CAMBONI v. ALLSTATE, et al

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ANTHONY CAMBONI, ) ) Plaintiff/Appellant, ) ) v. ) ) ALLSTATE INSURANCE COMPANY; ) PATRICK BARKER; JANE DOE BARKER; ) THE PAT BARKER AGENCY; LAWRENCE ) M. LAZZARA, JR., ESQ; JANE DOE ) LAZZARA; JOY PARKER, ESQ; JOHN ) DOE PARKER; PARKER AND LAZZARA, ) PLLC; JAMI HEIDEN; JOHN DOE ) HEIDEN; JOHN HAAS, ESQ; JANE DOE ) HAAS; GARY LINDSAY; JANE DOE ) LINDSAY, ) ) Defendants/Appellees. ) __________________________________) DIVISION ONE FILED: 10/02/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CV 11-0592 DEPARTMENT T MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2010-096833 The Honorable John R. Ditsworth, Judge AFFIRMED Anthony Camboni Plaintiff/Appellant In Propria Persona Mesa Herman Goldstein By Evan S. Goldstein Christi A. Woods Attorneys for Defendants/Appellees Allstate Insurance Company, Haas, and Lindsay Phoenix Lewis Brisbois Bisgaard & Smith LLP By Shawn M. Petri Sean P. Healy Attorneys for Defendants/Appellees and Pat Barker Agency Phoenix Barker, Heiden Broening Oberg Woods & Wilson PC By James R. Broening Kerry L. Beringhaus Mark R. Hill Attorneys for Defendants/Appellees Lazzara, Parker, and Parker and Lazzara PLLC Phoenix D O W N I E, Judge ¶1 Anthony Camboni appeals the dismissal of his complaint against Allstate Insurance Company ( Allstate ), John Haas, and Gary Lindsey (collectively, the Allstate Defendants ); Patrick Barker, Jami Heiden, and the Pat Barker Agency (the Barker Defendants ); and attorneys Lawrence Lazzara, Joy Parker, and Parker & Lazzara, PLLC (the Lazzara Defendants ). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 vehicle In September owned by his 2000, parents Camboni and was insured rear-ended by a vehicle insured by Farmers. a passenger by Geico in that a was In February 2002, Camboni told his Allstate agent, Pat Barker, about the accident. Camboni retained legal counsel and settled with Farmers for its liability policy arbitration with limits of Geico regarding motorist (UIM) coverage. $50,000. its Camboni $100,000 then pursued underinsured The arbitrator valued Camboni s claim 2 at $87,730.38, and because Camboni had already recovered $50,000 from Farmers, he was awarded an additional $37,730.38. ¶3 made In July 2008, Camboni contacted the Barker Agency and a UIM policy. claim Allstate for the 2000 gathered accident information under but his denied Allstate the claim because Camboni had been fully compensated for his injuries, the UIM arbitration decision was binding, the underlying insurance coverage had not been exhausted, and the statute of limitations had expired. ¶4 Camboni repeatedly contacted Allstate for information about his claim. He left multiple voicemail messages at the Barker agency that escalat[ed] in tone and nature, and he also appeared at Defendants the office represented with the a Barker video camera. Defendants in The Lazzara obtaining an injunction against harassment that prohibited Camboni from being within half a mile of the Barker Defendants or their workplace ( justice court proceedings ). ¶5 The In August 2010, Camboni filed the instant litigation. Barker arguing failed Defendants Camboni s to defendants. moved complaint differentiate the for a more was vague allegations definite and statement, convoluted between the The superior court granted the motion. and named Camboni thereafter filed an amended complaint that expanded the term 3 defendant to include every named defendant in every enumerated claim. ¶6 Defendants moved to dismiss the complaint pursuant to Rule 12(b)(6), Arizona Rules of Civil Procedure ( Rule ). court set oral argument, and Camboni requested a The 30-day continuance to retain counsel and/or assistance in navigating complexities associated with Arizona s Judicial System. Defendants did not object, and the court granted the motion. week before another the scheduled continuance because oral he argument, had retaining Co-Counsel or assistance. not Camboni been A requested successful in Defendants objected, and the court denied the motion. ¶7 Camboni represented himself at the oral argument. At the conclusion of the hearing, the court granted the motion to dismiss and denied Camboni s second motion to amend. 1 Camboni timely Arizona appealed. We have jurisdiction pursuant to Revised Statutes ( A.R.S. ) section 12-2101(A). 1 The record on appeal does not include a written second motion to amend, and Camboni has not provided a transcript of the oral argument, which would presumably reveal whether the court was referring to an oral motion to amend. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995) (appellant responsible to ensure the record on appeal contains all necessary transcripts). 4 DISCUSSION ¶8 As appellees correctly note, Camboni s opening brief fails to comply with Procedure ( ARCAP ). the Arizona Rules of Civil Appellate Even more significantly, with two arguable exceptions discussed infra, the only substantive legal arguments that Camboni makes on appeal relate to: (1) the generic standard for dismissing claims under governing motions to amend. Rule 12(b)(6); and (2) the law Camboni does not explain how these general legal tenets relate to his case or why the superior court erred in dismissing the substantive counts of his complaint. 2 ¶9 It is not this Court s responsibility to develop a party s argument. Ariz. 140, omitted). 143, Ace Auto. Products, Inc. v. Van Duyne, 156 750 P.2d 898, 901 (App. 1987) (citations A party must present significant arguments, set forth his or her position on the issues raised, and include citations to relevant authorities, statutes, and portions of the record. See ARCAP 13(a)(6), (b)(1). The failure to present an argument in this manner may be treated as abandonment and a waiver of appellate issues. State v. Moody, 208 Ariz. 424, 452 n.9, 94 2 Arguing that Camboni had good and sufficient grounds for the various causes of action against the Defendants is insufficient. Similarly unavailing are conclusory statements such as: Defendants have refused to follow the terms of contracts; Defendants have not acted in good faith; and Defendants have acted to purposely deceive Camboni. 5 P.3d 1119, 1147 n.9 (2004); see also Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) (issues not clearly raised and argued in a party s appellate brief are waived). Litigants representing themselves in propria persona are entitled to no more consideration than if represented by counsel. They are held to the same level of knowledge regarding required procedures and applicable laws as are attorneys. 284, 287, ¶ See Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 15, 17 P.3d 790, 793 (App. 2000) (citations omitted); Old Pueblo Plastic Surgery, P.C. v. Fields, 146 Ariz. 178, 179, 704 P.2d 819, 820 (App. 1985). ¶10 Viewed generously, the opening brief can be read to pose substantive challenges to the dismissal of two categories of claims: (1) proceedings; and [e]xtortion, rightfully those (2) predicated count [c]oercion, deem these 15 of on the the complaint, [t]hreats. arguments justice court denominated Although waived we as based well could on Camboni s failure to cite applicable legal authority, we will briefly address them. ¶11 Statements made in the justice court proceedings are absolutely claim. 3 privileged and cannot form the basis for a civil As the Arizona Supreme Court has explained: 3 Count ten of the complaint, alleging malicious prosecution, is also based on the justice court proceedings. 6 In the area of absolute privileges one of the most common is that involving the participant in judicial proceedings. The socially important interests promoted by the absolute privilege in this area include the fearless prosecution and defense of claims which leads to complete exposure of pertinent information for a tribunal s disposition. The privilege protects judges, parties, lawyers, witnesses and jurors. The defense is absolute in that the speaker s motive, purpose or reasonableness in uttering a false statement do not affect the defense. Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984); see also Ashton-Blair v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996) (persons making allegedly defamatory statements in connection with a judicial proceeding are protected so long as such statements bear some relationship to the proceeding ). ¶12 Count 15 of the complaint, denominated [e]xtortion, [c]oercion, [t]hreats, alleges telephonic threats by the Lazzara Defendants that forced Camboni to block their calls and divorce his wife to protect her from being a target of further harassment, coercion, extortion though, is a criminal offense. and threats. Extortion, See A.R.S. § 13-1804. And Such a claim requires proof that the appellees instituted a civil action that was motivated by malice, begun without probable cause, terminated in Camboni s favor, and damaged Camboni. See Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 416-17, 758 P.2d 1313, 1318-19 (1988). The justice court proceedings, however, did not terminate in Camboni s favor. 7 coercion and threats are not recognized civil causes of action in Arizona. ¶13 Camboni was allowed to amend his complaint once, but he failed to make appropriate or meaningful changes. have no transcript, we do not know the basis Because we for Camboni s second request to amend or the theories and facts argued in the superior court. Without a transcript, we presume that the record would support that court s denial of the second motion to amend. See Kohler v. Kohler, 211 Ariz. 106, 108 n.1, ¶ 8, 118 P.3d 621, 623 n.1 (App. 2005). ¶14 Defendants request attorneys fees, costs, and sanctions against Camboni pursuant to ARCAP 21 and 25. ARCAP 21 does not provide a substantive basis for a fee award. Smyser v. City of Peoria, 215 Ariz. 428, 442, ¶ 50, 160 P.3d 1186, 1200 (App. 2007) (citation omitted). We therefore deny their request pursuant to ARCAP 21. ¶15 ARCAP 25 allows us to impose sanctions when a motion is frivolous or filed solely for the purpose of delay, or where any party has been guilty of an unreasonable infraction of these rules. The sanction may include the imposition of attorneys fees or other reasonable penalties or damages . . . as the circumstances of the case and the discouragement of like conduct in the future may require. ARCAP 25. 8 ¶16 After answering briefs were submitted, Camboni filed numerous motions that required responses from Defendants. motions included two requests to suspend the rules of The civil appellate procedure and multiple demands for oral argument. One motion sought to Strike Scandalous and Impertinent References, while another asked us to transfer the matter to the Arizona Supreme Court and remove Defendants attorneys. a motions panel of the court entered an In May 2012, order prohibiting Camboni from filing additional motions ( May 2012 order ). ¶17 After the May 2012 order, Defendants filed a joint motion for fees and sanctions. ARCAP 21(c) allows a request for fees to be made in the briefs on appeal, or by written motion filed and served prior to oral argument or submission of the appeal. Defendants requests are therefore timely. ¶18 In the exercise of our discretion, we grant Defendants request in part, awarding them reasonable attorneys fees incurred in responding to the motions filed by Camboni on or after December 17, 2011. 4 As the successful parties on appeal, Defendants are also entitled to recover their appellate costs. Both awards are subject to Defendants compliance with ARCAP 21. 4 We decline to address Defendants suggestion that Camboni obtained a fraudulent divorce, in part because they cite no legal authority for their admittedly uncommon request. 9 CONCLUSION ¶19 The judgment of the superior court is affirmed. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ ANN A. SCOTT TIMMER, Presiding Judge /s/ JOHN C. GEMMILL, Judge 10

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