BORCHERDING v. CULIN

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CASSIDY BORCHERDING, Plaintiff/Appellant,

v.

PETER CULIN, et al., Defendants/Appellees.

No. 1 CA-CV 25-0883
FILED 08-18-2026

Appeal from the Superior Court in Maricopa County
No. CV2025-014245
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Cassidy Borcherding, Tempe
Plaintiff/Appellant

Sandstrom Law Group, PLLC, Mesa
By Ryan P. Sandstrom, Bayan Zahriyeh
Counsel for Defendants/Appellees

BORCHERDING v. CULIN, et al.
Decision of the Court

MEMORANDUM DECISION

Judge D. Andrew Gaona delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Brian Y. Furuya joined.

G A O N A, Judge:

¶1 Cassidy Borcherding appeals the superior court’s order
granting Peter Culin’s (and other defendants’) motion to dismiss for failure
to state a claim. Because the trial court didn’t err when it summarily granted
that motion after Borcherding failed to respond, and Borcherding didn’t
first make his arguments he now makes on appeal in the superior court, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Borcherding and Culin were equal members of Pickle
Express, an Arizona limited liability company providing transit and
delivery services. The parties had no operating agreement. Instead, they
orally agreed to share Pickle Express’ profits and expenses equally. The
parties used Pickle Express funds to pay business expenses and purchase
company assets. Borcherding bought a Mercedes-Benz Sprinter Van in his
name, but with Pickle Express funds, for the business’ local deliveries.

¶3 In 2022, the parties’ relationship deteriorated, and Culin sued
to judicially dissolve Pickle Express under A.R.S. § 29-3701(A)(4)(c). Culin
alleged the parties were deadlocked over Pickle Express’ operations, assets,
and funds. He also requested appointment of a receiver, see A.R.S.
§ 29-3702(E), to oversee the company’s winding up.

¶4 Culin moved for summary judgment, and Borcherding didn’t
respond. The superior court granted the motion, ordered Pickle Express
dissolved, and appointed a receiver to wind up the company and distribute
its assets.

¶5 The receiver’s powers included those usually held by
receivers and reasonably necessary to accomplish the purpose of the
receivership. That included taking control of the receivership property,
preparing a complete accounting of Pickle Express’ income and expenses,
and overseeing its finances. The court’s order required both Borcherding

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Decision of the Court

and Culin to deliver all Pickle Express property to the receiver. But the
receiver couldn’t obtain the necessary records to complete the receivership,
and the superior court dismissed the action without prejudice in August
2024.

¶6 In April 2025, Borcherding sued Peter Culin, Rachel Culin,
Pickle Express, LLC, and RC Transport, LLC (collectively “Culin”) alleging
3 claims for relief: Dissolution, “Declaratory Relief-Vehicle,” and
Conversion.

¶7 Culin moved to dismiss Borcherding’s complaint under
Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). Culin argued the
dissolution claim was barred by claim and issue preclusion because the first
case had dissolved Pickle Express and appointed a receiver. He also argued
the declaratory-relief claim failed because it sought no cognizable
declaration and the “vehicle” issues belonged in the receivership, and that
the conversion claim failed because Borcherding alleged no immediate
right to possess the van.

¶8 Borcherding sought and received an extension to respond to
Culin’s motion to dismiss. He didn’t timely respond and the superior court
summarily granted the motion, finding it “provides a legal and factual basis
for the relief requested.” Three weeks later, Borcherding filed an untimely
response, incorporated it into a contemporaneously filed motion for
reconsideration, and attached exhibits (in the response) that he’d never
previously submitted in the case. The superior court denied the motion for
reconsideration and entered final judgment in Culin’s favor, dismissing the
complaint with prejudice and awarding him attorneys’ fees and costs.

¶9 Borcherding appealed and we have jurisdiction under A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶10 To start, we have concerns with the parties’ compliance with
the Arizona Rules of Civil Appellate Procedure (“ARCAP”). See ARCAP
13(a)(4), (a)(5), (a)(7), (f); 13.1(c), (e). A party “who fails to make a bona fide
and reasonably intelligent effort to comply with the rules will waive issues
and arguments not supported by adequate explanation, citations to the
record, or authority.” In re Est. of Acciavatti, No. 1 CA-CV 25-0606 PB, 2026
WL 2041963, at *1 ¶ 7 (Ariz. App. July 15, 2026) (cleaned up).

¶11 Borcherding repeatedly falls short of that standard. He often
cites authorities without meaningful analysis or pincites, attributes

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propositions to cases that don’t support them, relies on inapposite
authorities, and misstates or overstates the law. See ARCAP 13(a)(7)(A), (f).
His arguments are also conclusory and unsupported by meaningful legal
analysis or relevant authorities. Though Culin fares better, he infrequently
cites to the record for those factual assertions the record supports. See
ARCAP 13(a)(4), (a)(5), (a)(7)(B).

¶12 Some of these deficiencies would permit us to deem many
arguments waived. See Ramos v. Nichols, 252 Ariz. 519, 522 ¶¶ 8–9 (App.
2022) (arguments “not supported by adequate explanation, citations to the
record, or authority” are waived on appeal); Ritchie v. Krasner, 221 Ariz. 288,
305 ¶ 62 (App. 2009) (failure to comply with ARCAP 13 “can constitute
abandonment and waiver” of claims). We decline to do so in our discretion,
given our disposition of the matter below. But we warn the parties—who
may be back before us someday, given their ongoing disputes—that future
violations of our rules won’t be tolerated.

I. The Court Didn’t Abuse its Discretion in Dismissing
Borcherding’s Complaint Under Rule 7.1(b)(2).

¶13 We ordinarily review de novo the dismissal of a complaint
under Rule 12(b)(6). Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, 513 ¶
11 (2021). But when a court dismisses a complaint because the nonmoving
party failed to respond, we review for an abuse of discretion. Ariz. R. Civ.
P. 7.1(b)(2) (court may summarily grant or deny a motion if the opposing
party doesn’t respond); Strategic Dev. & Constr., Inc. v. 7th & Roosevelt
Partners, LLC, 224 Ariz. 60, 64–65 ¶¶ 16–17 (App. 2010).

¶14 On appeal, Borcherding argues the superior court erred in
dismissing his complaint for “lack of response,” because Culin’s motion
lacked an adequate legal and factual basis under Rule 7.1(b)(2). In support
of this argument, Borcherding claims his failure to respond doesn’t permit
dismissal. Instead, the superior court needed to consider and review “the
entire record to determine entitlement on the pleadings or evidence,” which
he alleges the superior court didn’t do. Had it done so, Borcherding believes
the record would’ve shown Culin wasn’t entitled to judgment as a matter
of law.

¶15 The superior court didn’t abuse its discretion. First,
Borcherding didn’t respond to Culin’s motion to dismiss despite having
extra time to do so. Under Rule 7.1(b)(2), that was reason enough for the
superior court to dismiss the complaint. See Strategic Dev. & Constr., Inc., 224
Ariz. at 65 ¶ 17.

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Decision of the Court

¶16 Second, Borcherding conflates the standards governing
dismissal and summary judgment. Unlike summary judgment, which tests
whether the evidentiary record presents a genuine dispute of material fact,
a Rule 12(b)(6) motion tests only the legal sufficiency of the complaint itself.
Contrast Ariz. R. Civ. P. 56(a) with 12(b)(6). When reviewing a dismissal
under Rule 12(b)(6), we thus look only to the complaint (and in this case,
judicially noticed materials), assume the truth of the complaint’s well-pled
factual allegations, indulge all reasonable inferences, and affirm if the
plaintiff isn’t entitled to relief as a matter of law. Brittner v. Lanzilotta, 246
Ariz. 294, 295–96 ¶ 4 (App. 2019). The court didn’t have to conduct the sort
of evidentiary review Borcherding urges before dismissing his complaint.

¶17 The record also doesn’t support Borcherding’s
characterization of the dismissal order. He assumes the superior court
dismissed his complaint only because he didn’t respond. Though the court
summarily granted dismissal, citing Ariz. R. Civ. P. 7.1(b), it added that it
reviewed Culin’s motion and found “it provides a legal and factual basis
for the relief requested.” The court thus independently determined Culin’s
motion established an adequate legal and factual basis for dismissal.

¶18 The superior court didn’t abuse its discretion in dismissing
Borcherding’s complaint.

II. Borcherding’s Preclusion Argument is Waived and Relies on Facts
and Materials Outside the Scope of our Review.

¶19 Next, Borcherding argues claim and issue preclusion don’t
apply, and his complaint merely sought to complete an unfinished
winding-up process from the first case. But these arguments weren’t
presented below, and the superior court had no opportunity to consider
them. We generally consider arguments first made on appeal waived.
Henderson v. Henderson, 241 Ariz. 580, 586 ¶ 13 (App. 2017). As a result, we
decline to consider them on the merits.

¶20 Even if those arguments were preserved, they rely on
materials outside the record governing our review. While we review de
novo the dismissal of a complaint under Rule 12(b)(6), Shepherd, 250 Ariz.
at 513 ¶ 11, our review is limited to the record before the superior court
when it ruled on that motion. GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165
Ariz. 1, 4 (App. 1990).

¶21 When the superior court ruled on the motion, the record
consisted of (as relevant here) Borcherding’s complaint, Culin’s motion to
dismiss, and the judicially noticeable filings attached and incorporated into

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that motion. Those filings included the complaint from the first case, the
superior court’s summary judgment ruling, and the order dissolving Pickle
Express and appointing a receiver.

¶22 Only after the superior court dismissed the complaint did
Borcherding file an untimely response with attached exhibits and
incorporate that response into his motion for reconsideration. His appellate
arguments rely heavily on those later-filed materials, or materials that
aren’t in the record at all. Although those later-filed materials became part
of the superior court’s record, they weren’t before the court when it granted
the motion to dismiss, and thus aren’t part of the record governing our
review. See Cella Barr Assoc., Inc. v. Cohen, 177 Ariz. 480, 487 n. 1 (App. 1994);
RT Auto. Ctr., Inc. v. Westlake Services, LLC, 253 Ariz. 91, 95 ¶ 12 (App.
2022) (“We typically do not consider matters raised for the first time in a
motion for reconsideration unless the facts . . . were not available when the
court entered the challenged ruling.”) (emphasis added); State v. Duarte, 246
Ariz. 338, 346 ¶ 29 n.6 (App. 2018) (court didn’t consider presentence
report, a part of the supplemental record on appeal, because it wasn’t before
the trial court at the time of its ruling).

¶23 That limitation follows from the nature of appellate review.
We review only the ruling properly before us, see ARCAP 8, based on the
record before the superior court when it ruled, GM Dev. Corp., 165 Ariz. at
4. We don’t resolve competing factual narratives, make factual findings, or
reconstruct proceedings from materials outside that record. See State v.
MacHardy, 254 Ariz. 231, 236 ¶ 8 (App. 2022) (“It is not our role as a
reviewing court to make factual findings.”); Ashton-Blair v. Merrill, 187 Ariz.
315, 317 (App. 1996) (“We may only consider the matters in the record
before us.”). But that’s what Borcherding asks us to do, and we decline.

CONCLUSION

¶24 We affirm and deny Culin’s request for attorneys’ fees in the
exercise of our discretion. We award Culin his taxable costs on appeal
subject to his compliance with ARCAP 21(b).

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

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