Opinion
1 CA-CV 22-0781 1 CA-CV 23-0001 1 CA-CV 23-0149
10-31-2023
JOHN DANKO, III, Plaintiff/Appellant, v. SUZANNE L. HAWKINS DUFF, Defendant/Appellee. JOHN DANKO, III, Plaintiff/Appellant v. JAMES BENJAMIN STEVENS, Defendant/Appellee. JOHN DANKO, III, Plaintiff/Appellant, v. KEVIN MICHAEL SEIBERT, Defendant/Appellee.
John Danko III, Mesa, Plaintiff/Appellant Broening Oberg Woods &Wilson PC, Phoenix By Donald Wilson Jr., Danielle N. Chronister, Kelley M. Jancaitis 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CV2022-091994, CV2022-092321, CV2022-091833 The Honorable Peter A. Thompson, Judge
AFFIRMED.
COUNSEL
John Danko III, Mesa, Plaintiff/Appellant
Broening Oberg Woods &Wilson PC, Phoenix By Donald Wilson Jr., Danielle N. Chronister, Kelley M. Jancaitis Counsel for Defendant/Appellee
Judge Jennifer M. Perkins delivered the decision of the Court, in which Vice Chief Judge Randall M. Howe and Judge Daniel J. Kiley joined.
MEMORANDUM DECISION
PERKINS, Judge.
¶1 John Danko III appeals the superior court's dismissal of his complaint against Suzanne L. Hawkins Duff, James Benjamin Stevens, and Kevin Michael Seibert (collectively, "the Attorneys"). We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Danko filed separate but virtually identical complaints against each of the Attorneys, alleging that he retained them to provide legal services and that they failed to perform any "legal services or representation in exchange for the monies paid." After "stealing" his money, Danko alleged, the Attorneys made numerous "false claims and derogatory statements" about him. Danko raised claims for breach of contract, breach of fiduciary duty, defamation, slander, libel, negligent infliction of emotional distress, fraud, misrepresentation, and nuisance. In his complaints, Danko stated each attorney resides in and "does business in Maricopa County" and that Danko suffered the alleged harms in Maricopa County. Danko attached no supporting documents to his complaint.
¶3 The Attorneys each moved to dismiss Danko's complaint for lack of personal jurisdiction. See Ariz. R. Civ. P. 12(b)(2). They argued Danko's allegations that the Attorneys directed contacts toward Arizona are "not only unsupported, but totally false."
¶4 Hawkins attached no affidavit or evidence supporting her motion to dismiss. In her motion, Hawkins asserted that she is a "licensed attorney who resides and practices in South Carolina" and has never resided in, been to, or owned property in Arizona. Danko "sought out the legal services of Ms. Hawkins' South Carolina law firm, Hawkins Law, to potentially represent him in his South Carolina legal matter" but Hawkins "ultimately made the determination that she could not represent him." Danko attached to his response a copy of his retainer agreement with Hawkins, which contained her law firm's South Carolina address.
¶5 Stevens attached no affidavit in support of his motion to dismiss, but he did attach a copy of his retainer agreement with Danko as well as his withdrawal letter and receipt of his refund to Danko. In his motion, Stevens asserted that he is a "licensed attorney who resides and practices in South Carolina." Danko sought out Stevens and retained him as an attorney to represent him "in a contempt/enforcement action in the family court in Kershaw County, South Carolina." Stevens withdrew from representation less than a week later and refunded the retainer. His exhibits supported these assertions. Stevens also asserted that he has never resided, practiced law, or owned property in Arizona.
¶6 Seibert likewise attached no affidavit in support of his motion to dismiss but he did attach a copy of his retainer agreement with Danko. In his motion, Seibert asserted that he is "a licensed attorney who resides and practices in South Carolina." Seibert claimed that Danko reached out to and retained him for a South Carolina family law matter while Danko was a resident of South Carolina. Danko's mailing address was in South Carolina, and he had a South Carolina phone number. The retainer agreement Seibert provided supported these assertions. Seibert also asserted that he has never resided or owned property in Arizona.
¶7 In response to the motions to dismiss, Danko admitted that, despite the allegation in his complaints, the Attorneys do not reside in Arizona. But he continued to claim that the Attorneys own property and conduct business in Arizona, that the injuries occurred in Arizona, and that he set forth "factual allegations" as support. Danko provided no evidence supporting his conclusory statements.
¶8 The superior court granted all the motions to dismiss. The court concluded that it had no basis to find the Attorneys solicited business in Arizona and that the legal services for which Danko had contracted "were to be performed entirely in South Carolina." In the case against Seibert, the court noted that dismissals appeared in three additional superior court cases Danko had filed and ordered those other rulings to be filed as part of the record in Seibert's case for purposes of completeness.
¶9 Danko moved for relief from final judgment in each case and presented emails and bank statements related to his divorce and communications with the Attorneys. The superior court denied Danko's motions because the alleged acts or omissions occurred in South Carolina, which prevented an Arizona court from considering the matter.
¶10 Danko timely appealed the judgments in all three cases. We consolidated the three cases into this appeal and we have jurisdiction. A.R.S. § 12-2101(A)(1).
DISCUSSION
¶11 The Attorneys argue Danko waived all arguments on appeal by failing to support his arguments with legal authority. While he does not specifically cite legal authority in his opening brief, he generally argues the correct legal principles of personal jurisdiction. Thus, Danko has provided a "bona fide and reasonably intelligent effort to comply with Rule 13" and has not automatically waived all issues he wished to submit to the court. See Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8-9 (App. 2022); ARCAP 13. We will consider his arguments on the merits.
I. Personal Jurisdiction
¶12 Danko argues the Attorneys have sufficient minimum contacts with Arizona necessary to support personal jurisdiction. We review the superior court's personal jurisdiction conclusions de novo, Beverage v. Pullman & Comley, LLC, 232 Ariz. 414, 417, ¶ 10 (App. 2013), "viewing the facts in the light most favorable to [Danko] but accepting as true the uncontradicted facts put forward by [the Attorneys]," Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262, 264, ¶ 2 n.1 (2011).
¶13 Arizona courts may exercise personal jurisdiction over litigants "to the maximum extent permitted by the Arizona Constitution and the United States Constitution." Ariz. R. Civ. P. 4.2(a); Planning Grp., 226 Ariz. at 265, ¶ 12. Personal jurisdiction may be general or specific. Planning Grp., 226 Ariz. at 265, ¶ 13. "When a defendant challenges the existence of personal jurisdiction, the plaintiff must come forward with facts establishing a prima facie showing of jurisdiction, at which time the burden shifts to the defendant to rebut the showing." Arizona Tile, L.L.C. v. Berger, 223 Ariz. 491, 493, ¶ 8 (App. 2010). "[T]he court should resolve any conflicts in the affidavits and pleadings in the plaintiff's favor." Id. (cleaned up).
¶14 General jurisdiction "extends to any and all claims brought against a defendant," but "[o]nly a select set of affiliations with a forum will expose a defendant to such sweeping jurisdiction." Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S.Ct. 1017, 1024 (2011) (cleaned up). Danko concedes the Attorneys do not live in Arizona, but makes conclusory statements they own property and conduct ongoing business in Arizona. The Attorneys denied any business contacts in Arizona so "continuous and systematic as to render [them] essentially at home" in Arizona. Wal-Mart Stores, Inc. v. LeMaire, 242 Ariz. 357, 359, ¶ 4 (App. 2017) (cleaned up). Danko failed to provide any support for his conclusory statements, and, even assuming their truth, his allegations are insufficient to support a finding that the Attorneys are subject to general jurisdiction in Arizona.
¶15 Specific jurisdiction "exists only for the particular claim asserted" and only when the defendant's "activities in the forum state giving rise to the claim establish the necessary minimum contacts with the state to make the exercise of jurisdiction reasonable and just." Hoag v. French, 238 Ariz. 118, 122, ¶ 19 (App. 2015). Specific jurisdiction requires "sufficient contacts" demonstrating (1) purposeful conduct by the defendant targeting the forum, rather than accidental or causal contacts or those brought about by the plaintiff's unilateral contacts, (2) a nexus between those contacts and the claim asserted, and (3) that exercise of jurisdiction would be reasonable. See Planning Grp., 226 Ariz. at 265-70, ¶¶ 13, 16, 25, 29, 37; Williams v. Lakeview Co., 199 Ariz. 1, 4, ¶ 11 (2000). Courts may only exercise specific jurisdiction if the defendant's activities in the forum state are related to the plaintiff's cause of action. Williams, 199 Ariz. at 4, ¶ 11.
¶16 Danko failed to establish a prima facie showing of specific jurisdiction. See Berger, 223 Ariz. at 493, ¶ 8. Danko raises two bases for specific jurisdiction: that he resides in Arizona and suffered harm in Arizona. This is not enough. This court has authorized the exercise of personal jurisdiction over an out-of-state attorney who represented an Arizona client, but only when the legal services performed out-of-state "were directed to Arizona." See Beverage, 232 Ariz. at 420, ¶ 23.
¶17 Danko hired the South Carolina based Attorneys to enforce provisions of his Arizona dissolution decree in South Carolina after his exwife relocated to South Carolina. Danko alleges the Attorneys did not perform the services he hired them to perform and then engaged in conduct causing him losses in Maricopa County. Assuming the truth of these allegations, they do not support a finding that the Attorneys directed their activities toward, or committed a wrongful act in, Arizona. Danko explicitly and admittedly hired the Attorneys to perform legal work targeted at South Carolina. That Danko allegedly suffered harm in Arizona is not enough. "[W]hen the only nexus with the forum state is the effect of a damagecausing event, the requisite minimum contacts generally do not exist." Cohen v. Barnard, Vogler &Co., 199 Ariz. 16, 18, ¶ 10 (App. 2000). The Attorneys engaged in no purposeful conduct toward Arizona, making the exercise of personal jurisdiction unreasonable.
¶18 Danko also argues that he has been deprived of the opportunity to present evidence at a hearing. He waived this claim by failing to request an evidentiary hearing until after the court had granted the Attorneys' motions. And he submitted several exhibits with his responses to the motions to dismiss, which the superior court considered. He fails to identify any new or different evidence supporting jurisdiction that he would have provided during a hearing had he timely requested one.
II. Sanctions
¶19 The Attorneys request sanctions according to Section 12- 349(A) and ARCAP 25, and Danko requests attorney's fees under ARCAP 21. In relevant part, ARCAP 25 allows an award of sanctions if an appeal is "frivolous or taken solely for the purpose of delay." And sanctions are allowed under Section 12-349(A) if a party brings a claim "without substantial justification," meaning the claim "is groundless and is not made in good faith." A.R.S. § 12-349(A)(1), (F). These sanctions may include attorney's fees. A.R.S. § 12-349(A); ARCAP 25.
¶20 Courts hold unrepresented litigants in Arizona to the same standard as attorneys, and do not give them special leniency. Flynn v. Campbell, 243 Ariz. 76, 83-84, ¶ 24 (2017). An appeal is frivolous "when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgement." Arizona Tax Rsch. Ass'n v. Dep't of Revenue, 163 Ariz. 255, 257-58 (1989). We exercise our authority to punish litigants for frivolous appeals "most sparingly." Price v. Price, 134 Ariz. 112, 114 (App. 1982).
¶21 This court has now affirmed dismissal of six separate complaints Danko filed in superior court stemming from conduct related to his dissolution decree; two of those involved dismissals for lack of personal jurisdiction over defendants located in South Carolina. See Danko v. Wainscott, 1 CA-CV 22-0534, 2023 WL 5377768 (Ariz. App. Aug. 22, 2023) (mem. decision); Danko v. Strom, 1 CA-CV 22-0583, 2023 WL 5977229 (Ariz. App. Sept. 14, 2023) (mem. decision). And this court recognized in another decision Danko's inconsistent and duplicitous statements about his own residence during litigation over his decree. See Danko v. Danko, 1 CA-CV 200094, 2020 WL 5951526, at *3, ¶¶ 20, 25 (Ariz. App. Oct. 8, 2020) (mem. decision).
¶22 In Danko v. Wainscott, Danko v. Strom, and the present case, Danko's briefs are filled with unsubstantiated and offensive allegations that are irrelevant to an appeal for lack of subject matter jurisdiction. Here, Danko accuses the Attorneys of "continuous stalking, menacing, harassment, and violence," raises allegations against persons not party to this appeal, and continues to maintain the Attorneys own property and conduct business in Arizona, without providing any support or specific examples. Greenbank v. Vanzant, 250 Ariz. 644, 651, ¶ 29 (App. 2021) (lack of candor and bad faith warranted sanctions). He makes the transparently false claim that "no other jurisdiction and no other Court" can provide him "opportunity for relief," disregarding the superior court's observation that he "can bring his action in South Carolina." Danko's appeal is frivolous and without substantial justification. See A.R.S. § 12-349(A)(1); ARCAP 25. Accordingly, we award the Attorneys their reasonable attorney's fees and taxable costs on appeal, to be paid upon the Attorneys' compliance with ARCAP 21.
CONCLUSION
¶23 We affirm.