BORCHERDING v. CULIN

Opinion

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

CASSIDY BORCHERDING, Plaintiff/Appellant,

v.

PETER CULIN, et al., Defendants/Appellees.

No. 1 CA-CV 25-0883

FILED 08-18-2026

Appeal from the Superior Court in Maricopa County No. CV2025-014245

The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Cassidy Borcherding, Tempe Plaintiff/Appellant

Sandstrom Law Group, PLLC, Mesa By Ryan P. Sandstrom, Bayan Zahriyeh Counsel for Defendants/Appellees

BORCHERDING v. CULIN, et al.

Decision of the Court

MEMORANDUM DECISION

Judge D. Andrew Gaona delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Brian Y. Furuya joined.

G A O N A, Judge:

¶1 Cassidy Borcherding appeals the superior court’s order granting Peter Culin’s (and other defendants’) motion to dismiss for failure to state a claim. Because the trial court didn’t err when it summarily granted that motion after Borcherding failed to respond, and Borcherding didn’t first make his arguments he now makes on appeal in the superior court, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Borcherding and Culin were equal members of Pickle Express, an Arizona limited liability company providing transit and delivery services. The parties had no operating agreement. Instead, they orally agreed to share Pickle Express’ profits and expenses equally. The parties used Pickle Express funds to pay business expenses and purchase company assets. Borcherding bought a Mercedes-Benz Sprinter Van in his name, but with Pickle Express funds, for the business’ local deliveries.

¶3 In 2022, the parties’ relationship deteriorated, and Culin sued to judicially dissolve Pickle Express under A.R.S. § 29-3701(A)(4)(c). Culin alleged the parties were deadlocked over Pickle Express’ operations, assets, and funds. He also requested appointment of a receiver, see A.R.S. § 29-3702(E), to oversee the company’s winding up.

¶4 Culin moved for summary judgment, and Borcherding didn’t respond. The superior court granted the motion, ordered Pickle Express dissolved, and appointed a receiver to wind up the company and distribute its assets.

¶5 The receiver’s powers included those usually held by receivers and reasonably necessary to accomplish the purpose of the receivership. That included taking control of the receivership property, preparing a complete accounting of Pickle Express’ income and expenses, and overseeing its finances. The court’s order required both Borcherding

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and Culin to deliver all Pickle Express property to the receiver. But the receiver couldn’t obtain the necessary records to complete the receivership, and the superior court dismissed the action without prejudice in August 2024.

¶6 In April 2025, Borcherding sued Peter Culin, Rachel Culin, Pickle Express, LLC, and RC Transport, LLC (collectively “Culin”) alleging 3 claims for relief: Dissolution, “Declaratory Relief-Vehicle,” and Conversion.

¶7 Culin moved to dismiss Borcherding’s complaint under Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). Culin argued the dissolution claim was barred by claim and issue preclusion because the first case had dissolved Pickle Express and appointed a receiver. He also argued the declaratory-relief claim failed because it sought no cognizable declaration and the “vehicle” issues belonged in the receivership, and that the conversion claim failed because Borcherding alleged no immediate right to possess the van.

¶8 Borcherding sought and received an extension to respond to Culin’s motion to dismiss. He didn’t timely respond and the superior court summarily granted the motion, finding it “provides a legal and factual basis for the relief requested.” Three weeks later, Borcherding filed an untimely response, incorporated it into a contemporaneously filed motion for reconsideration, and attached exhibits (in the response) that he’d never previously submitted in the case. The superior court denied the motion for reconsideration and entered final judgment in Culin’s favor, dismissing the complaint with prejudice and awarding him attorneys’ fees and costs.

¶9 Borcherding appealed and we have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶10 To start, we have concerns with the parties’ compliance with the Arizona Rules of Civil Appellate Procedure (“ARCAP”). See ARCAP 13(a)(4), (a)(5), (a)(7), (f); 13.1(c), (e). A party “who fails to make a bona fide and reasonably intelligent effort to comply with the rules will waive issues and arguments not supported by adequate explanation, citations to the record, or authority.” In re Est. of Acciavatti, No. 1 CA-CV 25-0606 PB, 2026 WL 2041963, at *1 ¶ 7 (Ariz. App. July 15, 2026) (cleaned up).

¶11 Borcherding repeatedly falls short of that standard. He often cites authorities without meaningful analysis or pincites, attributes

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propositions to cases that don’t support them, relies on inapposite authorities, and misstates or overstates the law. See ARCAP 13(a)(7)(A), (f). His arguments are also conclusory and unsupported by meaningful legal analysis or relevant authorities. Though Culin fares better, he infrequently cites to the record for those factual assertions the record supports. See ARCAP 13(a)(4), (a)(5), (a)(7)(B).

¶12 Some of these deficiencies would permit us to deem many arguments waived. See Ramos v. Nichols, 252 Ariz. 519, 522 ¶¶ 8–9 (App. 2022) (arguments “not supported by adequate explanation, citations to the record, or authority” are waived on appeal); Ritchie v. Krasner, 221 Ariz. 288, 305 ¶ 62 (App. 2009) (failure to comply with ARCAP 13 “can constitute abandonment and waiver” of claims). We decline to do so in our discretion, given our disposition of the matter below. But we warn the parties—who may be back before us someday, given their ongoing disputes—that future violations of our rules won’t be tolerated.

I. The Court Didn’t Abuse its Discretion in Dismissing Borcherding’s Complaint Under Rule 7.1(b)(2).

¶13 We ordinarily review de novo the dismissal of a complaint under Rule 12(b)(6). Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, 513 ¶ 11 (2021). But when a court dismisses a complaint because the nonmoving party failed to respond, we review for an abuse of discretion. Ariz. R. Civ. P. 7.1(b)(2) (court may summarily grant or deny a motion if the opposing party doesn’t respond); Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 64–65 ¶¶ 16–17 (App. 2010).

¶14 On appeal, Borcherding argues the superior court erred in dismissing his complaint for “lack of response,” because Culin’s motion lacked an adequate legal and factual basis under Rule 7.1(b)(2). In support of this argument, Borcherding claims his failure to respond doesn’t permit dismissal. Instead, the superior court needed to consider and review “the entire record to determine entitlement on the pleadings or evidence,” which he alleges the superior court didn’t do. Had it done so, Borcherding believes the record would’ve shown Culin wasn’t entitled to judgment as a matter of law.

¶15 The superior court didn’t abuse its discretion. First, Borcherding didn’t respond to Culin’s motion to dismiss despite having extra time to do so. Under Rule 7.1(b)(2), that was reason enough for the superior court to dismiss the complaint. See Strategic Dev. & Constr., Inc., 224 Ariz. at 65 ¶ 17.

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¶16 Second, Borcherding conflates the standards governing dismissal and summary judgment. Unlike summary judgment, which tests whether the evidentiary record presents a genuine dispute of material fact, a Rule 12(b)(6) motion tests only the legal sufficiency of the complaint itself. Contrast Ariz. R. Civ. P. 56(a) with 12(b)(6). When reviewing a dismissal under Rule 12(b)(6), we thus look only to the complaint (and in this case, judicially noticed materials), assume the truth of the complaint’s well-pled factual allegations, indulge all reasonable inferences, and affirm if the plaintiff isn’t entitled to relief as a matter of law. Brittner v. Lanzilotta, 246 Ariz. 294, 295–96 ¶ 4 (App. 2019). The court didn’t have to conduct the sort of evidentiary review Borcherding urges before dismissing his complaint.

¶17 The record also doesn’t support Borcherding’s characterization of the dismissal order. He assumes the superior court dismissed his complaint only because he didn’t respond. Though the court summarily granted dismissal, citing Ariz. R. Civ. P. 7.1(b), it added that it reviewed Culin’s motion and found “it provides a legal and factual basis for the relief requested.” The court thus independently determined Culin’s motion established an adequate legal and factual basis for dismissal.

¶18 The superior court didn’t abuse its discretion in dismissing Borcherding’s complaint.

II. Borcherding’s Preclusion Argument is Waived and Relies on Facts and Materials Outside the Scope of our Review.

¶19 Next, Borcherding argues claim and issue preclusion don’t apply, and his complaint merely sought to complete an unfinished winding-up process from the first case. But these arguments weren’t presented below, and the superior court had no opportunity to consider them. We generally consider arguments first made on appeal waived. Henderson v. Henderson, 241 Ariz. 580, 586 ¶ 13 (App. 2017). As a result, we decline to consider them on the merits.

¶20 Even if those arguments were preserved, they rely on materials outside the record governing our review. While we review de novo the dismissal of a complaint under Rule 12(b)(6), Shepherd, 250 Ariz. at 513 ¶ 11, our review is limited to the record before the superior court when it ruled on that motion. GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4 (App. 1990).

¶21 When the superior court ruled on the motion, the record consisted of (as relevant here) Borcherding’s complaint, Culin’s motion to dismiss, and the judicially noticeable filings attached and incorporated into

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that motion. Those filings included the complaint from the first case, the superior court’s summary judgment ruling, and the order dissolving Pickle Express and appointing a receiver.

¶22 Only after the superior court dismissed the complaint did Borcherding file an untimely response with attached exhibits and incorporate that response into his motion for reconsideration. His appellate arguments rely heavily on those later-filed materials, or materials that aren’t in the record at all. Although those later-filed materials became part of the superior court’s record, they weren’t before the court when it granted the motion to dismiss, and thus aren’t part of the record governing our review. See Cella Barr Assoc., Inc. v. Cohen, 177 Ariz. 480, 487 n. 1 (App. 1994); RT Auto. Ctr., Inc. v. Westlake Services, LLC, 253 Ariz. 91, 95 ¶ 12 (App. 2022) (“We typically do not consider matters raised for the first time in a motion for reconsideration unless the facts . . . were not available when the court entered the challenged ruling.”) (emphasis added); State v. Duarte, 246 Ariz. 338, 346 ¶ 29 n.6 (App. 2018) (court didn’t consider presentence report, a part of the supplemental record on appeal, because it wasn’t before the trial court at the time of its ruling).

¶23 That limitation follows from the nature of appellate review. We review only the ruling properly before us, see ARCAP 8, based on the record before the superior court when it ruled, GM Dev. Corp., 165 Ariz. at 4. We don’t resolve competing factual narratives, make factual findings, or reconstruct proceedings from materials outside that record. See State v. MacHardy, 254 Ariz. 231, 236 ¶ 8 (App. 2022) (“It is not our role as a reviewing court to make factual findings.”); Ashton-Blair v. Merrill, 187 Ariz. 315, 317 (App. 1996) (“We may only consider the matters in the record before us.”). But that’s what Borcherding asks us to do, and we decline.

CONCLUSION

¶24 We affirm and deny Culin’s request for attorneys’ fees in the exercise of our discretion. We award Culin his taxable costs on appeal subject to his compliance with ARCAP 21(b).

MATTHEW J. MARTIN • Clerk of the Court FILED: JR