Hott v. Sommers ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JONATHAN HOTT, Plaintiff/Appellee,
v.
JULIE SOMMERS, Defendant/Appellant.
No. 1 CA-CV 20-0372
FILED 3-11-2021
Appeal from the Superior Court in Maricopa County
No. CV 2019-057326
The Honorable Gary L. Popham, Judge Pro Tempore
APPEAL DISMISSED
APPEARANCES
Julie Sommers, Peoria
Defendant/Appellant
Jones Skelton & Hochuli PLC, Phoenix
By A. Melvin Donald, Lori L. Voepel
Counsel for Plaintiff/Appellee
HOTT v. SOMMERS
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.
C A M P B E L L, Judge:
¶1 Julie Sommers appeals the superior court’s civil contempt
adjudication and its affirmation of an injunction against harassment
(“IAH”) in favor of Jonathan Hott. We dismiss the appeal because we lack
jurisdiction over the claims asserted.
BACKGROUND
¶2 Hott was granted an IAH against Sommers in December
2019. At a status conference in March 2020, Sommers requested the matter
be set for a contested hearing. The court scheduled the hearing for April
but, before the hearing could be held, a worldwide pandemic erupted.
Hott moved to continue the hearing because of COVID-19 restrictions and
concerns about the participants’ health. The court granted the motion and
continued the hearing for a month, over Sommers’ objection.
¶3 At some point during the disclosure process, Hott
inadvertently disclosed privileged information intended for his attorney
to Sommers. Counsel promptly informed Sommers of the inadvertent
disclosure, and, pursuant to Arizona Rule of Civil Procedure 26.1(h)(2),
requested that she return, sequester, or destroy the email. Hott also filed a
motion asking the superior court to order Sommers’ compliance with
rules on privilege. Ariz. R. Civ. P. 26.1(h)(2). The court advised Sommers
that she must follow the Civil rules “that all litigants and lawyers are
susceptible to” and ordered her to destroy any privileged communication
she inadvertently received and provide the court and counsel notice that
she had, in fact, done so.
¶4 Sommers then moved to continue the May hearing. The
superior court granted her motion and continued the hearing to June.
Later, Sommers withdrew her request for a hearing. Hott objected to
vacating the hearing and also asked the court to set a contempt hearing.
The superior court allowed Sommers to withdraw her request for the IAH
hearing, affirmed the IAH, and ordered a civil contempt hearing on the
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HOTT v. SOMMERS
Decision of the Court
June date. At the hearing, the superior court found Sommers in civil
contempt for failing to destroy the privileged email and provide the court
and counsel notice of her compliance with the court’s order. Sommers
now appeals both the IAH and the civil contempt adjudication.
DISCUSSION
¶5 Upon receipt of Sommers’ appeal, this Court issued an
Order Staying Appeal that stated, “an order affirming an [IAH] is
immediately appealable under A.R.S. § 12-2101(A)(5)(b).” However, we
have an independent duty to determine whether we have jurisdiction to
consider an appeal. Sorensen v. Farmers Ins. Co., 191 Ariz. 464, 465 (App.
1997). We must dismiss an appeal over which we lack jurisdiction. Davis v.
Cessna Aircraft Corp., 168 Ariz. 301, 304 (App. 1991).
I. Civil Contempt Adjudication
¶6 First, Sommers argues that the superior court erred by
finding her in civil contempt for failure to comply with its order to destroy
the privileged email. There is no right to appeal a civil contempt
adjudication. See Berry v. Superior Court ex rel Cnty. of Maricopa, 163 Ariz.
507, 508 (App. 1989) (explaining civil contempt adjudications are not
appealable and appellate review is “only possible by special action”).
Because we lack jurisdiction, we cannot consider this issue on appeal.
Further, because Sommers has not asked us to exercise special action
jurisdiction over this matter, in our discretion we decline to treat
Sommers’ appeal as a petition for special action. See Danielson v. Evans, 201
Ariz. 401, 411, ¶ 35 (App. 2001) (exercising discretion to treat appeal of
contempt order as a petition for special action); A.R.S. § 12-120.21(A)(4)
(“The court of appeals shall have [j]urisdiction to hear and determine
petitions for special actions brought pursuant to the rules of procedure for
special actions, without regard to its appellate jurisdiction.”).
II. Injunction Against Harassment
¶7 Sommers next raises multiple arguments challenging the
validity of the IAH. An order affirming an IAH, generally, is immediately
appealable under A.R.S. § 12-2101(A)(5)(b). Under Arizona Rule of
Protective Order Procedure (“Rule”) 42(a)(3), however, an ex parte IAH is
not an appealable order. See also Wood v. Abril, 244 Ariz. 436, 437, ¶ 4
(App. 2018) (“Injunctions against harassment are governed by the Arizona
Rules of Protective Order Procedure.”). The mechanism for challenging an
IAH ordered ex parte is to request a contested hearing in the issuing court.
Ariz. R. Protective Order P. 42(a)(3). This requirement allows the issuing
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HOTT v. SOMMERS
Decision of the Court
court the opportunity to take testimony, evaluate witness credibility, and
develop a record for this court’s use when reviewing a case on appeal.
¶8 Sommers initially requested a hearing, but later withdrew
her request and the court vacated the hearing. Because Sommers failed to
challenge the IAH at a contested hearing in the issuing court, this court
lacks an official court record to review. By failing to comply with Rule 42,
this court lacks jurisdiction to consider Sommers’ appeal. We vacate this
court’s previous order in which we indicated jurisdiction over the appeal
was appropriate.
III. Attorneys’ Fees and Costs
¶9 Hott requests his attorneys’ fees and costs on appeal
pursuant to Rule 39, A.R.S. §§ 12-349 and -1809(O), ARCAP 21, and
ARCAP 25. Sommers also requests her costs on appeal but cites no legal
authority. Because this court lacks jurisdiction over Sommers’ IAH appeal,
we decline to award fees. As the prevailing party, Hott is entitled to his
costs on appeal upon compliance with ARCAP 21. See In re Perez, 71 Ariz.
352, 353 (1951) (appellee entitled to costs as prevailing party when appeal
dismissed).
CONCLUSION
¶10 This appeal is dismissed for lack of jurisdiction.
AMY M. WOOD • Clerk of the Court
FILED: AA
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