Thornton v. Bethel ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JASON THORNTON,
Plaintiff/Appellant,
v.
ALEXIS BETHEL,
Defendant/Appellee.
No. 1 CA-CV 19-0733
FILED 10-13-2020
Appeal from the Superior Court in Maricopa County
No. CV2019-054145
The Honorable Steven K. Holding, Judge Pro Tempore, Retired
VACATED AND REMANDED
COUNSEL
Jason Thornton, Peoria
Plaintiff/Appellant
The Sampair Group, PLLC, Glendale
By Patrick S. Sampair
Counsel for Defendant/Appellee
THORNTON v. BETHEL
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge D. Steven Williams and Judge David D. Weinzweig joined.
T H U M M A, Judge:
¶1 Jason Thornton appeals from the superior court’s dismissal of
his petition for an injunction against harassment against Alexis Bethel, as
well as a $100 sanction the court imposed on him and a resulting award of
attorneys’ fees. Because the court erred in dismissing Thornton’s petition,
and in imposing sanctions and awarding attorneys’ fees, those orders are
vacated, and this matter is remanded for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 One morning in August 2019, Thornton petitioned for an
injunction against harassment against Bethel in the Arrowhead Justice
Court. This First Petition described four incidents of harassment, one of
which was when Bethel sent a disturbing text message to Thornton. The
First Petition included the date of the text message but did not describe the
substance of the message. At the ex parte hearing, the Justice Court did not
consider the text message because it was not described in the First Petition.
Finding the remaining three allegations did not meet the standard required
to grant a petition for injunction, the Justice Court dismissed Thornton’s
petition, doing so without prejudice.
¶3 On the afternoon of that same August 2019 day, Thornton
filed a second petition for injunction against harassment in the Superior
Court in Maricopa County. This Second Petition alleged the same four
incidents but also quoted the text message. At the ex parte hearing, the
superior court found the Second Petition demonstrated reasonable cause to
believe Bethel harassed Thornton and granted Thornton’s requested
injunction against harassment. After Bethel was served with the injunction,
she requested a contested hearing. See Ariz. R. Prot. Ord. P. 38(a) (2020).1
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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THORNTON v. BETHEL
Decision of the Court
¶4 At the contested hearing, Bethel argued the Second Petition
was barred by res judicata because both petitions stemmed from the same
set of allegations. Bethel also argued Thornton abused the judicial process
by judge shopping, evidenced by the fact Thornton filed the Second Petition
in a court across town. Thornton stated he drove to a court across town
because he had other business to attend to in the area. After hearing both
parties, the court dismissed Thornton’s Second Petition, finding it was
barred by res judicata. The court also found Thornton was judge shopping
and imposed a $100 sanction and awarded Bethel $2,500 in attorneys’ fees.
¶5 This court has jurisdiction over Thornton’s timely appeal
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).
DISCUSSION
¶6 This court reviews a ruling on a petition for an injunction
against harassment for an abuse of discretion. See LaFaro v. Cahill, 203 Ariz.
482, 485 ¶ 10 (App. 2002). An injunction against harassment is governed by
the Arizona Rules of Protective Order Procedure. Rule 4(c). A plaintiff may
petition for a protective order with any municipal, justice, or superior court
judicial officer, regardless of the parties’ residence. Rule 6(c). “The number
of times a plaintiff may request a protective order is not limited.” Rule 10(a).
¶7 Under the doctrine of res judicata, a claim is precluded when
a party has brought an action and a final, valid judgment is entered after
adjudication or default. Circle K Corp. v. Indus. Comm. of Ariz., 179 Ariz. 422,
425 (App. 1993). Dismissal without prejudice has no res judicata effect.
Oldenburger v. Del E. Webb Dev. Co., 159 Ariz. 129, 133 (App. 1988). Even
where there are words in a judgment dismissing without prejudice that
express an opinion on the merits, the inconsistency is resolved in favor of a
dismissal without prejudice. Id. at 133-34.
¶8 The Justice Court dismissed the First Petition without
prejudice, so it does not have a res judicata effect. Accordingly, the superior
court erred in dismissing the Second Petition based on res judicata. Nor was
Thornton prohibited from refiling his petition in front of a different court
or judicial officer. Rules 6(c), 10(a). For these same reasons, the court erred
in imposing the $100 sanction on Thornton and awarding Bethel $2,500 in
attorneys’ fees.
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THORNTON v. BETHEL
Decision of the Court
CONCLUSION
¶9 The superior court’s dismissal of Thornton’s Second Petition,
the corresponding sanction order and award of attorneys’ fees, are vacated
and this matter is remanded for further proceedings on the merits of the
Second Petition.
AMY M. WOOD • Clerk of the Court
FILED: AA
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