Danko v. Dessaules ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JOHN DANKO, III, Plaintiff/Appellant,
v.
JONATHAN ADAM DESSAULES, et al., Defendants/Appellees.
No. 1 CA-CV 23-0017
FILED 8-15-2023
Appeal from the Superior Court in Maricopa County
No. CV2022-092712
The Honorable Peter A. Thompson, Judge
AFFIRMED
COUNSEL
John Danko, III, Mesa
Plaintiff/Appellant
Dessaules Law Group, Phoenix
By Jonathan A. Dessaules, Douglas Imperi
Counsel for Defendants/Appellees
DANKO v. DESSAULES, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Maria Elena Cruz joined.
C A T L E T T, Judge:
¶1 John Danko, III (“Danko”) appeals a superior court order
declaring him a vexatious litigant. Because Danko failed to include
citations to the superior court record or legal authority and failed to make
any legal arguments explaining how the court erred in its determination,
we conclude that Danko waived the issue. Consequently, we affirm the
superior court’s order.
FACTS AND PROCEDURAL HISTORY
¶2 Danko and his former wife began marriage dissolution
proceedings in January 2016. [I. 61 at 2] That litigation has sparked over
forty additional lawsuits in Arizona courts, many of which are against
attorneys who Danko retained in the dissolution matter or to bring civil
lawsuits on his behalf. [I. 61 at 2]
¶3 Danko filed the complaint underlying this appeal against his
former attorneys Jonathan Dessaules, Douglas Imperi Jr., and Dessaules
Law Firm (collectively “Dessaules”), alleging Dessaules agreed to represent
him in a legal malpractice lawsuit and accepted money for the
representation, then never performed the work and withdrew without
telling him. The complaint included numerous causes of action including
breach of contract, fraud, malpractice, negligence, defamation, trespass,
false light, invasion of privacy, abuse of process, conversion, assault,
battery, nuisance, intentional infliction of emotional distress, negligent
infliction of emotional distress, breach of confidence, and breach of
promise.
¶4 Dessaules moved to dismiss, arguing, among other things,
that Danko did not file an expert affidavit required to bring a malpractice
action. See A.R.S. § 12-2601. Dessaules also moved under A.R.S. § 12-3201
to declare Danko a vexatious litigant. Danko filed multiple responses
opposing the motion.
¶5 The superior court issued an order declaring Danko a
vexatious litigant. The court noted that Danko had, at that time, filed over
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Decision of the Court
forty lawsuits, 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.” While
the court recognized the sheer number of lawsuits alone was insufficient to
“warrant [a] designation as litigious,” the court noted the “develop[ing]
trend in the lawsuits that indicates that court involvement is appropriate
even though many of the cases have not been adjudicated.”
¶6 The court explained that every one of Danko’s complaints
alleging professional malpractice lacked the required affidavit, thereby
compelling defendants to engage in the expense of litigation to defend a
case which had yet to meet the initial pleading requirements. The
complaints also generally failed to state facts and law sufficient to support
Danko’s other causes of action. The various superior court judges
overseeing those matters provided Danko with an opportunity to amend
his complaint, yet “[r]ather than learning from the rulings and holdings in
the cases which are being adjudicated . . . [Danko] continue[d] to argue and
urge Motions for Reconsideration, Motions for Relief From Judgment and
appeals of rulings that point out the legal insufficiency of his positions.”
¶7 The court, therefore, concluded “there must be some restraint
regarding new filings in Civil Court to ensure cases to be filed have a
concisely plead basis in fact and law,” found Danko to be a vexatious
litigant, and ordered that Danko is not permitted to “file any new pleading,
motion or other document in this case or any other pending civil action
without prior leave of the judge assigned to that case.”
¶8 Danko timely appealed the vexatious-litigant order. Because
this Court treats such an order as a grant of injunctive relief, we have
jurisdiction pursuant to A.R.S. § 12-2101(A)(5)(b). See Madison v. Groseth,
230 Ariz. 8, 13 ¶ 16 n.8 (App. 2012).
DISCUSSION
¶9 Danko argues the superior court erred when it designated
him a vexatious litigant.1 Dessaules argues Danko waived his challenge to
1 Danko makes several arguments addressing issues beyond the
superior court’s order on appeal. But we have jurisdiction over only the
court’s judgment entered pursuant to Rule 54(b) relating to the vexatious
litigant designation. See City of Tucson v. Clear Channel Outdoor, Inc., 218
Ariz. 172, 177 ¶ 4 n.1 (App. 2008).
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DANKO v. DESSAULES, et al.
Decision of the Court
the propriety of the vexatious litigant order because Danko failed to cite
any legal authority or the record.
¶10 If a “pro se litigant engage[s] in vexatious conduct,” the
superior court may designate him a vexatious litigant. A.R.S. § 12-3201(C).
In such cases, the litigant “may not file a new pleading, motion or other
document without prior leave of the court.” A.R.S. § 12-3201(B); Madison,
230 Ariz. at 14 ¶ 17. As a grant of injunctive relief, we review a vexatious-
litigant order for an abuse of discretion. See Madison, 230 Ariz. at 13 ¶ 16
n.8; see also Ahwatukee Custom Est. Mgmt. Ass’n v. Turner, 196 Ariz. 631, 633–
34 ¶ 5 (App. 2000).
¶11 Any party aggrieved by a civil judgment may appeal. Ariz.
R. Civ. App. P. 1(d). To maintain an appeal, an appellant must comply with
the Rules of Civil Appellate Procedure. Failure to make a “bona fide and
reasonably intelligent effort to comply with the rules” results in “waive[r]
[of] those arguments not supported by adequate explanation, citations to
the record, or authority.” In re Aubuchon, 233 Ariz. 62, 64–65 ¶ 6 (2013).
¶12 ARCAP 13(a)(4) requires an opening brief to contain a
“‘statement of the case’ that must concisely state the nature of the case, the
course of the proceedings, the disposition in the court from which the
appeal is taken, and the basis of the appellate court’s jurisdiction.” The brief
must also include a “‘statement of facts’ that are relevant to the issues
presented for review[.]” Ariz. R. Civ. App. P. 13(a)(5). And both must
include “appropriate references to the record.” Ariz. R. Civ. App. P.
13(a)(4)-(5). Finally, the brief must include an “argument” section with the
“contentions concerning each issue presented for review, with supporting
reasons for each contention, and with citations of legal authority and
appropriate references to the portions of the record” relied on. Ariz. R. Civ. App.
P. 13(a)(7)(A) (emphasis added). We “hold unrepresented litigants in
Arizona to the same standards as attorneys and do not afford them special
leniency.” Ramos v. Nichols, 252 Ariz. 519, 522 ¶ 8 (App. 2022).
¶13 After reviewing the opening brief, we conclude Danko failed
to provide a bona fide and reasonably intelligent effort to comply with Rule
13, and he has therefore waived the issue presented on appeal. Contrary to
the Rules of Civil Appellate Procedure, Danko’s opening brief does not
include a single case or record citation, nor does it include any substantive
argument explaining how the superior court erred or abused its discretion.
¶14 Danko argues the superior court erred by concluding that he
engaged in vexatious conduct. Yet, in support of that argument, Danko
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includes only bare assertions that he “has committed no repeated filings
without substantial justification” and “allege[d] causes of action which are
supported by facts” and law. And Danko fails to include any legal
authority or record citation to support the argument. Conclusory
statements merely declaring the opposite of what the superior court found
without further support are insufficient to preserve an argument for appeal.
Danko has, therefore, waived the only claim or error he raises on appeal—
that the trial court erred in declaring him a vexatious litigant.
¶15 Notwithstanding waiver, we have reviewed the record and
conclude the superior court complied with the requirements to properly
designate Danko a vexatious litigant and did not otherwise abuse its
discretion in any manner. See Madison, 230 Ariz. at 14 ¶ 18.
CONCLUSION
¶16 We affirm the superior court’s order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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