Rodrick v. Ellis

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLES DAVID RODRICK, an individual and TRACI HEISIG, an
individual, Plaintiffs/Counterdefendants/Appellants,

v.

DAVID MICHAEL ELLIS, Defendant/Counterclaimant/Appellee.

No. 1 CA-CV 15-0725
FILED 5-30-2017

Appeal from the Superior Court in Maricopa County
No. CV2013-003800
The Honorable Douglas Gerlach, Judge
The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL

Law Office of Barry W. Rorex, PLC, Tucson
By Michael Harnden
Counsel for Plaintiff/Appellant

Jeffrey M. Zurbriggen, P.C., Phoenix
By Jeffrey M. Zurbriggen
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.

M c M U R D I E, Judge:

¶1 Charles Rodrick and Traci Heisig appeal the superior court’s
ruling denying their Motion to Set Aside Judgment. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In January 2013, Rodrick and Heisig filed a complaint in the
superior court against David M. Ellis, among other parties,1 alleging
defamation, trade libel, invasion of privacy, tortious interference with
business relations and other causes of action in relation to websites
operated by Rodrick that archived and published criminal records of
convicted sex offenders. Ellis filed counterclaims against both Rodrick and
Heisig alleging malicious prosecution, abuse of process, defamation, and
conspiracy.

¶3 The Honorable Katherine Cooper was assigned to preside
over Rodrick’s case and ruled on procedural matters before trial, including
ordering Rodrick and Heisig to respond to various discovery requests.
Judge Cooper sanctioned Rodrick for withholding relevant evidence and
for repeatedly failing to comply with court orders. For example, after an
evidentiary hearing the superior court ordered Rodrick to remove
defamatory information regarding Ellis, Galvez, and Flynn from several
public websites controlled by Rodrick.2 Judge Cooper also (1) issued a civil
arrest warrant against Rodrick, (2) ordered the jury to be advised of both

1 No other defendant is a party to this appeal.

2 The defamatory information suggested that Ellis was a child
molester; stated that Ellis communicated with, aided and abetted sex
offenders and child molesters; alleged Ellis committed sexual harassment
and other misconduct in the workplace; and listed Ellis’s employment
addresses and professional affiliations.

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Rodrick’s failure to remove defendants’ names from websites he controlled,
and of his reposting of the prohibited information on the websites, (3)
prohibited Rodrick from explaining his court violations to the jury, and (4)
awarded attorney’s fees and costs against Rodrick and Heisig. Judge
Cooper dismissed Heisig’s claims because she “willfully refused to submit
[herself] to the court’s authority.”

¶4 However, Judge Cooper ruled in Rodrick’s favor as well. For
example, Judge Cooper partially granted Rodrick’s Motion to Dismiss
Grainger’s counterclaims, denied Ellis’s Motion for Sanctions filed against
Heisig, granted Rodrick’s motions for Galvez and Grainger to post bond,
denied Ellis’s request to suppress his deposition and request for attorney’s
fees and costs, and denied Galvez’s Motion for Sanctions. Judge Cooper
also partially granted Rodrick’s Motion for Summary Judgment.

¶5 In April 2014, the case was reassigned to the Honorable
Douglas Gerlach for trial due to a conflict on Judge Cooper’s calendar. On
April 17, 2014, Rodrick submitted a joint pretrial statement that failed to
comply with the Arizona Rules of Civil Procedure. Judge Gerlach rejected
Rodrick’s pretrial statement, but afforded Rodrick “one more opportunity
to arrange for a satisfactory pretrial statement.” Judge Gerlach warned
Rodrick his claims could be dismissed if he failed to file an appropriate
pretrial statement.

¶6 On May 5, 2014, a jury trial commenced with Judge Gerlach
presiding. On the second day of trial, Judge Gerlach dismissed all claims
asserted by Rodrick due to his failure to file a pretrial statement compliant
with procedural rules. Judge Gerlach further dismissed 15 claims asserted
against Rodrick and Heisig. Judge Gerlach affirmed Judge Cooper’s
dismissal of Heisig’s claims and ordered counsel to read Judge Cooper’s
sanctions against Rodrick to the jury, affirming her decision. The trial
proceeded on the remaining defendants’ counterclaims against Rodrick
and Heisig. During the sixth day of trial, Heisig was dismissed from the
case when the counterclaims against Heisig were withdrawn by the
Counterclaimants. On May 14, 2014, the jurors rendered unanimous
verdicts against Rodrick. In July 2014, Judge Gerlach denied Rodrick’s
Motion for New Trial but granted his requests for remittiturs.

¶7 In September 2014, Judge Cooper administratively entered an
amended judgment against Rodrick in the amount of $1,187,739 for
compensatory and punitive damages pursuant to Judge Gerlach’s

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remittitur order.3 Rodrick failed to properly appeal from that judgment.4
On May 23, 2014, the superior court entered final judgment against Heisig
in the amount of $3935. Heisig satisfied the judgment in full in February
2015.

¶8 In January 2015, a media news release alleged Judge Cooper
was romantically involved with a registered sex offender, who she was
living with and who Rodrick claims was listed on his websites. Judge
Cooper immediately disqualified herself from the case. On January 20, 2015,
the presiding Judge assigned the case to Judge Gerlach “for all further
proceedings.”

¶9 On June 2, 2015, Rodrick and Heisig filed a Motion to Set
Aside Judgment. The motion requested the court to “set[] aside the
judgments and rulings” entered by Judge Cooper. The motion was denied
by Judge Gerlach in a ruling dated July 28, 2015. On August 4, 2015, Judge
Gerlach, sua sponte, entered a nunc pro tunc order vacating the court’s July
28 ruling in its entirety and issued a new order. Rodrick timely appealed
the July 28 order, but did not separately appeal the August 4 order. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
and -2101(A)(1).5

JURISDICTION

¶10 Ellis argues we have no jurisdiction over Rodrick’s appeal
because “no proper notice of appeal [was] filed” from Judge Gerlach’s
August 4 nunc pro tunc order, which vacated the July 28 order and was thus

3 The judgment entered by Judge Cooper reflected Ellis’s acceptance
of the remittitur, decreasing the amount of punitive damages from
$1,900,000 to $890,800. Judge Cooper similarly entered amended judgments
for Flynn and Galvez, also reflecting their acceptance of the remittiturs
granted by Judge Gerlach.

4 Twice Rodrick attempted to appeal, but both appeals were
dismissed. The first appeal was ruled abandoned on May 22, 2014 due to
non-payment of the filing fee. On April 10, 2014, Rodrick filed a second
appeal from various unsigned minute entries. That appeal was dismissed
for lack of jurisdiction on June 26, 2014.

5 We cite to the current version of applicable statutes and rules when
no revision material to this case has occurred.

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the final appealable order. See A.R.S. § 12-2101(A)(1); Garza v. Swift Transp.
Co., Inc., 222 Ariz. 281, 284, ¶ 12 (2009) (appellate court derives jurisdiction
to review the superior court’s orders from statutory provisions, which limit
the power of review to final judgments with certain exceptions).

¶11 A nunc pro tunc order or judgment is “a procedural device by
which the record of a judgment is amended to accord with what the judge
actually said and did, so that the record will be accurate.” Judgment, Black’s
Law Dictionary (10th ed. 2014). “A judgment nunc pro tunc is by its very
nature retroactive.” Valley Nat. Bank of Ariz. v. Meneghin, 130 Ariz. 119, 124
(1981); see Baker v. Emmerson, 153 Ariz. 4, 8 (App. 1986) (“[N]otice of appeal
from the original judgment is sufficient to invoke the jurisdiction of the
appellate court even though the judgment has been amended if the
amendment does not substantially alter the original judgment.”).

¶12 From the record, it is clear the August 4 nunc pro tunc order
merged into the July 28 order retroactively. The August 4 order adopted the
July 28 order verbatim, only extending its reasoning in part. No new notice
of appeal was necessary and we have jurisdiction to review the case. See
Albins v. Elovitz, 164 Ariz. 99, 101 (App. 1990) (notice of appeal was timely
filed from the original judgment and no other notice of appeal was
necessary after a judgment nunc pro tunc was entered).

DISCUSSION

¶13 Rodrick argues the superior court “applied the wrong legal
standard(s)” when it denied the motion to set aside the judgment because
no actual bias was required to be proven where the totality of circumstances
created an appearance of impropriety. According to Rodrick, the superior
court should merely have evaluated the existence of “[a]ny circumstances
that objectively lead to the conclusion that the judge’s impartiality might
reasonably be questioned.” Kay S. v. Mark S., 213 Ariz. 373, 379–80, ¶ 33
(App. 2006) (quotation omitted).

¶14 We review de novo whether the superior court applied the
correct legal standard in making its determination. In re Estate of Long, 229
Ariz. 458, 464, ¶ 22 (App. 2012). An appearance of impropriety “requires
reversal when (1) it threatens the integrity of the judicial process . . . or (2)
when the impropriety actually prejudiced the result.” Id. at 465, ¶ 28
(quoting McElhanon v. Hing, 151 Ariz. 403, 411, 413 (1986)). “[J]ustice must
not only be done fairly but . . . it must be perceived as having been fairly
done.” McElhanon, 151 Ariz. at 412.

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¶15 Here, Judge Gerlach analyzed and denied Rodrick’s motion
to set aside the judgment because Rodrick failed to establish (1) “anything
that a reasonable person would perceive as a threat to the integrity of the judicial
process,” and because (2) he “failed to identify any actual prejudice that
redounded to the detriment of either Rodrick or Heisig.” (Emphasis added.)
[R 785 at 2; R 786 at 2] The court thus applied the objective standard
pertaining to the appearance of impropriety. Because it concluded the
integrity of the judicial process was not threatened by any of Judge
Cooper’s actions, it then properly continued to analyze whether “there is a
reasonable probability that defendant was prejudiced as a result of [Judge
Cooper’s rulings and actions in the case].” McElhanon, 151 Ariz. at 413.
Judge Gerlach applied the correct legal standard in ruling on the motion to
vacate the judgment.

¶16 Rodrick further argues the superior court abused its
discretion when it denied his motion because the appearance of
impropriety was “unmistakable” and clearly existed when considering the
totality of circumstances. As a remedy, Rodrick requests to re-litigate the
entire case, including a new trial.

¶17 “We review the setting aside of a judgment under Rule 60(c)
for abuse of discretion,” which occurs when “no evidence . . . supports the
superior court’s conclusion, or the reasons given by the superior court [are]
clearly untenable, legally incorrect, or amount to a denial of justice.” Rogone
v. Correia, 236 Ariz. 43, 48, ¶ 12 (App. 2014); Long, 229 Ariz. at 464, ¶ 22
(citation omitted). A judgment requires reversal due to an appearance of
impropriety when the appearance is of such magnitude that it “threatens
the integrity of the judicial process, such as when a judge becomes so
personally involved that there is an appearance of hostile feeling, ill will or
favoritism toward one of the litigants.” Id. at 465, ¶ 28 (quoting McElhanon,
151 Ariz. at 413); see State v. Brown, 124 Ariz. 97, 100 (1979) (the judge
appeared “to act in the dual capacity of judge and advocate” when the
judge overruled defendant’s objection to the admissibility of a
questionnaire the judge himself brought to the attention of a prosecutor and
his supervisor, and when the judge revoked defendant’s bond without a
hearing).

¶18 Rodrick argues that because Judge Cooper shared a
household with a registered sex offender, and because Rodrick operated a
website publishing information about sex offenders, Judge Cooper’s
impartiality “might reasonably be questioned.” Kay S., 213 Ariz. at 379,
¶ 33. However, Rodrick does not explain how Judge Cooper was personally
involved such that an objective observer might reasonably question her

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impartiality, particularly given the fact that a different judge presided over
Rodrick’s trial.

¶19 The record itself does not reflect Judge Cooper had any
knowledge of the criminal history of her partner or of any alleged
connection of her partner to Rodrick’s websites during Judge Cooper’s
pretrial assignment to the case.6 Without Judge Cooper’s knowledge or
awareness of a connection between her partner and Rodrick, a reasonable
person would not conclude that Judge Cooper became “so personally
involved” as to appear hostile, ill willed or favoring Ellis, particularly given
Judge Cooper’s pre-trial rulings that at times favored Rodrick. See Long, 229
Ariz. at 465, ¶ 28. Mere accidental coincidences of a judge’s personal life,
without more, are not sufficient to reasonably question a judge’s
impartiality.

¶20 The cases cited by Rodrick are inapposite because the judges
that acted improperly in those cases knew of the facts that created the
appearance of impropriety. See Kay S., 213 Ariz. at 380, ¶ 34 (one of the
parties’ counsel served as the trial judge’s selected judge pro tempore,
having “both professional association and special access,” which could
reasonably have been perceived as giving rise to the appearance of
impartiality); State v. Salazar, 182 Ariz. 604, 607 (App. 1995) (an attorney
represented the trial judge’s former secretary in a wrongful termination
case against the same trial judge in another court).

¶21 Here, there is no indication Judge Cooper was aware of any
of the information about her partner before ruling on Rodrick’s pretrial
motions. Moreover, as many of Judge Cooper’s pretrial rulings were
confirmed by Judge Gerlach during the trial, the integrity of the pretrial
process was not compromised.

6 It is an appellant’s responsibility to provide the court with the
transcripts and documents necessary to consider issues raised on appeal.
See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995). Rodrick failed to do so.
“When a party fails to include necessary items, we assume they would
support the court’s findings and conclusions.” Id. Although Rodrick
attempted to submit additional evidence on appeal, our review is limited
to the record before the superior court. See GM Dev. Corp. v. Cmty. Am.
Mortg. Corp., 165 Ariz. 1, 4 (App. 1990).

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¶22 Rodrick requests a new trial as a remedy on appeal. Because
Rodrick already received a fair trial presided over by Judge Gerlach,
remanding this case for a second trial would undermine the integrity of the
judicial process unless Rodrick demonstrated that he was actually
prejudiced by Judge Cooper’s rulings. See McElhanon, 151 Ariz. at 413 (in a
heavily-litigated and highly-adversarial case, a “reversal based on mere
appearance of impropriety, without any actual prejudice, would
significantly undermine the integrity of the judicial system” because “the
parties have had more than their day in court”). Rodrick has not alleged
actual prejudice on appeal, asserting instead that he is not required to make
such a showing. Rodrick has therefore waived any challenge to the superior
court’s analysis of actual prejudice. See State v. Carver, 160 Ariz. 167, 175
(1989) (“Failure to argue a claim usually constitutes abandonment and
waiver of that claim.”). The superior court’s denial of Rodrick’s motion to
set aside judgment is supported by the evidence, and was not an abuse of
its discretion. See Long, 229 Ariz. at 464, ¶ 22.

CONCLUSION

¶23 For the reasons stated above, we affirm the superior court’s
order denying the motion to set aside the judgment in favor of Ellis, and
award Ellis costs on appeal upon compliance with Arizona Rule of Civil
Appellate Procedure 21.7

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

7 Although Ellis requests we award attorney’s fees on appeal, Ellis
failed to “specifically state the statute, rule, decisional law, contract, or other
authority for an award of attorneys’ fees,” and we decline, in our discretion,
to award fees for that reason. See ARCAP 21.

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