Opinion
2 CA-CV 2020-0168
10-19-2021
Franklin Bennett, Plaintiff/Appellant, v. L.H.M. Corp. TDR dba Larry H. Miller Dodge Ram, Tucson, Defendant/Appellee.
Franklin Bennett, Tucson In Propria Persona Tiffany & Bosco P.A., Phoenix By Timothy C. Bode Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20202169 The Honorable Brenden J. Griffin, Judge
Franklin Bennett, Tucson In Propria Persona
Tiffany & Bosco P.A., Phoenix By Timothy C. Bode Counsel for Defendant/Appellee
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred.
MEMORANDUM DECISION
BREARCLI FFE, JUDGE
¶1 Appellant Franklin Bennett appeals from the trial court's order dismissing his complaint. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In May 2020, Bennett filed his fourth complaint against L.H.M. Corporation for negligence and intentional infliction of emotional distress. His prior complaints had been dismissed without prejudice. In this complaint, as he had similarly alleged in the others, Bennett claimed that when he brought his vehicle to L.H.M. for brake repairs in 2017, L.H.M. "proceeded to cause engine damage to the vehicle which resulted in further damage to the vehicle's engine resulting in greater expense and loss of income."
¶3 In response, L.H.M. filed a motion to dismiss under Rule 12(b), Ariz. R. Civ. P., arguing Bennett's claims were barred by the statute of limitations and that, even if the claims were not barred, Bennett had failed to "plead the necessary elements for an IIED claim" and therefore, did not state a claim for which relief could be granted. Bennett then filed various papers, including an "affidavit and application for default judgment and damages," a response to L.H.M.'s motion to dismiss, and a motion to strike L.H.M.'s motion to dismiss.
¶4 In July, the trial court granted L.H.M.'s motion to dismiss without prejudice, instructing Bennett that he must either amend his complaint (presumably to properly assert an IIED claim) or suffer a dismissal with prejudice. Bennett filed an amended complaint, arguing instead that L.H.M. had breached their contract and failed to mitigate damages resulting from breach. L.H.M. then moved to dismiss the amended complaint with prejudice, and requested the court award L.H.M. attorney fees and costs, and designate Bennett a vexatious litigant. The court granted the motion to dismiss Bennett's amended complaint, and instructed L.H.M. to lodge a proposed form of judgment, an application for fees and costs, and a proposed form of order finding Bennett a vexatious litigant. Following this order, Bennett filed a motion for clarification of the court's ruling, asking the court to "provide a specific finding[] of fact and conclusion of law to it's . . . ruling and order that this matter be dismissed with prejudice." The court initially refused to rule on Bennett's motion for clarification "for reasons of judicial economy," "until it considers the completed briefing on [L.H.M.'s] filings," and notified Bennett of his deadline to object to L.H.M.'s filings.
¶5 In addition to the motion for clarification, Bennett also filed a motion to vacate the ruling and an "objection to extend time and motion to vacate ruling." The trial court ultimately denied Bennett's motions, and issued a final judgment dismissing Bennett's final complaint and awarding L.H.M. attorney fees and costs. The court also entered an order designating Bennett as a vexatious litigant. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
Analysis
¶6 "We generally decline to address issues that are not argued adequately, with appropriate citation to supporting authority." In re J.U., 241 Ariz. 156, ¶ 18 (App. 2016) (citing Ariz. R. Civ. App. P. 13(a)(7)). Rule 13(a)(7)(A) requires an appellant's opening brief to contain his arguments on appeal, "with citations of legal authorities and appropriate references to portions of the record on which the appellant relies."
¶7 Bennett's opening brief contains no legal citations or references to the record to support his arguments. Bennett claims that the trial court "abused [its] discretion" because the court did not answer his motion for clarification, but provides no legal support for why this was an abuse of discretion. Merely mentioning a claim is insufficient to develop an argument on appeal, see Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007), and "[i]t is not incumbent upon [this] court to develop an argument for a party," Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143 (App. 1987). Because Bennett does not cite to "relevant supporting authority and does not develop [his argument] further," he has waived this issue and we will not address it. See Polanco, 214 Ariz. 489, n.2.
L.H.M.'s Attorney Fees & Costs on Appeal
¶8 L.H.M. requests its attorney fees and costs on appeal under A.R.S. § 12-341.01 and Rule 21(a), Ariz. R. Civ. App. P. It also requests that we award fees as a sanction against Bennett pursuant to A.R.S. § 12-349 and Rule 25, Ariz. R. Civ. App. P. Section 12-349 provides for the award of attorney fees and costs when a claim is brought without substantial justification, for delay, or harassment, and Rule 25 permits sanctions for frivolous appeals. We deny L.H.M.'s request for sanctions because it has not established Bennett's claims on appeal were unjustified or frivolous. See Sklar v. Town of Fountain Hills, 220 Ariz. 449, ¶ 23 (App. 2008); see also Sotomayor v. Sotomayor-Mu%25noz, 239 Ariz. 288, ¶ 13 (App. 2016). In our discretion, however, we award L.H.M. its reasonable attorney fees pursuant to § 12-341.01(A) and costs incurred on appeal, upon its compliance with Rule 21. See Coll. Book Ctrs., Inc. v. Carefree Foothills Homeowners' Ass'n, 225 Ariz. 533, ¶ 42 (App. 2010).
Disposition
¶9 For the foregoing reasons, we affirm the trial court's dismissal of Bennett's complaint.