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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
WILLIAM J. MYERS, JR., Plaintiff/Appellant,
v.
LEAH S. FREED, Defendant/Appellee.
No. 1 CA-CV 20-0449
FILED 7-15-2021
Appeal from the Superior Court in Maricopa County
No. CV 2018-096596
The Honorable David J. Palmer, Judge
AFFIRMED
APPEARANCES
William J. Myers, Jr., Chandler
Plaintiff/Appellant
Sherman & Howard LLC, Phoenix
By John A. Doran, Sean M. Moore
Counsel for Defendant/Appellee
MYERS, JR. v. FREED
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 William J. Myers, Jr. appeals the dismissal of his complaint
against Leah S. Freed. Claim preclusion bars a claim when a prior suit “(1)
involved the same ‘claim’ or cause of action as the later suit, (2) reached a
final judgment on the merits, and (3) involved identical parties or privies.”
See Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2002)
(citation omitted). Because Myers previously litigated the sole claim alleged
in the complaint in a separate cause of action, we affirm the superior court’s
dismissal of the complaint on claim preclusion grounds.
BACKGROUND
¶2 In 2012, Myers sued Freescale Semiconductor, Inc.
(“Freescale”) for wrongful termination, defamation, and conversion. See
Myers v. Freescale Semiconductor Inc., 1 CA-CV 17-0745, 2018 WL 6241455, at
*1, ¶ 3 (Ariz. App. Nov. 29, 2018) (mem. decision). After removing the case
to federal district court, Freescale moved for summary judgment. To
support its motion, Freescale submitted a declaration by Victoria Brush (the
“Brush Declaration”), its human resources manager, summarizing her
sexual harassment investigation of Myers. In response, Myers alleged that
the signature on the Brush Declaration had been forged. He also questioned
whether Freescale had, in fact, investigated the sexual harassment claims
brought against him. The district court granted Freescale’s motion and
entered judgment in its favor, finding no evidence that it: (1) terminated
Myers’ employment for discriminatory reasons, (2) made false and
unprivileged defamatory statements about him, or (3) converted any of his
property.
¶3 Months later, Myers filed multiple post-judgment motions in
district court, alleging causes of action for libel, fraud, contempt, slander,
and perjury against both Freescale’s employees and its attorney of record,
Freed. Finding the various motions “groundless, harassing, and frivolous,”
the district court denied them and ordered them stricken from the record.
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MYERS, JR. v. FREED
Decision of the Court
The district court also ordered the clerk not to accept any further pleadings
from Myers without prior judicial authorization.
¶4 Nearly two years later, Myers moved to set aside the
judgment, alleging Freescale had committed fraud on the court. In support
of his motion, Myers attached the affidavit of Judith A. Housley (the
“Housley Affidavit”), a forensic document examiner and handwriting
analyst. Having compared the Brush Declaration and another statement
signed by Brush, Housley opined that the documents’ signatures did not
match. The district court denied Myers’ motion to set aside, and the Ninth
Circuit dismissed his subsequent appeal as untimely. Id. at ¶ 5.
¶5 Dissatisfied with the results of the 2012 lawsuit and other
related appeals,1 Myers filed a new lawsuit against Freescale in the superior
court, again alleging claims for wrongful termination, defamation, and
conversion, and reasserting that Freescale committed fraud on the court by
submitting the purportedly forged Brush Declaration. Finding the
complaint barred on claim preclusion grounds, the superior court
dismissed the case with prejudice.
¶6 In 2016, Myers filed another complaint, alleging Freescale
committed fraud on the court in the 2012 case by submitting the
purportedly “forged” Brush Declaration. In addition, Myers challenged
Freescale’s investigation of sexual harassment claims against him,
contending that no women had, in fact, accused him of wrongdoing.
Freescale moved for summary judgment, arguing that claim preclusion
barred Myers’ fraud on the court claim and denying the forgery allegation.
Id. at *2, ¶ 10. Freescale submitted a second declaration from Brush, in
which she confirmed that the signature on the Brush Declaration was her
true and correct signature. Id. Finding Myers’ fraud on the court claim
barred by the doctrine of claim preclusion, the superior court granted
Freescale’s motion for summary judgment. Myers filed three post-
judgment motions seeking to set aside and/or vacate the judgment, which
the superior court denied.
¶7 On appeal, this court upheld the superior court’s dismissal of
Myers’ claim for fraud on the court on claim preclusion grounds. Id. at *4,
¶ 22. Determining Myers brought the 2016 action and subsequent appeal
without substantial justification, we also awarded Freescale its reasonable
1 During the interim period, Myers filed two other complaints against
Freescale, reasserting claims of wrongful discharge and defamation. Both
complaints were dismissed on claim preclusion grounds.
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MYERS, JR. v. FREED
Decision of the Court
attorneys’ fees and costs on appeal “as a sanction against Myers” under
A.R.S. § 12-349 and ARCAP 25. Myers, 1 CA-CV 17-0745, at *5, ¶ 29.
¶8 In 2018, Myers filed the instant lawsuit against Freescale’s
attorney, Freed, alleging she committed fraud on the court. As the primary
basis for his claim, Myers alleged that Freed “fabricated” the Brush
Declaration and deceived the superior court when she submitted the
document in support of Freescale’s motion for summary judgment in the
2016 case. Apart from contesting the authenticity of the Brush Declaration,
Myers also challenged its contents, alleging that Freescale never
investigated the sexual harassment allegations that precipitated his
discharge. Freed moved to dismiss, asserting that Myers’ claim was barred
both by the collateral estoppel doctrine and the absolute litigation privilege,
and that he failed to state a claim for fraud on the court. In response, Myers
argued that the claim was not precluded because (1) Freed committed fraud
on the court anew when she submitted the Brush Declaration in the 2016
case, and (2) the prior case was brought against Freescale, not Freed. With
her motion to dismiss pending, Freed also petitioned the superior court to
designate Myers a vexatious litigant.
¶9 The superior court granted Freed’s motion to dismiss,
finding: (1) the res judicata/collateral estoppel doctrine barred Myers from
relitigating the authenticity of the Brush Declaration; (2) Freed’s
“statements and actions in submitting the Brush [D]eclaration” were
protected under the absolute litigation privilege; and (3) Myers failed to
state a claim because the superior court did not resolve the 2016 case based
on the authenticity of the Brush Declaration but upon application of the
collateral estoppel doctrine.
¶10 After summarily denying Myers’ motions for
reconsideration, for relief from judgment, and to charge Freed with perjury,
the superior court recommended that the presiding superior court judge
declare Myers a vexatious litigant and order that he be prohibited from
filing “any new complaint or lawsuit” concerning “any claims for relief
relative to his 2011 termination of employment . . ., including but not limited
to any issues regarding the Declaration of Victoria Brush.” Accepting the
superior court’s recommendation, the presiding superior court judge
declared Myers a vexatious litigant and ordered that he not file any new
causes of action or further motions in any current lawsuits without prior
judicial authorization. Despite this order, Myers filed additional motions,
which the superior court addressed by either denying relief or “tak[ing] no
action” because the motions were not “properly before the Court.”
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MYERS, JR. v. FREED
Decision of the Court
¶11 After granting Freed’s request for attorneys’ fees under A.R.S.
§ 12-349, the superior court entered a signed judgment in her favor. Myers
timely appealed.
DISCUSSION
¶12 As a preliminary matter, we consider the scope of this appeal.
Although Myers seeks to vacate “all judgments [and] rulings in this case,”
he fails to present any legal argument challenging the superior court’s: (1)
denial of his post-judgment motions, (2) recommendation to the presiding
judge to designate him a vexatious litigant, or (3) award of attorneys’ fees
to Freed. Accordingly, Myers has waived any challenge to those rulings,
and we will not consider them. See ARCAP 13(a)(7)(A) (stating an opening
brief “must contain” each of 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”); see also Ritchie v.
Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (explaining the failure to
develop and support an argument on appeal results in waiver of the issue);
In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 25 n.5 (App. 2000) (holding
issues raised for the first time in a reply brief are waived).
¶13 As framed in the opening brief, the only issue before us is
whether the superior court properly dismissed Myers’ complaint. Contrary
to the superior court’s finding, Myers contends that the doctrine of claim
preclusion “does not apply” to Freed. He further asserts that the claim
preclusion doctrine is inapplicable here because “new material”
demonstrates that Freed not only manufactured and submitted a forged
document, but “committed spoliation of evidence” by destroying all notes
and records related to the sexual harassment investigation. By failing to
properly raise the spoliation of evidence argument in the superior court,
Myers waived it on appeal, and we will not consider it.2 See Trantor v.
Fredrikson, 179 Ariz. 299, 300 (1994) (holding the failure to raise an issue in
the superior court waives the issue on appeal).
¶14 This court reviews de novo the dismissal of a complaint. See
Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We also review de
2 Myers first raised his spoliation of evidence argument (and an
allegation that Freed admitted to committing fraud during a discovery-
related conversation) in his second supplemental authority to his motion
for relief from judgment. He filed this document after the presiding
superior court judge declared him a vexatious litigant.
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MYERS, JR. v. FREED
Decision of the Court
novo the preclusive effect of a prior judgment. Howell v. Hodap, 221 Ariz.
543, 546, ¶ 17 (App. 2009).
¶15 Because a federal court issued the judgment in the 2012
lawsuit, federal law dictates its preclusive effect. In re Gen. Adjudication of
All Rights to Use Water in the Gila River Sys. & Source, 212 Ariz. 64, 69, ¶ 13
(2006). Under the doctrine of claim preclusion, or res judicata, “a final
judgment on the merits bars further claims by parties or their privies based
on the same cause of action.” Montana v. United States, 440 U.S. 147, 153
(1979). “The defense of claim preclusion has three elements: (1) an identity
of claims in the suit in which a judgment was entered and the current
litigation, (2) a final judgment on the merits in the previous litigation, and
(3) identity or privity between parties in the two suits.” Gen. Adjudication of
All Rights to Use Water in the Gila River Sys. & Source, 212 Ariz. at 69–70, ¶ 14
(citing Blonder-Tongue Lab, Inc. v. Univ. of Ill. Found., 402 U.S. 313, 323–24
(1971)).
¶16 To determine whether there is an identity of claims, we
consider whether: (1) “the two suits arise out of the same transactional
nucleus of facts,” (2) “rights or interests established in the prior judgment
would be destroyed or impaired by prosecution of the second action,” (3)
“the two suits involve infringement of the same right,” and (4)
“substantially the same evidence is presented in the two actions.” Mpoyo,
430 F.3d at 987 (citation omitted). While “all four factors are considered,”
the “transactional nucleus element” is weighed most heavily and deemed
“outcome determinative.” Tug Constr. L.L.C. v. Harley Marine Financing
L.L.C., 412 F. Supp. 3d 1293, 1302 (W.D. Wash. 2019) (citation omitted).
“Newly articulated claims based on the same nucleus of facts [are] subject
to a res judicata finding if the claims could have been brought in the earlier
action.” Id.
¶17 Applying this framework, we first examine the claims raised
in the 2012 and 2018 lawsuits. Both the prior litigation and the instant case
arose out of Freescale’s investigation of sexual-harassment allegations
against Myers and its subsequent termination of his employment. In
opposition to Freescale’s motion for summary judgment in the 2012 lawsuit,
Myers asserted that the Brush Declaration, which described Freescale’s
investigation of Myers’ workplace conduct, had “obviously been forged.”
By entering judgment in Freescale’s favor, the district court necessarily
rejected Myers’ contention. Almost two years later, Myers filed a post-
judgment motion alleging Freescale had committed fraud on the court by
submitting the Brush Declaration, attaching the same Housley Affidavit he
relies on to support his fraud on the court claim in the instant case. The
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MYERS, JR. v. FREED
Decision of the Court
district court denied Myers’ motion and upheld the 2012 judgment.
Accordingly, Myers litigated his challenges to the authenticity of the Brush
Declaration and Freescale’s investigation of the harassment claims in the
2012 case, and the district court entered a final judgment on the merits
against him. Although Myers attempts to frame his current claim in terms
of “new material,” in the instant action, he ultimately seeks relief from
fraud Freed purportedly committed in the 2012 case—allegations that have
been addressed in numerous lawsuits. To the extent Myers’ allegations in
this complaint vary in form, “they could and should have been raised” in
the 2012 case. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Plan.
Agency, 322 F.3d 1064, 1076 (9th Cir. 2003).
¶18 Turning to the remaining factors, Freescale’s interest in the
finality of the 2012 judgment would be undermined if the 2018 action were
permitted to proceed. Both lawsuits alleged an infringement of the same
rights related to the investigation into Myers’ workplace conduct and the
termination of his employment. Lastly, Myers relied primarily upon the
same evidence—the Housley Affidavit—to support his allegations of
forgery in both his post-judgment motions in the 2012 case and the instant
lawsuit.
¶19 Having found an identity of claims in the 2012 lawsuit and
the current litigation and determined that Myers previously litigated the
claim and the district court entered a final judgment on the merits against
him, we consider the identity or privity between the parties in the two suits.
“[P]rivity is a flexible concept dependent on the particular relationship
between the parties in each individual set of cases.” Tahoe-Sierra, 322 F.3d
at 1081–82. Accordingly, “[e]ven when the parties are not identical, privity
may exist if ‘there is “substantial identity” between parties, that is, when
there is sufficient commonality of interest.’” Id. at 1081 (internal quotations
and citations omitted); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326
n.4 (1979) (permitting “[d]efensive use” of claim preclusion “to prevent a
plaintiff from asserting a claim the plaintiff has previously litigated and lost
against another defendant”); Stratosphere Litigation L.L.C. v. Grand Casinos,
Inc., 298 F.3d 1137, 1142 n.3 (9th Cir. 2002) (finding privity “when a party is
so identified in interest with a party to former litigation that he represents
precisely the same right in respect to the subject matter involved”) (internal
quotations and citation omitted); In re Schimmels, 127 F.3d 875, 881 (9th Cir.
1997) (internal quotations omitted) (explaining privity exists between a
party and nonparty when their interests “are so closely aligned as to be
virtually representative”); Shaw v. Hahn, 56 F.3d 1128, 1131–32 (9th Cir.
1995) (finding privity when the interests of the party in the subsequent
action were shared with and adequately represented by the party in the
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former action); Restatement (Second) of Judgments § 51 (1980)(1) (“If two
persons have a relationship such that one of them is vicariously responsible
for the conduct of the other, and an action is brought by the injured person
against one of them,” a judgment against the injured person “bars him from
reasserting his claim” in a subsequent action against the other).
¶20 Here, Freescale and Freed’s interests with respect to the fraud
on the court claim are virtually indistinguishable. Although recast in the
instant litigation, Myers’ fraud claim, distilled, remains substantively
unchanged from that alleged in the 2012 lawsuit—he asserts Freed, acting
in her role as advocate and representative, committed fraud on the court by
submitting a forged document to defend her client, Freescale. Given their
commonality of interest, we conclude that Freescale’s defense to Myers’
fraud on the court claim in the 2012 lawsuit adequately and sufficiently
represented Freed’s interests, thereby binding Myers’ allegations against
Freed, in this case, arising from the same set of facts.
¶21 In sum, having found: (1) an identity of claims in the 2012
action and the current litigation, (2) the 2012 action was resolved by a final
judgment on the merits, and (3) there was sufficient privity between
Freescale and Freed to bind Myers to the result of the 2012 litigation, we
conclude the claim preclusion doctrine bars Myers from relitigating the
fraud on the court allegations previously resolved by the district court.
Therefore, the superior court did not err by dismissing Myers’ complaint in
the instant litigation.
CONCLUSION
¶22 For the foregoing reasons, we affirm the dismissal of Myers’
complaint. Freed requests an award of her attorneys’ fees and costs on
appeal under A.R.S. § 12-349(A)(1) (mandating an award of attorneys’ fees
if a party brings a claim “without substantial justification”) and ARCAP 25
(authorizing a sanction of attorneys’ fees and costs for a frivolous appeal).
On this record, and in consideration of the A.R.S. § 12-350 factors, we
conclude both that Myers brought this appeal without substantial
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Decision of the Court
justification and that the appeal is frivolous. Accordingly, we award Freed
her reasonable attorneys’ fees and costs on appeal upon compliance with
ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
9