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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 SHANNON SIMPSON, Plaintiff/Appellant,

                                        v.

 BELL PLAZA 32, LLC, an Arizona limited liability company; ARCADIA
   MANAGEMENT GROUP, INC., an Arizona corporation; JANICE C.
                   CORNIA, Defendants/Appellees.
__________________________________________________________________

      BELL PLAZA 32, LLC, an Arizona Limited liability company,
               Counterclaimant/Third-Party Plaintiff,

                                        v.

                  SHANNON SIMPSON, a single woman,
                   Counterdefendant/Third-Party Defendant.


                             No. 1 CA-CV 16-0077
                               FILED 3-2-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2015-050171
               The Honorable Aimee L. Anderson, Judge

                                  AFFIRMED


                                   COUNSEL

Shannon Simpson, Bakersfield, CA
Plaintiff/Appellant
Jones, Skelton & Hochuli, P.L.C., Phoenix
By Mark D. Zukowski, Lori L. Voepel, Joel W. Habberstad
Counsel for Defendants/Appellees



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Chief Judge Michael J. Brown and Judge Maurice Portley joined.1


T H U M M A, Judge:

¶1            Plaintiff Shannon Simpson appeals from a final judgment in
favor of defendant Bell Plaza 32, LLC, on Simpson’s contract and
conversion claims, Bell Plaza’s counterclaim for unpaid rent and awarding
Bell Plaza attorneys’ fees and costs. Because Simpson has shown no error,
the judgment is affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2            In August 2014, Simpson entered into a written lease with Bell
Plaza in which she leased 900 square feet of space at a shopping center on
West Bell Road in Phoenix. Simpson agreed to use the space “for an internet
access and wi-fi facility for members of the public to access the internet and
other related services.”

¶3             In late November 2014, Bell Plaza’s property manager and
then its attorney sent Simpson written notice of nonmonetary defaults
under the lease, giving her ten days to cure. By January 2015, Simpson had
failed to cure to Bell Plaza’s satisfaction; Bell Plaza then locked Simpson out
of the property and placed a lien on her personal property located there. In
April 2015, Simpson filed this case against Bell Plaza and its property




1The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
VI, Section 3 of the Arizona Constitution.




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                      SIMPSON v. BELL PLAZA et al.
                          Decision of the Court

manager, alleging breach of contract and conversion. Bell Plaza answered
and filed a counterclaim for breach of the lease.2

¶4            In July 2015, when Simpson did not timely respond to the
counterclaim, Bell Plaza filed an application for entry of default. When
Simpson failed to timely respond, default was entered. See Ariz. R. Civ. P.
55(a)(1)(2017).3 In initially denying Bell Plaza’s subsequent request for entry
of default judgment, the superior court expressed concern that Simpson
had abandoned her claim and ordered her to contact Bell Plaza to prepare
a scheduling order. In doing so, the court warned that if she failed to
comply with applicable rules, her complaint would “be stricken for a failure
to prosecute and a default judgment will be granted against her on the
[c]ounterclaim.” Simpson then belatedly filed a reply to the counterclaim,
and the parties submitted a proposed scheduling order.

¶5             A few months later, Bell Plaza filed a motion to compel and
for sanctions, alleging Simpson failed to provide an initial disclosure
statement pursuant to Arizona Rule of Civil Procedure 26.1, failed to timely
respond to written discovery and failed to appear for her deposition. When
Simpson failed to timely respond to those motions, Bell Plaza asked that her
failure be deemed consent to the granting of the motions and that they be
summarily granted. See Ariz. R. Civ. P. 7.1(b). Granting the motions for
summary disposition, to compel and for sanctions, the superior court
dismissed Simpson’s claims with prejudice, entered judgment by default in
favor of Bell Plaza and against Simpson on the counterclaims and awarded
Bell Plaza attorneys’ fees and costs. The superior court entered a final
appealable judgment. This court has jurisdiction over Simpson’s timely
appeal pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶6            Simpson argues the superior court erred because: (1) the
failure to respond to a dispositive motion cannot, without more, result in


2 Although Bell Plaza filed a third party complaint against another
individual, because the record indicates that individual was not served, that
individual is not a party to this appeal. See McHazlett v. Otis Eng’g Corp., 133
Ariz. 530, 532 (1982) (holding unserved individuals are not “parties” for
purposes of entry of final judgment and appellate jurisdiction).

3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


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                      SIMPSON v. BELL PLAZA et al.
                          Decision of the Court

the granting of such a motion; (2) the failure to appear for a deposition
cannot constitute a failure to prosecute and (3) absent an order compelling
a party to appear at deposition, an action may not be dismissed for failing
to cooperate in discovery.

¶7             Simpson first argues the superior court improperly granted a
dispositive motion based solely on her failure to respond under Arizona
Rule Civil Procedure 7.1(b), contrary to Schwab v. Ames Constr., 207 Ariz. 56
(App. 2004). Bell Plaza, however, did not move for summary judgment,
meaning Schwab does not apply. And as determined by this court after
Schwab, where a party “failed to file a timely response to [a] motion to
dismiss, the court had the power to grant the motion for that reason alone.”
Strategic Dev. & Constr. Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 65
¶ 17 (App. 2010). Here, the superior court summarily granted motions to
compel and for sanctions after Simpson (1) failed to timely respond and (2)
had been warned of the need to comply with applicable rules or face such
consequences. On this record, Simpson has not shown the court abused its
discretion in summarily granting Bell Plaza’s motion to compel and for
sanctions. Id.

¶8             Simpson next argues the superior court improperly dismissed
her case solely because of her failure to appear at her deposition. The court,
however, granted Bell Plaza’s motions after a series of failures by Simpson,
including (1) a failure to respond to Bell Plaza’s counterclaim; (2) an
apparent abandonment of her claims; (3) a claimed failure to timely provide
Rule 26.1 initial disclosure; (4) a claimed failure to timely respond to written
discovery; (5) a failure to appear for her deposition and (6) a failure to
respond to motions to compel and for sanctions. On this record, the factual
predicate for Simpson’s argument (that dismissal was based only on her
failure to appear at her deposition) is unsupported. Nor has Simpson
shown any requirement for an evidentiary hearing, given that she had been
warned of the need to comply with court rules, that she has been self-
represented throughout the case (meaning there is no question that she, as
opposed to an attorney, is responsible for her failures) and there is no
proffer of what such an evidentiary hearing would reveal. On this record,
Simpson has shown no abuse of discretion in the court’s rulings. See Estate
of Lewis v. Lewis, 229 Ariz. 316, 324 ¶ 19 (App. 2012).

¶9            Finally, Simpson argues that, absent an order compelling her
to appear for deposition, the superior court erred in issuing its rulings. By
rule, however, the court “may, on motion, order sanctions if . . . a party . . .
fails, after being served with proper notice, to appear for his or her
deposition.” Ariz. R. Civ. P. 37(f)(1)(A)(i). Thus, the court was not required


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                       SIMPSON v. BELL PLAZA et al.
                           Decision of the Court

to order Simpson to appear for her deposition before imposing
consequences when she failed to do so.

¶10             On this record, given Simpson’s demonstrated failures to
comply with the applicable rules (including repeated failures to timely
respond to filings) and given the court’s warning and direction that she do
so, Simpson has not shown the court abused its discretion in entering its
rulings. See, e.g., Estate of Lewis, 229 Ariz. at 324 ¶ 19; Strategic Dev. & Constr.
Inc., 224 Ariz. at 65 ¶ 17.4

¶11           Bell Plaza seeks an award of attorneys’ fees and costs on
appeal pursuant to the lease (provision 12.5) and A.R.S. § 12-341.01. Because
Bell Plaza is the prevailing party under provision 12.5, it is granted
reasonable attorneys’ fees incurred on appeal, along with taxable costs on
appeal, contingent upon Bell Plaza’s compliance with Arizona Rule of Civil
Appellate Procedure 21.

                                CONCLUSION

¶12            The judgment is affirmed.




                            AMY M. WOOD • Clerk of the Court
                             FILED: AA




4 Given that the judgment is affirmed, this court need not address Bell
Plaza’s argument that the superior court’s award of attorneys’ fees and
costs should be summarily affirmed on other grounds.


                                          5
