Opinion
1 CA-CV 23-0719 1 CA-CV 23-0748
06-27-2024
JOHN DANKO III, Plaintiff/Appellant, v. CHARLES MARION GRANT, et al., Defendants/Appellees.
John Danko III, Mesa Plaintiff/Appellant Law Office of Sherry J. Downer PLLC, Tucson By Sherry Janssen Downer Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2023-092128 The Honorable Susanna C. Pineda, Judge
John Danko III, Mesa Plaintiff/Appellant
Law Office of Sherry J. Downer PLLC, Tucson By Sherry Janssen Downer Counsel for Defendants/Appellees
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Daniel J. Kiley and Judge D. Steven Williams joined.
MEMORANDUM DECISION
CATTANI, JUDGE
¶1 John Danko III appeals from the superior court's dismissal of his civil complaint against Inter-State Investigative Services Inc., Randolph Lee Downer Jr., and Charles Marion Grant (collectively, "Defendants"). For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In May 2023, Danko sued Defendants for fraud and various other intentional torts, as well as for negligence, misrepresentation, and breach of contract. Danko's complaint asserted that he paid Defendants over $13,000 for unspecified "security and safety services" for five months before a "default trial" in his contested marital dissolution proceedings in which domestic violence was a relevant issue. Danko alleged Defendants knew his ex-spouse and ex-mother-in-law were abusing him and that Defendants concealed habitual and continuous criminal activity by his exspouse's family that was pertinent to the dissolution proceedings. He further alleged that Defendants failed to prevent the domestic abuse by his ex-spouse and ex-mother-in-law, refused to communicate with him when he was hospitalized, and hid the fact of the abuse and his hospitalization from "numerous parties, multiple organizations, and [the] family court." Danko sought more than a million dollars in damages.
In September 2023, the presiding judge of the Maricopa County Superior Court issued AO 2023-0135 designating Danko a vexatious litigant and requiring him to seek leave of court before filing new lawsuits or new pleadings or motions in existing suits. See A.R.S. § 12-3201; see also Madison v. Groseth, 230 Ariz. 8, 14, ¶ 17 (App. 2012). As reflected in that order and related cases, Danko has filed over 60 lawsuits (including this one), many of which "are unsupported by facts as alleged, argue legal positions which are not founded in the law or reasonable interpretations of the law, re-argue the same positions again and again with no regard for rulings of the Court, and promote abuse of process." Danko v. Dessaules, 1 CA-CV 23-0017, 2023 WL 5214129, at *1, ¶ 5 (Ariz. App. Aug. 15, 2023) (mem. decision).
¶3 As relevant here, Downer and Inter-State moved to dismiss Danko's complaint for failure to state a claim and as barred by the relevant statutes of limitations.
¶4 The superior court granted the motion to dismiss, observing that the complaint was "void of any facts" supporting the claims, and the court denied leave to amend because the causes of action asserted would be time-barred in any event. The court dismissed Danko's complaint "in its entirety with prejudice." The court denied Danko's subsequent request for relief from the dismissal order, then entered final judgment.
¶5 Danko timely appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶6 We review de novo the superior court's dismissal of a complaint for failure to state a claim for relief. See Ariz. R. Civ. P. 12(b)(6); Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-8 (2012). Dismissal on this basis is appropriate only if, assuming the truth of all well-pleaded factual allegations, the plaintiff would nevertheless not be entitled to relief "under any interpretation of the facts susceptible of proof." Coleman, 230 Ariz. at 356, ¶¶ 8-9 (quoting Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191 Ariz. 222, 224, ¶ 4 (1998)).
¶7 Danko's brief in large part repeats and expands various conclusory allegations-many of which appear to be directed at non-parties-attempting to recast them as facts sufficient to state a claim. Downer and Inter-State request that we dismiss the appeal outright on that basis, but because Danko's brief at a minimum contests the sufficiency of his complaint and asserts that the limitations period for his claims had not run, we decline to dismiss the appeal.
¶8 Nevertheless, Danko's arguments are unavailing. The complaint did not allege the existence of any written agreement (or attach any such agreement), provide any terms of an agreement (written or otherwise), or specify any contractual promise that was allegedly not performed. See Thomas v. Montelucia Villas, LLC, 232 Ariz. 92, 96, ¶ 16 (2013) (elements of breach of contract). The complaint did not allege any basis for imposing a duty on Defendants to protect Danko from alleged domestic abuse or specify the standard of care to which they should be held, much less how any actions or failures to act fell below any such standard of care. See Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007) (elements of negligence); Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373, ¶ 15 (2021) (noting no general duty to protect others from harm). Other than mentioning the word "conversion," the complaint stated no facts germane to any such claim. See Focal Point, Inc. v. U-Haul Co. of Ariz., 155 Ariz. 318, 319 (App. 1986) (elements of conversion). And the complaint did not describe how Defendants allegedly concealed or misrepresented any information relating to Danko's ex-spouse's family's criminal records, much less do so with the particularity required for pleading fraud under Rule 9(b). See Dawson v. Withycombe, 216 Ariz. 84, 96, ¶ 26 (App. 2007) (elements of fraud); KB Home Tucson, Inc. v. Charter Oak Fire Ins. Co., 236 Ariz. 326, 332-33, ¶ 30 &n.7 (App. 2014) (elements of negligent misrepresentation). In short, Danko's complaint failed to allege facts that, even if true, would support any claim asserted, and the superior court thus did not err by dismissing the complaint. See Coleman, 230 Ariz. at 356, ¶¶ 8-9.
¶9 Danko further asserts that the statute of limitations cannot have expired because his family court case remained ongoing. But the claims Danko attempted to assert in this complaint against these defendants involve conduct in 2017 or earlier. Any statute of limitations applicable to the causes of action alleged here expired well before Danko filed this complaint in 2023. See A.R.S. § 12-542 (two-year limitations for negligence and conversion); Coulter v. Grant Thornton, LLP, 241 Ariz. 440, 444, ¶ 9 (App. 2017) (two-year limitations period applies to negligent misrepresentation claims); A.R.S. § 12-543 (three-year limitations period for fraud and breach of oral contract). Accordingly, the superior court properly dismissed these claims with prejudice because amendment would be futile.
Although the statute of limitations for breach of a written contract is six years, A.R.S. § 12-548, Danko did not allege the existence of a written contract or attach any such agreement to his complaint. Moreover, claims for substandard performance by professionals generally sound in tort, not contract, Keonjian v. Olcott, 216 Ariz. 563, 566, ¶ 17 (App. 2007); see also A.R.S. tit. 32, ch. 24 (licensure for private investigators), and Danko's complaint did not allege facts showing nonperformance of an express undertaking as necessary to support a contract rather than a negligence claim. Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 395 (App. 1996) ("Only if there is a specific promise contained in the contract can the action sound in contract, and then only to the extent the claim is premised on the nonperformance of that promise.").
¶10 Danko's other arguments are similarly unavailing. At various stages throughout his brief, he raises personal jurisdiction questions, but personal jurisdiction was not at issue in this case, and the superior court did not dismiss the complaint on that basis, making the issue irrelevant to this appeal. Danko also requests an evidentiary hearing and argues the superior court erred by granting summary judgment without conducting a hearing. But Danko did not assert facts which, if true, would entitle him to relief. Thus, there was no basis for an evidentiary hearing. See Coleman, 230 Ariz. at 363, ¶ 46. Accordingly, we affirm the judgment of dismissal.
¶11 Both sides request an award of attorney's fees incurred on appeal. Danko requests fees as a sanction under ARCAP 25. But Downer and Inter-State's arguments were not frivolous or otherwise sanctionable, so Danko is not entitled to such a sanction.
¶12 Downer and Inter-State request an award of attorney's fees under A.R.S. § 12-349(A)(1) and ARCAP 25. Danko's appeal is not grounded in any reasonable legal theory, and his arguments on appeal are indisputably meritless. See Ariz. Tax Rsch. Ass'n v. Dep't of Revenue, 163 Ariz. 255, 258 (1989). Accordingly, in an exercise of our discretion and as a sanction against Danko, we award Downer and Inter-State a portion of their reasonable attorney's fees on appeal in an amount to be determined upon compliance with ARCAP 21. As the prevailing parties, Downer and Inter-State are entitled to their costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶13 We affirm.