BAKER v. DAVENPORT

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FILED BY CLERK NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND M AY 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. JUL 16 2009 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO JOHN P. BAKER, Plaintiff/Appellant, v. ALEX DAVENPORT, Defendant/Appellee. ) ) ) ) ) ) ) ) ) ) 2 CA-CV 2009-0070 DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 28, Rules of Civil Appellate Procedure APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. C20082328 Honorable Virginia Kelly, Judge DISMISSED John P. Baker H O W A R D, Chief Judge. Florence In Propria Persona ¶1 Appellant John Baker appeals from the superior court s order dismissing his complaint without prejudice. Because we do not have jurisdiction of Baker s appeal, we dismiss it. ¶2 Baker is required to state the basis for our jurisdiction in his opening brief. See Ariz. R. Civ. App. P. 13(a)(3). He contends we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and also pursuant to A.R.S. § 12-2101(A). Article VI, § 9 merely states that our jurisdiction shall be as provided by law. And § 12-2101(A) states that an appeal may be brought to this court in the instances specified in that section. Baker does not identify under which section he claims we have jurisdiction. ¶3 We have a duty to determine independently whether we have jurisdiction over an appeal and to dismiss the appeal if jurisdiction is lacking. Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 7, 160 P.3d 223, 226 (App. 2007). The trial court dismissed Baker s complaint without prejudice. Generally, a dismissal without prejudice is not appealable, see L.B. Nelson Corp. of Tucson v. W. Am. Fin. Corp., 150 Ariz. 211, 217, 722 P.2d 379, 385 (App. 1986), because it is not a final judgment that bars the refiling of the action. See State ex rel. Hess v. Boehringer, 16 Ariz. 48, 51, 141 P. 126, 127 (1914). ¶4 In the absence of any more specific citation or argument by Baker, we conclude we lack jurisdiction of the appeal. See FIA Card Servs., N.A. v. Levy, 219 Ariz. 523, n.1, 200 P.3d 1020, 1021 n.1 (App. 2008) (failure to develop argument on appeal results in abandonment); State Farm Mut. Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 2 538 (App. 1990) (court will not address issue not argued by appellant in opening brief ); see also Ariz. R. Civ. App. P. 13(a)(6) (appellant s brief shall contain argument of appellant). We therefore dismiss Baker s appeal for lack of jurisdiction. ____________________________________ JOSEPH W. HOWARD, Chief Judge CONCURRING: ____________________________________ PHILIP G. ESPINOSA, Presiding Judge ____________________________________ JOHN PELANDER, Judge 3

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