WOLLNER v. GUTIERREZ HERNANDEZ

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT WOLLNER, Plaintiff/Appellant,

v.

ARTURO GUTIERREZ HERNANDEZ, et al., Defendants/Appellees.

No. 1 CA-CV 26-0284
FILED 11-12-2026

Appeal from the Superior Court in Yuma County
No. S1400CV202501049
The Honorable Levi Gunderson, Judge Pro Tempore

AFFIRMED

COUNSEL

Robert Wollner, Wellton
Plaintiff/Appellant

The Cavanagh Law Firm, PA, Phoenix
By Bradley J. Johnston, William P. Haynes
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Michael J. Brown joined.

WOLLNER v. GUTIERREZ HERNANDEZ, et al.
Decision of the Court

B A I L E Y, Judge:

¶1 Robert Wollner appeals the superior court’s judgment
awarding Wise Foods, Inc. its attorneys’ fees and costs under Arizona
Revised Statutes (“A.R.S.”) §§ 12-349 and 12-341. We affirm because
Wollner’s briefing fails to comply with Arizona Rule of Civil Appellate
Procedure (“ARCAP”) 13, and because we discern no error in any event.

FACTS AND PROCEDURAL HISTORY

¶2 Wollner sued Wise Foods, a potato-chip manufacturer, after
buying a bag of its chips that he alleged were “bad,” “unusable,” “useless,”
and “revolting.” Wollner sought $15,000 for Wise Foods’ production and
sale of “bad products,” $1,000 for his “inconvenience” in pursuing
litigation, and $30 million in punitive damages. He stated that the purpose
of his suit was “to put Wise Foods, Inc. out of business.”

¶3 Wise Foods successfully moved to dismiss Wollner’s claims
under Arizona Rule of Civil Procedure 12(b)(6). The superior court
awarded Wise Foods its costs under A.R.S. § 12-341, as well as $14,406 in
attorneys’ fees under A.R.S. § 12-349(A)(1) and (2), based on findings that
Wollner’s claims were “not substantially justified” and “solely or primarily
for harassment.”

¶4 Wollner timely appealed the award of fees and costs. We
have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Wollner has waived his arguments on appeal under ARCAP 13.

¶5 Appellate briefs must contain certain requirements
prescribed by ARCAP 13. “An appellant who fails to make a ‘bona fide and
reasonably intelligent effort to comply with [ARCAP 13]’ will waive issues
and arguments ‘not supported by adequate explanation, citations to the
record, or authority.’” Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8 (App. 2022)
(citation omitted). While we prefer to decide cases on their merits, “there
is a limit to which judicial leniency can be stretched.” Adams v. Valley Nat’l
Bank of Ariz., 139 Ariz. 340, 342 (App. 1984). We hold unrepresented
litigants to the same standard as attorneys. Ramos, 252 Ariz. at 522, ¶ 8.

¶6 Wollner’s opening brief does not evince a “bona fide and
reasonably intelligent effort” to comply with ARCAP 13. His statement of
the case, which consists of a single sentence, does not “concisely state the

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WOLLNER v. GUTIERREZ HERNANDEZ, et al.
Decision of the Court

nature of the case, the course of the proceedings, the disposition in the
[superior] court . . . , [or] the basis of the appellate court’s jurisdiction.” See
ARCAP 13(a)(4). He includes no statement of facts and only one reference
to the record. See ARCAP 13(a)(4)-(5), (7). He sets forth no developed
arguments and no citations to legal authority. See ARCAP 13(a)(7). Based
on his noncompliance with ARCAP 13, he has waived any arguments on
appeal.

II. The award of fees and costs was proper.

¶7 Waiver aside, we discern no error. In reviewing an award of
fees under A.R.S. § 12-349, “[w]e defer to [the superior] court’s findings of
fact unless clearly erroneous, [and] we review the court’s interpretation and
application of the fees statute de novo.” Ariz. Republican Party v. Richer, 257
Ariz. 237, 242, ¶ 10 (2024). We review an award of costs under A.R.S.
§ 12-341 for an abuse of discretion. See Tucson Ests. Prop. Owners Ass’n v.
McGovern, 239 Ariz. 52, 57, ¶¶ 16–17 (App. 2016).

¶8 A.R.S. § 12-349 requires an award of attorneys’ fees against a
party “proven, by a preponderance of the evidence, to have” brought a
claim “without substantial justification” or “solely or primarily for . . .
harassment.” Richer, 257 Ariz. at 242, ¶ 9. Here, Wollner brought a claim
for tens of millions of dollars, not for any cognizable injury, but because of
his dissatisfaction with a bag of potato chips. And the express purpose of
Wollner’s suit was to put Wise Foods “out of business.” On these facts, the
superior court properly determined that Wollner’s action lacked substantial
justification, see id. at 243, 248, ¶¶ 14–15, 38 (a claim is “without substantial
justification” where it is “groundless” and “not made in good faith”), and
was primarily for harassment, cf. Bradshaw v. State Farm Mut. Auto. Ins. Co.,
157 Ariz. 411, 418–19 (1988) (a party has acted with “malice” in the context
of a malicious prosecution action when he or she used civil proceedings
primarily “for a purpose ‘other than that of securing the proper
adjudication of the claim’” (citation omitted)). The award of fees was
proper.1

¶9 The court also properly awarded costs under A.R.S. § 12-341,
which provides for the recovery of costs by “[t]he successful party to a civil

1 Wollner also argues that the superior court erred in considering his
previous vexatious litigant designation when deciding whether to award
fees and costs. Because he raises this argument for the first time on appeal,
we will not consider it. See Scottsdale Princess P’ship v. Maricopa Cnty., 185
Ariz. 368, 378 (App. 1995).

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WOLLNER v. GUTIERREZ HERNANDEZ, et al.
Decision of the Court

action.” Because Wise Foods prevailed on its motion to dismiss Wollner’s
complaint, it was entitled to its costs.

CONCLUSION

¶10 We affirm the superior court’s award of fees and costs. We
award Wise Foods its appellate costs under A.R.S. § 12-341, as it was the
successful party on appeal. We also award Wise Foods its reasonable
attorneys’ fees on appeal under A.R.S. § 12-349(A)(1), as Wollner’s appeal
was without substantial justification. See Durable Invs. LLC v. Villareal, 262
Ariz. 84, 89, ¶ 16 (App. 2026). To the extent Wollner makes any arguments
on appeal, he contends that Wise Foods was not entitled to its fees and costs
because of the poor quality of its products. This argument is plainly not
supported by the law or evidence. Wise Foods is therefore entitled to its
reasonable fees and costs on appeal upon compliance with ARCAP 21.

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

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