Danko v. Whiting

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICHARD GILES WHITING, Defendant/Appellee.

No. 1 CA-CV 24-0001
FILED 08-27-2024

Appeal from the Superior Court in Maricopa County
No. CV2023-092255
The Honorable Rodrick J. Coffey, Judge

AFFIRMED

COUNSEL

By John Danko III, PE, Mesa
Plaintiff/Appellant

Jones, Skelton & Hochuli P.L.C, Phoenix
By J Gary Linder, Elizabeth B. N. Garcia
Counsel for Defendant/Appellee
 DANKO v. WHITING
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Presiding Judge Michael S. Catlett and Judge Jennifer M. Perkins
joined.

H O W E, Judge:

¶1 Appellant John Danko III appeals the trial court’s dismissal of
his civil suit against attorney Richard Whiting. For the following reasons,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 This case is one in a series in which Danko retained and
subsequently sued counsel. See Danko v. Dessaules, 1 CA-CV 23-0017, 2023
WL 5214129 (App. Aug. 15, 2023) (mem. decision); Danko v. Strom, 1 CA-CV
22-0583, 2023 WL 5977229 (App. Sept. 14, 2023) (mem. decision); Danko v.
Hawkins, 1 CA-CV 22-0781, 2023 WL 7164310 (App. Oct. 31, 2023) (mem.
decision). In this case, Danko alleges that he hired Whiting, a South
Carolina lawyer, who failed to perform contracted services, thus causing
damages.

¶3 Whiting contested Danko’s suit by filing a notice of special
appearance to contest jurisdiction and a motion to dismiss. Whiting stated
that he had never been to Maricopa County, Arizona, nor performed any
services for Danko there. Whiting further argued that this court’s decision
in Dessaules, affirming Danko’s designation as a vexatious litigant, barred
the suit. 2023 WL 5214129, at *3 ¶ 14. However, Whiting’s certificates of
service for these filings omitted one digit from Plaintiff’s mailing address
and were thus sent to the wrong address. The deadline for a responsive
motion passed, and the trial court granted Whiting’s motion to dismiss for
lack of personal jurisdiction. While the court acknowledged Danko’s
vexatious-litigant status, it did not dismiss on that ground, as Danko had
not been designated vexatious at the time he filed suit against Whiting.

¶4 After entry of judgment, Danko sought leave to file a motion
for relief, and for the court to consider the response to the motion to dismiss
that he would have filed had he received notice of Whiting’s motion. The
court, in the interest of justice, considered his response. Danko’s response

2
 DANKO v. WHITING
Decision of the Court

to the motion to dismiss argued that personal jurisdiction was proper
because the parties’ contract pertained to an Arizona marriage dissolution.
He supported his motion with a copy of the parties’ signed contract, which
in part stated:

I acknowledge and agree that this contract, which provides
for services by the Law Office of Richard G. Whiting, P.A. to
be performed in the State of South Carolina, is subject to and
governed by the laws of the State of South Carolina. I
acknowledge and agree that any action for enforcement of
this Contract shall properly be brought in Richland County,
South Carolina.

While Danko’s response alleged that Whiting did business in Arizona, the
attached exhibits indicated that the parties had met and contracted in South
Carolina, and that communications were made to Danko’s South Carolina
address.

¶5 After considering Danko’s response, the trial court affirmed
its order dismissing the case for lack of personal jurisdiction. It found that
the allegations in Danko’s response did not change the circumstances
underlying the dismissal. The court granted Danko leave to file a motion
for relief.

¶6 Instead of filing a motion for relief, Danko appealed. This
court stayed that appeal, as no final judgment had been entered. Revested
with jurisdiction, the trial court amended its dismissal order nunc pro tunc
to contain language making it a final judgment, as Danko’s allotted time for
filing a motion for relief had passed. Danko then again appealed. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 Danko’s brief does not comply with the civil appellate rules
by failing to support his arguments with citations to relevant legal
authority. See Ariz. R. Civ. App. P. 13(a). Nonetheless, we exercise our
discretion to address the substance of the appeal, see Clemens v. Clark, 101
Ariz. 413, 414 (1966), insofar as Danko raises substantive issues.

I. Personal Jurisdiction

¶8 Danko argues that Whiting had sufficient minimum contacts
with Arizona necessary to support personal jurisdiction. We review the
superior court’s personal jurisdiction conclusions de novo, Beverage v.

3
 DANKO v. WHITING
Decision of the Court

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 [Whiting],” Planning Grp. of Scottsdale,
L.L.C. v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262, 264 ¶ 2 n.1 (2011).

¶9 Arizona courts may exercise personal jurisdiction over parties
“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,” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,
592 U.S. 351, 358 (2021) (quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (2011)), but “[o]nly a select ‘set of affiliations with
a forum’ will expose a defendant to such sweeping jurisdiction,” id.
(quoting Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)). The record
contains no evidence showing that Whiting had any contacts so
“continuous and systematic as to render him essentially at home” in
Arizona. Wal-Mart Stores, Inc. v. LeMaire, 242 Ariz. 357, 359 ¶ 4 (App. 2017)
(cleaned up).

¶10 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” that demonstrate (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 the 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). Specific
jurisdiction exists only if the defendant’s activities in the forum state are
related to the plaintiff’s cause of action. Williams, 199 Ariz. at 4 ¶ 11.

¶11 The record contains no evidence showing that Whiting
directed business activity toward Arizona, visited Danko’s Arizona home,
or inflicted 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. Further, specific jurisdiction is not
warranted based on facts arising from Danko’s unilateral conduct. Williams,
199 Ariz. at 3 ¶ 7. The superior court thus did not err in dismissing Danko’s
claims for want of personal jurisdiction.

4
 DANKO v. WHITING
Decision of the Court

II. Notice and Due Process

¶12 Danko also contends that he was deprived of due process by
Whiting’s clerical error that caused the motion to dismiss to be sent to the
wrong address. This court reviews “constitutional issues, including an
alleged violation of due process, de novo.” Wassef v. Ariz. State Bd. of Dental
Exam’rs, 242 Ariz. 90, 93 ¶ 11 (App. 2017).

¶13 Though Danko had no notice of the motion to dismiss until
after it was granted, he was nonetheless afforded due process by the trial
court’s order considering his post-judgment response “in the interests of
justice.” He was given a full and fair opportunity to argue the motion; that
his argument was unavailing does not constitute a due process violation.
He thus has not shown error.

CONCLUSION

¶14 We affirm. Whiting requests attorneys’ fees under A.R.S. § 12-
349 and Ariz. R. Civ. App. P. 25. We grant this request because this appeal
was brought without substantial justification. See A.R.S. § 12-349(A)(1). By
appealing this case, Danko continues to pursue his groundless claims with
complete indifference to their lack of merit. See Ariz. Republican Party v.
Richer, 257 Ariz. 210, 221 ¶ 38 (Ariz. 2024). This appeal is therefore
unjustified under A.R.S. § 12-349(A)(1). As the prevailing party, Whiting is
also awarded his costs on appeal upon compliance with Arizona Rule of
Civil Appellate Procedure 21.

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

5