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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 2  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). 3  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 4