered the summary judgment motion on remand. Even then,
he did not make the argument until the reply supporting his objection.

¶16 Harris states that he intentionally chose not to file anything in
superior court because the “mid case [v]exatious order was a trap for a

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Decision of the Court
contempt charge[.]” Harris misunderstands the vexatious litigant order,
which allowed him to file a pleading with the court’s prior permission.
Instead, he did nothing. “[I]f a party neglects to take either action, ‘a trial
court does not err in proceeding to rule on a motion for summary
judgment.’” Best v. Edwards, 217 Ariz. 497, 504, ¶ 30 (App. 2008) (quoting
Wells Fargo Credit Corp. v. Smith, 166 Ariz. 489, 493 (App. 1990)). Thus,
Harris waived this argument.

¶17 Waiver aside, Harris did not offer any evidentiary support for
his claim that the Parsons are public figures. Unsupported factual
allegations are insufficient to defeat summary judgment. Ariz. R. Civ. P.
56(e) (“[A]n opposing party may not rely merely on allegations or denials
of its own pleading.”). Harris failed to provide an affidavit or other
evidence setting forth “specific facts showing a genuine issue for trial.” Id.
Harris admittedly published statements that impeached the Parsons’
“honesty, integrity or reputation.” Peagler, 114 Ariz. at 316. Therefore, the
Parsons are entitled to summary judgment for defamation per se. Id.

ATTORNEYS’ FEES AND COSTS ON APPEAL

¶18 The Parsons request an award of attorneys’ fees under A.R.S.
§ 12-349(A) on the grounds that the appeal lacked substantial justification
and unreasonably expanded the proceedings. We decline the Parsons’
request. However, as the prevailing party on appeal, the Parsons are
entitled to costs under A.R.S. § 12-342(A).

CONCLUSION

¶19 We affirm the entry of summary judgment on the defamation
claim and request for a permanent injunction.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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