CHANDLER v. BROCKBANK

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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 DAMARIS CHANDLER, ) ) Plaintiff/Appellant, ) ) v. ) ) MARIA BROCKBANK; MIKE ) WASHINGTON; CLIFTON L. BURGENER; ) THE SYNDICATE, LLC., ) ) Defendants/Appellees. ) __________________________________) DIVISION ONE FILED: 10/24/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0837 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28 Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2012-011691 The Honorable Maria del Mar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 JURISDICTION ACCEPTED/RELIEF DENIED Damaris Chandler Plaintiff/Appellant in propria persona Guy P. Wolf Attorney at Law Attorney for Defendants/Appellees Washington, Burgener and The Syndicate, LLC Maria Brockbank Defendant/Appellee in propria persona Mesa Phoenix Cave Creek O R O Z C O, 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). acquired the Property Named Appellee Maria Brockbank 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 issued Chandler acquiring a title five-day to notice the for Property, non-payment Appellees of rent. Appellees then brought an eviction action for non-payment of rent in Encanto Justice Court. ¶4 and Following a justice court trial, Appellees prevailed obtained Chandler s a judgment presentation Property s condition. against of Chandler, various thereby issues rejecting regarding the Chandler filed an appeal to the superior court, which affirmed the eviction action judgment. See City of 1 There is no evidence that Chandler served Brockbank or that Brockbank participated in the civil action below. Accordingly, although Brockbank is named in this appeal, she is not actually a party to the appeal. 2 We refer to Burgener, collectively as Appellees. Washington, 2 and the Syndicate 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 Thereafter, pursuant a summons for this Appellees to filed a Motion Arizona Rules of separate to Civil civil Dismiss Procedure action. this action 12(b)(6) and 12(b)(7). When Chandler did not respond to Appellees motion, the court trial without granted prejudice. The the motion trial and court dismissed also granted this case Appellees motion for attorney fees and costs, which Chandler also appeals. DISCUSSION A. ¶6 Jurisdiction 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. omitted). 2012) (internal quotation marks and citations We may resolve only those appeals authorized by 3 statute. section Id. Pursuant to Arizona Revised Statutes (A.R.S.) 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, jurisdiction when there we is adequate remedy by appeal. may no exercise equally special plain, action speedy, and 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 Ariz. at 535, ¶ 11, 278 P.3d at 313. Radiators, Inc., 229 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 otherwise have a remedy by appeal. because Chandler not See Villares v. Pineda, 217 Ariz. 623, 624, ¶ 10, 177 P.3d 1195, 1196 (App. 2008). 4 would B. Dismissal ¶9 We review a trial court s order granting a motion to dismiss de novo. 56, ¶ 7, dismissal 284 Coleman v. City of Mesa, 230 Ariz. 352, 355- P.3d only if 863, the 866-67 (2012). plaintiff[] would [W]e not be will uphold 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 Motion to Dismiss because Chandler failed to respond. Appellees 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. Civ. P. 7.1(a) (2000). Ariz. R. 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. ¶11 Rule 7.1(b). 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 5 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. /S/ __________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ __________________________________________ RANDALL M. HOWE, Presiding Judge /S/ __________________________________________ SAMUEL A. THUMMA, Judge 6

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