Opinion
1 CA-CV 22-0583
09-14-2023
JOHN DANKO, III, Plaintiff/Appellant, v. SUSAN RAWLS EDWARDS STROM, Defendant/Appellee.
John Danko, III, Mesa Plaintiff/Appellant Udall Law Firm, LLP, Tucson, Craig L. Cline Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2022-091921 The Honorable Rodrick J. Coffey, Judge
AFFIRMED
John Danko, III, Mesa Plaintiff/Appellant
Udall Law Firm, LLP, Tucson, Craig L. Cline Counsel for Defendant/Appellee
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Anni Hill Foster joined.
MEMORANDUM DECISION
Kent E. Cattani, Judge
¶1 John Danko III appeals the superior court's dismissal of his complaint against Susan Rawls Strom. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Danko sued Strom alleging claims including breach of contract, defamation, various intentional torts, negligence, bad faith, fraud, misrepresentation, and harassment. For jurisdictional purposes, Danko summarily alleged that Strom resides and does business in Maricopa County and that the events and injuries underlying the complaint occurred there as well.
¶3 Strom moved to dismiss based on lack of personal jurisdiction, explaining that she is a South Carolina resident without any jurisdictionally meaningful contacts with Arizona. See Ariz. R. Civ. P. 12(b)(2). In her supporting declaration, Strom denied owning any real or personal property in Arizona or conducting any business in Arizona, and she stated she had only visited Arizona once for unrelated, personal reasons. She stated that she is an attorney licensed and practicing law in South Carolina, but not in Arizona. Strom stated that her only contact with Danko involved discussion about his desire to pursue an action against his ex-spouse in South Carolina. After about a month, Strom and her law firm decided to terminate the attorney-client relationship and returned Danko's retainer without any charges.
¶4 Danko did not timely file a response to Strom's motion to dismiss, and the superior court granted the motion in an unsigned ruling. Danko thereafter filed a response and supporting declaration but did not offer any excuse for the untimely filing. See Ariz. R. Civ. P. 7.1(a)(3). He also filed a motion to reconsider asking the court to review his opposition to dismissal, again without explanation for his failure to timely file his response. The superior court denied the reconsideration request.
¶5 The superior court ultimately entered a signed Rule 54(c) judgment dismissing Danko's complaint, and Danko timely appealed. We have jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
I. Personal Jurisdiction.
¶6 Danko argues that the superior court erred by dismissing his complaint for lack of personal jurisdiction. We review de novo the superior court's assessment of personal jurisdiction. Ariz. Tile, L.L.C. v. Berger, 223 Ariz. 491, 493, ¶ 8 (App. 2010). When a defendant challenges the existence of personal jurisdiction, "the plaintiff must offer 'facts establishing a prima facie showing of jurisdiction.'" Beverage v. Pullman & Comley, LLC, 232 Ariz. 414, 417, ¶ 10 (App. 2013) (citation omitted). Here, because the superior court did not conduct an evidentiary hearing, we "view[] the facts in the light most favorable to [Danko] but accept[] as true the uncontradicted facts put forward by [Strom]." See Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262, 264, ¶ 2 n.1 (2011).
¶7 Arizona's long-arm statute permits exercise of personal jurisdiction to the greatest extent permitted under the United States Constitution. Ariz. R. Civ. P. 4.2(a); Beverage, 232 Ariz. at 417, ¶ 8. A state may exercise general personal jurisdiction-that is, jurisdiction to hear any claim against a defendant, regardless whether the claim relates to the forum or the defendant's activities there-over its residents and over out-of-state defendants whose contacts with the forum state are "systematic and continuous." Beverage, 232 Ariz. at 417, ¶ 8; see also Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S.Ct. 1017, 1024 (2021). The record here shows that Strom had no such "systematic and continuous" contacts with Arizona. See Beverage, 232 Ariz. at 417, ¶ 8. Strom's unrebutted declaration states that she resides in South Carolina, practices law in South Carolina, has never conducted business in Arizona, and does not own property in Arizona.
¶8 A state may exercise specific personal jurisdiction over an out-of-state defendant if (1) the defendant's contacts with the forum reflect purposeful conduct targeting the forum (not just accidental contacts or those created by the plaintiff's unilateral acts), (2) the plaintiff's claims "arise out of or relate to" those contacts, and (3) exercise of jurisdiction would be reasonable. See Ford, 141 S.Ct. at 124-25 (citation omitted); see also Beverage, 232 Ariz. at 417, ¶ 9. Here, the record is devoid of facts supporting Arizona's exercise of specific personal jurisdiction over Strom. Danko's allegations against Strom stem from his attempt to retain her as a South Carolina attorney to pursue legal claims against his ex-spouse in that state. Although Danko may be an Arizona resident, the record suggests that he reached out from the state to procure out-of-state legal services, not that Strom reached in to avail herself of the Arizona market. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). In sum, the undisputed facts show that Strom has never practiced law in Arizona, and nothing in the record suggests that she directed her legal services to Arizona clients. Compare Beverage, 232 Ariz. at 419-20, ¶¶ 22-23.
¶9 Accordingly, the superior court did not err by dismissing Danko's complaint for lack of personal jurisdiction.
II. Other Arguments.
¶10 Danko argues that Strom's motion to dismiss should have been stricken as untimely, which in his view deprived the superior court of jurisdiction to consider the motion. But timeliness of a motion to dismiss has no bearing on the court's jurisdiction to consider it. See Ariz. Const. art. 6, § 14; A.R.S. § 12-123; cf. Ariz. R. Civ. P. 6(b).
¶11 Danko contends that he has been deprived of due process, and he requests an evidentiary hearing to present proof of the facts alleged in his complaint. Danko further requests that we rule on a motion "for Expert Witness Requirement of ARS § 12-2602." Danko did not raise these arguments in the superior court, and they are waived on appeal. See BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, 593-94, ¶ 25 (App. 2021).
III. Attorney's Fees, Costs, and Sanctions on Appeal.
¶12 Strom requests that we dismiss Danko's appeal for noncompliance with ARCAP 13. We deny this request.
¶13 Arguing that Danko's appeal was frivolous, Strom further requests an award of attorney's fees and costs as a sanction under ARCAP 25. Danko's appeal from the dismissal is not grounded in any reasonable legal theory, and the arguments he presents are indisputably meritless. See Ariz. Tax Research Ass'n v. Dep't of Revenue, 163 Ariz. 255, 258 (1989) (defining an appeal as frivolous when the "issues raised were not supported by any reasonable legal theory" such that the appeal is "totally and completely without merit"). Accordingly, and in an exercise of our discretion, we award Strom a portion of her reasonable attorney's fees on appeal in an amount to be determined upon compliance with ARCAP 21. As the prevailing party, Strom is entitled to her costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶14 We affirm.