Calabrese v. Fortin ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
FRANCO CALABRESE, a single man, Plaintiff/Appellant,
v.
CHRISTINA M. FORTIN, a single woman; JOSEPH ALAN RAPPAZZO, a
single man; SUSAN GUNDERSON, a single woman; JIM BROWN, a
single man; DREEM GREEN aka DREEM GREEN, INC., an Arizona non-
profit corporation, Defendants/Appellees.
No. 1 CA-CV 14-0818
FILED 8-8-2017
Appeal from the Superior Court in Maricopa County
No. CV2013-050329
The Honorable John R. Hannah, Jr., Judge
The Honorable Alfred M. Fenzel, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Goldman & Zwillinger PLLC, Scottsdale
By Mark D. Goldman, Carolyn Goldman, Jeff S. Surdakowski
Counsel for Plaintiff/Appellant
Osborn Maledon, PA, Phoenix
By Joseph N. Roth, Brian K. Mosley
Co-Counsel for Defendant/Appellee Joseph Alan Rappazzo
Thrasher Jemsek PLLC, Phoenix
By Benjamin Robert Jemsek
Co-Counsel for Defendant/Appellee Joseph Alan Rappazzo
Sacks Tierney PA, Scottsdale
By Philip R. Rudd
Counsel for Defendant/Appellee Dreem Green
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler1 joined.
J O N E S, Judge:
¶1 Franco Calabrese appeals the trial court’s order granting
summary judgment in favor of defendants Christina Fortin, Jim Brown,
Dreem Green (collectively, Dreem Green Appellees), Joseph Rappazzo, and
Susan Gunderson. For the following reasons, we affirm the order granting
summary judgment but vacate the award of attorneys’ fees to Fortin.
FACTS2 AND PROCEDURAL HISTORY
¶2 Fortin is a founding member of Dreem Green, a non-profit
corporation formed to operate a medical marijuana dispensary. The
underlying action arises from two agreements (the October 2012
Agreement and the February 2013 Agreement, or, collectively, the
Agreements), whereby Fortin, acting on behalf of Dreem Green, appointed
Calabrese to Dreem Green’s board of directors (the Board) to replace
1 The Honorable Donn Kessler, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
6, Section 20, of the Arizona Constitution.
2 In reviewing an order granting summary judgment, we view the
facts “in the light most favorable to the party against whom summary
judgment was entered.” Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286,
289, ¶ 10 (App. 2013) (citing Riley, Hoggatt & Suagee v. English, 177 Ariz. 10,
12-13 (1993)).
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CALABRESE v. FORTIN et al.
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another director. In March 2013, Fortin, purporting to act under the
authority of Arizona Revised Statutes (A.R.S.) § 10-3809(B)3 (stating “an
appointed director may be removed with or without cause by the person
appointing the director”), removed Calabrese from the Board. Calabrese
sued Fortin, alleging five contract-based claims, and also brought claims
against John Doe defendants for tortious interference with contract and
business expectancies.
¶3 Fortin moved for summary judgment. A week later,
Calabrese filed an amended complaint adding Dreem Green as a defendant
on the contract claims and naming Rappazzo, Gunderson, and Brown as
defendants on the tortious interference claims. Calabrese then moved for
summary judgment, seeking a ruling that “Fortin cannot rely upon A.R.S.
§ 10-3809(B) as a defense in this action.” The remaining parties entered
appearances, but did not answer or file other responsive pleadings.
¶4 After full briefing and oral argument, the trial court granted
Fortin’s motion for summary judgment, denied Calabrese’s, and entered a
final judgment in favor of Fortin “and all other co-defendants on each and
every Count in the Plaintiff’s Complaint which included contract-based
claims for relief.” After it determined the matter arose out of contract, the
court awarded Fortin over $50,000 in attorneys’ fees and costs. See A.R.S.
§ 12-341.01(A). Calabrese timely appealed. This Court has jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).4
3 Absent material changes from the relevant date, we cite a statute’s
current version.
4 Here, the trial court certified the judgment as final pursuant to
Arizona Rule of Civil Procedure 54(c). However, “[t]he inclusion of Rule
54(c) language in a judgment that does not resolve all claims by all parties
is not a final judgment.” Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236
Ariz. 221, 224, ¶ 11 (App. 2014). Although the court did not specifically
address the tortious interference claims, the record and appellate briefing
support the conclusion that the court intended to effect a dismissal of all
claims against all defendants and, therefore, the court’s summary judgment
order was a final, appealable judgment. See Musa v. Adrian, 130 Ariz. 311,
312 (1981) (stating “the appellate court must determine that it has
jurisdiction,” which “is limited to final judgments which dispose of all
claims against all parties”) (citation omitted).
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MOTION TO DISMISS
¶5 Dreem Green moves to dismiss the appeal, arguing it is moot
because: (1) a settlement with Rush 702, Ltd., in a related case resolved
Calabrese’s claims against Dreem Green; and (2) the members of the Board
have been completely replaced pursuant to an order in a separate
receivership action. For the following reasons, we deny the motion.
¶6 First, Dreem Green offers no persuasive explanation how
Calabrese is bound by a settlement between Dreem Green and Rush 702.
See Sierra Tucson, Inc. v. Bergin, 239 Ariz. 507, 510, ¶ 7 (App. 2016)
(recognizing the “longstanding general rule that only parties to a contract
are subject to . . . its terms”) (citing Lofts at Fillmore Condo. Ass’n v. Reliance
Commercial Constr., Inc., 218 Ariz. 574, 575, ¶ 5 (2008), and Carroll v. Lee, 148
Ariz. 10, 13 (1986)). Although Dreem Green suggests Calabrese is an
associate of Rush 702 and his claims “are simply derivative of the settled
Rush 702 claims,” it offers no record support for either statement. Nor has
Dreem Green presented conclusive evidence the parties believe the Rush
702 litigation is resolved.5
¶7 Second, due process requires Calabrese have notice and a
meaningful opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319,
348-49 (1976) (citing Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-
72 (1951) (Frankfurter, J., concurring)); see also Emmett McLoughlin Realty,
Inc. v. Pima Cty., 212 Ariz. 351, 355, ¶ 17 (App. 2006) (citations omitted).
Dreem Green concedes Calabrese was not a party to the receivership case
but argues Calabrese had constructive notice of the receivership because his
current counsel represented Fortin therein. Dreem Green seemingly
implies that Calabrese, by virtue of his counsel’s involvement in the
receivership while representing a different client, could or should have
moved to intervene, and, because he did not, has no right to be heard on
issues decided therein. Notwithstanding the troublesome implications of
such an assertion, we will not address an argument not properly developed
or supported by legal authority. See Stafford v. Burns, 241 Ariz. 474, 483,
¶ 34 (App. 2017) (citing Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6
(App. 2007)).
5 Although a June 2015 notice of settlement filed in this appeal
indicated the Dreem Green Appellees and Calabrese had reached a
settlement, a stipulation to dismiss the appeal was not filed.
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DISCUSSION
I. Summary Judgment
¶8 On appeal, Calabrese first argues the trial court erred in
granting summary judgment in Fortin’s favor. A motion for summary
judgment should be granted “if the facts produced in support of the claim
or defense have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves,
166 Ariz. 301, 309 (1990); see also Ariz. R. Civ. P. 56(a) (“The court shall grant
summary judgment if the moving party shows that there is no genuine
dispute as to any material fact and the moving party is entitled to judgment
as a matter of law.”). We review de novo whether there are any genuine
issues of material fact and whether the court properly applied the law, as
well as questions of contract interpretation. Zivkovic, 232 Ariz. at 289, ¶ 10
(factual issues and application of the law) (citation omitted); Grubb & Ellis
Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 86, ¶ 12 (App. 2006)
(contract interpretation) (citation omitted). We will affirm the granting of a
motion for summary judgment if correct for any reason supported by the
record, “even if not explicitly considered by the superior court.”6 KB Home
Tucson, Inc. v. Charter Oak Fire Ins., 236 Ariz. 326, 329, ¶ 14 (App. 2014)
(citation omitted).
¶9 Specifically, Calabrese contends Fortin, acting on behalf of
Dreem Green, breached Calabrese’s contractual right to be on the Board.
However, even assuming this to be true, the plaintiff in a breach of contract
action has the burden of proving “the existence of a contract, its breach and
resulting damages.” Graham v. Asbury, 112 Ariz. 184, 185 (1975) (citing Clark
v. Compania Ganadera de Cananea, S.A., 95 Ariz. 90, 94 (1963)). Moreover, the
plaintiff must “show the amount of [his] damages with reasonable
certainty. [Although] ‘certainty in amount’ of damages is not essential to
recovery when the fact of damage is proven.” Gilmore v. Cohen, 95 Ariz. 34,
36 (1963) (citations omitted). Nonetheless, mere conjecture or speculation
cannot provide the basis for an award of damages; rather, “the evidence
must make an ‘approximately accurate estimate’ possible.” Id. (quoting
6 On this basis, we reject Calabrese’s argument that the trial court’s
failure to state the basis for its ruling constituted reversible error. See also
Ariz. R. Civ. P. 56(a) (stating “[t]he court should state on the record the
reasons for granting or denying the motion” for summary judgment, but
not requiring reasons be given) (emphasis added).
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McNutt Oil & Refining Co. v. D’Ascoli, 79 Ariz. 28, 34 (1955), and Martin v. La
Fon, 55 Ariz. 196, 200 (1940)).
¶10 Rappazzo argues summary judgment should be affirmed
because Calabrese waived any argument as to his contract damages by
failing to adequately address the issue in his opening brief. To preserve an
issue on appeal, an appellant is required to develop his arguments “and
support them with citations to the authorities, statutes and parts of the
record relied on.” In re Aubuchon, 233 Ariz. 62, 64, ¶ 6 (2013) (internal
quotation and citation omitted); see also ARCAP 13(a)(7)(A) (requiring an
opening brief to include an “‘argument’ that must contain: . . . [the
a]ppellant’s contentions concerning each issue presented for review, with
supporting reasons for each contention, and with citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies”). “Merely mentioning an argument is not
enough: ‘In Arizona, opening briefs must present significant arguments,
supported by authority, setting forth an appellant’s position on the issues
raised. Failure to argue a claim usually constitutes abandonment and
waiver of that claim.’” State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004)
(quoting State v. Carver, 160 Ariz. 167, 175 (1989)).
¶11 Calabrese has failed to properly address the existence or
amount of his contractual damages beyond a passing mention in his
opening brief. The argument he does present is conclusory and speculative,
and does not approach “an approximately accurate estimate”; his argument
is therefore insufficient to raise the issue. Moreover, the meager portion of
the record to which Calabrese cites as support actually controverts his
position and tends to further demonstrate his inability to prove damages
with reasonable certainty. We thus find Calabrese has waived review of
summary judgment on his claims for breach of contract.
¶12 Calabrese’s failure to argue his damages on appeal is likewise
detrimental to his claims for tortious interference. To prove a claim for
tortious interference with either contractual relations or business
expectancies, a plaintiff must show “resultant damage to the party whose
relationship or expectancy has been disrupted.” Neonatology Assocs., Ltd. v.
Phx. Perinatal Assocs. Inc., 216 Ariz. 185, 187, ¶ 7 (App. 2007) (contractual
relations) (quoting Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of
Governors, 184 Ariz. 419, 427 (App. 1995)); Dube v. Likins, 216 Ariz. 406, 412,
¶ 14 (App. 2007) (business expectancy) (citing Miller v. Hehlen, 209 Ariz. 462,
471, ¶ 32 (App. 2005)). Because Calabrese has waived his claim for
damages, see supra ¶ 11, his claims for tortious interference fail.
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II. Attorneys’ Fees
¶13 Calabrese argues the trial court erred in awarding Fortin
attorneys’ fees. Fortin did not file an answering brief. “[W]hen an appellant
raises a debatable issue, the court, in its discretion, may find that an
appellee’s failure to file an answering brief constitutes a confession of
error.” State ex rel. McDougall v. Superior Court, 174 Ariz. 450, 452 (App.
1993) (citing State v. Greenlee Cty. Justice Court, Precinct 2, 157 Ariz. 270, 271
(App. 1988)). We find such a confession here, and, accordingly, vacate the
award of attorneys’ fees to Fortin.
CONCLUSION
¶14 The trial court’s order granting summary judgment in favor
of Appellees is affirmed. The award of attorneys’ fees to Fortin is vacated.
¶15 Both Calabrese and Dreem Green request attorneys’ fees on
appeal pursuant to A.R.S. § 12-341.01(A) (authorizing the court to award
reasonable attorneys’ fees to the successful party in an action arising out of
contract). Calabrese is not the successful party and is not eligible for an
award of fees. In our discretion, we deny Dreem Green’s request.
However, as the successful parties, Appellees are awarded their costs
incurred on appeal upon compliance with ARCAP 21(b).
AMY M. WOOD • Clerk of the Court
FILED: AA
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