Opinion
1 CA-CV 23-0444
06-25-2024
VIVIAN ROBBINS, an individual, Plaintiff/Appellant, v. EMERALD SPRINGS ASSISTED LIVING, LLC, a foreign limited liability Company, doing business in Yuma County, Arizona; THE GOODMAN GROUP MN, LLC, a foreign limited liability Company, doing business in Yuma County, Arizona, Defendants/Appellees.
Clear Counsel Law Group, Mesa By Dustin E. Birch Co-Counsel for Plaintiff/Appellant Alexander R. Arpad, Phoenix Co-Counsel for Plaintiff/Appellant Jones, Skelton & Hochuli P.L.C., Phoenix By David S. Cohen, Arcangelo S. Cella, Anne E. Holmgren Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yuma County No. S1400CV202200206 The Honorable Lawrence C. Kenworthy, Judge
Clear Counsel Law Group, Mesa
By Dustin E. Birch
Co-Counsel for Plaintiff/Appellant
Alexander R. Arpad, Phoenix
Co-Counsel for Plaintiff/Appellant
Jones, Skelton & Hochuli P.L.C., Phoenix
By David S. Cohen, Arcangelo S. Cella, Anne E. Holmgren
Counsel for Defendants/Appellees
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Angela K. Paton and Judge Michael S. Catlett joined.
MEMORANDUM DECISION
MORSE, Judge:
¶1 Vivian Robbins appeals the superior court's order granting Emerald Springs Assisted Living, LLC, Emerald Springs of Yuma, LLC, and The Goodman Group MN, LLC's (collectively, "Emerald Springs") motion to dismiss. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In April 2022, Robbins filed suit against Emerald Springs. The following month, Emerald Springs moved to dismiss Robbins' complaint and to enforce the arbitration agreement that the parties signed at the time Emerald Springs admitted Robbins as a resident of their senior living facility. A week later, the parties stipulated to allow Robbins to file an amended complaint to name Hospice of Yuma as a party and to postpone the deadline for Robbins' response to Emerald Springs' motions until she served Hospice of Yuma with the amended complaint.
¶3 In July 2022, the court ordered Robbins to file an amended complaint to name Hospice of Yuma as a party, stayed all briefing on Emerald Springs' motions, and ordered the parties to provide the court notice to lift the stay. Robbins filed an amended complaint but failed to name Hospice of Yuma as a party. The following month, Emerald Springs requested a status conference to discuss Robbins' failure to prosecute and lifting the court's stay on all briefing of their motions. At the conference, the court ordered Robbins to file either an amended complaint or a response to Emerald Springs' motions no later than November 21. On November 18, Robbins filed an amended complaint, naming Hospice of Yuma as a party.
¶4 Four months later, at the Arizona Rule of Civil Procedure ("Rule") 16(d) scheduling conference, the court ordered Robbins to file a response to Emerald Springs' motions and placed the case on the dismissal calendar. In April 2023, Robbins opposed Emerald Springs' motions, arguing the arbitration agreement was procedurally unconscionable and should not be enforced. Robbins also moved to extend the time to serve the amended complaint on Hospice of Yuma.
¶5 The following month, the court granted Emerald Springs' motion to enforce the arbitration agreement, finding the agreement neither procedurally nor substantively unconscionable. A few weeks later, the court granted Emerald Springs' motion to dismiss and concluded "no further matters remain pending and this case is dismissed pursuant to Rule 54(c)."
¶6 After Robbins timely appealed but before filing an opening brief, she requested that we "determine whether jurisdiction over this appeal presently exists." We concluded that "[b]y dismissing the complaint, the superior court is deemed to have denied the motion for an extension of time to serve Hospice of Yuma," and the superior court's "order, thus, resolves all claims against all parties" pursuant to Rule 54(c).
¶7 We later dismissed Robbins' appeal for failing to file an opening brief. Robbins moved for reconsideration, seeking "a reasonable amount of time" to file the opening brief and requesting that we reconsider jurisdiction. We granted Robbins' request to file an opening brief, but denied reconsideration as to the jurisdiction issue.
DISCUSSION
¶8 Robbins "renews her argument" that we lack jurisdiction because the "motion to extend time to serve Hospice of Yuma still remained pending at the time the judgment containing the Rule 54(c) certification was entered." We have "an independent duty" to determine whether we have jurisdiction over an appeal. Baker v. Bradley, 231 Ariz. 475, 478, ¶ 8 (App. 2013). Generally, this Court's "jurisdiction is limited to appeals from final judgments which dispose of all claims and parties." Id. at 479, ¶ 9. Further, "unserved parties are not parties," McHazlett v. Otis Eng'g Corp., 133 Ariz. 530, 532 (1982) (internal quotation marks omitted), and an order is final for purposes of appeal if it dismisses all served parties, Baker, 231 Ariz. at 481, ¶ 22 (citing Cooper v. Pickett, 137 F.3d 616, 621-22 (9th Cir. 1997)).
¶9 Here, Robbins never served Hospice of Yuma with the amended complaint. Because Hospice of Yuma was an unserved "party" and the court dismissed Robbins' complaint with prejudice as to the served parties, the court's order is final for purposes of appeal. See Baker, 231 Ariz. at 481, ¶ 21 ("In the context of judgments, it is established that a judgment resolving all claims between the participating parties will be final and appealable . . ., even though it does not adjudicate claims against unserved parties who have not appeared in the action."). Thus, we have jurisdiction under A.R.S. § 12-2101(A)(1).
¶10 Robbins' remaining arguments pertain to Hospice of Yuma, who is not a party to this appeal. Robbins concedes that she "is not seeking any relief on appeal against Emerald Springs," and Emerald Springs notes that Robbins' opening brief "addresses only issues that pertain to an unserved defendant, Hospice of Yuma" and "takes no position on the issues raised." Therefore, any issues relating to the court's dismissal of Emerald Springs are waived. See VEREIT Real Est., LP v. Fitness Int'l, LLC, 255 Ariz. 147, 154, ¶ 23 (App. 2023) ("By not raising this argument in its opening brief, however, it is waived."). And because any issues regarding Hospice of Yuma are not properly before this Court, we need not address them. See Wilkie v. State, 161 Ariz. 541, 543-44 (App. 1989) (declining to consider the plaintiff's § 1983 arguments because he "failed to object in the trial court to the dismissal of his claims against the unserved defendants" and "to serve a notice of appeal on these defendants or make them parties to this appeal").
CONCLUSION
¶11 We affirm.