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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PATRICK DALLABETTA and PAMELA DALLABETTA, 

husband and wife, Plaintiffs/Appellees,

v.

JERRY D. DEPPEN AND CONNIE K. KRABER-DEPPEN, 

husband and wife, Defendants/Appellants.

No. 1 CA-CV 18-0458 

Appeal from the Superior Court in Yuma County

No. S1400CV201600084

The Honorable John P. Plante, Judge

AFFIRMED

COUNSEL

Schneider & Onofry, P.C., Yuma

By Charles D. Onofry, Luane Rosen

Counsel for Plaintiff/Appellant

Law Office of Phil Hineman, P.C., Yuma

By Phil Hineman

Counsel for Defendants/Appellants

FILED 10-22-2019
DALLABETTA, et al. v. DEPPEN, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in 

which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.

T H U M M A, Judge:

¶1 Defendants Jerry D. Deppen and Connie K. Kraber-Deppen

(the Deppens) appeal from the denial of their motion to set aside a final 

judgment entered against them after they failed to participate in 

compulsory arbitration. Because the arbitrator properly found for plaintiffs 

Patrick and Pamela Dallabetta on liability and damages, the superior court 

correctly denied the motion seeking to set aside that portion of the final 

judgment. Because the Deppens have failed to show any error, the 

judgment is affirmed. 

FACTS AND PROCEDURAL HISTORY

¶2 In April 2015, the Deppens agreed to purchase the 

Dallabettas’ home for $650,000. The parties signed a purchase contract 

agreeing that the Deppens would deposit $50,000 in earnest money in an 

escrow account, with the remainder to be paid in cash by a May 8, 2015 

close of escrow deadline. If the Deppens did not pay the purchase price by 

that deadline, the contract provided the $50,000 earnest money deposit was 

the liquidated damages amount the Dallabettas would recover.

¶3 After the parties signed the contract, the Deppens’ real estate 

agent “represented to the Dallabettas that the Deppens had written a check 

for $50,000 and that it would be deposited with the title company.” Later, 

after the Dallabettas began preparing to move, the Deppens’ real estate 

agent “informed them that the Deppens had not actually paid the $50,000 

earnest money, but that they were in the process of getting the money from 

the bank and that it would be deposited shortly.” Ultimately, the Deppens 

never deposited the $50,000 into an escrow account. The Deppens then 

refused to comply with the terms of the contract, escrow did not close by 

the May 8, 2015 deadline, and the sale never took place.
DALLABETTA, et al. v. DEPPEN, et al.

Decision of the Court

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¶4 In February 2016, the Dallabettas sued the Deppens,1 alleging 

breach of contract and other theories, claiming (among other things) the 

failure to pay the $50,000 in earnest money was a material breach of the 

contract. Confirming they sought $50,000, the Dallabettas certified the 

amount in controversy did not exceed the $50,000 limit for compulsory 

arbitration. Yuma County Local Rule 10(A) (2019);2 see also Ariz. R. Civ. P. 

72-77. The Deppens, who represented themselves during the relevant 

superior court proceedings, filed a timely answer in February 2016. The 

superior court then appointed an arbitrator.

¶5 In late March 2017, the Dallabettas moved to strike the 

Deppens’ answer, claiming the Deppens had failed to make any Rule 26.1 

disclosures and ignored repeated requests to do so. The court set a May 8, 

2017 hearing on the motion. When the Deppens failed to respond to the 

motion to strike, the Dallabettas sought summary disposition of the motion 

to strike. See Ariz. R. Civ. P. 7.1(b).

¶6 On April 28, 2017, the arbitrator gave the Deppens “30 days 

from the date of this order to comply with their Rule 26.1 disclosure 

obligations,” adding that if they failed to do so “their Answer will be 

stricken.” A week later, the court denied the Dallabettas’ request for 

summary disposition. At the May 8, 2017 court hearing on the motion to 

strike, the Deppens failed to appear, and, after hearing from counsel for the 

Dallabettas, the court vacated the hearing, adding that “if the matter is not 

resolved [by the arbitrator], it can be brought back before the Court.”

¶7 When the Deppens failed to provide any disclosure as 

ordered by the arbitrator, on June 1, 2017, the Dallabettas filed a renewed 

motion to strike the Deppens’ answer and request to enter the arbitration 

award. The Deppens never responded to this motion. Later in June 2017, 

the arbitrator issued an award noting the Deppens’ answer was stricken, 

entering an award in favor of the Dallabettas and against the Deppens for 

the principal amount of $50,000, $322 in taxable costs and $7,500 in 

attorneys’ fees, plus interest. The Deppens did not appeal the award. In 

August 2017, the court granted the Dallabettas’ motion for entry of 

judgment on the arbitration award.

 

1 The Dallabettas also sued the Deppens’ real estate agent and her employer, 

later settling with those defendants, who are not parties to this appeal.

2 Absent material revisions after the relevant dates, statutes cited refer to 

the current version unless otherwise indicated. 
DALLABETTA, et al. v. DEPPEN, et al.

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¶8 When the Deppens did not pay the judgment, in December 

2017, the Dallabettas applied for writs of garnishment against the Deppens.

In January 2018, counsel for the Deppens filed a notice of appearance and a 

motion to set aside the arbitration award, claiming the June 2017 award was 

beyond the arbitrator’s authority. After full briefing and a hearing, the court 

denied the motion, concluding it was untimely, there was no timely 

challenge to the arbitration award and the judgment was valid. After 

additional briefing, the court issued a final judgment denying the motion 

to set aside and awarding the Dallabettas an additional $3,364.50 in 

attorneys’ fees. This court has jurisdiction over the Deppens’ timely appeal 

pursuant to Ariz. Rev. Stat. (A.R.S.) section 12-2101(A)(2)

DISCUSSION

¶9 On appeal, the Deppens press three arguments: (1) the 

Dallabettas failed to comply with procedural prerequisites to filing the suit 

and moving to strike their answer; (2) the arbitrator exceeded his authority 

by striking their answer and entering an award against them; and (3) the 

superior court failed to hold a hearing before entering the judgment 

confirming the arbitration award. The Dallabettas argue with some force 

that the Deppens’ appeal from an amended order denying their motion to 

set aside the judgment pursuant to Rule 60, but fail to address that Rule 60 

order. It is true the Deppens’ arguments on appeal cut straight to the merits 

of the arbitration award and the judgment confirming that award. That 

said, given the unique procedural history of this case and the issues 

involved, this court addresses the merits of the Deppens’ arguments on 

appeal. 

I. The Deppens Waived Any Argument That The Dallabettas Failed 

To Comply With The Alternative Dispute Resolution 

Requirement In The Contract And That Their Motion To Strike 

Was Procedurally Improper.

¶10 The parties’ contract contains an alternative dispute 

resolution (ADR) provision, in which they agreed to mediate, and if that 

did not prove successful, then arbitrate any dispute arising out of the 

contract. No such ADR activity occurred. Accordingly, the Deppens argue, 

the Dallabettas “should have been estopped from moving forward with 

their complaint until they complied with the mediation clause.” Having 

failed to timely invoke that ADR process and having failed to press that 

argument at any point before entry of judgment in the superior court, the 

Deppens have waived such an argument. See, e.g., Continental Lighting & 

Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386 ¶ 12 
DALLABETTA, et al. v. DEPPEN, et al.

Decision of the Court

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(App. 2011); In re Estate of Cortez, 226 Ariz. 207, 211 ¶¶ 5-6 (App. 2010);

Schurgin v. Amfac Elec. Distribution Corp., 182 Ariz. 187, 190 (App. 1995).

¶11 The Deppens also assert, for the first time on appeal, the 

Dallabettas’ motion to strike, filed in mid-2017, was improper because it did 

not attach a “good faith consultation certificate.” Ariz. R. Civ. P. 7.1(h).3 In 

pressing this argument, the Deppens do not dispute the statements in that 

motion that they had “actively ignored undersigned counsel” for the 

Dallabettas. Moreover, by failing to raise this argument in a timely manner, 

it is waived on appeal. Continental Lighting, 227 Ariz. at 386 ¶ 12; Schurgin, 

182 Ariz. at 190.

II. The Deppens Have Not Shown The Arbitrator Exceeded His 

Authority By Striking Their Answer And Entering An Award.

¶12 The Deppens argue by striking their answer and entering an 

award, the arbitrator granted a motion to dismiss or for summary 

judgment, which exceeded the arbitrator’ authority. See Ariz. R. Civ. P. 

74(d)(1)(C), (E). Not so. Unless otherwise specified, the arbitrator has the 

authority to “make all legal rulings,” including “ruling on discovery 

motions.” Ariz. R. Civ. P. 74(d)(1), (3). Because the motion to strike, filed 

pursuant to Rule 37, was neither a motion to dismiss nor a motion for 

summary judgment, the arbitrator had the authority to rule on that motion.

¶13 The Deppens argue “[t]he Arbitrator improperly ruled on 

[Dallabetta]’s motion to strike and request for summary disposition [when 

the Deppens failed to respond to the motion to strike] to default and dismiss 

the [Deppens’] ability to participate to any extent in the arbitration.” This 

argument fails for two reasons: (1) the arbitrator properly ruled on the 

motion to strike given the Deppens’ failure to provide any Rule 26.1 

disclosures and failure to respond to the motion and (2) the Deppens could 

have appealed the arbitration award but failed to do so. See Ariz. R. Civ. P. 

77.

¶14 The Deppens contend before the answer could be stricken, an 

evidentiary hearing had to be held and there had to be an express “finding 

that the party was responsible for noncompliance.” The Deppens, however, 

 

3Although non-compliance with Rule 7.1(h) was briefly mentioned by 

counsel for the Deppens during oral argument on the motion to set aside 

the judgment, this argument was neither developed before that court, nor 

raised in the motion itself, which was insufficient to preserve the issue for 

appeal. See Continental Lighting, 227 Ariz. at 386 ¶ 12.
DALLABETTA, et al. v. DEPPEN, et al.

Decision of the Court

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were self-represented at the time. Accordingly, no “culprit” hearing was 

necessary to determine whether the inaction was attributed to the Deppens 

or their counsel. See Hammoudeh v. Jada, 222 Ariz. 570, 572 ¶ 7 (App. 2009)

(“Although an evidentiary hearing may often be necessary to determine 

whether responsibility for obstructing discovery lies with the party or with 

his counsel, such a hearing is not required when the facts are apparent from 

the record.”). For these same reasons, the Deppens have not shown the 

process used by the arbitrator and the superior court — which the Deppens 

refused to participate in — denied them their due process rights or resulted 

in a disproportionate consequence.

III. The Judgment Was Not A Default Judgment.

¶15 The Deppens argue the judgment “amounted to a default 

judgment” under Rule 55, meaning the superior court was required to hold 

a hearing before its entry because the complaint did not allege “a sum 

certain” for damages and “legal fees and costs are not stated for a specific 

sum if a default is rendered.” The judgment, however, was not entered as a 

result of an entry of default under Rule 55. Instead, the Dallabettas moved 

for entry of judgment on the arbitration award, after the Deppens failed to 

appeal from that award and the time to do so had passed. See Ariz. R. Civ. 

P. 77(b) (allowing for 20 days to appeal from arbitration award); id. at 76(d) 

(“If no appeal is filed by the deadline for filing an appeal under Rule 77(b), 

any party may file a motion to enter judgment on the [arbitration] award.”). 

The superior court then granted the Dallabettas motion for entry of 

judgment on the arbitration award after the Deppens failed to respond to 

that motion. And the relief in the judgment mirrors precisely the relief in 

the award. Because the judgment was not a default judgment, the Deppens’

argument fails.

IV. Attorneys’ Fees On Appeal.

¶16 The Deppens request attorneys’ fees incurred on appeal 

pursuant to A.R.S. §§ 12-341.01, 12-349 and 12-350. The Dallabettas request 

attorneys’ fees incurred on appeal under the provisions of the contract and 

A.R.S. § 12-341.01. The contract provides that the “prevailing party in any 

dispute or claim” between the Deppens and the Dallabettas “shall be 

awarded their reasonable attorney fees and costs.” Accordingly, the 

Deppens’ request for attorneys’ fees on appeal is denied. The Dallabettas’ 

request for attorneys’ fees on appeal is granted, and they also are awarded 

their taxable costs on appeal, all contingent upon their compliance with 

Ariz. R. Civ. App. P. 21.
DALLABETTA, et al. v. DEPPEN, et al.

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CONCLUSION

¶17 The judgment is affirmed.