ODUYALE v. YUMA

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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 DIVISION ONE FILED: 10/18/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) Plaintiffs/Appellants, ) ) v. ) ) CITY OF YUMA, by and through the ) COUNCIL OF THE CITY OF YUMA, Its ) governing body, the members of ) the COUNCIL OF THE CITY OF YUMA: ) ALAN L. KRIEGER, Mayor; PAUL B. ) JOHNSON, Deputy Mayor/Member; ) CODY T. BEESON, Member; LESLIE ) L. MCCLENDON, Member; RAUL ) MENDOZA, Member; JERRY STUART, ) Member; and BOBBI BROOKS-GURROLA, ) Member, ) ) Defendants/Appellees. _______________________________________ ) SOLOMON ODUYALE; DONNA BLY; ONI AZ LIMITED PARTNERSHIP; TOYIN EQUITY PARTNERSHIP; and SOUTHWESTERN EQUITIES MANAGEMENT, LTD; Individually and on behalf of other persons similarly situated, 1 CA-CV 11-0573 DEPARTMENT E MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Yuma County Cause No. S1400CV201100503 The Honorable John Neff Nelson, Judge AFFIRMED Donald B. Engler, PC By Donald B. Engler Attorney for Plaintiff/Appellant Yuma Snell & Wilmer LLP By Craig A. Logsdon and Martha E. Gibbs Attorneys for Defendant/Appellees Phoenix N O R R I S, Judge ¶1 This declining appeal special arises action Solomon business enjoin to of jurisdiction Plaintiffs/Appellants entities out Oduyale, criminal a superior of an Donna court action Bly, misdemeanor order filed and by three prosecutions pending against them in the Municipal Court of the City of Yuma for allegedly violating various City of Yuma ordinances. On appeal, Appellants argue first, the superior court should not have declined special action jurisdiction because Arizona Rule of Criminal Procedure 16.6(b) precludes them from raising jurisdictional challenges to the prosecutions; and second, even if they could raise such challenges, the municipal court does not have jurisdiction to determine whether it has jurisdiction over the prosecutions. 1 We disagree with both arguments and, accordingly, affirm the superior court s order declining special action jurisdiction. 1 Appellants argue Defendants/Appellees ( City ) agreed to their special action. While the City agreed to postpone the criminal trial against Appellants until their special action petition was resolved, nothing in the record suggests the City agreed Appellants special action was proper. 2 ¶2 As an initial matter, we have an independent duty to determine whether we have jurisdiction over this appeal. See Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). Although Appellants did not address this court s jurisdiction in their opening brief, the City asserts we have jurisdiction under Arizona Revised Statutes ( A.R.S. ) section 12-2101(A)(1) (Supp. 2011). In State v. Bayardi, 230 Ariz. 195, 197-98, 281 P.3d 1063, 1065-66 (App. 2012), however, this court questioned whether we had appellate jurisdiction over an appeal from a special action initially filed in the superior court. But see Merlina v. Jejna, 208 Ariz. 202, 1, 3, ¶¶ 5-6, 90 P.3d 204 (App. 2004) (noting appellate jurisdiction under a prior version of A.R.S. § 122101(A)(1)). Without deciding this issue, we have elected to treat this appeal as a special action and to accept special action jurisdiction. See A.R.S. § 12-120.21(A)(4) (2003); Ariz. R.P. Spec. Act. 1(a). ¶3 Turning to Appellants arguments, we agree with the superior court Appellants can challenge the prosecutions pending in municipal court for lack of jurisdiction. Rule 16.6(b) provides a criminal defendant can move to dismiss a prosecution on the ground that the indictment, information, or complaint is insufficient as a matter of law. 3 Ariz. R. Crim. P. 16.6(b). Nothing in Rule 16.6(b) precludes Appellants from challenging the court s jurisdiction through a motion to dismiss. In fact, courts have read Rule 16.6(b) to allow criminal defendants to seek dismissal of charges against them on a variety of grounds, including jurisdiction. See Chronis v. Steinle, 220 Ariz. 559, 561, ¶ 9, 208 P.3d 210, 212 (2009) (motion to dismiss under Rule 16.6(b) can be based on any ground recognized by law ) (citation omitted). ¶4 Appellants argue the only way they may challenge a denial of a motion to dismiss is through a special action, citing State v. Meza, 203 Ariz. 50, 54-55, ¶ 18, 50 P.3d 407, 411-12 (App. 2002). misplaced. Meza However, Appellants reliance on Meza is stands for the well-established proposition that the only way to challenge a denial of a motion to dismiss before entry of a final judgment is through special action. Neither Meza nor other cases recognizing this rule Id. support Appellants argument that such a ruling can only be challenged in a special action and not on appeal. See State v. Willoughby, 181 1324 Ariz. 530, 535, 892 P.2d 1319, (1995) (defendant renewed jurisdictional challenge on appeal after superior court denied motion jurisdiction). to dismiss for lack of subject matter Thus, although a municipal court s denial of a motion to dismiss for lack of jurisdiction is not independently 4 appealable, a superior court may still review the jurisdictional ruling on appeal. See A.R.S. §§ 22-425(B) (2002), -0371(A) (2002) (criminal defendant may appeal to superior court from final judgment of a municipal court). Therefore, Rule 16.6(b) neither bars Appellants from raising a jurisdictional challenge in the municipal court, nor prevents them from appealing the municipal court s decision on jurisdiction as superior to the superior court. ¶5 Further, municipal court has the the authority court to recognized, resolve whether it jurisdiction over Appellants in the criminal prosecutions. is known as jurisdiction. a court s jurisdiction to the has This determine its See Alegria v. Redcherries, 168 Ariz. 267, 268- 69, 812 P.2d 1085, 1086-87 (App. 1991). Additionally, as the superior court also recognized, Appellants can -- and should -first challenge subject matter jurisdiction in the municipal court; and if convicted, they can then appeal to the superior court and raise jurisdictional generally A.R.S. § 22-371(A). arguments on appeal. See Since Appellants have an equally plain, speedy, and adequate remedy by appeal, the superior court did not abuse jurisdiction. 931 P.2d 431, its discretion in declining special action See Pompa v. Superior Court, 187 Ariz. 531, 533, 433 (App. 1997) 5 (acceptance of special action jurisdiction highly discretionary and [j]urisdiction is generally accepted only in those cases in which justice cannot be satisfactorily obtained by other means. (quoting King v. Superior Court, 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983)). ¶6 For the foregoing reasons, we affirm the superior court s order declining special action jurisdiction. _/s/___________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: _/s/___________________ DIANE M. JOHNSEN, Judge _/s/___________________ JON W. THOMPSON, Judge 6

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