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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RED MOUNTAIN MED SPA, L.L.C., Plaintiff/Appellee,

v.

AZ NP HEALTH SERVICES, LLC, et al., Defendants.

__________________________________

CHRISTOPHER B. INGLE, Appellant.

No. 1 CA-CV 16-0251

Appeal from the Superior Court in Maricopa County

No. CV2013-055010

The Honorable Susan M. Brnovich, Judge

AFFIRMED

COUNSEL

Sherman & Howard LLC, Phoenix

By Michael W. Wright, Gabriel A. Peraza 

Counsel for Plaintiff/Appellee

May Potenza Baran & Gillespie PC, Phoenix

By Christopher B. Ingle, Michelle Mozdzen

Counsel for Appellant Ingle

FILED 10-23-2018
RED MOUNTAIN v. INGLE

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in 

which Judge Michael J. Brown and Judge James B. Morse Jr. joined.

B E E N E, Judge:

¶1 Appellant Christopher B. Ingle challenges a sanctions award

stemming from the denial of a motion to disqualify opposing counsel from 

representing Appellee Red Mountain Med Spa, L.L.C. (“Red Mountain”) at 

trial. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Red Mountain sued AZ NP Health Services and Steve and 

Loretta Hayko (collectively “Defendants”) in 2013 and alleged, among 

other things, that Defendants had misappropriated Red Mountain

confidential and proprietary information (the “Red Mountain Lawsuit”). 

AZ NP counterclaimed alleging tortious interference with its business 

relations and unfair business practices. The superior court granted 

summary judgment for Red Mountain on AZ NP’s counterclaims and set 

trial on Red Mountain’s claims for January 4-7, 2016.

¶3 On December 14, 2015, less than a month before trial, 

Defendants, through Ingle, moved to disqualify Red Mountain’s counsel, 

Sherman & Howard LLC (“S&H”), from continuing to represent Red 

Mountain. Defendants alleged that Pamela Andow (“Andow”), a witness 

who they contended had “worked at AZ NP,” had taken “a lot of AZ NP’s 

proprietary information,” and that S&H was “using the information . . . 

obtained from Andow against AZ NP in this case” in violation of Arizona 

Supreme Court Rule 42, Rules of Professional Conduct, Ethical Rules (“ER”)

1.2 and 4.2. Defendants also contended Andow had an “ongoing 

relationship” with AZ NP because it had disclosed her as a witness and 

intended to call her to testify at trial. Defendants further noted that Andow 

had retained S&H to file suit to dissolve another company known as 

Improve Aesthetics after she “terminated her relationship with AZ NP” in 

August 2015 (the “Improve Aesthetics Lawsuit”).

¶4 Red Mountain contended in response that Andow only 

worked with AZ NP as an independent contractor from September 2014 
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Decision of the Court

3

through May 2015, at which time she and Mr. Hayko formed Improve 

Aesthetics. S&H acknowledged representing Andow in the Improve 

Aesthetics Lawsuit but denied that it had any communications with Andow 

relating to the Red Mountain Lawsuit. S&H also contended that it obtained

the allegedly confidential information through legitimate means. On these 

bases, Red Mountain argued Defendants filed the motion to disqualify

“without substantial justification, with the intent to harass Red Mountain, 

and to needlessly increase the cost of litigation on the eve of trial” and 

requested sanctions under Arizona Rules of Civil Procedure (“Rule”) 11 or 

Arizona Revised Statutes (“A.R.S.”) section 12-349.

¶5 The superior court denied the motion to disqualify in an 

unsigned minute entry on December 23, 2015. The court found that Andow 

“was not a former employee” of AZ NP and that she did not start working 

with AZ NP until after the events that led to the Red Mountain Lawsuit. 

The court also granted Red Mountain’s sanctions request, ordered Red 

Mountain to submit a fee affidavit and proposed form of order by January 

9, 2016, and ordered that “any objection to the affidavit shall be filed no 

later than January 19, 2016.”

¶6 Red Mountain submitted a fee application and proposed form 

of judgment on January 8, 2016. Five days later, Red Mountain filed an 

amended fee application and proposed form of judgment in which it 

specifically requested that the court enter sanctions against both 

Defendants and Ingle. Defendants responded on January 20, 2016, 

challenging the basis of the sanctions award and objecting to the amount of 

fees requested. On January 22, 2016, the superior court entered a final Rule 

54(b) judgment denying the motion to disqualify and imposing $5,000 in 

sanctions against Defendants and Ingle jointly and severally (the “Sanctions 

Judgment.”).

¶7 Defendants and Ingle filed a timely motion for new trial on 

February 8, 2016. Citing then-Rule 59(l), now codified as Rule 59(d), 

Defendants and Ingle asked the court “for an order vacating the judgment

. . . .” They contended they were not given “an opportunity to respond to 

[the] Amended Application for Costs and Fees, or its Amended Proposed 

form of Judgment, before the Court entered said judgment” because Red 

Mountain had mailed the documents as opposed to using the electronic 

service tool available in the Maricopa County Superior Court TurboCourt 

system. They also contended the amended application and proposed form 

of judgment were untimely.
RED MOUNTAIN v. INGLE

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¶8 The superior court denied the motion for new trial in a March

31, 2016 unsigned minute entry, finding that Defendants were given an 

opportunity to, and did, address Red Mountain’s sanctions arguments. 

Defendants, but not Ingle, filed a notice of appeal on April 4, 2018,

challenging this ruling. Defendants and Ingle then moved the superior 

court to set an amount for a supersedeas bond on April 19, 2016.

¶9 On May 19, 2016, Defendants and Ingle filed an amended 

notice of appeal challenging the Sanctions Judgment. The next day—the 

day Ingle was scheduled to sit for a judgment debtor examination—Red 

Mountain notified the court that the Sanctions Judgment had been satisfied 

in full. The court then denied Defendants’ motion to set an amount for a 

supersedeas bond as moot.

¶10 On November 15, 2017, following a lengthy stay due to 

ongoing bankruptcy proceedings, this Court determined that the 

April 4, 2016 notice of appeal and the May 19, 2016 amended notice of 

appeal were premature. This Court ordered Defendants and Ingle to apply 

for a signed order denying the motion for new trial and, once that order 

was obtained, file a new notice of appeal designating “the judgment and/or 

order being appealed as well as who is appealing.” The superior court 

entered a signed order denying the motion for new trial on January 5, 2018. 

Ingle, but not Defendants, filed a timely notice of appeal challenging both 

the order and the Sanctions Judgment.

DISCUSSION

I. This Court Has Jurisdiction over Claims For Which Appellate 

Notice Was Filed and Ingle Was Aggrieved.

¶11 Before addressing the merits, we must determine whether we 

have jurisdiction to resolve the issues Ingle raises on appeal. Ghadimi v. 

Soraya, 230 Ariz. 621, 622, ¶ 7 (App. 2012). A party may not appeal from a 

judgment or order unless he is “aggrieved” by the judgment or order. 

ARCAP 1(d); Chambers v. United Farm Workers Org. Comm., AFL-CIO, 25 

Ariz. App. 104, 107 (App. 1975). One is “aggrieved” by a judgment or order 

if it denies him some personal or property right. Gries v. Plaza del Rio Mgmt. 

Corp., 236 Ariz. 8, 12, ¶ 14 (App. 2014).

¶12 We have previously held that an attorney may appeal from a 

judgment imposing sanctions against him. Wieman v. Roysden, 166 Ariz. 

281, 284 (App. 1990). The parties agree on appeal, however, that Ingle paid 

the remaining balance of the judgment in May 2016. Payment of a judgment 

can preclude an appeal if the payment is voluntary. Flood Control Dist. of 
RED MOUNTAIN v. INGLE

Decision of the Court

5

Maricopa Cty. v. Paloma Inv. Ltd. P’ship, 237 Ariz. 322, 326, ¶ 13 (App. 2015). 

Payments made to avoid collection efforts outside of a settlement or 

compromise agreement, however, are generally considered to be

compulsory, not voluntary. Webb v. Crane Co., 52 Ariz. 299, 320 (1938); 

Freeman v. Wintroath Pumps-Div. of Worthington Corp., 13 Ariz. App. 182, 183 

(App. 1970).

¶13 The timing of Ingle’s payment—made on the day he was to 

sit for a debtor’s examination—suggests he chose to satisfy the judgment to 

avoid further collection efforts. Satisfaction of the Sanctions Judgment thus 

did not preclude his right to appeal it. See Del Rio Land, Inc. v. Haumont, 110 

Ariz. 7, 10 (App. 1973) (“One against whom a judgment is entered, if he fails 

to satisfy it, must expect to see his property seized and sold at a sacrifice, 

and it is difficult to conceive how his payment of the judgment can give rise 

to any estoppel against his seeking to avoid it for error.”) (quoting Freeman

on Judgments, vol. 2, 5th ed., p. 2410, § 1165).

¶14 Ingle also challenges unspecified rulings that he contends 

allowed Red Mountain to introduce “information and documents” at trial 

that he says were not properly disclosed. Ingle’s notice of appeal did not 

challenge any part of the judgment resulting from the trial on Red 

Mountain’s claims; moreover, he was not a party to the trial, nor was he

aggrieved by the result. He therefore cannot raise those issues. See, e.g.,

Matter of Gubser, 126 Ariz. 303, 306 (1980) (“Appellant can appeal from only 

that part of the judgment by which she is aggrieved.”); MCA Fin. Group, Ltd. 

v. Enter. Bank & Tr., 236 Ariz. 490, 494, ¶ 8 (App. 2014) (“Generally, a person 

who is not a party to an action is not aggrieved and cannot appeal from 

findings adverse to him.”). We thus proceed to consider the Sanctions 

Judgment and the order denying his motion to disqualify that precipitated 

it.

II. The Superior Court Did Not Abuse Its Discretion in Denying the 

Motion to Disqualify S&H.

¶15 Ingle contends the trial court erred in denying the motion to 

disqualify, reiterating his contentions that S&H violated ERs 1.2(d) and 4.2. 

We review the denial of a motion to disqualify counsel for an abuse of 

discretion. Simms v. Rayes, 234 Ariz. 47, 49, ¶ 8 (App. 2014).

¶16 ER 1.2(d) provides:

A lawyer shall not counsel a client to engage, or assist a client, 

in conduct that the lawyer knows is criminal or fraudulent, 

but a lawyer may discuss the legal consequences of any 
RED MOUNTAIN v. INGLE

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6

proposed course of conduct with a client and may counsel or 

assist a client to make a good faith effort to determine the 

validity, scope, meaning or application of the law.

Ariz. R. Sup. Ct. 42, ER 1.2(d). A lawyer violates the rule if he had actual 

knowledge that he was participating in criminal or fraudulent conduct. In 

re Tocco, 194 Ariz. 453, 456-57, ¶ 11 (1999).

¶17 Ingle contends S&H violated this rule by accepting 

documents and information from Andow that he contends were 

confidential to AZ NP. But he concedes he does not know “whether Andow 

acted on her own free will, or whether she was induced in some way” by 

S&H. As such, even assuming Andow improperly obtained confidential 

information, Ingle fails to demonstrate any violation of the rule. See id. at 

457, ¶ 11 (“[A] mere showing that the attorney reasonably should have known

her conduct was in violation of the rules, without more, is insufficient.”).

¶18 As for ER 4.2, it provides:

In representing a client, a lawyer shall not communicate about 

the subject of the representation with a party the lawyer

knows to be represented by another lawyer in the matter, 

unless the lawyer has the consent of the other lawyer or is 

authorized by law to do so.

Ariz. R. Sup. Ct. 42, ER 4.2. ER 4.2 does not, however, prohibit 

communication with a party or an employee or agent of a party concerning 

matters outside the representation. Id., cmt. 1. Moreover, ex parte

communications with former employees are permitted “unless the acts or 

omissions of the former employee gave rise to the underlying litigation or 

the former employee has an ongoing relationship with the former employer 

in connection with the litigation.” Lang v. Superior Court, 170 Ariz. 602, 607

(App. 1992).

¶19 Ingle contends ER 4.2 barred S&H from communicating with 

Andow regarding the Red Mountain Lawsuit because “she was formerly 

employed by [AZ NP] . . . and Andow has an ongoing relationship with AZ 

NP in connection with the litigation” because she was “disclosed as a 

witness . . . and the AZ NP Defendants had intended to call her to testify at 

trial.” He cites no authority for his novel contention that a party can create 

an “ongoing relationship” with a former independent contractor simply by 

disclosing him or her as a potential witness. See id. (stating that the fact that 

former employees “may have information which is damaging to [the 

former employer] . . . does not justify a ban on ex parte communications.”). 
RED MOUNTAIN v. INGLE

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Moreover, neither Defendants nor Ingle presented any evidence to suggest 

Andow’s acts or omissions somehow gave rise to the Red Mountain 

Lawsuit. Id. at 609. The court thus did not abuse its discretion in denying 

Defendants’ motion to disqualify S&H.

III. The Superior Court Did Not Abuse its Discretion in Awarding 

Sanctions to Red Mountain.

¶20 The superior court imposed sanctions on AZ NP and Ingle 

based on its finding that the motion to disqualify “was filed with the 

purpose of needlessly increasing the cost of litigation, to harass or to cause 

unnecessary delay.” It did not specify whether it based its award on Rule 

11 or A.R.S. § 12-349. See Harris v. Reserve Life Ins. Co., 158 Ariz. 380, 383 

(App. 1988) (“Rule 11, of course, deals with some of the same issues as 

A.R.S. § 12-349.”). We first consider the award under Rule 11.

¶21 Generally, an attorney violates Rule 11 by filing a document 

he or she knows or should know takes a position that is insubstantial, 

frivolous, groundless, or otherwise unjustified. Compassionate Care 

Dispensary, Inc. v. Ariz. Dep’t of Health Servs., 244 Ariz. 205, 216, ¶ 36 (App. 

2018). We review a Rule 11 sanctions award for an abuse of discretion, 

accepting the superior court’s fact findings unless they are clearly 

erroneous. Id.

¶22 Ingle contends sanctions were not appropriate because he

“conducted a reasonable investigation into both the facts and the law”

before filing the motion to disqualify S&H. See, e.g., James, Cooke & Hobson, 

Inc. v. Lake Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319 (App. 1993)

(“Rule 11 . . . requires that before signing a pleading, a lawyer possess a 

good faith belief, formed on the basis of a reasonable investigation, that a 

colorable claim or defense exists.”) (citation omitted). Specifically, Ingle 

contends he supported the motion with “sworn declarations detailing 

Andow’s relationship with AZ NP, Andow’s knowledge of confidential 

and privileged information, and the documents she removed from the AZ 

NP office.”

¶23 The only declaration attached to the motion was one in which 

Mrs. Hayko speculated that it was “possible” Andow had conveyed 

“sensitive information” to S&H. She offered a second declaration with 

Defendants’ reply in which she testified that she had “discussed the case 

with Andow” and that Andow, a nurse practitioner, had treated nine other

disclosed witnesses. She did not, however, offer any evidence that Andow 

actually conveyed any purportedly confidential or proprietary information 
RED MOUNTAIN v. INGLE

Decision of the Court

8

to S&H. As such, even if we were to accept Mrs. Hayko’s declaration, it 

does not approach the showing required to establish a violation of either 

ER 1.2(d) or ER 4.2.

¶24 Ingle also contends the superior court improperly focused on 

the fact that Andow was an independent contractor, not an employee. The

court mentioned this in addressing Defendants’ inaccurate contention that

“Andow is not just a former employee, she is also a witness who will testify 

at trial.” Defendants later conceded in their reply that Andow “was an 

independent contractor at AZ NP through May 2015[.]” Notably, 

Defendants also contended that Andow was “a disclosed witness who was 

employed by [AZ NP] during the events at issue in this trial” despite knowing 

she only worked with AZ NP in 2014 and 2015, well after the wrongful acts 

alleged in Red Mountain’s complaint. In light of these misstatements, we 

cannot find that the superior court clearly erred in determining that there 

was not a reasonable investigation into the facts.

¶25 The court also found that “Defendants were aware of [S&H’s]

representation of Ms. Andow in early September, 2015, and waited until 

December 14, 2015, to file the Motion to Disqualify,” which was “3 days 

after the Final Trial Management Conference and only 3 1⁄2 weeks before the 

first day of trial.” Ingle does not challenge this finding but rather states he 

was awaiting proof and it came in the form of the Haykos’ 2014 tax return. 

The record, however, indicates the tax return was provided by his client, 

Steve Hayko, not Andow. Hayko transmitted the tax return in June 2015 to 

an unrelated third party, who then provided the tax return to S&H. We 

thus conclude the trial court did not abuse its discretion in awarding Rule 

11 sanctions. We need not decide whether the record also supports an 

award under § 12-349. See Solimeno v. Yonan, 224 Ariz. 74, 82, ¶ 33 (App. 

2010) (Court of Appeals may affirm a sanctions award on any basis 

supported by the record.).

IV. The Superior Court Did Not “Decline” to Rule on the Motion to 

Set the Amount of a Supersedeas Bond. 

¶26 Ingle also contends the superior court “declined to rule on the 

motion to set the amount of a supersedeas bond until after the [Sanctions 

Judgment] had been satisfied.” He cites no record evidence to support this 

contention or to show that the court somehow knew he would satisfy the

judgment.

¶27 We also note that this motion had only been pending for 

approximately 30 days and that Defendants and Ingle had not yet filed a 
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reply when Red Mountain filed the notice of satisfaction. See Ariz. R. Sup. 

Ct. 91(e) (“Every matter submitted for determination to a judge of the 

superior court for decision shall be determined and a ruling made not later 

than sixty days from submission thereof.”) (emphasis added). In any event, 

the remedy on appeal would be to remand for a ruling, which the superior 

court has already issued. W. Sav. & Loan Ass’n v. Diamond Lazy K Guest 

Ranch, Inc., 18 Ariz. App. 256, 261 (App. 1972).

V. The Appeal Was Not Frivolous, Indisputably Meritless, or For the 

Purposes of Delay.

¶28 Red Mountain requests its attorneys’ fees pursuant to ARCAP

25, under which we may sanction an appellant who brings a frivolous 

appeal. Johnson v. Brimlow, 164 Ariz. 218, 221-22 (App. 1990). An appeal is 

frivolous if it is brought for an improper purpose or indisputably has no 

merit. Ariz. Tax Research Ass’n v. Dep’t of Revenue, 163 Ariz. 255, 258 (1989).

We consider ARCAP 25 sanctions with great caution. Price v. Price, 134 

Ariz. 112, 114 (App. 1982).

¶29 Red Mountain contends Ingle filed this appeal “to further 

delay this matter,” but cites no record evidence to demonstrate this alleged 

intent. Indeed, the Sanctions Judgment had been satisfied when Ingle filed 

his latest notice of appeal, leaving unclear what he could have hoped to 

delay. In our discretion, we decline to award attorneys’ fees under ARCAP 

25.

CONCLUSION

¶30 For the foregoing reasons, we affirm the judgment. Red 

Mountain is the successful party on appeal and may recover its taxable costs 

upon compliance with ARCAP 21.