Lead Opinion
¶ 1 Appellant James Green appeals from the trial court’s sanctions order striking his reply to the counterclaim filed against him by appellee Lisa Prank, Inc. (LFI), entering default in favor of LFI, and dismissing with prejudice his cross-claim against LFI. Green argues the trial court could not properly dismiss his cross-claim and reply because his violations of court orders did not prejudice LFI. He additionally contends the trial court erred by entering default judgment on several of LFI’s claims. We affirm in part and vacate in part.
Factual and Procedural Background
¶ 2 This appeal arises from protracted litigation concerning the control and management of LFI by Green and Lisa Frank Green (Lisa Frank), who served as directors of LFI. Lisa Frank initiated the action in September 2005 by filing a lawsuit against Green and LFI. As later amended, Lisa Frank’s complaint sought, inter alia, to remove Green as director, president, and chief operating officer of LFI; to enforce a stock buy-sell agreement among herself, Green, and LFI; and to assert a claim against Green for breach of fiduciary duties.
¶ 3 In October 2005, the trial court entered a stipulated order, the provisions of which included temporarily enjoining Green from “removing any intellectual property or other assets from” LFI. In April 2006, LFI filed a motion asking the court to find Green in contempt of that order and impose sanctions. LFI asserted that, on at least two occasions immediately following the entry of the October 2005 order, Green had used a moving van to remove рroperty from LFI’s premises, including computers containing proprietary LFI data and artwork, and “items from a locked storage area for original company artwork and advertising.” LFI also asserted that, prior to the October order, Green had directed LFI employees to create copies of LFI computer art files on compact discs.
¶ 4 After a hearing on LFI’s motion in May 2006, the court on May 23 ordered Green to return within three days specified
¶ 5 Although Green returned several computers in compliance with the order, he did not return one computer containing LFI data until five days after the deadline. In a previous motion to modify the order, Green had informed the court he was unable to return that computer on time because he was unable to “insure that he e[ould] access [personal] photographs [stored on that computer] on a new computer.” In June 2006, attached to another motion to modify the May 23 order, Green filed a signed but undated declaration listing items he had returned to the court. In it Green stated that he was not “in possession or control of any storage media, including, but without limitation ... [compact discs].”
¶ 6 LFI filed another motion for sanctions in August 2006, asserting Green had continued to violate the May order by failing to return a laptop computer and giving a “pretext” reason for the late return. LFI renewed its motion in July 2007, alleging forensic analysis of the returned computers had revealed that, after the court had entered its May 2006 order, Green had copied LFI files from those computers in violation of the order.
¶ 7 After a three-day hearing on LFI’s motion for sanctions in November, the court in December 2007 issued a ruling containing its findings of fact and conclusions of law. The court found the evidence presented established that Green had removed computers containing proprietary LFI data in violation of the October 2005 order. It further found that, the day after the court had entered its May 2006 order requiring Green to return those items and prohibiting him from copying any data, ten compact discs of material had been copied from one of the LFI computers in Green’s possession — the same computer Green had not returned until five days after the deadline to do so. In addition, the court found twenty-two files on that computer had been “transferred to an attached printer,” over forty LFI graphics files had been transferred from that computer to one owned by Green, and nine additional LFI files had been “accessed in a manner consistent with an email attachment.” The court also noted that Green had not returned the ten compact discs.
¶ 8 The court found that “Green, and not counsel, [wa]s personally culpable for wilful and repeated violations of the Court’s Orders ... including, but not limited to the removal and retention of hardware, software, computer programs, intellectual and proprietary LFI property, artwork and graphics in deliberate violatiоn of the Court’s Orders.” Commenting that it had “considered an array of sanctions, including the imposition of attorney fees and even incarceration,” the court concluded such sanctions “have failed to impress Mr. Green in the past and do not address the damage to the intellectual property of [LFI] that has occurred and continues to occur as a result of Green’s contempt for the judicial process, court orders and this Court.”
¶ 9 The trial court entered a sanctions order dismissing Green’s cross-claim against LFI, striking his reply to LFI’s counterclaim against him, and granting LFI judgment “except for the finding of fraud in paragraph 39 of the Fifth Claim for Relief.”
Jurisdiction
¶ 10 We first address the fundamental issue of our jurisdiction, as we must. See Osuna v. Wal-Mart Stores, Inc.,
¶ 11 In its motion for sanctions, LFI asked the trial court to sanction Green pursuant to Rules 37 and 65(j)(l), Ariz. R. Civ. P., but also argued the court “ha[d] the inherent authority to sanction those who abuse the judicial process or mishandle evidence” — presumably a request that the court find Green in civil contempt under § 12-864. The court’s minute entry granting LFI’s motion cited much of the same authority as LFI and ordered sanctions “[a]s a result of Green’s wilful violation of the Court’s previous orders pertaining to the turnover of LFI property and evidence.” Although the court did not cite § 12-864 as authority for the sanctions it imposed and did not expressly find Green in contempt, as we explain below in ¶ 29 infra, it nonetheless appears the court sanctioned Green pursuant to § 12-864. But, whether the court’s order is correctly characterized as a discovery sanction, a finding of civil contempt under § 12-864, or some hybrid of the two, is ultimately irrelevant to our jurisdiction. The question we address is whether the court’s sanctions order is appealable under the statute governing our appellate jurisdiction, A.R.S. § 12-2101.
¶ 12 In concluding we have jurisdiction to address this appeal, we begin with two principles: one found in § 12-2101 and the other contained within the rationale of the cases holding that contempt orders are not appealable. The first principle guides our appellate jurisdiction — we must entertain appeals from superior court orders that finally determine the merits of a cause or are otherwise made appealable by statute. The second principle limits our jurisdiction — we may not review lower courts’ contempt orders. We do not find these principles in conflict here. Rather, we conclude we indeed have jurisdiction over, and must address on the merits, the superior court order from which Green appeals.
¶ 13 We first acknowledge that we may not ignore and cannot alter or overrule our supreme court. See City of Phoenix v. Leroy’s Liquors, Inc.,
¶ 14 “In Arizona, our statutes and rules of appellate procedure permit appeals only from final judgments or orders.” S. Cal. Edison Co. v. Peabody W. Coal Co.,
¶ 15 The judgment from which Green appeals dismissed his cross-claim against LFI with prejudice and struck his reply to LFI’s counterclaim, “grant[ing] judgment in [LFI’s] favor ... except for the finding of fraud.” It declared the buy-sell agreement valid and enforceable, ordered that agreement to be performed, enjoined Green from using or distributing LFI’s data and artwork, terminated Green’s status as a director of LFI, and ordered Green to surrеnder LFI computers and other materials' — all as requested in LFI’s counterclaim. But, because the judgment leaves open the question of damages, it is not a final judgment as contemplated by § 12-2101(B). The judgment, however, contains the trial court’s findings pursuant to Rule 54(b), Ariz. R. Civ. P., that there are “no remaining issues on the claims
¶ 16 In none of the cases reciting the rule that contempt orders are unappealable were the orders at issue final judgments — unlike the trial court’s order here, they did not decide the merits of the underlying action, nor did they fall within the definition of an appealable interlocutory order. See n. 1 supra; see also § 12-2101(C) through (L); Van Dyke v. Superior Court,
¶ 17 Moreover, the reason behind the rule disallowing appeals from pure contempt orders is simply inapplicable here. As Division One of this court has explained,
The rationale [for the rule] is that parties have already been given the chance to appeal from the order that forms the basis for contempt. Enforcement of such orders cannot be held up by contempt appeals; where review of a contempt order is needed, it must be by the speedier route of special action petition.
Elia v. Pifer,
¶ 18 Although a finding of criminal contempt is specifically appealable by statute, see A.R.S. § 12-863(D), there is no such provision in § 12-864, the civil contempt statute. And our supreme court has previously found civil contempt orders unappealable, noting that § 12-864 provides that they be governed by “the practice and usage of the common law.” See Ex parte Wright,
¶ 19 We disagree with this proposition for three reasons. First, an appeal from a criminal contempt conviction is markedly different from a typical criminal appeal. A criminal contempt proceeding may be initiated, inter alia, “upon affidavit of some credible person.” A.R.S. § 12-862(A). Our criminal appeals statute, A.R.S. § 13-4031, permits appeal only from a “prosecution by indictment, information or complaint,” which would appear to exclude contempt proceedings initiated by affidavit. And § 12-863(D) provides that, during an appeal from a conviction for criminal contempt, the execution of sentence is stayed. The statutes governing most criminal appeals have no equivalent provision. See AR.S. §§ 13-4031 through 13-4042. Thus, it appears the legislature included specific appeal rights under § 12-863(D) because those rights are not conferred elsewhere in our statutes. The inclusion of appellate rights for criminal contempt does not necessarily suggest the failure to provide appellate rights for civil contempt in § 12-864 means the legislature intended to preclude appeal from a civil contempt order; it is reasonable to conclude the legislature intended § 12-2101 to govern appeals from such orders. Moreover, our supreme court suggested in Mulligan,
¶ 20 Second, the reason civil contempt orders are typically unappealable is based on the common law, not on the failure of § 12-864 to provide a right to appeal. See Wright,
¶ 21 Third, we find no conflict between §§ 12-864 and 12-2101. Whenever it is reasonably practical to do so, we must interpret statutes so they are harmonious and consistent with each other. See Yarbrough v. Montoya-Paez,
¶ 22 The Seventh Circuit Court of Appeals in Szabo v. U.S. Marine Corp.,
The fault ... lies in the statement of the rule rather than the practice of the courts____ [I]t would promote clarity to say that an order of civil contempt is ap-pealable if and only if it is either final for purposes of [appeal under 28 U.S.C. § ] 1291 or appealable under a statute allowing the appeal of interlocutory orders.5
Id.
¶ 23 Because we conclude we have appellate jurisdiction to review the trial court’s sanctions order against Green, we need not entertain the parties’ alternative invitation to treat the appeal as a request for special action relief.
Merits Discussion
Statute of Limitations
¶ 24 Green argues LFI’s motion for sanctions was time-barred pursuant to A.R.S. § 12-865, which provides that “[n]o proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of.” Assuming, without deciding, that a motion for sanctions filed during litigation is a “proceeding” within the meaning of § 12-865, we conclude LFI’s request was not barred. LFI filed its first motion for sanctions in April 2006, approximately six months after Green had violated the trial court’s October 2005 order by removing computers, files, and data
¶ 25 LFI filed its second sanctions motion in August 2006, less than three months after Green had violated the trial court’s May 2006 order resulting from LFI’s first motion for sanctions. The court never ruled on the second motion, and LFI renewed it with additional allegations in July 2007. The court found that LFI had not discovered those additional allegations — that Green had copied files from an LFI computer he had retained past the deadline set in the May 2006 order — until June 2007. See City of Tucson v. Clear Channel Outdoor, Inc.,
¶ 26 Green asserts, however, that LFI was not sufficiently diligent in completing its forensic analysis of the computers he had obtained in violation of the October 2005 order and the LFI computer he had kept past the deadline imposed in the May 2006 order. But we find no legal authority suggesting LFI had a duty to exercise reasonable diligence to have the returned computers forensically analyzed to ensure Green had not further violated the court’s orders. Nor does the record suggest the trial court's finding on this matter was erroneous. See Hrudka v. Hrudka,
Basis for Sanctions
¶27 The parties agree a trial court may dismiss a party’s claims, strike its pleadings, and enter a default judgment against that party for failure to comply with the court’s orders. Before reaching the question whether sanctioning Green was appropriate, however, we must first determine on what authority the trial court relied in doing so. As we noted above, see ¶ 11 supra, the answer to that question is not entirely clear.
¶ 28 The court referred to its “authority and discretion in enforcing obedience of its orders, including the inherent authority to sanction those who abuse the judicial process.” Although the court also cited Rule 37(b), Ariz. R. Civ. P., the orders Green violated were not discovery orders falling within that rule. It also cited Rule 65(j)(l), Ariz. R. Civ. P., allowing it to find a party in contempt for failing to comply with an injunction. Section 12-864, governing civil contempt, does not explicitly authorize a trial court to dismiss an action, but it does provide that contempt “may be punished in conformity to the practice and usage of the common law.”
¶ 29 “It is well established that [a trial] court has the authority to dismiss or to enter default judgment, depending on which party is at fault, for failure ... to comply with its orders.”
Nexus Between Conduct and Merits of Claims and Defenses
¶ 30 Green asserts that, when a court sanctions a party in contempt by terminating the action, due process is violated if “there is no nexus between the misconduct and the terminated claims and defenses.” Green contends no such nexus exists here. To comply with notions of due process, when a court exercises its inherent authority to dismiss a claim for violations of its orders, “[t]here must be a nexus between the party’s actionable conduct and the merits of the case.” Halaco Eng’g Co. v. Costle,
¶ 31 This nexus requirement, or, more aecui’ately, due process requirement, is derived from the United States Supreme Court’s decisioixs in Hammond Packing Co. v. Arkansas,
¶ 32 The majority of cases applying the due process requirement described by Hovey and Hammond have addressed discovery violations, where the rale described in Hammond readily can be applied. See, e.g., Valley Eng’rs Inc. v. Elec. Eng’g Co.,
¶ 33 Basing his argument on the due process requirement, Green asserts merits-terminating sanctions are unavаilable unless the conduct “resulted in the absence of relevant (or potentially relevant) evidence, obstructing the opponent’s ability to litigate the case.”
¶ 34 Nor do we read Hammond as requiring the sanctioned conduct to potentially interfere with evidence that would, or could, have been presented during the litigation. Examples of such conduct include refusing to disclose evidence, refusing to attend depositions, or suborning perjury. The Court in Hammond did not say its conclusion was based on the materiality of the undisclosed evidence, but rather that a court may presume materiality from the party’s refusal to produce it. See
¶ 35 We therefore conclude that, if the sanctioned conduct invites a negative inference about the merits of the party’s claims or defenses, the due process requirement of Hovey and Hammond is met, and merits-terminating sanctions are constitutionally appropriate. See Chen,
¶ 36 Here, the litigation concerns the nature of Green’s continuing interest and role in LFI, including his status as a shareholder and director of the company. Although we find no directly applicable authority, it seems plain that, when a party violates court orders in order to control or harm the assets at stake in the litigation, such action permits an inference that the party’s position on the merits is weak.
¶ 37 Further, Green’s continued conduct strongly suggests he would have been unwilling to comply in any meaningful way with future trial court orders, including those resulting from litigation on the merits. See Chen,
¶ 38 Green additionally argues dismissal sanctions imposed “where the misconduct has no impact on the opponent’s ability to litigate the merits” are “purely punitive” and therefore prohibited. But this argument is logically flawed. Whether the misconduct has affected litigation on the merits has no correlation to whether the sanctions imposed are punitive or coercive. In any event, the sanctions here were not purely punitive. Cf. Korman v. Strick,
¶ 39 For the reasons stated, under the circumstances presented here, the trial
Pwpriety of Dismissal
¶ 40 That the dismissal here does not violate due process does not end our inquiry. We agree with Green that, as a general proposition, sanctions for failure to obey a trial court’s orders should be limited to achieve their desired result. See Hays,
¶ 41 There is little Arizona law outside the discovery context that affords guidance on what factors a trial court must consider before dismissing an action for the claimant’s failure to comply with its orders. See, e.g., Carman v. Hefter,
¶ 42 However, in addressing the propriety of sanctions for discovery violations under Rule 37(b), Arizona courts have identified several factors that are equally relevant here. For example, in Gulf Homes, our supreme court upheld dismissal as a sanction when a party had acted in “‘flagrant bad faith’ ” by refusing to respond to questions during a deposition.
¶ 43 In Nesmith v. Superior Court,
¶ 44 We draw further guidance from federal courts’ discussions of a trial court’s inherent authority to dismiss cases for contumacious conduct. For example, in Shaffer,
[B]efore exercising the inherent power to dismiss a case, a court must consider the following factors; (1) the degree of the wrongdoer’s culpability; (2) the extent of the client’s blameworthiness if the wrongful conduct is committed by its attorney, recognizing that we seldom dismiss claims against blameless clients; (3) the prejudice to the judicial process and the administration of justice; (4) the prejudice to the victim; (5) the availability of other sanctions to rectify the wrong by punishing culpable persons, compensating harmed persons, and deterring similar conduct in the future; and (6) the public interest.
Other courts have enumerated similar factors. See, e.g., Chavez v. City of Albuquerque,
¶ 45 Synthesizing these cases, we conclude the most relevant factors courts have typically considered are: (1) prejudice to the other party, both in terms of its ability to litigate its claims and other harms caused by the disobedient party’s actions; (2) whether the violations were committed by the party or by counsel; (3) whether the conduct was willful or in bad faith and whether the violations were repeated or continuous; (4) the public interest'in the integrity of the judicial system and compliance with court orders; (5) prejudice to the judicial system, including delays and the burden placed on the trial court; (6) efficacy of lesser sanctions; (7) whether the party was warned that violations would be sanctioned; and (8) public policy favoring the resolution of claims on their merits. This list, of course, is not exclusive. A trial court may identify and address any other relevant circumstances.
¶ 46 Most of the factors described above are present here. Again, it was Green personally, not his attоrney, who continuously and willfully violated the trial court’s orders and made misrepresentations to the court about those violations. Green’s transgressions resulted in significant delays and expensive, unnecessary litigation requiring extensive filings and lengthy evidentiary hearings that included expert testimony. His conduct thus burdened the trial court and hindered timely resolution of the merits of the claims.
¶ 47 Green also argues the trial court failed to consider whether LFI was prejudiced and, “[fjor this reason alone, the trial court’s Ruling should be vacated.” But the court clearly did consider the harm Green’s conduct had caused to LFI, finding there had been “damage to [its] intellectual property.” Moreover, that the court made no finding of prejudice to LFI’s ability to litigate the action does not require the conclusion the court wholly failed to consider that factor. It is equally possible the court considered it but did not find it dispositive. Additionally, whether dismissal sanctions are appropriate is a fact-intensive inquiry and may involve consideration of many factors, including some we have not identified here. We see no reason for a trial court to articulate its findings on every conceivable factor. Accordingly, for the reasons stated, we conclude the court did not abuse its discretion in striking Green’s reply, dismissing his cross-claim, and entering judgment in favor of LFI.
Termination of Directorship
¶ 48 Green argues the trial court erred in terminating him as director of LFI because it explicitly rejected a “finding of fraud” and failed to make any other findings permitting his removal under A.R.S. § 10-809. We review de novo questions of law, including the interpretation оf statutes, but will not disturb a trial court’s factual findings unless they are clearly erroneous. See Spaulding v. Pouliot,
¶ 49 In its counterclaim against Green, LFI sought Green’s removal as director of LFI pursuant to § 10-809(A). After striking Green’s reply to LFI’s counterclaim and entering his default, the trial court “granted judgment in [LFI’s] favor ... except for the finding of fraud” relating to LFI’s claim that Green should be removed as a director pursuant to § 10-809. Nonetheless, the trial court terminated “Green’s status as director of LFI ... for a period of two years.” See § 10-809(B).
¶ 50 “An entry of default establishes as proven all well-pleaded facts.” Moran v. Moran,
¶ 51 Section 10-809(A) permits judicial removal of the director of a corporation if the court finds (1) the director “engaged in fraudulent conduct or intentional criminal conduct” and (2) “[r]emoval is in the bеst interest of the corporation.” In its counterclaim, LFI enumerated “a series of actions” Green had undertaken “in furtherance of [his] own personal interests,” alleged those actions were “fraudulent,” and asserted, based on Green’s actions, “his continued association with LFI ... is not in [its] best interests.”
¶ 52 Because the trial court entered default against Green, LFI’s allegation concerning its best interests is deemed admitted. See Moran,
¶ 53 An allegation of fraud must be pled with particularity. Ariz. R. Civ. P. 9(b). “Although there is no ‘magic language’ required to state a claim for fraud,” a claimant must “plead all the essential elements of
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) the speaker’s intent that the information should be acted upon by the hearer and in a manner reasonably contemplated, (6) the hearer’s ignorance of the information’s falsity, (7) the hearer’s reliance on its truth, (8) the hearer’s right to rely thereon, and (9) the hearer’s consequent and proximate injury.
Taeger v. Catholic Family & Cmty. Servs.,
¶ 54 Despite its enumeration of Green’s allegedly fraudulent activities, LFI failed to allege in its counterclaim any facts constituting the elements of actual fraud. See Taeger,
¶ 55 Notwithstanding LFI’s failure to properly plead — and the trial court’s correct refusal to find — fraud, the court, without explanation, entered judgment in LFI’s favor, removing Green as director pursuant to § 10-809.
Fraud Against Computers Claim
¶ 56 Green contends the trial court’s rejection of LFI’s fraud allegation also precludes judgment against him on LFI’s claim pursuant to 18 U.S.C. § 1030. That statute governs civil and criminal liability for “fraud and related activity in connection with computers.” 18 U.S.C. § 1030. None of its subsections, however, require a finding of actual fraud. Green apparently refers to subsection (a)(4), which requires a finding that a person accessed a prоtected computer with “intent to defraud” and in furtherance of “the intended fraud.” Asuming, arguendo, that the court’s rejection of LFI’s fraud allegation also implicitly rejected any assertion of intent to defraud, however, other subsections of 18 U.S.C. § 1030 require no such finding.
Copyright Infringement Claim
¶ 57 Last, Green contends the trial court lacked subject matter jurisdiction to enter judgment in favor of LFI on its copyright infringement claim brought pursuant to Title 17 of the United States Code. He further asserts the court’s judgment regarding that claim must therefore be vacated. As Green notes, subject matter jurisdiction cannot be waived and may be raised at any stage of a proceeding. See Swichtenberg v. Brimer,
¶ 58 Pursuant to 28 U.S.C. § 1338(a), federal district courts alone have “original jurisdiction of any civil action arising under any Act of Congress relating to ... copyrights.” This includes jurisdiction over claims, like LFI’s, that arise out of Title 17, U.S.C. See id. LFI does not suggest otherwise or provide any response to Green’s assertion. See In re 1996 Nissan Sentra,
Disposition
¶ 59 For the reasons stated above, we vacate those portions of the trial court’s ruling granting LFI judgment on its claim of copyright infringement and terminating Green’s LFI directorship. We affirm the remainder of the judgment.
Notes
. Lisa Frank later dismissed her claims against LFI.
. The court’s ruling stated that it had struck Green's reply to LFI’s "March 24, 2006” counterclaim. But that reply had been superseded by Green's reply to LFI's amended counterclaim. Thus, striking the first reply would have had no effect. Because the court’s clear intent was to dispose of the claims between LFI and Green, we interpret this ruling as striking Green's more recently filed reply and entering judgment in favor of LFI on its amended counterclaim.
. Our supreme court has repeatedly ruled that contempt orders are not appealable. But, unlike the order here, none of the orders addressed in those cases wholly disposed of a counterclaim and defenses in a civil action, and none of the cases suggests such an order would not be appealable. See State v. Mulligan,
. The phrase "on the merits” does not mean the cause of action had to be determined after trial. A decision is " 'on the mprits’ if it finally resolves an actiоn in a manner that precludes later relitigation of the claims involved. Such a judgment may result from an actual trial on the substantive issues but it need not do so." 4501 Northpoint LP v. Maricopa County,
. Section 1291, 28 U.S.C., is similar to A.R.S. § 12-2101(B), and provides that federal courts of appeals "shall have jurisdiction from all final decisions of the district courts.” Certain interlocutory decisions are appealable under 28 U.S.C. § 1292. Admittedly, however, unlike Arizona's jurisprudence, see Bilke,
. To the extent Green argues the trial court could not properly consider his previous violations of its orders when addressing LFI’s final motion for sanctions, we disagree. The court stated in the May 2006 order that "[n]othing in [this order] will prevent any party from referring to the issues in the Motion [for sanctions] or renewing the Motion if warranted in any further court proceeding.” That the court had entered orders attempting to address Green’s noncompliance with its earlier orders does not рreclude it from considering that noncompliance in later contempt proceedings.
. This authority is reflected in Rule 41(b), Ariz. R. Civ. P., which permits a trial court to dismiss an action for failure to comply with its orders.
. The trial court was not required to identify authority supporting its ruling, and we may uphold the trial court’s ruling "if it is correct for any reason,” Dube v. Likins,
. For purposes of this argument, we will assume, without deciding, that the due process requirement as Green has articulated it was not met here.
. We recognize that the property at issue in Hovey was the same money the party in contempt had refused to deposit with the court.
. That LFI would have legal remedies against Green should he use or disclose its intellectual property does not change our analysis. The question is not whether Green would ultimately be successful in using the property, but whether his improper attempt to control the assets at stake in the litigation permits the inference that his claims and defenses are meritless.
. Despite this distinction in Korman, we note that § 12-864 permits a trial court to "punishL]” civil contempt.
. Green cites Hernandez v. City of El Monte,
. LFI suggests the trial court terminated Green's directorship as a sanction for his noncompliance with court orders and, therefore, the court was not bound by the requirements of § 10-809. But § 10-809 governs judicial removal of corporate directors, and we neither find nor has LFI citеd, any authority suggesting a trial court may circumvent the statutory prerequisites for removal by characterizing its ruling as a sanction.
. Because we affirm the trial court's entry of default as to the buy-sell agreement, we do not reach LFI’s argument that the issue is moot.
Dissenting Opinion
dissenting.
¶ 60 I must respectfully dissent from the majority because only the legislature can change a statute and only the supreme court can change its interpretation of a statute. Under the current state of the law, this court does not have jurisdiction over this appeal from the trial court’s civil contempt order issued under A.R.S. § 12-864.
¶ 61 “ ‘[T]he right to appeal exists only by force of statute.’ ” Osuna v. Wal-Mart Stores, Inc.,
¶ 63 The order here determines a party’s liability, and it has Rule 54(b), Ariz. R. Civ. P., language making it proeedurally a final order. Most final orders are substantively appealable pursuant to A.R.S. § 12-2101(B), and interlocutory orders determining a party’s rights may be appealable under § 12-2101(G). But a specific statute controls over a general statute. See La Canada Hills Ltd. P’ship v. Kite,
¶ 64 Moreover, the general appeal statute, § 12-2101, existed in its present form when the supreme court issued Mulligan. The supreme court did not say that, if a contempt order was case-dispositive, it was exempt from the broad language that “[fjindings of contempt are non-appealable orders” and was instead governed by the general appeal statute. Mulligan,
¶ 65 I would dismiss Green’s appeal for lack of jurisdiction and, therefore, I dissent.
. The majority points out some ambiguity in the record as to whether the trial court's order was a contempt order under § 12-864 or a discovery sanction. Supra, ¶ 11. But Green himself argues on appeal that the order was a contempt order governed by § 12-864. Moreover, as the majority later discusses, the orders that Green violated were not discovery orders. Supra, ¶¶ 27-29.