Foroughi v. Zavala et al

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE GINA FOROUGHI, ) ) Plaintiff/Appellant, ) ) v. ) ) MARIA IZABEL ZAVALA; OSARO ) IGHODARO; GLENDALE COMMUNITY ) COLLEGE (GCC); MARICOPA COUNTY ) ) COMMUNITY COLLEGE DISTRICT ) (MCCCD), ) Defendants/Appellees. ) ) 1 CA-CV 10-0295 DIVISION ONE FILED: 12/16/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2009-054345 The Honorable Brian R. Hauser, Judge APPEAL DISMISSED Gina Foroughi Plaintiff/Appellant, In Propria Persona Phoenix Burch & Cracchiolo, P.A. By Daniel R. Malinski Attorneys for Defendants/Appellees Phoenix N O R R I S, Judge ¶1 Gina Foroughi appeals from the superior court s order dismissing her complaint without prejudice. As we explain below, we lack jurisdiction and therefore dismiss this appeal. FACTS AND PROCEDURAL BACKGROUND ¶2 Foroughi alleging Maria filed Zavala a complaint and Osaro on November Ighodaro 12, 2009, (collectively, Defendants ), employees of Glendale Community College, engaged in fraudulent, malicious, slanderous and libelous actions in connection with a misconduct hearing held on September 10, 2009, to apparently address grievances brought against Foroughi, who was a student at the school. Defendants moved for a more definite statement pursuant to Arizona Rule of Civil Procedure 12(e), and the superior court granted the motion, ordering Foroughi to file a complaint in accordance with Rule 8(a). Two weeks later, Foroughi filed an amended complaint. ¶3 On February 17, 2010, Defendants moved to dismiss, arguing Foroughi s amended complaint failed to comply with the court s order. In a signed minute entry filed March 15, 2010, the court granted the motion to dismiss without prejudice. court noted in the signed minute entry: The court previously ordered plaintiff to file a more definite statement in accordance with Rule 8(a), A.R.C.P. The essence of the Rule requires a short and plain statement of the claims, the causes of action arising from the claims and a demand for judgment for the relief sought. The amended complaint, like the complaint, is neither 2 The short nor plain. It contains some allegations of fact and identifies some causes of action all enveloped in a screed against defendants and other persons not named as parties. A dismissal without prejudice permits plaintiff to file a complaint in accordance with the Rules of Civil Procedure. Plaintiff is advised that model civil pleading forms are available to the general public at law libraries and on the internet. (Emphasis added.) ¶4 Among a host of other documents Foroughi filed subsequently, she filed a notice of appeal. DISCUSSION ¶5 Although not squarely addressed by the parties, we have an independent duty to determine whether this court has jurisdiction. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). we lack jurisdiction over this appeal, Because we conclude we do not reach the merits of Foroughi s arguments on appeal. ¶6 This court s jurisdiction is limited by statute. Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App. 1995). If no statute makes an order appealable, there is no jurisdiction to consider the merits of an appeal from that order. Revised Statutes ( A.R.S. ) Id. (citation omitted). section 12-2101 (2003) Arizona lists the instances when [a]n appeal may be taken to the court of appeals from the superior court. Generally, an appeal lies only from 3 a final judgment. Canyon Ambulatory Surgery Ctr. v. SCF Ariz., 225 Ariz. 414, ___, ¶ 14, 239 P.3d 733, 737 (App. 2010) (quoting McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, 74, ¶ 4, 202 P.3d 536, 539 (App. 2009)); see also A.R.S. § 12-2101(B). ¶7 An order dismissing a case without prejudice usually not appealable because it is not a final judgment. Ariz., 225 Ariz. at _____, ¶ 14, 239 P.3d at 737-38. is SCF However, a dismissal order without prejudice is appealable if it in effect determines the action and prevents judgment from which an appeal might be taken. Transp. Co., 1011 (2009). 222 A.R.S. § 12-2101(D); see also Garza v. Swift Ariz. Thus, for 281, 284, example, ¶ a 15, case 213 P.3d dismissed 1008, without prejudice after the applicable statute-of-limitations period has run is appealable under A.R.S. § 12-2101(D). at 284, ¶8 Garza, 222 Ariz. ¶ 15, 213 P.3d at 1011. Here, Foroughi does not meaningfully argue that the applicable statute-of-limitations period barred the refiling of her claims, and thus we do not have sufficient proof the claim is time-barred to find jurisdiction. ¶9 Additionally, some cases suggest that a dismissal order may be appealable if the complaint could have been readily amended to avoid dismissal and the order was entered without leave to amend or was expressly entered with prejudice. See, e.g., SCF Ariz., 225 Ariz. at _____, ¶ 14, 239 P.3d at 738; 4 Flynn v. Johnson, 3 Ariz. App. 369, 373, 414 P.2d 757, 761 (1966). ¶10 Here, the court found Foroughi s amended complaint failed to rectify the original complaint s defects, and, in the signed minute dismissed entry, without demonstrated the court prejudice. 1 inability to expressly Thus, properly ordered based amend her on the case Foroughi s complaint, the court was justified in implicitly concluding further revisions to the complaint would be unsuccessful. ¶11 Accordingly, the signed minute entry was not a final appealable judgment, and we therefore lack jurisdiction over this appeal. 2 See McMurray, 220 Ariz. at 74, ¶ 4, 202 P.3d at 539 lack (finding of jurisdiction over cross-appeal from dismissal order with prejudice). 1 Indeed, the court specifically stated that Foroughi was permitted to refile a complaint. 2 Foroughi also appears to challenge on appeal the superior court s order denying her application for a default judgment. Because such an order is not a final judgment or otherwise appealable pursuant to Arizona Revised Statutes section 12-2101 (2003), we similarly lack jurisdiction to consider this issue. Foroughi points to no authority to the contrary. 5 CONCLUSION ¶12 This appeal is dismissed for lack of jurisdiction. 3 /s/ __________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ _____________________________________ LAWRENCE F. WINTHROP, Presiding Judge /s/ _____________________________________ PATRICK IRVINE, Judge 3 By motion to this court, Foroughi requests that we transfer this case, regardless of its outcome, to US District Court case CV 10-838-PHX-SRB. She provides no authority that permits such a transfer. Absent authority, and in light of our conclusion that we lack jurisdiction over this appeal, we deny Foroughi s request. 6

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