Calabrese v. Fortin
1 CA-CV 14-0818
| Ariz. Ct. App. | Aug 8, 2017Background
- Fortin, a founding member of non‑profit Dreem Green (medical marijuana dispensary), appointed Calabrese to Dreem Green’s board under two written agreements; she later removed him invoking A.R.S. § 10‑3809(B).
- Calabrese sued Fortin (and later added Dreem Green, Rappazzo, Gunderson, Brown) asserting five contract‑based claims and tortious interference claims against John Does and subsequently named individuals.
- Fortin moved for summary judgment; Calabrese filed a cross motion challenging Fortin’s ability to rely on § 10‑3809(B). The trial court granted summary judgment for Fortin and co‑defendants on the contract claims and entered final judgment, awarding Fortin attorneys’ fees under A.R.S. § 12‑341.01(A).
- Dreem Green moved to dismiss the appeal as moot based on a settlement in related litigation and changes in board composition; the appellate court denied the motion for lack of persuasive record support and due process concerns.
- On appeal, the court reviewed whether summary judgment was proper and whether the fee award was appropriate; it affirmed summary judgment but vacated the attorneys’ fee award to Fortin because Fortin did not file an answering brief (deemed confession of error).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment for defendants on contract claims was improper | Calabrese: Fortin breached contractual right to board membership by removing him | Fortin: No genuine issue of material fact; plaintiff cannot prove required elements (including damages) | Affirmed — summary judgment proper; plaintiff failed to prove damages with reasonable certainty and waived damage argument on appeal |
| Whether tortious interference claims survive absent proof of damages | Calabrese: Interference damaged contractual/business expectancies | Defendants: Plaintiff cannot show resultant damages | Affirmed dismissal — tort claims fail because damages element was waived/unsupported |
| Mootness / dismissal of appeal due to related settlement and receivership | Calabrese: (implicit) appeal remains live | Dreem Green: Settlement with Rush 702 and receivership changed board make appeal moot | Denied — record and legal principles do not show Calabrese is bound by third‑party settlement; due process and lack of record support preclude mootness finding |
| Whether attorneys’ fees award to Fortin was proper | Calabrese: Trial court erred in awarding fees | Fortin: Entitled to fees as successful contractual litigant | Vacated — appellee Fortin failed to file an answering brief; court treated that as confession of error and vacated fee award |
Key Cases Cited
- Orme Sch. v. Reeves, 166 Ariz. 301 (1990) (summary judgment standard and when movant is entitled to judgment)
- Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286 (App. 2013) (standard for viewing facts on appeal from summary judgment)
- Grubb & Ellis Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83 (App. 2006) (contract interpretation reviewed de novo)
- KB Home Tucson, Inc. v. Charter Oak Fire Ins., 236 Ariz. 326 (App. 2014) (affirming summary judgment if correct for any reason supported by the record)
- Graham v. Asbury, 112 Ariz. 184 (1975) (elements required to prove breach of contract)
- Gilmore v. Cohen, 95 Ariz. 34 (1963) (requirement that damages be shown with reasonable certainty)
- McNutt Oil & Refining Co. v. D’Ascoli, 79 Ariz. 28 (1955) (damages must allow approximately accurate estimate)
- Martin v. La Fon, 55 Ariz. 196 (1940) (limitations on speculative damages recovery)
- State v. Moody, 208 Ariz. 424 (2004) (appellate briefing requirements; failure to develop argument waives issue)
- Neonatology Assocs., Ltd. v. Phx. Perinatal Assocs. Inc., 216 Ariz. 185 (App. 2007) (damages required for tortious interference claims)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due process requires notice and meaningful opportunity to be heard)