Simms v. Simms ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
RONALD A. SIMMS,
Plaintiff/Appellee-Cross Appellant,
v.
ARIZONA RACING COMMISSION;
JEREMY E. SIMMS, an individual;
TP RACING, LLLP, a limited liability limited partnership,
and BELL RACING, LLC, a limited liability company,
Defendants/Appellants-Cross Appellees.
No. 1 CA-CV 18-0546
FILED 4-28-2022
Appeal from the Superior Court in Maricopa County
No. LC2016-000505-001
The Honorable Dawn M. Bergin, Judge Retired
VACATED AND REMANDED
COUNSEL
Dentons US, LLP, Phoenix
By Paul K. Charlton, Karl M. Tilleman, Douglas D. Janicik
Co-Counsel Plaintiff/Appellee/Cross Appellant Ronald A. Simms
Greenberg Traurig, LLP, Phoenix
By Nicole M. Goodwin
Co-Counsel for Plaintiff/Appellee/Cross Appellant Ronald A. Simms
Orrick Herrington & Sutcliffe, LLP, Los Angeles, California
By Stacy W. Harrison, Nathan J. Novak
Co-Counsel for Plaintiff/Appellee/Cross Appellant Ronald A. Simms
SIMMS v. SIMMS, et al.
Decision of the Court
Stinson, LLP, Phoenix
By Michael C. Manning, James M. Torre
Counsel for Defendants/Appellants/Cross Appellees Jeremy E. Simms, TP Racing
LLLP, Bell Racing LLC
Gammage & Burnham, PLC, Phoenix
By Camila Alarcon, Christopher L. Hering
Counsel for Defendant/Appellant/Cross Appellee Arizona Racing Commission
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.
W E I N Z W E I G, Judge:
¶1 This appeal marks another chapter in the protracted and
acrimonious feud between brothers Jeremy (“Jerry”) and Ronald (“Ron”)
Simms over the rights to Turf Paradise. Their fraternal animus has
spawned a vast web of administrative duels, lawsuits and appeals. This
chapter requires us to decide when the Arizona Racing Commission may
accept and decide appeals of licensing decisions made by the Arizona
Department of Gaming’s director. For the reasons set forth below and in a
separate opinion, see Ariz. R. Sup. Ct. 111(g), (h), we vacate and remand.
DISCUSSION
A. Due Process Claims—The Commission
¶2 Ron contends the Commission’s proceeding was tainted with
serious due process violations. For instance, Ron claims that Jerry dined
with Commissioner Lawless the night before the Commission’s vote to
reverse the ADOG Decision. Ron also claims that Commissioner
McClintock said “I’m pulling for you” in a text message to Jerry. See State
ex rel. Corbin v. Ariz. Corp. Comm’n, 143 Ariz. 219, 226 (App. 1984) (“[D]ue
process is violated when the agency decision-maker improperly allows ex
parte communications from one of the parties to the controversy.”).
¶3 The Commission, Jerry and TPR counter that Ron was owed
no due process because he had no protectable property interest. See Shelby
Sch., 192 Ariz. at 168, ¶ 55 (“Due process protection vests only when a
person has a [protectable] property interest.”). We disagree. “[T]here are
2
SIMMS v. SIMMS, et al.
Decision of the Court
certain ‘fundamental’ procedural requisites which a person is entitled to
receive at [a quasi-judicial] administrative hearing.” Rouse v. Scottsdale
Unified Sch. Dist. No. 48, 156 Ariz. 369, 371 (App. 1987). The Commission
held a formal hearing at which it “consider[ed] evidence and appl[ied] the
law to facts it f[ound].” Stoffel, 162 Ariz. at 451. The Commission also has
a statutory duty to ensure due process rights in its proceedings. See A.R.S.
§§ 5-104(D), 41-1092.01(E), -1092.03(B), -1092.07(A), (B), (C).
¶4 We remand for the superior court to hear and consider Ron’s
due process claims against the Commission on a complete record. The
parties vigorously dispute the context and validity of Ron’s accusations, but
we are not factfinders on appeal and cannot meaningfully consider the
issues on this record. State v. Schackart, 190 Ariz. 238, 247 (1997). On
remand, the superior court may conduct an evidentiary hearing to evaluate
Ron’s claims of Commission bias. See State v. Herrera, 232 Ariz. 536, 543, ¶
13 (App. 2013) (“Remand may be appropriate when the trial court is in a
better position than the appellate court to clarify whether a potential error
actually occurred.”). The court may choose to hear sworn testimony about
these ex parte communications, including from the commissioners, Jerry
and former Director Walsh. See A.R.S. § 12-910(A), (B), (E).1 Given Ron’s
unresolved challenges to the Commission’s process, we do not address his
evidentiary arguments.
CONCLUSION
¶5 We vacate the superior court’s order and remand for further
proceedings consistent with this decision and our separate opinion.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 We deny Ron’s Request for Judicial Notice because the material is
irrelevant to our resolution of this appeal. We likewise deny Jerry and
TPR’s Motion to Strike Portions of Ron’s Reply Brief.
3