Danko v. Bolt

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN ROBERT BOLT, Defendant/Appellee.

No. 1 CA-CV 24-0284

FILED 12-05-2024

Appeal from the Superior Court in Maricopa County
No. CV2023-093090
The Honorable Rodrick J. Coffey, Judge

AFFIRMED

COUNSEL

John Danko, III, Mesa
Plaintiff/Appellant

Udall Law Firm, LLP, Tucson
By Craig L. Cline
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Andrew M. Jacobs joined.
 DANKO v. BOLT
Decision of the Court

T H U M M A, Judge:

¶1 Plaintiff John Danko III appeals from an order granting a
motion to dismiss his claims against defendant John Robert Bolt for failure
to state a claim. Because Danko has shown no error, the dismissal is
affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 This case is one of dozens Danko has filed arising out of
family court proceedings occurring nearly a decade ago.1 Bolt’s law firm
represented Danko in Pima County Superior Court for several months,
ending in June 2016. By that time, the firm had provided Danko invoices
and charged him $33,010, which it satisfied from funds Danko had
provided. Danko then sought a refund, using a debt collection company.
On August 2, 2021, Bolt responded to the debt collection company with an
email that Danko claims defamed him.

¶3 On July 3, 2023, Danko filed this case as a self-represented
litigant. Although not listing separate counts, Danko’s complaint alleges
breach of contract, negligent misrepresentation, professional negligence,
breach of fiduciary responsibility, conversion, abuse of process,
contributory negligence, attractive nuisance, fraud, breach of confidence,
breach of promise, degradation and unjust enrichment arising out of Bolt’s
legal representation. Danko also alleges battery, assault and intentional
infliction of emotional distress based on Bolt allegedly “scream[ing] curse
words and [throwing] paper clips and papers at [Danko]’s face, cutting
[Danko]’s face” during the legal representation and defamation, slander,
libel, abuse, humiliation, harassment, degradation, fraud, negligence,
misrepresentation, invasion of privacy, negligent infliction of emotional
distress and false light arising from “[Bolt]’s knowing[] and repeat[ed] false
claims against” Danko. He also alleges direct and indirect liability for
trespass by Danko’s ex-spouse as a result of Bolt’s legal representation.2

1 Danko has been designated a vexatious litigant by the superior court and,

more recently, this court. See Ariz. Ct. App., Div. 1, Admin. Ord. No. 2024-
10; Maricopa Cnty. Super. Ct. Admin. Ord. No. 2023-135.

2 Danko includes arguments and information unrelated to this appeal,
which are not addressed here. In addition, to the extent Danko seeks to
assert claims not made in his complaint, which he did not seek leave to
amend, those claims are waived. Cont’l Lighting & Contracting, Inc. v. Premier

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These allegations stem from: (1) Bolt’s legal representation of Danko,
during which Bolt allegedly “scream[ed] curse words and threw paper clips
and papers at [Danko]’s face, cutting [Danko]’s face;” and (2) the August
2021 e-mail.

¶4 Bolt moved to dismiss, asserting Danko’s claims are time-
barred, and the complaint failed to state a claim upon which relief can be
granted. See Ariz. R. Civ. P. 12(b)(6) (2024).3 After full briefing, the court
granted the motion. After entry of final judgment, Danko timely appealed.
This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (A.R.S) sections 12-120.21(A)(1)
and -2101(A)(1).

DISCUSSION

I. Danko Has Waived Any Arguments He May Have Sought to Raise
on Appeal.

¶5 As Bolt notes, Danko’s briefs do not comply with applicable
rules. They do not include “appropriate references to the record,” ARCAP
13(a)(4), or citations to legal authority relied upon, ARCAP 13(a)(7)(A). By
failing to comply with these requirements, Danko has waived any
arguments he may have wished to present. See e.g., Polanco v. Indus. Comm’n,
214 Ariz. 489, 491 ¶ 6 n.2 (App. 2007); Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 137 ¶ 7 n.2 (App. 2011). In addition, Danko seeks to raise
arguments for the first time in his reply brief on appeal, which is improper
and such arguments (which have been waived) will not be addressed here.
See Nelson v. Rice, 198 Ariz. 563, 567 ¶ 11 n.3 (App. 2000); ARCAP 13(c).

¶6 Along with these waivers, Danko focuses on legal issues that
are not relevant here. Danko’s primary argument is that Bolt “had
minimum contacts in Arizona” and “Arizona does have in personum
jurisdiction over” Bolt. Danko’s opening brief then spends nearly a dozen
pages discussing personal jurisdiction, which was not raised by Bolt’s
12(b)(6) motion. Indeed, it appears that Danko’s opening brief may have
been copied from one of his other appeals where personal jurisdiction was

Grading & Utils., LLC, 227 Ariz. 382, 386 ¶ 12 (App. 2011); Schurgin v. Amfac
Elec. Distribution Corp., 182 Ariz. 187, 190 (App. 1995) (citing cases).

3 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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 DANKO v. BOLT
Decision of the Court

at issue. See supra, n.1. Such arguments are improper. See ARCAP 25
(authorizing sanctions when a party violates ARCAP).

II. Waiver Aside, Danko Failed to State a Claim Upon Which Relief
May Be Granted.

¶7 In considering a motion to dismiss for failure to state a claim,
the court assumes the truth of all well-pleaded facts alleged in the
complaint. Fidelity Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224 ¶ 4 (1998)
(citing cases). This court reviews de novo the court’s grant of a motion to
dismiss for failure to state a claim. Coleman v. City of Mesa, 230 Ariz. 352, 355
¶ 7 (2012).

A. Danko’s Professional Malpractice Claims Fail Because He
Failed to Comply with A.R.S. § 12-2602.

¶8 For his professional malpractice claims, Danko was required
to (but failed to) file an affidavit of an expert to bring an action for legal
malpractice against his attorney. A.R.S. § 12-2602(B). For this reason,
Danko’s professional malpractice claims fail.

B. Danko’s Claims Are Time-Barred.

¶9 This case, filed on July 3, 2023, stems from alleged conduct
from two periods: (1) Bolt’s legal representation of Danko that ended in
June 2016, during which Bolt allegedly cursed and threw paper clips and
papers at Danko and (2) Bolt’s purportedly defamatory response to a debt
collection company in an August 2, 2021 email. Without objection, Danko
supplemented his complaint with an August 2021 e-mail and billing
records through June 29, 2016 for Bolt’s legal services. The superior court
properly could consider these materials in addressing Bolt’s motion to
dismiss. See Dunn v. FastMed Urgent Care PC, 245 Ariz. 35, 38–39 ¶ 12 (App.
2018) (citing cases).

¶10 Because he waited until July 3, 2023 to file this case, Danko’s
defamation-related claims arising out of the August 2, 2021 email are time-
barred. See A.R.S. § 12-541(1). Similarly, Danko’s claims arising out of prior
legal representation are time-barred. See A.R.S. §§ 12-541 to -548, -550
(listing various limitations periods, the longest of which is six years).4

4 Although Danko seeks to argue that Bolt “never terminated his
representation,” he failed to support such an argument in superior court,
meaning it is waived on appeal. See Cont’l Lighting & Contracting, Inc., 227
Ariz. at 386 ¶ 12; Schurgin, 182 Ariz. at 190 (citing cases).

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Decision of the Court

Accordingly, by failing to sue until July 3, 2023, Danko waited too long, and
his claims are barred by the applicable limitations periods.

ATTORNEYS’ FEES ON APPEAL

¶11 Both Danko and Bolt request attorneys’ fees on appeal as
sanctions pursuant to ARCAP 25. Because Danko has shown no
sanctionable conduct by Bolt, his request is denied. Because Danko has not
complied with this court’s rules, Bolt’s request is granted to the extent that
Bolt is awarded a portion of his reasonable attorneys’ fees incurred on
appeal, as well as his taxable costs, contingent upon his compliance with
ARCAP 21.

CONCLUSION

¶12 The judgment is affirmed.

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

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