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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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
2

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 

 

1 The 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.
SIMPSON v. BELL PLAZA et al.

Decision of the Court

3

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).

3 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
SIMPSON v. BELL PLAZA et al.

Decision of the Court

4

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 selfrepresented 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 
SIMPSON v. BELL PLAZA et al.

Decision of the Court

5

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. 

 

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.