Opinion
No. 2 CA-CV 2014-0033
07-07-2014
CORLEEN DAVENPORT, Plaintiff/Appellant, v. JAMES A. WHITEHILL, Defendant/Appellee.
Corleen Davenport, Tucson In Propria Persona Broening, Oberg, Woods & Wilson, P.C., Phoenix By Donald Wilson, Jr. Counsel for Defendant/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. C20133046
The Honorable Christopher P. Staring, Judge
APPEAL DISMISSED
COUNSEL
Corleen Davenport, Tucson
In Propria Persona
Broening, Oberg, Woods & Wilson, P.C., Phoenix
By Donald Wilson, Jr.
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Vásquez and Judge Olson concurred. KELLY, Presiding Judge:
The Hon. Robert Carter Olson, a retired judge of the Arizona Superior Court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Corleen Davenport appeals from the trial court's grant of summary judgment in favor of James Whitehill on her breach of contract and professional malpractice action arising from events that occurred in 2008. The court found Davenport's lawsuit was brought outside of the statute of limitations and she had failed to present a genuine issue of material fact that would preclude summary judgment. Because Davenport's brief does not substantially comply with the Arizona Rules of Civil Appellate Procedure, precluding our meaningful review of the issues, we summarily dismiss her appeal.
Factual and Procedural Background
¶2 We note as a preliminary matter that Davenport does not set forth any facts in her opening brief, instead referring us to the complaint she filed in the superior court in May 2013. We thus rely on Whitehill's characterization of the facts and our own review of the record. See Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, ¶ 2, 263 P.3d 683, 686 (App. 2011); Flood Control Dist. v. Conlin, 148 Ariz. 66, 68, 712 P.2d 979, 981 (App. 1985).
¶3 Whitehill represented Davenport in an action to partition real property that was settled in 2008. Beginning in 2010, Davenport filed three complaints against Whitehill in federal court, each of which was dismissed for lack of personal and subject matter jurisdiction. In May 2013, Davenport filed this lawsuit against Whitehill in the Pima County Superior Court, alleging breach of contract and legal malpractice.
¶4 Whitehill moved for summary judgment on the grounds that the two year statute of limitations for the negligence action had expired and that Arizona does not recognize claims for breach of contract based on professional negligence. Because Davenport failed to respond, Whitehill moved for summary disposition of his motion.
¶5 The trial court granted the motion for summary judgment based on Davenport's failure to respond or to demonstrate the existence of an issue of material fact. The court found that summary judgment was appropriate pursuant to Rule 7.1(b), Ariz. R. Civ. P., and that Whitehill had "demonstrated a factual and legal basis for granting the motion" based upon, "[a]mong other exhibits, . . . a fee agreement" between Davenport and her former attorney. Davenport timely appealed.
On December 5, 2013, over a month after filing her notice of appeal, Davenport filed a motion to vacate the trial court's ruling on the ground that "the Arizona Rules of Civil Procedure were not adhered to in this case." But because Davenport filed the motion to vacate after she filed her notice of appeal, the trial court had no authority to consider it. See State v. O'Connor, 171 Ariz. 19, 21-22, 827 P.2d 480, 482-83 (App. 1992) (appeal divests trial court of jurisdiction except for actions that do not negate or frustrate the pending appeal).
Discussion
¶6 Davenport urges us to reverse the trial court's ruling and grant her a new trial, claiming she did not receive Whitehill's motion for summary judgment and thereby was denied the opportunity to oppose the motion and request a hearing. But Davenport's brief does not substantially comply with the rules of civil appellate procedure, which require appellate briefs to set forth a table of contents with page references, a table of citations, a statement of facts with citations to the record on appeal, and arguments "contain[ing] the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citation to the authorities, statutes and parts of the record relied on." See Ariz. R. Civ. App. P. 13(a). Davenport has failed to include any facts, argument, or legal authority to support her bald contentions on appeal. Such impermissible practice is a ground for this court to find a party's argument waived, see Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007) (finding waiver based on failure to comply with appellate procedural rules), and is justification for our summary refusal to consider her appeal, see In re $26,980.00 U.S. Currency, 199 Ariz. 291, ¶ 28, 18 P.3d 85, 93 (App. 2000) (appellate court will not consider appellant's bald assertion offered without elaboration or citations to legal authority). Although Davenport is proceeding in propria persona, she is "held to the same familiarity with required procedures and the same notice of statutes and local rules as would be attributed to a qualified member of the bar," and "is entitled to no more consideration than if [s]he had been represented by counsel." Copper State Bank v. Saggio, 139 Ariz. 438, 441, 679 P.2d 84, 87 (App. 1983).
Davenport's opening brief, which is six pages long, also fails to indicate the basis of this court's jurisdiction, as required by Rule 13(a)(3), Ariz. R. Civ. App. P.
Although Davenport includes a brief "history of events" in her reply brief, she does not cite to the record on appeal or provide any argument or support for her contentions as required by Rule 13.
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¶7 Even were we to excuse the deficiencies in her brief, Davenport's failure to comply with Rule 13(a) precludes our meaningful review of the trial court's ruling. For example, Davenport fails to identify any error in the court's determination that there was no issue of material fact precluding the entry of summary judgment. In addition, although she claims the court erred in granting Whitehill's motion because she had not received it, Davenport fails to cite any portion of the record indicating the court had an opportunity to consider this claim. See Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 6, 119 P.3d 467, 470-71 (App. 2005) (issues raised for first time on appeal generally not considered).
Disposition
¶8 For the foregoing reasons, Davenport's appeal is dismissed.