Opinion
2 CA-CV 2022-0160
04-21-2023
Jack O'NEAL Walden Sr., Plaintiff/Appellant, v. T-Mobile USA, Inc., Defendant/Appellee.
Jack O'Neal Walden Sr., Tucson In Propria Persona Snell & Wilmer L.L.P., Tucson By Courtney L. Henson 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. C20221433 The Honorable Michael J. Butler, Judge
Jack O'Neal Walden Sr., Tucson In Propria Persona
Snell & Wilmer L.L.P., Tucson By Courtney L. Henson Counsel for Defendant/Appellee
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge:
¶1 Jack O'Neal Walden Sr. appeals from the trial court's denial of his motion for reconsideration, asserting the court erred in granting T-Mobile USA, Inc.'s motion to dismiss his complaint and denying his application for default. We affirm.
Factual and Procedural Background
¶2 In April 2022, Walden filed a complaint alleging conspiracy, conspiracy to commit fraud, and fraud relating to a transaction he had engaged in at a T-Mobile store in January. He subsequently filed two affidavits asserting he had served T-Mobile. In July, he filed an amended complaint alleging the same causes of action. Later that month, he filed an application for default against T-Mobile.
¶3 The trial court denied the application. It concluded Walden had not properly served T-Mobile, providing him with additional time to do so. In August, Walden properly served T-Mobile. Two days later, he again moved for an entry of default. The court denied the application, concluding the request was premature.
¶4 T-Mobile moved to dismiss Walden's complaint pursuant to Rule 12(b)(1), (6), Ariz. R. Civ. P., asserting the dispute was subject to arbitration and Walden had failed to properly plead his claims. Walden did not respond to the motion to dismiss, and T-Mobile filed a notice of non-opposition requesting dismissal. The trial court thereafter dismissed Walden's complaint and denied his renewed application for default.
¶5 Walden then filed another application for default and a motion for reconsideration, which the trial court denied. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
We have an independent obligation to ensure appellate jurisdiction. Robinson v. Kay, 225 Ariz. 191, ¶ 4 (App. 2010). The judgment was announced on September 26, 2022, but was not certified as final pursuant to Rule 54(c), Ariz. R. Civ. P. On November 2, 2022, Walden filed a notice of appeal from the denial of his motion for reconsideration. In March 2023, we suspended the appeal and revested jurisdiction for the trial court to, if appropriate, enter final judgment pursuant to Rule 54(c). The court did so, certifying the September order as final and specifying the dismissal was with prejudice. This merely ministerial act cured Walden's premature notice of appeal. See Ariz. R. Civ. App. P. 9(c); McCleary v. Tripodi, 243 Ariz. 197, ¶¶ 9, 11, 16 (App. 2017).
Discussion
¶6 On appeal, Walden contends the trial court erred in dismissing his complaint and denying his application for default. His opening brief, however, does not meaningfully comply with our appellate rules. It fails to sufficiently develop arguments, identify any applicable standard of review, or cite appropriate legal authority; and it contains minimal references to the record. See Ariz. R. Civ. App. P. 13(a)(5), (7) (opening brief arguments must contain "references to the record on appeal where the particular issue was raised and ruled on, and the applicable standard of appellate review with citation to supporting legal authority"). Although Walden represents himself, we hold him to the same standard as an attorney. See Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017). Accordingly, we conclude his claims on appeal are waived. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (noncompliance with Rule 13 can result in waiver).
¶7 Waiver aside, Walden does not meaningfully challenge the trial court's rulings. He first asserts the court erred in dismissing his complaint for failure to respond. An opposing party must respond to a Rule 12(b)(6) motion to dismiss within ten days. Ariz. R. Civ. P. 7.1(a)(3); Strategic Dev. &Constr., Inc. v. 7th &Roosevelt Partners, LLC, 224 Ariz. 60, ¶ 17 (App. 2010). If that party does not respond, the court may summarily grant the motion. Ariz. R. Civ. P. 7.1(b)(2); Strategic Dev. &Constr., Inc., 224 Ariz. 60, ¶ 17.
¶8 Walden contends he was "not warned about the dismissal" and was unaware that he needed to respond. He argues his lack of knowledge should not bar his claims. But Walden does not dispute the trial court's finding that he "was notified and sent a copy of [T-Mobile's] Motion to Dismiss" and failed to respond. And as stated above, Walden is held to the standard of an attorney, and ignorance of the law is not an excuse for his noncompliance with the procedural rules. See Flynn, 243 Ariz. 76, ¶ 24. A trial court has discretion to grant a motion to dismiss summarily when the nonmoving party fails to timely respond. See Strategic Dev. &Constr., Inc., 224 Ariz. 60, ¶ 17. Because Walden failed to respond, "the court had the power to grant the motion for that reason alone." Id.
¶9 Walden is also incorrect that the trial court erred in denying his application for default because it applied Rule 55(a)(4), (5), Ariz. R. Civ. P. Walden asserts this rule "as amended" did not apply to his case in 2022 because it did not become effective until January 1, 2023. There were, however, no changes to subsection (a) in the 2022 amendment. See Ariz. Sup. Ct. Order R-22-0011 (Aug. 29, 2022). The court did not err in its application of Rule 55.
Given our disposition, we need not reach T-Mobile's alternate arguments that Walden failed to properly plead the claims and that his claims were subject to arbitration. See Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 231 Ariz. 517, n.1 (App. 2013).
Attorney Fees
¶10 T-Mobile requests attorney fees and costs incurred in this appeal pursuant to A.R.S. § 12-349(A) and Rule 21, Ariz. R. Civ. App. P. Walden has "[u]nreasonably expand[ed] or delay[ed] the proceeding," and thus we award T-Mobile its reasonable attorney fees. § 12-349(A)(3). And, as the prevailing party, T-Mobile is entitled to its costs on appeal upon compliance with Rule 21. See Doherty v. Leon, 249 Ariz. 515, ¶ 24 (App. 2020).
Disposition
¶11 For the foregoing reasons, we affirm.