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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KATHRINE ANN PY WAINSCOTT, et al., Defendants/Appellees.
No. 1 CA-CV 22-0534
FILED 8-22-2023
Appeal from the Superior Court in Maricopa County
No. CV2022-091377
The Honorable Stephen M. Hopkins, Judge Retired
AFFIRMED
COUNSEL
John Danko III, Mesa
Plaintiff/Appellant
Lewis Brisbois Bisgaard & Smith LLP, Phoenix
By Sean P. Healy, Adam S. Polson
Counsel for Defendant/Appellee
DANKO v. WAINSCOTT, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Vice
Chief Judge Randall M. Howe and Judge Daniel J. Kiley joined.
P E R K I N S, Judge:
¶1 John Danko III appeals the superior court’s dismissal of his
complaint against Katherine and James Wainscott and Bloodhound
Investigative Services, Inc. (collectively, “the Wainscotts”). We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Danko sued the Wainscotts and several other defendants who
are not parties in this appeal. He alleged that the defendants committed
intentional torts against his person and property, broke into and entered his
home on multiple occasions, stole his mail and garbage, illegally recorded
Danko at his home, made false and degrading statements against him, and
continuously harassed him. Danko alleged generally that these events
occurred in Maricopa County, and that the defendants conduct business in
the state. His complaint did not include supporting documentation.
¶3 The Wainscotts moved to dismiss Danko’s complaint for lack
of personal jurisdiction. See Ariz. R. Civ. P. 12(b)(2). They argued Danko’s
allegations are “completely false and there has been no injury or such an
event occurring in Arizona or elsewhere.”
¶4 In her attached declaration, Katherine stated the Wainscotts
are residents of South Carolina and owners of Bloodhound, a Georgia
corporation doing business in South Carolina. She asserted that the couple
does not live in or conduct business in Arizona, does not own any real or
personal property in Arizona, has never been to Danko’s Arizona home,
and never committed any of the alleged activities in Danko’s complaint.
¶5 Katherine also contended her only interaction with Danko
was in July 2018, after an attorney hired her to serve Danko at a residence
in Mount Pleasant, South Carolina, with family court documents. Upon
service, Katherine stated, Danko became “irate” and shoved her, causing
her to fall to the ground and sustain injuries.
¶6 In response to the Wainscotts’ motion, Danko alleged the
couple conducted business in Arizona and “did stalk, harass, threaten,
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DANKO v. WAINSCOTT, et al.
Decision of the Court
batter, and assault [Danko], all of which occurred in Arizona,” and thus the
exercise of personal jurisdiction is proper. In his supporting declaration,
Danko asserted that the “Wainscotts and three members of Bloodhound”
broke into his home, assaulted him, stole some of his property and
damaged other property, and committed other wrongful acts at his home.
Danko also attached several exhibits to his response, including pictures of
a broken mailbox at a South Carolina address.
¶7 Having considered the parties’ declarations and exhibits, the
superior court converted the motion to dismiss to a motion for summary
judgment. The court found Danko’s allegations were “conclusory” and
failed to establish that the Wainscotts have sufficient minimum contacts
with the state for jurisdictional purposes. The court granted the Wainscotts’
motion, ruling that they “did not perform an act within Arizona, and cannot
be seen to have ‘Arizona-related’ activities merely because [Danko] is a
resident of Arizona,” and thus the exercise of personal jurisdiction under
these facts would be “manifestly unreasonable.”
¶8 Danko moved for reconsideration and, for the first time,
requested an evidentiary hearing, which the superior court denied. The
court ultimately entered a signed judgment under Ariz. R. Civ. P. 54(c),
dismissing Danko’s complaint. Danko timely appealed, and we have
jurisdiction. A.R.S. § 12-2101(A)(1).
DISCUSSION
¶9 Danko argues the Wainscotts had sufficient minimum
contacts with Arizona necessary to support personal jurisdiction. We
review the superior court’s personal jurisdiction conclusions de novo,
Beverage v. Pullman & Comley, LLC, 232 Ariz. 414, 417, ¶ 10 (App. 2013),
“viewing the facts in the light most favorable to [Danko] but accepting as
true the uncontradicted facts put forward by [the Wainscotts],” Planning
Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262,
264, ¶ 2 n.1 (2011).
¶10 Arizona courts may exercise personal jurisdiction over
litigants “to the maximum extent permitted by the Arizona Constitution
and the United States Constitution.” Ariz. R. Civ. P. 4.2(a); Planning Grp.,
226 Ariz. at 265, ¶ 12. Personal jurisdiction may be general or specific.
Planning Grp., 226 Ariz. at 265, ¶ 13. General jurisdiction “extends to any
and all claims brought against a defendant,” but “[o]nly a select set of
affiliations with a forum will expose a defendant to such sweeping
jurisdiction.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017,
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DANKO v. WAINSCOTT, et al.
Decision of the Court
1024 (2011). The record contains no evidence showing the Wainscotts had
any contacts so “continuous and systematic as to render [them] essentially
at home” in Arizona. Wal-Mart Stores, Inc. v. LeMaire, 242 Ariz. 357, 359, ¶ 4
(App. 2017).
¶11 Specific jurisdiction “exists only for the particular claim
asserted” and only when the defendant’s “activities in the forum state
giving rise to the claim establish the necessary minimum contacts with the
state to make the exercise of jurisdiction reasonable and just.” Hoag v.
French, 238 Ariz. 118, 122, ¶ 19 (App. 2015). Specific jurisdiction requires
“sufficient contacts” demonstrating (1) purposeful conduct by the
defendant targeting the forum, rather than accidental or causal contacts or
those brought about by the plaintiff’s unilateral contacts, (2) a nexus
between those contacts and the claim asserted, and (3) that exercise of
jurisdiction would be reasonable. See Planning Grp., 226 Ariz. at 265–70, ¶¶
13, 16, 25, 29, 37; Williams v. Lakeview Co., 199 Ariz. 1, 4, ¶ 11 (2000). Courts
may only exercise specific jurisdiction if the defendant’s activities in the
forum state are related to the plaintiff’s cause of action. Id.
¶12 The record contains no evidence showing the Wainscotts ever
directed business activity toward Arizona, visited Danko’s Arizona home,
or committed an injury here. “[I]t is not enough that a defendant know that
he is dealing with an Arizona resident then located in another state; the
requisite activity must instead be purposefully directed at the forum.”
Planning Grp., 226 Ariz. at 271, ¶ 41. And specific jurisdiction is not
warranted based on facts arising from Danko’s conduct. Williams, 199 Ariz.
at 3, ¶ 7.
¶13 In his complaint, Danko alleges that he resides in Maricopa
County and that the incidents occurred at his home. But he makes no
assertion in his sworn declaration that the incidents occurred at his Arizona
home. His unsworn statements regarding his current residency are
insufficient to controvert the facts alleged in Katherine’s declaration
denying that the Wainscotts engaged in business or committed any tortious
act in Arizona. See McCleary v. Tripodi, 243 Ariz. 197, 201, ¶ 21 (App. 2017)
(“unsworn and unproven assertions of fact are insufficient” to defeat
summary judgment); GM Dev. Corp. v. Community Am. Mortg. Corp., 165
Ariz. 1, 6 (App. 1990) (affirming summary judgment where the non-moving
party’s affidavit in opposition to the motion did not “controvert the prima
facie showing established in the affidavits supporting” the moving party’s
motion, and the non-moving party’s “written response” to the motion
“contains unsworn, unproven, and somewhat argumentative statements of
fact”).
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DANKO v. WAINSCOTT, et al.
Decision of the Court
¶14 Danko also argues that he has been deprived of the
opportunity to present evidence at a hearing, but he submitted numerous
exhibits, which the superior court considered. He fails to identify any new
or different evidence supporting jurisdiction that he would have provided
during a hearing. He did not request an evidentiary hearing until after the
court had granted the Wainscotts’ motion, and so his belated request was
untimely.
¶15 Because the Wainscotts challenged personal jurisdiction,
Danko cannot merely rest on the bare allegations in his complaint; he “must
come forward with facts, established by affidavit or otherwise, supporting
jurisdiction.” In re Marriage of Peck, 242 Ariz. 345, 348, ¶ 7 (App. 2017). He
failed to do so. The superior court did not err in dismissing the complaint
for lack of personal jurisdiction.
¶16 Both parties request legal fees incurred on appeal pursuant to
ARCAP 21. Danko asserts the Wainscotts’ motion to dismiss is frivolous.
We disagree and deny his request.
¶17 The Wainscotts cite to A.R.S. §§ 12-341 and 12-341.01 as
substantive authority for their fee award, but there is no contract at issue
here supporting an award under A.R.S. § 12-341.01. We deny the
Wainscotts’ request because they failed to specifically state the appropriate
authority for their fees. See ARCAP 21(a)(2). As the prevailing party, the
Wainscotts are entitled to their taxable costs upon compliance with ARCAP
21.
CONCLUSION
¶18 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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