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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ERICA LEANN GADBERRY LEAVITT, et al., Defendants/Appellees.
No. 1 CA-CV 22-0525
FILED 8-17-2023
Appeal from the Superior Court in Maricopa County
No. CV2022-091257
The Honorable Stephen M. Hopkins, Judge, Retired
AFFIRMED
COUNSEL
John Danko, III, Mesa
Plaintiff/Appellant
Erica Leavitt, Scottsdale
Defendant/Appellee
DANKO v. LEAVITT, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Cynthia J. Bailey joined.
F U R U Y A, Judge:
¶1 John Danko, III appeals a superior court order dismissing his
amended complaint against Erica Leavitt and the Berkshire Law Firm
(collectively, “Appellees”) for failure to state a claim upon which relief can
be granted. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Leavitt is an attorney licensed to practice law in the state of
Arizona. Before the present action, she represented parties opposed to
Danko in a family law case.
¶3 Danko filed his first complaint against Leavitt in March 2022,
primarily alleging defamation, slander, and libel. He also claimed Leavitt
committed numerous other torts against him but did not plead any
accompanying facts.
¶4 Leavitt filed a motion to dismiss for failure to state a claim for
relief, arguing the absolute litigation privilege precluded Danko’s claims
for defamation, slander, and libel. Danko filed a response to the motion to
dismiss and then filed an amended complaint in April 2022 which
purported to add the Berkshire Law Firm as a defendant and requested an
award of over $2.5 million, although the record does not reflect he served
the amended complaint on the Berkshire Law Firm.
¶5 The superior court agreed with Leavitt’s motion and
dismissed the defamation, slander, and libel claims with prejudice in May
2022. It further found Danko had not sufficiently pleaded facts to support
any of his other claims and dismissed them with prejudice as well.
¶6 Danko filed a motion for reconsideration which the court
denied, and the court later entered final judgment against him in December
2022. He timely appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) §§ 12-120.21(A), and 12-2101(A).
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DANKO v. LEAVITT, et al.
Decision of the Court
DISCUSSION
¶7 On appeal, Leavitt asks that we dismiss Danko’s appeal
because his opening brief is deficient under Arizona Rule of Civil Appellate
Procedure (“ARCAP”) 13. In his reply brief, Danko asks for leniency given
his status as a non-attorney, self-represented litigant and because he
believes his claims should not be dismissed because of “meaningless” rules.
¶8 Far from “meaningless,” our supreme court has adopted rules
parties must follow to bring or pursue an appeal to achieve a just, orderly,
and expeditious disposition thereof. See ARCAP 1–31. In furtherance of
these goals, we have “a responsibility to see that litigants conform to an
acceptable, minimal level of competency and performance and we owe this
responsibility to the judiciary, the bar and, more importantly, to all litigants
and the people as a whole.” Ramos v. Nichols, 252 Ariz. 519, 522 ¶ 8 (App.
2022) (cleaned up) (citation omitted). “An appellant who fails to make a
bona fide and reasonably intelligent effort to comply with the rules will
waive issues and arguments.” Id. (cleaned up) (citation omitted). Further,
we hold litigants like Danko who choose to proceed without representation
to the same standards as attorneys. Id. Indeed, requiring a reviewing court
to expend significant time and effort to make a party’s arguments for them
not only wastes finite judicial resources, but is additionally improper
because it trespasses dangerously close to the realm of impermissible
advocacy. See Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143 (App.
1987) (“It is not incumbent upon the court to develop an argument for a
party.”).
¶9 Relevant here, an appellant’s opening brief must include,
among other things: a “table of citations” with references to where in the
brief each authority in the table appears; a “‘statement of facts’ that are
relevant to the issues presented . . . with appropriate references to the
record”; and an “argument” with appropriate supporting references to the
record, legal authority, and the applicable standard of appellate review.
ARCAP 13(a)(2), (5), (7).
¶10 Although Danko’s opening brief includes a nominal “table of
citations” purporting to list legal authorities, the cases recited do not have
volume or case numbers and he does not explain how or where any of these
legal authorities apply to the arguments in his brief. See ARCAP 13(f)
(references to case law must include the volume and case number, among
other things as applicable). Additionally, Danko’s statement of facts
includes numerous irrelevant “facts” concerning non-parties and
altogether fails to provide any citations to the record. Moreover, his
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DANKO v. LEAVITT, et al.
Decision of the Court
argument section lacks citations to the record, legal authority, or a
statement of the applicable standard of review. See MacMillan v. Schwartz,
226 Ariz. 584, 591 ¶ 33 (App. 2011) (“Merely mentioning an argument in an
appellate opening brief is insufficient.”). Danko’s brief, thus, is entirely
inadequate to comply with ARCAP 13.
¶11 Accordingly, we hold Danko has waived all issues not
properly presented because of the grave deficiencies of his opening brief
and has therefore abandoned this appeal. See Schabel v. Deer Valley Unified
Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996) (“Issues not clearly raised
and argued in a party’s appellate brief are waived.”); Ramos, 252 Ariz. at
523 ¶ 11 (holding waiver of all appealable issues constitutes abandonment
of appeal).
CONCLUSION
¶12 We affirm.
¶13 As the prevailing party on appeal, we award Appellees their
taxable costs upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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