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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   JAIME L. SHURTS, Petitioner/Appellant,

                                         v.

      THE HONORABLE SUSAN SLASOR, Magistrate Judge of the
      FLAGSTAFF MUNICIPAL COURT, in and for the County of
             COCONINO, Respondent Judge/Appellee,

 STATE OF ARIZONA ex rel. MICHELLE D’ANDREA, the Flagstaff City
              Attorney, Real Party in Interest/Appellee.

                              No. 1 CA-CV 15-0297
                                FILED 4-5-2016


            Appeal from the Superior Court in Coconino County
                         No. S0300CV201400631
              The Honorable Cathleen Brown Nichols, Judge

                                   AFFIRMED


                                    COUNSEL

Debus, Kazan & Westerhausen, Ltd., Phoenix
By Tracey Westerhausen
Counsel for Petitioner/Appellant

Flagstaff City Attorney’s Office, Flagstaff
By Marianne E. Sullivan
Counsel for Real Party in Interest/Appellee
                     SHURTS v. HON SLASOR et al.
                        Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Maurice Portley and Judge Patricia K. Norris joined.


T H O M P S O N, Presiding Judge:

¶1           Appellant Jaime Shurts (Shurts) appeals from the Coconino
County Superior Court’s order accepting jurisdiction of her special action
and denying relief after the Flagstaff municipal court denied her motion to
dismiss misdemeanor criminal charges against her for violating an order of
protection and an injunction against harassment. For the following reasons,
we affirm the decision of the superior court.

              FACTUAL AND PROCEDURAL HISTORY

¶2             In 2012, the superior court granted Shurts’s ex-husband R.S.
an order of protection against her. In 2013 the court granted R.S.’s
girlfriend, M.G., an injunction against harassment against Shurts. The
order of protection and injunction both limited Shurts’s access at Pine
Canyon, a development where both Shurts and R.S. owned property.
Shurts, a real estate agent, also sold property in the development. She was
not a member of the Club at Pine Canyon (the Club); R.S. was. Specifically,
the order of protection stated:

             Pine Canyon (Limited access-see notes): 3300
             Clubhouse Cir., Flagstaff, AZ 86001

             Defendant may have access to the Clubhouse
             and pool at Pine Canyon in Flagstaff for the
             purpose of showing it to clients or potential
             clients during normal business hours, provided
             she follows the policy and protocol for real
             estate agents showing such persons the
             facility; she is to check in with the Clubhouse
             staff during her visit.1



1 The language pertaining to Pine Canyon in the injunction against
harassment is nearly identical.

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                         Decision of the Court

(Emphasis added). The Club’s policy regarding showing the Clubhouse
provided:

              Policy To Show the Clubhouse. A non-member
              wishing to tour the Clubhouse, who is not
              already being accompanied by Pine Canyon
              Realty employees must request a tour in writing
              by email to sales@pinecanyon.net at least 24
              hours prior to the tour. Requests will receive a
              response with further instructions. This notice
              allows Pine Canyon management and staff to
              appropriately prepare for such viewings, and
              protect the exclusivity of the area for members
              and their guests.      To accommodate non-
              members or outside realtors who are unable to
              give 24-hours’ notice, Pine Canyon Realty is
              willing to arrange tours on shorter notice, but
              only subject to availability. As a security rule
              and procedure, you must comply if you wish to
              access the Clubhouse and related facilities that
              are exclusive to members and their guests.

In May 2013 Shurts was charged with violating the order of protection and
injunction after she attended a social function at the Clubhouse as a guest
of a Club member, R.C. During that function Shurts showed the Clubhouse
to potential clients who were also guests of R.C. and subsequently made a
number of real estate sales. After a bench trial, Shurts was acquitted of the
May 2013 charges. The magistrate judge found that “considering all the
testimony and evidence . . . this court finds that there is insufficient proof
beyond a reasonable doubt that the defendant failed to follow any ‘policy
and protocol’ for real estate agents showing the facility as may have applied
to her regarding her attendance at the event in question.”

¶3            On the evening of July 3, 2013, Shurts went to the Club and
had dinner with R.C. and R.C.’s wife. She was arrested and charged with
one count of violating the order of protection, one count of violating the
injunction against harassment, and one count of resisting arrest, class 1
misdemeanors. Shurts filed a motion in the municipal court to dismiss the
complaint for issue preclusion and due process violation. In her motion,
Shurts argued that the prosecution was “barred by the doctrine of issue
preclusion as incorporated in the Double Jeopardy clauses of the United
States and Arizona constitutions,” because the prosecution pertaining to the



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July 3 incident was “for violating the exact same court orders under the
exact same factual circumstances.”

¶4            The Flagstaff municipal court denied the motion to dismiss,
finding that “the two visits by [Shurts] to the PCCC clubhouse are not the
exact same factual circumstances, thus dismissal of the Complaint is not the
appropriate result.” Shurts filed a petition for special action in the superior
court arguing that the municipal court abused its discretion by denying her
motion to dismiss. The superior court accepted jurisdiction and denied
relief. The court stated:

              This Court read and considered Judge Araujo’s
              detailed minute entry wherein he stated the
              facts that the trial court relied on in finding the
              Petitioner not guilty in the first case [May 2013
              incident]. This court also read and considered
              Judge Slasor’s minute entry denying the
              Petitioner’s Motion to Dismiss in the second
              case [July 2013 incident].

              Based on this Court’s review of the alleged facts
              in the second case, as stated by the parties . . .
              the alleged facts and circumstances present in
              the second case appear to be different from the
              first case.

              There are factual issues that need to be
              determined by the trier of fact. The Petition
              does not present “pure questions of law” as
              Petitioner contends. This Court finds no legal
              error by the trial court. Moreover, this Court
              also finds that Judge Slasor did not abuse her
              discretion when she denied the Petitioner’s
              Motion to Dismiss the subject second case.

We have jurisdiction pursuant to Arizona Rules of Procedure for Special
Actions 8(a).

                               DISCUSSION

¶5            On appeal, Shurts argues that 1) the order of protection and
injunction violated her due process rights, 2) the second complaint should
have been dismissed because of “law of the case,” 3) the second complaint



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                         Decision of the Court

should have been dismissed because it was a “horizontal appeal,” and 4)
the second complaint should have been dismissed under the rule of lenity.

   A. Shurts’s Due Process Rights Were Not Violated

¶6           Shurts first argues that the order of protection and injunction
against harassment (collectively “orders”) violated her due process rights
under the Arizona and United States Constitutions because they failed to
give her notice of the conduct proscribed, they permitted arbitrary and
discriminatory enforcement, and they infringed on her First Amendment
rights.

¶7             We disagree. The orders limiting Shurts’s access to the Pine
Canyon Clubhouse and pool clearly instructed her that she could have
access to the Club and pool for the purpose of showing those portions of
the property to clients or potential clients so long as she followed the Pine
Canyon policy for real estate agents and checked in with Clubhouse staff.
There was nothing vague about this language in the orders, and as noted
by the state, Shurts did not appeal from these particular orders. Moreover,
Shurts’s First Amendment rights were not implicated here. The orders
allowed her access to private property similar to any non-member real
estate agent seeking to show those areas of the Club.

   B. Law of the Case

¶8             Shurts next argues (in two sentences and one citation
sentence), that the case should have been dismissed based on the doctrine
of law of the case, because Magistrate Judge Araujo “found that the orders
could be interpreted in different ways.” She cites Powell-Cerkoney v. TCR-
Montana Ranch Joint Venture, II, 176 Ariz. 275, 278, 860 P.2d 1328, 1331 (App.
1993), but otherwise makes no other argument. Even if the opening brief
minimally complies with Arizona Rule of Civil Procedure 13(a)(6) on this
issue, law of the case does not apply. “Law of the case” generally refers to
the judicial policy of declining to reopen questions previously decided in
the same case. Powell-Cerkoney, 176 Ariz. at 278-79, 860 P.2d at 1331-32.
Here, there has been no judicial determination whether Shurts violated the
orders on July 3, 2013 and Judge Araujo’s ruling that she was not guilty of
violating the orders on May 25, 2013 was based on the facts that occurred
in relation to May 25 as presented at trial. We find no error.

   C. Horizontal Appeal

¶9            Shurts next argues that the second complaint should be
dismissed because it is a “horizontal appeal.” A horizontal appeal occurs


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                     SHURTS v. HON SLASOR et al.
                        Decision of the Court

when a party “requests a second trial judge to reconsider the decision of the
first trial judge in the same matter, even though no new circumstances have
arisen in the interim and no other reason justifies reconsideration.” Id. at
278, 860 P.2d at 1331. Shurts argues that the second complaint constitutes
a horizontal appeal because the orders violated were the same, the victims
were the same, and Shurts’s “conduct - attending a gathering at the PCCC,”
was the same. This case does not present a horizontal appeal. The alleged
facts concerning the July 3, 2013 are different from the facts concerning the
May 25, 2013 incident for which Shurts was acquitted. We find no error.

   D. Rule of Lenity

¶10           Finally, Shurts argues that the rule of lenity should apply to
the orders in this case. She provides no support for this argument and we
decline to consider it.

                              CONCLUSION

¶11          For the foregoing reasons, we affirm the decision of the
superior court.




                                 :ama




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