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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KETTI MCCORMICK, PLLC, et al., Defendants/Appellees.
No. 1 CA-CV 23-0054
FILED 8-22-2023
Appeal from the Superior Court in Maricopa County
No. CV2021-012469
The Honorable Scott A. Blaney, Judge
DISMISSED IN PART; AFFIRMED IN PART
COUNSEL
John Danko, III, Mesa
Plaintiff/Appellant
Zelms Erlich & Mack, Phoenix
By Robert B. Zelms, Samantha J. Sawyer
Counsel for Defendants/Appellees Ketti McCormick and Ketti McCormick, PLLC
Gordon Rees Scully Mansukhani, LLP, Phoenix
By Kira N. Barrett, Daryl R. Wilson
Counsel for Defendants/Appellees Sally Colton and Cordell & Cordell PC
DANKO v. MCCORMICK, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge D. Steven Williams and Judge Samuel A. Thumma joined.
M c M U R D I E, Judge:
¶1 Plaintiff John Danko, III, appeals from the superior court’s
order denying his motion for relief from judgment. We dismiss in part for
lack of appellate jurisdiction. To the extent that we have appellate
jurisdiction, we find no error and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2017, Ketti McCormick and her law firm, Ketti McCormick,
PLLC, (together, “McCormick”), represented Danko in a dissolution action.
McCormick later withdrew from representation. After proceeding without
representation for some time, Danko hired Sally Colton and Cordell &
Cordell, PC, (together, “Cordell”) to represent him in post-dissolution
proceedings. Eventually, Danko filed a motion for relief from judgment,
which the superior court denied, leaving Danko until September 12, 2018,
to file a notice of appeal. He filed a notice of appeal on September 13. On
August 27, 2019, this court dismissed the appeal for lack of jurisdiction
because the filing was untimely.
¶3 Unsatisfied with his representation throughout the
dissolution proceedings, Danko sued McCormick and Cordell on August
11, 2021. In his first amended complaint, Danko alleged a malpractice claim
against McCormick, and “professional negligence” and breach of contract
claims against Cordell.
¶4 McCormick and Cordell moved to dismiss the first amended
complaint. The superior court granted Danko ten days to move for leave to
amend the complaint. Two days later, however, the superior court denied
Cordell’s motion to dismiss but granted McCormick’s, concluding that the
claim against McCormick was time-barred. Rather than file a motion for
leave to amend, over the next several months Danko filed a “second”
amended complaint multiple times. Cordell moved to dismiss the second
amended complaint.
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DANKO v. MCCORMICK, et al.
Decision of the Court
¶5 The superior court signed a final judgment under Arizona
Rule of Civil Procedure (“Rule”) 54(b) in favor of McCormick, dismissing
the first amended complaint about McCormick. The court also granted
Cordell’s motion to dismiss the second amended complaint because Danko
had not complied with the court’s orders. Danko moved for relief from both
rulings.
¶6 On January 26, 2023, the superior court denied both of
Danko’s motions for relief in two separate, unsigned minute entries. Danko
then filed multiple identical notices of appeal, appealing “from the
Judgment entered on 26 January 2023” in favor of McCormick and Cordell.
We stayed the appeal against McCormick because Danko appealed before
the court signed its rulings on the motion for relief. And we dismissed the
appeal against Cordell as premature because the court had not yet issued a
final judgment. See Danko v. McCormick, 1 CA-CV 23-0108.
¶7 Danko moved for the superior court to sign the orders, and
on February 16, 2023, the court added its signature to the order granting
Cordell’s motion to dismiss. Danko again filed multiple identical notices of
appeal, appealing “from the Judgment entered on 16 February 2023” in
favor of McCormick and Cordell. We continued the stay of the appeal
against McCormick because the superior court had still not signed a ruling
on the motion for relief from the McCormick judgment.
¶8 The superior court then added its signature to the order
denying Danko’s motion for relief from the McCormick judgment. Danko
appealed against McCormick and Cordell.
DISCUSSION
¶9 Danko’s latest notice of appeal purports to appeal judgments
entered in favor of McCormick and Cordell. But the superior court has not
entered a final judgment for Cordell. Although the superior court granted
Cordell’s motion to dismiss Danko’s second amended complaint, it denied
Cordell’s motion to dismiss Danko’s first amended complaint, which
remains operative. In fact, the superior court has since stayed the
proceedings, something it could not do if a judgment had been entered and
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DANKO v. MCCORMICK, et al.
Decision of the Court
appealed.1 Without a final judgment about Cordell, any appeal against
Cordell is premature. See Camasura v. Camasura, 238 Ariz. 179, 181 (App.
2015). We, therefore, lack jurisdiction to consider the arguments against
Cordell. Id. Thus we dismiss the appeal against Cordell without prejudice
for lack of jurisdiction.
¶10 We have jurisdiction to consider the appeal against
McCormick under A.R.S. § 12-2101(A)(1) and (2).
A. Most of Danko’s Arguments Are Irrelevant to the Appeal.
¶11 Danko raises at least 15 issues in his opening brief, most of
which pertain only to Cordell or are otherwise irrelevant to the judgment
before us. First, Danko argues the court erred by allowing him to file a
second amended complaint before retracting its permission and dismissing
it. He also challenges the court’s finding that he is “an intelligent, educated,
sophisticated litigant.” But the court only permitted Danko to file a motion
for leave to amend; it did not grant leave to file a second amended
complaint. The court’s observation about his intelligence related to Danko’s
ability to understand the court’s instructions. In any event, the court’s
dismissal of the second amended complaint related only to Cordell, so we
will not address the arguments further.
¶12 Danko next argues the court erred by dismissing the case
without an evidentiary hearing or expert testimony. But these arguments
are irrelevant to the appeal, which arose from a motion to dismiss, arguing
Danko failed to state a claim upon which relief could be granted. The
complaint’s dismissal thus does not turn on evidentiary issues. See Ariz. R.
Civ. P. 12(b)(6); Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012) (Courts
adjudicate Rule 12(b)(6) motions by looking only to the pleadings.).
¶13 Danko then makes several arguments about Arizona’s
personal jurisdiction over “Defendants.” However, he refers to parties and
claims involved in the dissolution proceeding or other cases, not this case.
1 Danko’s original counsel in the matters before us moved to
withdraw shortly after he filed the first amended complaint. Danko then
filed suit against that counsel. See Maricopa County Cause No.
CV2022-092712. In that case, the superior court designated Danko a
vexatious litigant. Danko appealed the ruling. See Danko v. Dessaules,
1 CA-CV 23-0017. The superior court stayed the proceedings while the
vexatious litigant appeal remains pending.
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DANKO v. MCCORMICK, et al.
Decision of the Court
In this case, the parties do not dispute personal jurisdiction, and the claims
from different cases are not before us. These arguments provide no basis
for relief here.
B. The Superior Court Correctly Dismissed the First Amended
Complaint Against McCormick Based on the Statute of Limitation.
¶14 The superior court dismissed Danko’s first amended
complaint because the statute of limitation had run. Danko argues the
superior court applied the wrong dates to its analysis and that he filed
within the prescribed time limit.
¶15 Danko alleged “professional malpractice” against
McCormick. In Arizona, plaintiffs generally must bring claims for legal
malpractice “within two years after the cause of action accrues.” A.R.S.
§ 12-542(1); Cannon v. Hirsch L. Off., P.C., 222 Ariz. 171, 174, ¶ 8 (App. 2009).
“A claim for legal malpractice accrues when: (1) the plaintiff knows or
reasonably should know of the attorney’s negligent conduct; and (2) the
plaintiff’s damages are ascertainable, and not speculative or contingent.”
Kiley v. Jennings, Strouss & Salmon, 187 Ariz. 136, 139 (App. 1996).
¶16 The parties do not dispute the first prong. The alleged
negligent conduct relates to McCormick’s representation and withdrawal
from the dissolution action in 2017. Danko filed a motion for relief from
judgment in June 2018. As a result, the superior court found that Danko
knew or should have known of McCormick’s alleged negligence by June
2018. Danko does not argue otherwise.
¶17 The parties disagree only on the second prong—when
Danko’s damages became “ascertainable.” See Kiley, 187 Ariz. at 139. In the
litigation context, malpractice damages are “not ascertainable until the
appellate process is completed or is waived by a failure to appeal.” Amfac
Distrib. Corp. v. Miller (Amfac II), 138 Ariz. 152, 154 (1983). This is because
“[a]pparent damage may vanish with successful prosecution of an appeal
and ultimate vindication of the attorney’s conduct by an appellate court.”
Amfac Distrib. Corp. v. Miller (Amfac I), 138 Ariz. 155, 156 (App. 1983).
¶18 The superior court found that Danko’s “damages became
ascertainable on September 13, 2018; the day after he waived the appellate
process by failing to timely file an appeal.” Danko argues that, under Joel
Erik Thompson, Ltd. v. Holder, 192 Ariz. 348 (App. 1998), his damages did not
become ascertainable until the appellate process concluded on August 27,
2019, when this court dismissed the late appeal. In Joel Erik Thompson, we
held that if a party does not petition to the supreme court, the appellate
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DANKO v. MCCORMICK, et al.
Decision of the Court
process concludes when this court issues its mandate, not when the time to
petition to the supreme court has run. 192 Ariz. at 350–51, ¶¶ 13, 18. Danko
argues that, like the issuance of a mandate, our order dismissing his
untimely appeal concluded the appellate process.
¶19 Danko’s reliance on Joel Erik Thompson conflates the two
distinct scenarios in which damages become ascertainable: either (1) the
appellate process concludes or (2) the appellate process is waived. See
Amfac II, 138 Ariz. at 154. We disagree with Danko that this case turns on
the appellate process’s conclusion because the appellate process never
began.
¶20 Danko’s untimely appeal did not begin the appellate process
because when an “appeal is not timely filed, the appellate court acquires no
jurisdiction other than to dismiss the attempted appeal.” Edwards v. Young,
107 Ariz. 283, 284 (1971). Thus, when this court issued the order dismissing
the appeal, it essentially completed a ministerial act. See Blankenbaker v.
Marks, 231 Ariz. 575, 577, ¶ 7 (App. 2013). Our dismissal order did not mark
the end of the appellate process but noted that no appellate process had
begun. When Danko failed to file his appeal timely, he “waived [the
appellate process] by a failure to appeal.” See Amfac II, 138 Ariz. at 154.
¶21 We know that avenues exist for litigants to extend the time to
file an appeal. See, e.g., ARCAP 9(f) (The superior court may reopen the time
to file an appeal if the party did not receive notice of the entry of judgment.);
Chung v. Choulet, 248 Ariz. 236, 239, ¶ 8 (2020) (“[A] party may request that
a judgment be set aside for purposes of taking a delayed appeal under Rule
60(b).”). As a result, our decision here does not hold that damages always
become ascertainable when the time to appeal has passed. But here, Danko
informed the superior court that when he and his attorney received the
motion to dismiss, they determined they could not salvage the appeal.
Effectively, Danko conceded that, by filing late, he had precluded any
possibility that the alleged “damage may vanish with successful
prosecution of an appeal.” See Amfac I, 138 Ariz. at 156. Thus, Danko’s
damages became ascertainable on September 13, 2018, when the time to
appeal had run, and he had no available avenues to extend the time limit.
¶22 Because Danko knew or should have known of McCormick’s
negligent conduct, his claim against McCormick accrued when his damages
became ascertainable on September 13, 2018. Danko filed suit against
McCormick on August 11, 2021, more than two years after his claim accrued
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DANKO v. MCCORMICK, et al.
Decision of the Court
and the statute of limitation began to run.2 Thus, Danko’s claim against
McCormick was barred by A.R.S. § 12-542(1), and the superior court
correctly dismissed it.
C. The Superior Court Did Not Commit Reversible Error by Granting
McCormick’s Motion to Dismiss Despite McCormick’s Failure to Attach
a Good Faith Consultation Certificate.
¶23 Finally, Danko argues that the court erred by granting
McCormick’s motion to dismiss because McCormick did not attach a
good-faith consultation certificate as required by Rule 12(j).
¶24 Rule 12(j) requires any party seeking dismissal under Rule
12(b)(6) to attach to its motion a good-faith consultation certificate under
Rule 7.1(h). The certificate must certify that the movant tried to resolve the
issue by conferring with or attempting to confer with the opposing party.
Ariz. R. Civ. P. 7.1(h). Although Danko is correct that McCormick erred by
failing to attach any such certificate or statement, the Rules do not set forth
consequences for noncompliance.
¶25 Courts “must disregard all errors and defects that do not
affect any party’s substantial rights.” Ariz. R. Civ. P. 61. Thus, any error is
considered harmless and is not reversible unless it prejudices the
substantial rights of a party. Creach v. Angulo, 189 Ariz. 212, 214–15 (1997).
¶26 Danko makes no argument that McCormick’s noncompliance
with Rule 12(j) prejudiced him, nor does any prejudice appear from the
record. In fact, because McCormick’s motion was based on the statute of
limitation, any consultation on the issue likely would have been futile.
Danko has “shown no prejudice and merely demand[s] compliance with a
technical rule.” Creach, 189 Ariz. at 216. The error was harmless and does
not warrant reversal.
2 Although the statute of limitation typically begins to run upon
accrual, we note that sometimes the statute of limitation may be tolled
despite the claim’s accrual. See Amfac I, 138 Ariz. at 156, n.1; Jackson v. Am.
Credit Bureau, Inc., 23 Ariz. App. 199, 202 (1975) (For example, the statute of
limitation may be tolled if the defendant’s conduct is “directed to obtaining
the delay of which he actively seeks to take advantage by pleading the
statute.”).
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DANKO v. MCCORMICK, et al.
Decision of the Court
ATTORNEY’S FEES
¶27 McCormick and Cordell request their fees and costs on
appeal. As the successful parties, we award costs upon compliance with
ARCAP 21. Per our discretion, we decline to award attorney’s fees.
CONCLUSION
¶28 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
8