Arizona Cases April 27, 2023: Ball v. Shannon

Case Description

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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2020-092278 The Honorable Tracey Westerhausen, Judge AFFIRMED

Joel Dean Ball, Scottsdale

Plaintiff/Appellant

Iannitelli Marcolini, P.C., Phoenix

By Claudio Eduardo Iannitelli

Counsel for Defendants/Appellees

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Judge D. Steven Williams delivered the decision of the court, in which Presiding Judge Cynthia J. Bailey and Judge James B. Morse Jr. joined.

MEMORANDUM DECISION

WILLIAMS, JUDGE:

¶1 J.D. Ball appeals the superior court's dismissal of his complaint. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2018, Ball sued Mai Shannon and AMHA Hospice, LLC (collectively the "Defendants") for defamation and tortious interference with contractual relations stemming from events occurring in July 2017 and on February 28, 2018 ("the first case").

¶3 In March 2019, Ball filed an amended complaint. Later that same month, court administration placed the case on the court's dismissal calendar and notified Ball that, unless additional filings were made or hearing dates set, the case would be dismissed. In April, Defendants moved the court to dismiss the case altogether. In June, Judge Campagnolo granted Defendants' motion in part, dismissing only the amended complaint, but ordering Defendants to answer Ball's original complaint. Defendants did so. But on July 31, 2019, court administration dismissed the case after Ball failed to comply with the court's March order.

¶4 Ball moved the superior court to reconsider. Apparently, thinking the motion to reconsider was based upon his June 2019 order, Judge Campagnolo denied Ball's motion stating that the "case itself has not been dismissed," only the amended complaint. The court issued that order on August 8, 2019. Ball appealed the July 31, 2019 dismissal, but promptly withdrew his appeal and moved the court to "order a Joint Report, Scheduling and Pretrial Conference." In response, the court issued a minute entry stating it "can take no action on [Ball's] Motion, because this case has been dismissed." Ball moved the court to reconsider, which was denied and

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then appealed to this court in December 2019. We dismissed the appeal for lack of jurisdiction.

¶5 On March 6, 2020, Ball again sued the Defendants ("the second case") for similar claims made in the first case and arising from the same set of operative facts. Defendants moved the court to dismiss the second case arguing the statutes of limitations had run and that A.R.S. § 12-504 (a time limitation saving statute) did not apply. The court agreed with Defendants and dismissed the second case. Ball moved unsuccessfully for reconsideration, and then appealed.

¶6 We have jurisdiction over Ball's timely appeal under Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 To the extent Ball raises issues regarding the first case, we lack jurisdiction to consider it now and, therefore, confine our analysis to the dismissal of the second case. As to the second case, Ball argues A.R.S. § 12-504 applies. We review the grant of a motion to dismiss de novo . Coleman v. City of Mesa , 230 Ariz. 352, 355-56, ¶ 7 (2012).

¶8 Section 12-504(A) requires a plaintiff to refile a complaint within six months after the preceding action terminates. Roller Village, Inc. v. Superior Court , 154 Ariz. 195, 197 (App. 1987). An action "terminates" upon entry of the superior court's dismissal order. Id. The same statutory provision applies to "judgments on appeal," in which case the issuance date of the appellate court "mandate" constitutes the action's "termination" date. Id. ; A.R.S. § 12-504(B).

¶9 Ball's first case was dismissed without prejudice. Rather than refile that within the six-month period allowed under A.R.S. § 12-504(A), Ball chose to appeal that dismissal order. But we "generally do not have appellate jurisdiction when a case is dismissed without prejudice." Dunn v. FastMed Urgent Care PC , 245 Ariz. 35, 38, ¶ 9 (App. 2018); see also Workman v. Verde Wellness Ctr., Inc. , 240 Ariz. 597, 600-01, ¶ 7 (App. 2016) (a dismissal without prejudice is generally not appealable because it is not a final judgment and does not preclude a party from refiling the action). And because we did not have jurisdiction, we dismissed that appeal.

¶10 Ball contends that the first-case termination date under A.R.S. § 12-504(B) is February 2020. According to Ball, this court issued its "mandate" dismissing the appeal of the first case in February of 2020. But Ball is mistaken. This court did not issue a mandate in the first case. A

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mandate is "the final order of the appellate court, which may command another appellate court, superior court or agency to take further proceedings or to enter a certain disposition of a case. An appellate court retains jurisdiction of an appeal until it issues the mandate." ARCAP 24(a). Because this court dismissed the first case appeal for lack of jurisdiction, there was no need to issue a mandate. See Reed v. Burke , 219 Ariz. 447, 451, ¶ 17 (App. 2008) (stating "no mandate was ever issued as jurisdiction was never taken").

¶11 Further, A.R.S. § 12-504(B) provides that "[t]he provisions of subsection A apply to judgments on appeal." (Emphasis added). Because we lacked jurisdiction, our order dismissing Ball's appeal in the first case was not a judgment on appeal, see Legacy Foundation Action Fund v. Citizens Clean Elections Commission , ___ Ariz. ___, ___, ¶ 19 (March 2, 2023) (noting that jurisdiction is a prerequisite for a judgment), we did not issue a mandate, see Reed , 219 Ariz. at 451, ¶ 17, and A.R.S. § 12-504(B) is inapplicable.

¶12 Here, the superior court found that the first case terminated on July 31, 2019 - the date the court dismissed the case. We agree. While the August 8, 2019 denial of Ball's motion to reconsider the dismissal may have been confusing (because the court stated that only the amended complaint had been dismissed), given the court's subsequent confirmation that the entire case had been dismissed, the first case officially "terminated" for A.R.S. § 12-504(A) purposes on July 31, 2019. See Roller Village , 154 Ariz. at 197. Because Ball filed his complaint in the second case more than six months after that date, A.R.S. § 12-504(A) did not apply and the applicable statutes of limitations barred Ball's claims. See A.R.S. § 12-541, -542; Clark v. Airesearch Mfg. Co. of Ariz., Inc. , 138 Ariz. 240, 243-44 (App. 1983) (holding that the two-year statute of limitations in A.R.S. § 12-542 applies to claims for tortious interference with contract). The court properly dismissed Ball's complaint.

¶13 Finally, Ball argues the superior court erred by not granting a default judgment against a third defendant, Mobile Doc Alliance, LLC ("Mobile Doc"), who Ball named in the second case, but not in the first case. The court took no action on Ball's application for default judgment. Instead, the court informed Ball that a different division of the superior court would handle the default application and that all related default documents Ball wished the court to consider must be e-filed. Nothing in the record suggests Ball made any further attempt to obtain a default judgment against Mobile Doc. On this record, Ball has shown no error.

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CONCLUSION

¶14 For the foregoing reasons, we affirm. In our discretion, we decline to award Defendants' attorney's fees, but do award costs upon compliance with ARCAP 21.