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Chandler v. Brockbank

Court of Appeals of Arizona, First Division, Department C

October 24, 2013

DAMARIS CHANDLER, Plaintiff/Appellant,
v.
MARIA BROCKBANK; MIKE WASHINGTON; CLIFTON L. BURGENER; THE SYNDICATE, LLC., Defendants/Appellees

Not for Publication -Rule 28 Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. CV2012-011691 The Honorable Maria del Mar Verdin, Judge

Damaris Chandler Mesa Plaintiff/Appellant in propria persona

Guy P. Wolf Attorney at Law Phoenix Attorney for Defendants/Appellees Washington, Burgener and The Syndicate, LLC

Maria Brockbank Cave Creek Defendant/Appellee in propria persona

MEMORANDUM DECISION

PATRICIA A. OROZCO, Judge

¶1 Damaris Chandler (Chandler) appeals the trial court's order granting Appellees' Motion to Dismiss after she failed to respond to Appellees' motion. For the following reasons, we convert this appeal to a special action. We also accept special action jurisdiction and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 Chandler is a former residential tenant of Appellee, the Syndicate, LLC (Syndicate). Named Appellee Maria Brockbank acquired the Property through a sheriff's foreclosure deed.[1] Brockbank then transferred her interest in the Property to the Syndicate by special warranty deed. Appellee Clifton L. Burgener is the principal and sole member of the Syndicate, while Appellee Mike Washington is an employee of the Syndicate.[2]

¶3 After acquiring title to the Property, Appellees issued Chandler a five-day notice for non-payment of rent. Appellees then brought an eviction action for non-payment of rent in Encanto Justice Court.

¶4 Following a justice court trial, Appellees prevailed and obtained a judgment against Chandler, thereby rejecting Chandler's presentation of various issues regarding the Property's condition. Chandler filed an appeal to the superior court, which affirmed the eviction action judgment. See City of Phoenix v. Superior Court, 110 Ariz. 155, 157, 515 P.2d 1175, 1177 (1973) ("We take judicial notice of Superior Court records.").

¶5 While the justice court matter was pending, Chandler, appearing in propria persona, filed this civil action against Appellees in the Superior Court on August 17, 2012. Chandler's complaint in this civil action makes similar claims to those litigated in the justice court trial on August 31, 2012. After the justice court trial, Chandler served Appellees on September 10, 2012 with a summons for this separate civil action. Thereafter, Appellees filed a Motion to Dismiss this action pursuant to Arizona Rules of Civil Procedure 12(b)(6) and 12(b)(7). When Chandler did not respond to Appellees' motion, the trial court granted the motion and dismissed this case without prejudice. The trial court also granted Appellees' motion for attorney fees and costs, which Chandler also appeals.

DISCUSSION

A. Jurisdiction

¶6 Even though the parties have not challenged this court's jurisdiction, "[a]s a threshold matter, we are obligated to examine our jurisdiction over an appeal. . . ." Kool Radiators, Inc. v. Evans, 229 Ariz. 532, 534, 8, 278 P.3d 310, 312 (App. 2012) (internal quotation marks and citations omitted). "We may resolve only those appeals authorized by statute." Id. Pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101.A, our appellate jurisdiction is limited to appeals from a trial court's final judgments in an action with few exceptions, none of which are applicable here. See A.R.S. § 12-2101.A (Supp. 2012).

¶7 Dismissals without prejudice are not final judgments on the merits. See Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, 108, 13, 158 P.3d 232, 237 (App. 2007). The trial court dismissed the present action without prejudice. Therefore, the dismissal was not a final judgment on the merits, and we do not have appellate jurisdiction.

¶8 Nonetheless, we may exercise special action jurisdiction when there is no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a) (2013). With special action jurisdiction, it is appropriate for this court to review an order awarding attorney fees entered with a dismissal without prejudice. See Kool Radiators, Inc., 229 Ariz. at 535, 11, 278 P.3d at 313. Consequently, we exercise our discretion and accept special action jurisdiction to address both the trial court's dismissal without prejudice and the trial court's award of attorney fees because Chandler would not otherwise have a remedy by appeal. See Villares v. Pineda, 217 Ariz. 623, 624, 10, 177 P.3d 1195, 1196 (App. 2008).

B. Dismissal

¶9 We review a trial court's order granting a motion to dismiss de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, 7, 284 P.3d 863, 866-67 (2012). "[W]e will uphold dismissal only if the plaintiff[] would not be entitled to relief under any facts susceptible of proof in the statement of the claim." Id. (quoting Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 (1996)) (internal quotation marks omitted).

¶10 In this case, the trial court granted Appellees' Motion to Dismiss because Chandler failed to respond. When one party has filed a motion to dismiss, the non-moving party must respond to a Rule 12(b)(6) motion within ten days. Ariz. R. Civ. P. 7.1(a) (2000). If the non-moving party fails to file and serve an answering memorandum, "such non-compliance may be deemed a consent to the denial or granting of the motion, and the court may dispose of the motion summarily." Rule 7.1(b).

¶11 Chandler does not deny that she failed to respond to Appellees' Motion to Dismiss. Under Rule 7.1(b), the trial court was free to deem this non-compliance as consent to grant Appellees' motion. See Rule 7.1(b). Because Chandler has not shown error, we affirm the trial court's action in granting Appellees' Motion to Dismiss. See Arnold v. Van Ornum, 4 Ariz.App. 89, 90-91, 417 P.2d 723, 724-25 (1966) ("If the opposing party does not serve and file the required answering memorandum, the court may dispose of the motion summarily." (internal quotation marks omitted)).

C. Attorney Fees and Costs

¶12 Finally, Chandler challenges the trial court's order granting attorney fees and costs in favor of Appellees. Chandler, however, failed to object to Appellees' motion for attorney fees. Chandler's failure to object below precludes her from raising this argument on appeal. See In re Marriage of Pownall, 197 Ariz. 577, 583, 27, 5 P.3d 911, 917 (App. 2000).

¶13 Because Chandler has not demonstrated an error by the court in granting the motion, we affirm the trial court's award of attorney fees and costs. See Arnold, 4 Ariz.App. at 90-91, 417 P.2d at 724-25.

CONCLUSION

¶14 For the foregoing reasons, we accept jurisdiction and deny relief.

CONCURRING: RANDALL M. HOWE, Presiding Judge, SAMUEL A. THUMMA, Judge


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