                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


               ESTATE OF JOHN P. KELLEHER, Deceased,
                           Plaintiff/Appellee,

                                        v.

        THOMAS R. STOREY, a single person, aka TOM STOREY,
                      Defendant/Appellant.

                             No. 1 CA-CV 15-0573
                               FILED 12-27-2016


            Appeal from the Superior Court in Mohave County
                         No. S8015CV201500291
              The Honorable Charles W. Gurtler, Jr., Judge

                                  AFFIRMED


                                   COUNSEL

Thomas R. Storey, Mesquite, Nevada
Defendant/Appellant In Propria Persona

Sippel Law Firm, PLLC, Kingman
By Mark A. Sippel
Counsel for Plaintiff/Appellee
                          KELLEHER v. STOREY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1           Thomas Storey challenges the superior court’s domestication
of a Nevada judgment against him. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In 2005, Storey and John Kelleher entered into a “Residential
Lease With Option to Purchase” for a residence in Las Vegas, Nevada.
Kelleher thereafter sued Storey for breach of that agreement in the District
Court of Clark County (“district court”). The parties’ contract included a
provision stating that Storey would be entitled to attorneys’ fees and costs
if he prevailed in a dispute between the parties, but there was no
corresponding provision in favor of Kelleher should he prevail.

¶3             The district court entered judgment for Kelleher and
awarded him attorneys’ fees as special damages. Kelleher v. Storey, 127
Nev. 1151 (2011) (“Kelleher”). Storey appealed, and the Supreme Court of
Nevada largely affirmed, but reversed that portion of the judgment that
awarded Kelleher attorneys’ fees as special damages. Id. On remand to
the district court, Kelleher made a request for fees pursuant to the parties’
contract. Storey v. Kelleher, 128 Nev. 938 (2012) (“Storey”). Relying on the
law-of-the-case doctrine, the district court denied the fee request. Kelleher
appealed, and the Supreme Court of Nevada reversed, holding that the
law-of-the-case doctrine was inapplicable because that court had not
“expressly rule[d] on contractual attorney fees.” Kelleher, 127 Nev. at 1151.

¶4            On remand, the district court awarded Kelleher $66,038.34 in
attorneys’ fees and costs based on the parties’ contract. Storey appealed,
and the Supreme Court of Nevada affirmed, citing Nevada precedent
establishing that contractual provisions allowing for a fee award to one
party are reciprocal as a matter of law. Storey, 128 Nev. at 938 (citing
McCrary v. Bianco, 131 P.3d 573, 577 (2006)). Kelleher thereafter requested
additional fees and costs in the district court. The matter was stayed
while Storey unsuccessfully sought review by the United States Supreme



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                          KELLEHER v. STOREY
                           Decision of the Court

Court.    Thereafter, the district court awarded Kelleher additional
attorneys’ fees.

¶5            In 2015, Kelleher’s estate filed an action in Mohave County
Superior Court to domesticate the Nevada judgment in Arizona.1 Storey
filed numerous motions in response, including a motion for relief
pursuant to Arizona Rule of Civil Procedure 60(c); he also moved to
re-open in the Nevada district court. After the Nevada district court
denied Storey’s motion to reopen, the Arizona superior court denied his
motion for Rule 60(c) relief, as well as his subsequent motion for new trial.
The superior court declared Storey a vexatious litigant and assessed
attorneys’ fees and costs against him.2 This appeal followed. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1) and -2101(B).

                               DISCUSSION

¶6             Whether a foreign judgment is entitled to full faith and
credit is a question of law that we review de novo. Grynberg v. Shaffer, 216
Ariz. 256, 257, ¶ 5 (App. 2007). This Court will affirm the superior court’s
judgment if it is correct for any reason. Ariz. Bd. of Regents v. State ex rel.
State of Ariz. Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz. 150, 154 (App.
1989).

¶7            Arizona has adopted the Uniform Enforcement of Foreign
Judgments Act. A.R.S. §§ 12-1701–08. As part of that Act, A.R.S. § 12-1702
provides, in pertinent part:

       A copy of any foreign judgment authenticated in accordance
       with the act of Congress or the statutes of this state may be
       filed in the office of the clerk of any superior court of this
       state. . . . A judgment so filed has the same effect and is
       subject to the same procedures, defenses and proceedings
       for reopening, vacating, or staying as a judgment of a

1     The Notice of Filing Foreign Judgment states that John Kelleher
died after entry of the Nevada judgment. We refer to the estate as
“Kelleher.”
2     Storey’s opening brief does not address the vexatious litigant
determination or the fees and costs imposed in the domestication
proceedings. Those issues have therefore been waived for purposes of
appeal. See State v. Moody, 208 Ariz. 424, 453 n.9, ¶ 101 (2004).




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                           KELLEHER v. STOREY
                            Decision of the Court

       superior court of this state and may be enforced or satisfied
       in like manner.

¶8            Section 12-1702 must be read in tandem and consistently
with the Full Faith and Credit Clause of the United States Constitution.
See U.S. Const. art. IV, § 1; Giehrl v. Royal Aloha Vacation Club, Inc., 188
Ariz. 456, 457 (App. 1997) (Full Faith and Credit Clause requires states to
“respect and enforce judgments rendered in the courts of their sister
states.”). “Full faith and credit . . . generally requires every State to give to
a judgment at least the res judicata effect which the judgment would be
accorded in the State which rendered it.” Durfee v. Duke, 375 U.S. 106, 109
(1963). Limited bases exist for collaterally attacking a foreign judgment
sought to be domesticated in Arizona:

       [R]es judicata effect does not attach and a sister state need
       not give full faith and credit to another state’s judgments if
       the rendering state lacked jurisdiction over the person or
       subject matter, the judgment was obtained through lack of
       due process, the foreign court was incompetent to render the
       judgment, the judgment was the result of extrinsic fraud or if
       the judgment was invalid or unenforceable.

Jones v. Roach, 118 Ariz. 146, 149 (App. 1977).

¶9          Storey contends the Nevada judgment should not have been
domesticated because

       the Nevada Court that issued the order on which the foreign
       judgment is based did not have the authority or jurisdiction
       to do so. [Nevada Revised Statute] 118A.220 voids the
       attorney’s fee provision in the parties[’] contract. The
       Nevada Legislature has sole jurisdiction to adopt or modify
       laws.

¶10            This type of collateral attack on the substantive merits of the
Nevada judgment is impermissible in domestication proceedings.
Although Storey characterizes his argument as one based on jurisdiction,
claimed legal error is not synonymous with a lack of jurisdiction. See, e.g.,
Collins v. Superior Court, 48 Ariz. 381, 393 (1936) (Explaining that
“jurisdiction” is often incorrectly used to mean, “not the power to perform
a certain act, but the performing of it when it was prohibited, a very different
thing.”); Estes v. Superior Court, 137 Ariz. 515, 517 (1983) (distinguishing
the term “jurisdiction” from legal error).



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                          KELLEHER v. STOREY
                           Decision of the Court

¶11           In Jones, this Court held that A.R.S. § 12-1702 “does not
authorize this state to entertain a Rule 60(c) motion to avoid the
enforcement of a ‘foreign judgment’ for to do so would not afford finality
to the rendering state’s judgment and thus be contrary to the Full Faith
and Credit Clause of the United States Constitution.” 118 Ariz. at 150.
This holding was clarified in Phares v. Nutter, 125 Ariz. 291, 293 (1980),
which rejected as overly broad the notion that Rule 60(c) motions are never
appropriate in domestication proceedings. The judgment debtor in Phares
was challenging the issuing court’s jurisdiction and also asserting extrinsic
fraud, both of which the court held could be raised in a Rule 60(c) motion
in the domestication proceedings. Id. The Full Faith and Credit Clause,
the court explained, “does not prevent a judgment debtor from collaterally
attacking a foreign judgment on the grounds of fraud or want of jurisdiction.”
Id. at 294 (emphasis added). Phares did not, however, overrule Jones or
suggest that a judgment debtor may use Rule 60(c) to collaterally attack
the substantive merits of a sister state’s judgment based on legal error.
For these same reasons, Storey’s challenge to the Nevada court’s
calculation of attorneys’ fees is not cognizable in the domestication
proceedings.

                              CONCLUSION

¶12            For the foregoing reasons we affirm the judgment of the
superior court. We grant Kelleher’s request for an award of attorneys’
fees incurred on appeal pursuant to Arizona Rule of Appellate Procedure
(“ARCAP”) 25 based on the frivolous nature of Storey’s appeal. Kelleher
is also entitled to recover taxable costs on appeal upon compliance with
ARCAP 21.




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




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