Melinda S. Workman, Plaintiff/Appellant,
Verde Wellness Center, Inc., an Arizona nonprofit corporation, dba The Downtown Dispensary, Defendant/Appellee.
from the Superior Court in Pima County No. C20153597 The
Honorable Leslie Miller, Judge
Sanders & Parks, P.C., Phoenix By G. Gregory Eagleburger,
Anoop Bhatheja, and Amanda M. Breemes Counsel for
Brown, Hobkirk & Callahan, P.C., Tucson By Donald A.
Loose and Jesse R. Callahan Counsel for Defendant/Appellee
Presiding Judge Vásquez authored the opinion of the
Court, in which Chief Judge Eckerstrom and Judge Espinosa
VÁSQUEZ, Presiding Judge.
In this action for judicial dissolution of a nonprofit
corporation, Melinda Workman appeals from the trial
court's order granting appellee Verde Wellness Center,
Inc.'s motion to dismiss. She argues the court erred by
considering matters outside the pleadings and by finding
Workman had lost her standing to maintain this action when
Verde removed her from its board of directors. She also
argues the court erred when it denied her motion to amend the
complaint and awarded fees to Verde as a sanction. For the
following reasons, we reverse the court's dismissal
order, vacate its denial of the motion to amend and award of
fees, and remand for further proceedings.
and Procedural Background
Verde, a marijuana dispensary authorized under the Arizona
Medical Marijuana Act, was incorporated in May 2012. Workman
joined the board of directors in May 2013. On June 17, 2015,
Workman filed this action requesting a receiver and judicial
dissolution of Verde because "[t]he directors . . . have
acted, are acting or will act in a manner that is illegal,
oppressive or fraudulent" and "corporate assets
[were] being wasted, misapplied or diverted for non-corporate
Verde filed a motion to dismiss pursuant to Rule 12(b)(6),
Ariz. R. Civ. P., arguing Workman lacked standing because,
within hours after she had filed her complaint, the board
held a special meeting and removed her as a director. In her
response, Workman noted that the exhibits attached to
Verde's motion did not show the board had voted to remove
her during the special meeting. Instead, the board purported
to adopt resolutions and amend bylaws after
"dispens[ing] with the formality of a Special
Meeting." Workman also argued she had standing to bring
the lawsuit "despite [the] illegal and ineffective
removal" because her "standing to bring a judicial
dissolution action is expressly granted by statute" and
"[n]o [c]ourt would ever sustain the notion that a
wrongdoer could eliminate a claim by engaging in yet more
oppressive conduct to eliminate the suit." Apparently in
response to Workman's arguments, another special meeting
was held in August 2015, and the board again voted to remove
Workman as a director.
At a hearing on the motion in September 2015, Workman
acknowledged the board had voted in August to remove her as a
director. However, she asserted that "the motion to
dismiss should be denied [because] the defendants [were]
attempting to . . . deprive [her] of standing to hide their
misdeeds." Workman also filed a motion to amend her
complaint on the day of the hearing, raising claims for
breach of contract, breach of good faith and fair dealing,
breach of fiduciary duty, civil conspiracy, and alter ego.
At the conclusion of the hearing, the trial court denied
Workman's request for a receiver. And on September 3,
2015, the court entered an order granting Verde's motion
to dismiss and ruling the motion to amend was
"moot." Approximately three months later, the court
granted Verde's request for attorney fees, finding
Workman "interposed claims lacking legal or factual
basis in violation of Rule 11, Ariz. R. Civ. P." Workman
filed a notice of appeal from this order. Because the order
did not include language pursuant to Rule 54(c), Ariz. R.
Civ. P., this court revested jurisdiction in the trial court
"for an appropriate final judgment, " and Workman
filed a supplemental notice of appeal.
Verde argues this court lacks jurisdiction to consider
Workman's appeal because she did not directly appeal from
the trial court's original order granting the motion to
dismiss. Because our jurisdiction is defined by statute, we
have an obligation to examine whether we have jurisdiction
over an appeal and, if lacking, to dismiss. See Grand v.
Nacchio, 214 Ariz. 9, ¶ 12, 147 P.3d 763, 769 (App.
2006); Davis v. Cessna Aircraft Corp., 168 Ariz.
301, 304, 812 P.2d 1119, 1122 (App. 1991).
"Generally, this court's jurisdiction is limited to
appeals from final judgments which dispose of all claims and
parties." Baker v. Bradley,231 Ariz. 475,
¶ 9, 296 P.3d 1011, 1015 (App. 2013). A final judgment
dismissing an action with prejudice is appealable pursuant to
A.R.S. § 12-2101(A)(1). See Thiele v. City of
Phoenix,232 Ariz. 40, ¶¶ 8-9, 301 P.3d 206,
208 (App. 2013). In contrast, an order dismissing without
prejudice is not a final judgment because the plaintiff can
refile the action and therefore "ha[s] nothing to
appeal." Osuna v. Wal-Mart Stores, Inc., 214
Ariz. 286, ¶ 9, 151 P.3d 1267, 1270 (App. 2007),