Heshion v. Gentry Wealth

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS HESHION, Plaintiff/Appellant,

v.

GENTRY WEALTH MANAGEMENT, et al., Defendants/Appellees.

CHRISTOPHER G. LINSCOTT, Intervenor/Appellee.

No. 1 CA-CV 24-0754
FILED 10-08-2025

Appeal from the Superior Court in Maricopa County
No. CV2020-003915
CV2021-011133
The Honorable Jennifer C. Ryan-Touhill, Judge

DISMISSED IN PART; AFFIRMED IN PART

COUNSEL

Coppersmith Brockelman PLC, Phoenix
By Gabriel Robert Aragon
Counsel for Defendants/Appellees
K W Law LLP, Phoenix
By Michael A. McCanse
Co-Counsel for Plaintiff/Appellant

Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Co-Counsel for Plaintiff/Appellant

Mesch Clark & Rothschild PC, Tucson
By Frederick J. Petersen
Counsel for Intervenor

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Andrew M. Jacobs joined.

C A T L E T T, Judge:

¶1 Thomas Heshion (“Heshion”) appeals the superior court’s
judgment dismissing his complaint for failure to prosecute. He also argues
the court erred in finding that a lis pendens he recorded was groundless.
Because Heshion’s notice of appeal did not list the order removing the lis
pendens and he has separately appealed that order, we dismiss the lis
pendens issue. Because the court did not abuse its discretion in dismissing
Heshion’s complaint for failure to prosecute, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶2 In July 2021, Heshion filed a complaint (“2021 Complaint”)
against Gentry Wealth Advisors LLC and multiple individuals and entities
(collectively “Defendants”), alleging they improperly removed him as
manager of an entity called 1881 Preserve LLC (“1881 Preserve”). Heshion
alleged Defendants held a meeting without his knowledge and illegally
amended 1881 Preserve’s operating agreement, which deprived him of over
six million dollars in shares and ninety percent ownership. The 2021
Complaint included thirteen counts ranging from fraudulent concealment
to breach of contract.

¶3 In May 2022, Heshion moved to consolidate his 2021
Complaint with a separate case 1881 Preserve had filed in 2020 (“2020

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Case”), in which Heshion was a defendant and counterclaimant. Heshion’s
2021 Complaint made allegations like those he made in his counterclaim in
the 2020 Case. The court granted consolidation. In August 2022, Heshion
amended his 2021 Complaint.

¶4 Meanwhile, the parties litigated the claims in the 2020 Case.
The parties disputed whether the court should enforce a settlement
agreement for payment of a promissory note and whether it should
authorize 1881 Preserve to sell property. Heshion provided separate
witness and exhibit lists for hearings regarding whether the court should
appoint a receiver (“the Receiver”) over 1881 Preserve and authorize it to
sell property.

¶5 In October 2022, Heshion recorded a lis pendens against 1881
Preserve’s property. The Receiver disputed the validity of the lis pendens.
The court found Heshion’s filing “had nothing to do with [1881 Preserve]’s
title to the real property—Heshion’s issue was, and is, ownership of [1881
Preserve] itself.” The court also found Heshion “knew he filed suit against
various defendants to claim his equitable right of ownership of a company,
not land.” So the court found Heshion’s lis pendens groundless and
ordered it removed.

¶6 In December 2022, the parties asked the court to issue a
scheduling order. In the resulting order, the court set September 29, 2023,
as the discovery deadline and October 20, 2023, as the dispositive motion
deadline. The court did not set a trial date. The parties to the 2021
Complaint informed the court they “need[ed] to take discovery” but said
they anticipated exchanging disclosure statements at the beginning of 2023
and proceeding with discovery by the discovery deadline.

¶7 In January and April 2023, Heshion responded to Defendants’
motions to dismiss various counts of his 2021 Complaint. In July 2023, after
reaching a settlement agreement, Heshion dismissed certain Defendants
from the 2021 Complaint.

¶8 Three months before the three-year anniversary of the 2021
Complaint, in April 2024, Defendants moved to dismiss the 2021 Complaint
for failure to prosecute. Heshion responded, conceding the deadlines in the
scheduling order had passed, but arguing that was because the case was
“extremely complicated” and had “a lot of moving parts.”

¶9 More than two months after Defendants moved to dismiss,
and just one day before oral argument on that request, Heshion moved for

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summary judgment on a single issue raised in the 2021 Complaint—the
validity of 1881 Preserve’s amended operating agreement.

¶10 Following oral argument, the court dismissed the 2021
complaint for failure to prosecute. The court found that, despite filing the
2021 Complaint nearly three years earlier, Heshion failed to complete
timely discovery or otherwise comply with its scheduling order. The court
also denied Heshion’s motion for summary judgment because it came after
the dispositive motion deadline and it was “reasonable to assume” the
parties would “strenuously disagree” about the material facts. The court
emphasized the various steps Heshion failed to take to prosecute his claims,
including failing to: “(1) make Rule 26.1 disclosures for witnesses,
declarations, or affidavits, (2) make Rule 26.1 disclosures for damages
suffered, (3) identify trial witnesses, (4) notice and conduct depositions, (5)
propound discovery requests, and (6) make any supplemental disclosures.”
The court also found that Heshion’s failure to prosecute prejudiced
Defendants because they had to hire a lawyer and endure the “stress and
anxiety” of Heshion’s accusations. The court entered judgment dismissing
the 2021 Complaint with prejudice. Heshion timely appealed.

JURISDICTION

¶11 Heshion makes two arguments. First, the superior court
erred by finding his lis pendens groundless. Second, the court erred by
dismissing his 2021 Complaint for failure to prosecute. The Receiver argues
we lack jurisdiction over the lis pendens decision because Heshion did not
appeal from the order making the groundlessness finding.

¶12 This court has a “duty to determine whether it has jurisdiction
to consider an appeal.” Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464,
465 (App. 1997). A party may appeal “[f]rom a final judgment entered in
an action . . . commenced in a superior court[.]” A.R.S. § 12-2101(A)(1). The
notice of appeal must “[d]esignate the judgment . . . from which the party
is appealing[.]” Ariz. R. Civ. App. P. 8(c)(3). But “[f]ailure of an appellant
. . . to perform an act other than the timely filing a notice of appeal . . . does
not affect the appellate court’s jurisdiction, but the failure may be grounds
for . . . dismissal of the appeal[.]” Ariz. R. Civ. App. P. 8(d).

¶13 Contrary to the Receiver’s argument, we do not lack
jurisdiction over the order finding Heshion’s lis pendens groundless. But
that does not mean we must consider it. See Ariz. R. Civ. App. P. 8(d).

¶14 Heshion’s notice of appeal states that he “appeals the final
judgment entered on August 27, 2024” and the “July 3, 2024 Minute Entry

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Ruling[.]” That judgment and minute entry relate only to the court’s
decision dismissing the 2021 Complaint for failure to prosecute. They do
not include the decision removing the lis pendens as groundless.

¶15 More importantly, approximately five months after filing this
appeal, Heshion filed a second appeal challenging the court’s lis pendens
decision. The Receiver has not contested jurisdiction in that appeal, which
is now fully briefed and set for oral argument in November 2025.

¶16 We, therefore, dismiss Heshion’s lis pendens arguments and
will not address them. We express no view on the merits of Heshion’s
arguments about the lis pendens. We do have jurisdiction over Heshion’s
appeal of the judgment dismissing the 2021 Complaint, see A.R.S. § 12-
2101(A)(1), to which we now turn.

DISCUSSION

¶17 Heshion argues the superior court erred by dismissing his
complaint based on a failure to prosecute. We review a dismissal for failure
to prosecute for an abuse of discretion. Slaughter v. Maricopa County, 227
Ariz. 323, 326 ¶ 14 (App. 2011).

¶18 “[I]t is the duty of the plaintiff to see that his case is brought
up for trial within a reasonable time.” Price v. Sunfield, 57 Ariz. 142, 148
(1941). “If the plaintiff fails to prosecute . . . a defendant may move to
dismiss the action[.]” Ariz. R. Civ. P. 41(b).

¶19 The superior court may dismiss for failure to prosecute when
a party abandons claims or engages in “[m]ere delay” prejudicing another
party. Price, 57 Ariz. at 148; Cooper v. Odom, 6 Ariz. App. 466, 469 (1967).
The superior court must consider the totality of circumstances before
granting dismissal. Jepson v. New, 164 Ariz. 265, 276 (1990). It must also
give “notice and an opportunity to be heard[.]” Old Republic Nat’l Title Ins.
Co. v. New Falls Corp., 224 Ariz. 526, 531 ¶ 23 (App. 2010).

¶20 Heshion argues he actively prosecuted his 2021 Complaint
and lists several actions he claims he took to do so. But most of those actions
involved the 2020 Case, not the 2021 Complaint.

¶21 For example, Heshion claims he filed a witness and exhibit
list, but that was for a hearing about appointing a receiver over 1881
Preserve—a request pertinent to the 2020 Case. Heshion claims the parties
filed a joint pretrial statement in May 2024, so they “were perfectly
prepared for a short trial.” But that too misses the mark. The joint pretrial

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statement was for a hearing about the Receiver’s authority to sell 1881
Preserve’s property—again, an issue in the 2020 Case. Although Heshion
argued that the court should first adjudicate his 2021 Complaint before
authorizing the land sale, he has not established that the Receiver’s ability
to sell property impeded his ability to prosecute his claims in the 2021
Complaint.

¶22 Heshion also points to other actions he took, including
objecting to the sale of property, opposing the enforcement of a settlement
agreement, and defending his lis pendens. But none of those actions
materially advanced his affirmative claims in the 2021 Complaint stemming
from his allegations that Defendants improperly amended 1881 Preserve’s
operating agreement and excluded him from a meeting.

¶23 To be sure, Heshion did take some actions relating to the 2021
Complaint. He responded to the Defendants’ motions to dismiss and
counterclaims and filed a motion for summary judgment. But defensively
responding to motions to dismiss and counterclaims is not affirmatively
prosecuting one’s claims—like taking discovery or providing disclosures
would be. And Heshion’s summary judgment motion came just one day
before oral argument on the motion to dismiss for lack of prosecution—
more than two months after Defendants filed that motion and eight months
after the dispositive motion deadline. Based on that timing, it is hard not
to conclude that Heshion realized he had sat on his claims for too long,
prompting him to seek summary judgment as a last-ditch effort to avoid
dismissal. At the very least, we cannot say the superior court abused its
discretion by dismissing the 2021 Complaint despite Heshion’s motion.

¶24 Heshion also contends that all the parties abandoned the
court’s scheduling order. That contention, even if accurate, is irrelevant. If
Heshion thought the plaintiff in the 2020 Case had flouted the scheduling
order or otherwise not prosecuted its claims, he could have asked the court
to dismiss those claims for failure to prosecute. But he cannot defend his
failure to prosecute by alleging another party also failed to prosecute. Two
wrongs do not make a right.

¶25 Heshion was the plaintiff—plaintiffs prosecute cases,
defendants defend them. Heshion cannot blame 1881 Preserve for his own
failure to prosecute his claims in the 2021 Complaint. Price, 57 Ariz. at 148-
49 (“While it is true that a defendant may, if he desires, call a case up for
setting when it is at issue, he is not obliged to do so, and his failure does not
excuse the plaintiff from the responsibility of seeing that the case is set for
trial, under penalty of a dismissal.”).

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¶26 In any event, Heshion does not establish that 1881 Preserve’s
alleged actions (or inactions) in the 2020 Case prevented him from
prosecuting the 2021 Complaint. See Jepson, 164 Ariz. at 276. All Heshion
did to further his 2021 Complaint was—at best—respond to motions to
dismiss and counterclaims, record a lis pendens, and move for summary
judgment on the eve of oral argument on Defendants’ motion to dismiss.
On the other hand, the superior court concluded Heshion failed to make
required Rule 26.1 disclosures, identify trial witnesses, propound written
discovery, and notice and conduct depositions. Such failures subvert the
discovery process. See Ariz. R. Civ. P. 37(h) (calling “[t]imely and full
compliance with Rules 26, 26.1, and 26.2 . . . essential to the discovery
process . . . [and] trial preparation[.]”) The superior court did not abuse its
discretion by concluding Heshion failed to prosecute his claims. Old
Republic Nat’l Title Ins. Co., 224 Ariz. at 531 ¶ 22.

¶27 The court also found Heshion’s failure to prosecute
prejudiced Defendants because they had to hire a lawyer and endure the
“stress and anxiety” of his accusations. On appeal, Heshion argues in
passing that “no party had suffered any realistic prejudice.” But he did not
argue in his written response to Defendants’ motion to dismiss in the
superior court that Defendants suffered no prejudice. We also cannot
know what arguments Heshion or Defendants made at oral argument on
Defendants’ motion to dismiss because he has not provided us with a
transcript of that oral argument. And Heshion has not adequately
developed his “no prejudice” argument on appeal. The argument is
waived. See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535 ¶ 18 (App.
2007) (“[A]rguments raised for the first time on appeal are untimely and
deemed waived.”); Cruz v. City of Tucson, 243 Ariz. 69, 75 ¶ 25 (App. 2017)
(“In the absence of the transcript, we presume it supports the court’s
ruling.”); State v. Moody, 208 Ariz. 424, 452 n. 9, ¶ 101 (2004) (failure to
develop argument usually results in abandonment and waiver of issue).

ATTORNEY FEES AND COSTS

¶28 Defendants request attorney fees and costs pursuant to A.R.S.
§ 12-341.01. In the exercise of our discretion, we grant Defendants’ attorney
fees and costs on appeal, subject to compliance with Arizona Rule of Civil
Appellate Procedure 21. See Britt v. Steffen, 220 Ariz. 265, 268 ¶ 11 (App.
2008) (the successful party in a dismissal for lack of prosecution “qualifies
for a possible award of attorneys’ fees pursuant to A.R.S. § 12–341.01(A)”).

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CONCLUSION

¶29 We dismiss the lis pendens issue and affirm the judgment
dismissing the 2021 Complaint.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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