PANZARELLA v. YAVAPAI

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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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE MARIE PANZARELLA, ) ) Plaintiff/Appellant, ) ) v. ) ) YAVAPAI COUNTY SHERIFF S OFFICE; ) YAVAPAI COUNTY ATTORNEY S OFFICE; ) SHEILA POLK, in her capacity as ) Yavapai County Attorney; STEVE ) WAUGH, in his capacity as Yavapai ) County Sheriff; YAVAPAI COUNTY ) MEDICAL EXAMINER S OFFICE; and TIM ) CARTER, in his capacity as ) Superintendent of Schools, ) ) Defendants/Appellees. ) ) DIVISION ONE FILED: 06/28/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 11-0580 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Yavapai County Cause No. P1300CV201001948 The Honorable Anna C. Young, Judge AFFIRMED Marie Panzarella Plaintiff/Appellant Pro Se Jellison Law Offices, P.L.L.C. By James M. Jellison Attorneys for Defendants/Appellees Prescott Phoenix P O R T L E Y, Judge ¶1 Marie Panzarella judgment dismissing her ( Panzarella ) action against appeals the from Yavapai a County Sheriff s Office; the Yavapai County Attorney s Office; Sheila Polk, in her capacity as Yavapai County Attorney; Steve Waugh, in his capacity as Yavapai County Sheriff; the Yavapai County Medical Examiner s Office; and Tim Carter, in his capacity as Superintendent of Defendants ). Schools Panzarella (collectively, does not the challenge which the trial court dismissed her action. Yavapai the County grounds on Instead, she only raises an issue that the trial court did not address or rule on, and over which we have no jurisdiction. As a result, we affirm the dismissal. FACTS AND PROCEDURAL HISTORY ¶2 Panzarella Yavapai County entities, filed Defendants alleging negligence, the an amended and eighteen corruption, acquisition complaint other conspiracy, of illegal against the individuals and negligence, drugs gross through the recruitment of Yavapai County children, the distribution of illegal drugs[] to Yavapai County children and adults, violation of drug-free zones, and other heinous violations. ¶3 Linne The amended complaint asserted that her son, Kendall ( Kendall ), who died October 3, 2007, at the age of eighteen, had been a special education student in the custody, 2 care, and protection of the defendants, and that the defendants were derelict in their duty to Kendall. Panzarella alleged that illegal activities were being conducted using students of the Special Education Department and with the defendants consent, and she sought an investigation to positively identify the perpetrators . . . and remove them from positions of power. She asserted that drug dealers had used Kendall s apartment, car, and other belongings through fear and intimidation, and that the defendants protected those drug dealers and allowed them to operate in the community. ¶4 The Yavapai County Defendants moved to dismiss the complaint on the grounds that Panzarella had not filed a notice of claim pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-821.01(A) (2003), action, and had Sheriff s had named Office and not three stated a discernible defendants Sheriff Waugh as the the cause of Yavapai County Yavapai County Sheriff, the Yavapai County Attorney s office and Sheila Polk as Yavapai County Attorney, and the Yavapai County Medical Examiner s Office that were not jural entities. ¶5 In response, Panzarella stated that a notice of claim was not necessary because she was not seeking monetary relief. She also asserted that she provided a statement of underlying her claims in her initial and amended complaints. 3 facts ¶6 After noting that Panzarella admitted that she had not filed a notice of claim, the Yavapai County Defendants also argued that Panzarella had not addressed their argument that the amended complaint did not plead factual allegations to implicate those defendants cognizable claim in any conduct or their that argument would that give some rise of them to a were non-jural entities not subject to suit. ¶7 The unsigned July 8, 2011 minute entry states that Panzarella had failed to make any well-pled factual allegations that would show that any of the Yavapai County Defendants engaged in tortious conduct, and therefore dismissed the claims for failure to state a claim. The court also found that any claim for monetary damages was barred for failure to file a notice of claim pursuant to A.R.S. § 12-821.01. ¶8 Panzarella filed a pleading on July 26, 2011, entitled a Continuance of Civil Action Case, which appears to have been a motion ( Rule ) to vacate 60(c). 1 She under Arizona asserted that Rule the of Civil ruling of Procedure previous dismissals was moot and requested that the motion to dismiss be denied. The Yavapai County Defendants did not file a response. 1 Panzarella cited Rule 60(b), which is the federal counterpart to Arizona Rule of Civil Procedure 60(c). Ariz. R. Civ. P. 60(c), State Bar Comm. Note. 4 ¶9 The court entered a signed judgment on August 22, 2011, certified it as a final judgment pursuant to Rule 54(b), and dismissed Panzarella s amended complaint as to the Yavapai County Defendants. document Eight captioned days Request later, Appeal, Panzarella which was filed treated a as a notice of appeal. ¶10 Panzarella then filed a pleading on September 9, 2011, captioned Appeal Request for Change of Venue, in which she asserted, in part, that the trial judge should not have been appointed to consider the case because she had prior working relationships with the defendants and their attorneys. Panzarella attached a copy of a newspaper article indicating that the judge had worked as an associate with the Jensen Law Firm from 1997 to 1998; the Jensen Law Firm represented one of the non-Yavapai County Defendants. Six days later, Panzarella filed a Motion to Vacate or Modify Judgment on the grounds that the judge was improperly presiding over the case despite having previously worked with the Jensen Law Firm. ¶11 The Yavapai County Defendants responded to the September 15, 2011 pleading and argued that the court lacked jurisdiction because Panzarella had filed a notice of appeal before further she filed argued her that, motion even to if 5 vacate the the court judgment. had They jurisdiction, Panzarella had not raised sufficient grounds under Rule 60 to vacate the judgment. ¶12 The court acknowledged receipt of the Request for Change of Venue and the Motion to Vacate or Modify Judgment, noted that Panzarella s notice of appeal preceded the pleadings, and ordered that it would take no action until it was directed to do so by the Court of Appeals. ¶13 This court has jurisdiction over the order of dismissal pursuant to A.R.S. § 12-2101(A)(1) (West 2012). DISCUSSION ¶14 Ordinarily, [i]n reviewing a trial court s decision to dismiss a complaint for failure to state a claim, we assume as true the facts alleged in the complaint and will not affirm the dismissal unless [we are] satisfied as a matter of law that plaintiffs would not be entitled to relief interpretation of the facts susceptible of proof. under any Fid. Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998) (citation omitted). Here, however, Panzarella does not argue that the decision to grant the motion to dismiss was erroneous, but argues only that recused herself. 6 the trial judge should have ¶15 A party must present its legal theories in a timely manner to the trial court to give it the opportunity to rule properly. Payne v. Payne, 12 Ariz. App. 434, 435, 471 P.2d 319, 320 (1970) (citations omitted). Once a trial court has entered a final judgment and an appeal has been filed, the trial court loses jurisdiction over the case except in furtherance of the appeal. Castillo v. Indus. Comm n, 21 Ariz. App. 465, 467, 520 P.2d 1142, 1144 (App. 1974) (citations omitted). Therefore, the trial court has no authority to address matters related to the appeal that are presented to it after a notice of appeal has been filed. City of Phoenix v. Leroy s Liquors, Inc., 177 Ariz. 375, 380-81, 868 P.2d 958, 963-64 (App. 1993) (trial court could not rule on motion for reconsideration where notice of appeal was filed before court considered motion); Apache E., Inc. v. Means, 124 (citations Ariz. 11, omitted) 14, (trial 601 court P.2d 615, divested 618 of (App. 1979) jurisdiction to rule on motion for rehearing because motion was filed after the notice of appeal). an appeal from In turn, this court has no jurisdiction over matters authority to rule. 530, 533, 652 over which the trial court lacked McHazlett v. Otis Eng g Corp., 133 Ariz. P.2d 1377, 1380 (1982) (citations omitted); Leroy s Liquors, Inc., 177 Ariz. at 380-81, 868 P.2d at 963-64 (citation omitted); Apache E., Inc., 124 Ariz. at 14, 601 P.2d at 618 (citations omitted). Consequently, 7 this court lacks jurisdiction except to dismiss an appeal from a matter presented to the superior court after a notice of appeal has been filed; we will not consider such issues for the first time on appeal. McHazlett, 133 Ariz. at 533, 652 P.2d at 1380 (citations omitted); Apache E., Inc., 124 Ariz. at 14, 601 P.2d at 618 (citation omitted). ¶16 judge Although Panzarella argued in the trial court that the should have recused herself, she did not present the argument until after the court had dismissed the Yavapai County Defendants and until after Panzarella filed a notice of appeal from that judgment. not rule on the The trial court, lacking jurisdiction, did issue. This court, therefore, has no jurisdiction to consider the issue on appeal. 2 ¶17 The Yavapai County Defendants seek attorneys fees as sanctions pursuant to Arizona Rule of Civil Appellate Procedure 25, arguing that the appeal is frivolous. In our discretion, we deny the request. 2 In addition, this court has no jurisdiction to address matters not listed in the notice of appeal. Premier Fin. Servs. v. Citibank, 185 Ariz. 80, 87, 912 P.2d 1309, 1316 (App. 1995) (citation omitted); Lee v. Lee, 133 Ariz. 118, 124, 649 P.2d 997, 1003 (App. 1982) (citations omitted). Because Panzarella s argument that the trial judge should have recused herself was not included in her notice of appeal, directly or by reasonable implication, the issue is not properly before this court. 8 CONCLUSION ¶18 The trial court s ruling is affirmed. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ________________________________ PHILIP HALL, Judge /s/ ________________________________ DIANE M. JOHNSEN, Judge 9

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