Giersz v. Walmart

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH GIERSZ, Plaintiff/Appellant,

v.

WALMART, INC., Defendant/Appellee.

No. 1 CA-CV 23-0543
FILED 05-30-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-012235
The Honorable Randall H. Warner, Judge
The Honorable Jennifer C. Ryan-Touhill, Judge

AFFIRMED

COUNSEL

Kenneth Giersz, Glendale
Plaintiff/Appellant

Thomas Rubin & Kelley, PC, Phoenix
By Michael G. Kelley, April A. Hancock
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.

C R U Z, Judge:

¶1 Kenneth Giersz appeals the superior court’s orders, denying
his request to amend his complaint and granting Walmart, Inc.
(“Walmart”)’s motion to dismiss the complaint. For the following reasons,
we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In October 2019, at Giersz’s direction, his employee, Joseph E.
James, Jr., took a company-owned vehicle, a 2015 Ford Fiesta, to Walmart
Auto Center in Glendale for an oil change. A few days later, the engine in
the Fiesta seized and had to be replaced. In February 2020, James, not
Giersz, filed a complaint in superior court against Walmart, alleging
negligence.

¶3 Walmart moved to dismiss James’s complaint for failure to
prosecute, and in December 2020, the superior court dismissed the
complaint with prejudice.

¶4 In September 2022, Giersz filed a complaint against Walmart,
Inc., alleging negligence for the same oil change it did on the Ford Fiesta in
October 2019. Giersz’s allegations were nearly identical to James’s
allegations.

¶5 Walmart moved to dismiss the complaint under Arizona Rule
of Civil Procedure (“Rule”) 12(b)(6), arguing the two-year statute of
limitations barred Giersz’s property damage claim. Giersz objected and
requested leave to amend the complaint and add contract claims.

¶6 After oral argument, the superior court found that the
superior court’s dismissal with prejudice of the lawsuit brought by James
against Walmart precluded Giersz’s lawsuit against Walmart. Accordingly,
it found Giersz’s request to amend the complaint was futile and dismissed
the complaint.

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¶7 Giersz timely appealed after the superior court entered a final
judgment under Rule 54(c). We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), -2101.

DISCUSSION

¶8 To begin, we note that Giersz’s opening brief fails to comply
with Arizona Rule of Civil Appellate Procedure (“ARCAP”) 13. ARCAP
13(a)(4) requires a “statement of the case” containing appropriate
references to the record. ARCAP 13(a)(5) requires a “’statement of facts’
that are relevant to the issues presented for review, with appropriate
references to the record.” ARCAP 13(a)(6) requires a “statement of the
issues presented for review.” ARCAP 13(a)(7) requires an argument section
setting forth the appellant’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,” and “the applicable standard of appellate
review with citation to supporting legal authority.” This court may dismiss
an appeal when the appellant fails to comply with the rules. Adams v. Valley
Nat’l Bank of Ariz., 139 Ariz. 340, 342-43 (App. 1984).

¶9 The opening brief’s statement of facts and statement of the
case contain no references to the record. The statement of the issues does
not list any issues but refers this court to the transcript of the oral argument
in superior court. The argument section has no citations to the record or
legal authority.

¶10 Even if we were to overlook the deficiencies of the opening
brief, we find no error. We review the dismissal of a complaint under Rule
12(b)(6) de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7 (2012).
Dismissal is appropriate under Rule 12(b)(6) only when, as a matter of law,
the plaintiff is not “entitled to relief under any interpretation of the facts
susceptible of proof.” Id. at 356, ¶ 8 (citation and internal quotation marks
omitted). We “assume the truth of all well-pleaded factual allegations and
indulge all reasonable inferences from those facts, but mere conclusory
statements are insufficient.” Id. at 356, ¶ 9.

¶11 The superior court found that Giersz’s lawsuit was barred by
the doctrine of claim preclusion, which prevents a plaintiff from bringing a
lawsuit when a prior final “judgment on the merits was rendered by a court
of competent jurisdiction and the matter now in issue between the same
parties or their privities was, or might have been, determined in the former
action.” Peterson v. Newton, 232 Ariz. 593, 595, ¶ 5 (App. 2013) (citations and

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internal quotation marks omitted). “To successfully assert the defense of
claim preclusion, a party must prove: (1) an identity of claims in the suit in
which a judgment was entered and the current litigation, (2) a final
judgment on the merits in the previous litigation, and (3) identity or privity
between parties in the two suits.” Id. “Examples of persons in privity
include employers and employees, principals and agents, and indemnitors
and indemnitees.” Corbett v. ManorCare of America, Inc., 213 Ariz. 618, 630,
¶ 40 (App. 2006).

¶12 Here, Giersz admits that James was Giersz’s employee, James
took the vehicle to Walmart for a routine oil change at Giersz’s direction,
and James later filed a civil complaint regarding the damage to Giersz’s
vehicle because James felt responsible for that damage. The instant lawsuit
involved the same vehicle as the James lawsuit and the same allegations
regarding the work done by Walmart. Although the James lawsuit was
dismissed for failure to prosecute, there was a final judgment on the merits
in that case. Rule 41(b) provides:

If the plaintiff fails to prosecute . . . a defendant may move to
dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal order under this
Rule 41(b) and any dismissal not under this rule—except one
for lack of jurisdiction, improper venue, or failure to join a
party under Rule 19—operates as an adjudication on the
merits.

And although the first lawsuit was brought by James and the second
lawsuit by Giersz, the two were in privity because Jones was Giersz’s
employee. See Corbett, 213 Ariz. at 630, ¶ 40. Giersz makes no argument
challenging the superior court’s finding that, because of their
employer/employee relationship, the two were in privity. The superior
court did not err in granting Walmart’s motion to dismiss.

¶13 Walmart requests attorneys’ fees and costs pursuant to A.R.S.
§ 12-341.01. In our discretion, we deny the request. As the prevailing party,
Walmart is entitled to costs upon compliance with ARCAP 21(b). See A.R.S.
§ 12-341.

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CONCLUSION

¶14 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: TM

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