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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANCO CALABRESE, a single man, Plaintiff/Appellant,

v.

CHRISTINA M. FORTIN, a single woman; JOSEPH ALAN RAPPAZZO, a 

single man; SUSAN GUNDERSON, a single woman; JIM BROWN, a 

single man; DREEM GREEN aka DREEM GREEN, INC., an Arizona nonprofit corporation, Defendants/Appellees.

No. 1 CA-CV 14-0818

Appeal from the Superior Court in Maricopa County

No. CV2013-050329

The Honorable John R. Hannah, Jr., Judge

The Honorable Alfred M. Fenzel, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Goldman & Zwillinger PLLC, Scottsdale

By Mark D. Goldman, Carolyn Goldman, Jeff S. Surdakowski

Counsel for Plaintiff/Appellant

Osborn Maledon, PA, Phoenix

By Joseph N. Roth, Brian K. Mosley

Co-Counsel for Defendant/Appellee Joseph Alan Rappazzo
2

Thrasher Jemsek PLLC, Phoenix

By Benjamin Robert Jemsek

Co-Counsel for Defendant/Appellee Joseph Alan Rappazzo

Sacks Tierney PA, Scottsdale

By Philip R. Rudd

Counsel for Defendant/Appellee Dreem Green

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Donn Kessler1 joined.

J O N E S, Judge:

¶1 Franco Calabrese appeals the trial court’s order granting

summary judgment in favor of defendants Christina Fortin, Jim Brown, 

Dreem Green (collectively, Dreem Green Appellees), Joseph Rappazzo, and 

Susan Gunderson. For the following reasons, we affirm the order granting 

summary judgment but vacate the award of attorneys’ fees to Fortin.

FACTS2 AND PROCEDURAL HISTORY

¶2 Fortin is a founding member of Dreem Green, a non-profit 

corporation formed to operate a medical marijuana dispensary. The 

underlying action arises from two agreements (the October 2012 

Agreement and the February 2013 Agreement, or, collectively, the 

Agreements), whereby Fortin, acting on behalf of Dreem Green, appointed

Calabrese to Dreem Green’s board of directors (the Board) to replace 

 

1 The Honorable Donn Kessler, Retired Judge of the Court of Appeals, 

Division One, has been authorized to sit in this matter pursuant to Article 

6, Section 20, of the Arizona Constitution.

2 In reviewing an order granting summary judgment, we view the 

facts “in the light most favorable to the party against whom summary 

judgment was entered.” Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, 

289, ¶ 10 (App. 2013) (citing Riley, Hoggatt & Suagee v. English, 177 Ariz. 10, 

12-13 (1993)).
CALABRESE v. FORTIN et al.

Decision of the Court

3

another director. In March 2013, Fortin, purporting to act under the 

authority of Arizona Revised Statutes (A.R.S.) § 10-3809(B)3 (stating “an 

appointed director may be removed with or without cause by the person 

appointing the director”), removed Calabrese from the Board. Calabrese 

sued Fortin, alleging five contract-based claims, and also brought claims 

against John Doe defendants for tortious interference with contract and 

business expectancies.

¶3 Fortin moved for summary judgment. A week later, 

Calabrese filed an amended complaint adding Dreem Green as a defendant 

on the contract claims and naming Rappazzo, Gunderson, and Brown as

defendants on the tortious interference claims. Calabrese then moved for 

summary judgment, seeking a ruling that “Fortin cannot rely upon A.R.S.

§ 10-3809(B) as a defense in this action.” The remaining parties entered 

appearances, but did not answer or file other responsive pleadings.

¶4 After full briefing and oral argument, the trial court granted 

Fortin’s motion for summary judgment, denied Calabrese’s, and entered a 

final judgment in favor of Fortin “and all other co-defendants on each and 

every Count in the Plaintiff’s Complaint which included contract-based 

claims for relief.” After it determined the matter arose out of contract, the 

court awarded Fortin over $50,000 in attorneys’ fees and costs. See A.R.S. 

§ 12-341.01(A). Calabrese timely appealed. This Court has jurisdiction 

pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).4

 

3 Absent material changes from the relevant date, we cite a statute’s

current version.

4 Here, the trial court certified the judgment as final pursuant to 

Arizona Rule of Civil Procedure 54(c). However, “[t]he inclusion of Rule 

54(c) language in a judgment that does not resolve all claims by all parties 

is not a final judgment.” Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236 

Ariz. 221, 224, ¶ 11 (App. 2014). Although the court did not specifically 

address the tortious interference claims, the record and appellate briefing 

support the conclusion that the court intended to effect a dismissal of all 

claims against all defendants and, therefore, the court’s summary judgment 

order was a final, appealable judgment. See Musa v. Adrian, 130 Ariz. 311, 

312 (1981) (stating “the appellate court must determine that it has 

jurisdiction,” which “is limited to final judgments which dispose of all 

claims against all parties”) (citation omitted).
CALABRESE v. FORTIN et al.

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MOTION TO DISMISS

¶5 Dreem Green moves to dismiss the appeal, arguing it is moot 

because: (1) a settlement with Rush 702, Ltd., in a related case resolved 

Calabrese’s claims against Dreem Green; and (2) the members of the Board 

have been completely replaced pursuant to an order in a separate

receivership action. For the following reasons, we deny the motion.

¶6 First, Dreem Green offers no persuasive explanation how 

Calabrese is bound by a settlement between Dreem Green and Rush 702.

See Sierra Tucson, Inc. v. Bergin, 239 Ariz. 507, 510, ¶ 7 (App. 2016) 

(recognizing the “longstanding general rule that only parties to a contract 

are subject to . . . its terms”) (citing Lofts at Fillmore Condo. Ass’n v. Reliance 

Commercial Constr., Inc., 218 Ariz. 574, 575, ¶ 5 (2008), and Carroll v. Lee, 148 

Ariz. 10, 13 (1986)). Although Dreem Green suggests Calabrese is an 

associate of Rush 702 and his claims “are simply derivative of the settled 

Rush 702 claims,” it offers no record support for either statement. Nor has 

Dreem Green presented conclusive evidence the parties believe the Rush 

702 litigation is resolved.5

¶7 Second, due process requires Calabrese have notice and a 

meaningful opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319, 

348-49 (1976) (citing Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-

72 (1951) (Frankfurter, J., concurring)); see also Emmett McLoughlin Realty, 

Inc. v. Pima Cty., 212 Ariz. 351, 355, ¶ 17 (App. 2006) (citations omitted). 

Dreem Green concedes Calabrese was not a party to the receivership case

but argues Calabrese had constructive notice of the receivership because his

current counsel represented Fortin therein. Dreem Green seemingly 

implies that Calabrese, by virtue of his counsel’s involvement in the 

receivership while representing a different client, could or should have 

moved to intervene, and, because he did not, has no right to be heard on 

issues decided therein. Notwithstanding the troublesome implications of 

such an assertion, we will not address an argument not properly developed 

or supported by legal authority. See Stafford v. Burns, 241 Ariz. 474, 483, 

¶ 34 (App. 2017) (citing Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6 

(App. 2007)).

 

5 Although a June 2015 notice of settlement filed in this appeal 

indicated the Dreem Green Appellees and Calabrese had reached a 

settlement, a stipulation to dismiss the appeal was not filed.
CALABRESE v. FORTIN et al.

Decision of the Court

5

DISCUSSION

I. Summary Judgment

¶8 On appeal, Calabrese first argues the trial court erred in 

granting summary judgment in Fortin’s favor. A motion for summary 

judgment should be granted “if the facts produced in support of the claim 

or defense have so little probative value, given the quantum of evidence 

required, that reasonable people could not agree with the conclusion 

advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves, 

166 Ariz. 301, 309 (1990); see also Ariz. R. Civ. P. 56(a) (“The court shall grant 

summary judgment if the moving party shows that there is no genuine 

dispute as to any material fact and the moving party is entitled to judgment 

as a matter of law.”). We review de novo whether there are any genuine 

issues of material fact and whether the court properly applied the law, as 

well as questions of contract interpretation. Zivkovic, 232 Ariz. at 289, ¶ 10

(factual issues and application of the law) (citation omitted); Grubb & Ellis 

Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 86, ¶ 12 (App. 2006) 

(contract interpretation) (citation omitted). We will affirm the granting of a 

motion for summary judgment if correct for any reason supported by the 

record, “even if not explicitly considered by the superior court.”6 KB Home 

Tucson, Inc. v. Charter Oak Fire Ins., 236 Ariz. 326, 329, ¶ 14 (App. 2014)

(citation omitted).

¶9 Specifically, Calabrese contends Fortin, acting on behalf of 

Dreem Green, breached Calabrese’s contractual right to be on the Board. 

However, even assuming this to be true, the plaintiff in a breach of contract 

action has the burden of proving “the existence of a contract, its breach and 

resulting damages.” Graham v. Asbury, 112 Ariz. 184, 185 (1975) (citing Clark 

v. Compania Ganadera de Cananea, S.A., 95 Ariz. 90, 94 (1963)). Moreover, the 

plaintiff must “show the amount of [his] damages with reasonable 

certainty. [Although] ‘certainty in amount’ of damages is not essential to 

recovery when the fact of damage is proven.” Gilmore v. Cohen, 95 Ariz. 34, 

36 (1963) (citations omitted). Nonetheless, mere conjecture or speculation 

cannot provide the basis for an award of damages; rather, “the evidence 

must make an ‘approximately accurate estimate’ possible.” Id. (quoting 

 

6 On this basis, we reject Calabrese’s argument that the trial court’s 

failure to state the basis for its ruling constituted reversible error. See also

Ariz. R. Civ. P. 56(a) (stating “[t]he court should state on the record the 

reasons for granting or denying the motion” for summary judgment, but 

not requiring reasons be given) (emphasis added).
CALABRESE v. FORTIN et al.

Decision of the Court

6

McNutt Oil & Refining Co. v. D’Ascoli, 79 Ariz. 28, 34 (1955), and Martin v. La 

Fon, 55 Ariz. 196, 200 (1940)). 

¶10 Rappazzo argues summary judgment should be affirmed 

because Calabrese waived any argument as to his contract damages by 

failing to adequately address the issue in his opening brief. To preserve an 

issue on appeal, an appellant is required to develop his arguments “and 

support them with citations to the authorities, statutes and parts of the 

record relied on.” In re Aubuchon, 233 Ariz. 62, 64, ¶ 6 (2013) (internal 

quotation and citation omitted); see also ARCAP 13(a)(7)(A) (requiring an 

opening brief to include an “‘argument’ that must contain: . . . [the 

a]ppellant’s contentions concerning each issue presented for review, with 

supporting reasons for each contention, and with citations of legal 

authorities and appropriate references to the portions of the record on 

which the appellant relies”). “Merely mentioning an argument is not 

enough: ‘In Arizona, opening briefs must present significant arguments, 

supported by authority, setting forth an appellant’s position on the issues 

raised. Failure to argue a claim usually constitutes abandonment and 

waiver of that claim.’” State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004) 

(quoting State v. Carver, 160 Ariz. 167, 175 (1989)).

¶11 Calabrese has failed to properly address the existence or 

amount of his contractual damages beyond a passing mention in his 

opening brief. The argument he does present is conclusory and speculative, 

and does not approach “an approximately accurate estimate”; his argument

is therefore insufficient to raise the issue. Moreover, the meager portion of 

the record to which Calabrese cites as support actually controverts his 

position and tends to further demonstrate his inability to prove damages 

with reasonable certainty. We thus find Calabrese has waived review of 

summary judgment on his claims for breach of contract.

¶12 Calabrese’s failure to argue his damages on appeal is likewise 

detrimental to his claims for tortious interference. To prove a claim for 

tortious interference with either contractual relations or business 

expectancies, a plaintiff must show “resultant damage to the party whose 

relationship or expectancy has been disrupted.” Neonatology Assocs., Ltd. v. 

Phx. Perinatal Assocs. Inc., 216 Ariz. 185, 187, ¶ 7 (App. 2007) (contractual 

relations) (quoting Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of 

Governors, 184 Ariz. 419, 427 (App. 1995)); Dube v. Likins, 216 Ariz. 406, 412, 

¶ 14 (App. 2007) (business expectancy) (citing Miller v. Hehlen, 209 Ariz. 462, 

471, ¶ 32 (App. 2005)). Because Calabrese has waived his claim for 

damages, see supra ¶ 11, his claims for tortious interference fail.
CALABRESE v. FORTIN et al.

Decision of the Court

7

II. Attorneys’ Fees

¶13 Calabrese argues the trial court erred in awarding Fortin 

attorneys’ fees. Fortin did not file an answering brief. “[W]hen an appellant 

raises a debatable issue, the court, in its discretion, may find that an 

appellee’s failure to file an answering brief constitutes a confession of 

error.” State ex rel. McDougall v. Superior Court, 174 Ariz. 450, 452 (App. 

1993) (citing State v. Greenlee Cty. Justice Court, Precinct 2, 157 Ariz. 270, 271 

(App. 1988)). We find such a confession here, and, accordingly, vacate the 

award of attorneys’ fees to Fortin.

CONCLUSION

¶14 The trial court’s order granting summary judgment in favor 

of Appellees is affirmed. The award of attorneys’ fees to Fortin is vacated.

¶15 Both Calabrese and Dreem Green request attorneys’ fees on 

appeal pursuant to A.R.S. § 12-341.01(A) (authorizing the court to award 

reasonable attorneys’ fees to the successful party in an action arising out of 

contract). Calabrese is not the successful party and is not eligible for an 

award of fees. In our discretion, we deny Dreem Green’s request. 

However, as the successful parties, Appellees are awarded their costs

incurred on appeal upon compliance with ARCAP 21(b).