Opinion
1 CA-CV 11-0026
12-06-2011
GARY EUGENE YODER, Plaintiff/Appellant, v. JAN BREWER; CHARLES RYAN; and PRISCILLA WALTON, Defendants/Appellees.
Gary Eugene Yoder, Petitioner/Appellant In Propria Persona Thomas C. Horne, Arizona Attorney General By Daniel P. Schaack, Assistant Attorney General Attorneys for Defendants/Appellees
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
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2009-037061
The Honorable Hugh E. Hegyi, Judge
AFFIRMED IN PART; JURISDICTION ACCEPTED BUT RELIEF DENIED
Gary Eugene Yoder,
Petitioner/Appellant In Propria Persona
Buckeye
Thomas C. Horne, Arizona Attorney General
By Daniel P. Schaack, Assistant Attorney General
Attorneys for Defendants/Appellees
Phoenix KESSLER, Judge
¶1 Gary Eugene Yoder appeals from the trial court's dismissal of his claims. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In November 2009, Yoder, a prison inmate, filed a civil suit against St. Mary's Hospital in Tucson; Governor Jan Brewer; Charles Ryan, director of the Arizona Department of Corrections ("ADC"); and Priscilla Walton, a corrections officer of the ADC. In his complaint, Yoder alleged theft, conversion, and trespass to chattels; constitutional violations; negligence per se and deliberate indifference to medical care; sexual harassment; nuisance in violation of state law; violation of the Americans with Disabilities Act and the Rehabilitation Act; breach of contract; fraud/corruption; and civil conspiracy.
We have amended the caption in this matter. All future pleadings will use this amended caption.
¶3 In March 2010, noting that "[n]o response has been received" to Ryan's and Walton's motion to dismiss, the trial court dismissed Yoder's claims against Ryan and Walton in an unsigned minute entry order. Yoder filed two notices of appeal in June 2010 following summary judgment in favor of St. Mary's Hospital, a judgment that is not before us. In November 2010, the trial court dismissed Yoder's claims against Brewer in a signed minute entry order after Brewer moved to dismiss the complaint because Yoder served the Attorney General's Office and not Brewer individually. That order did not include language required by Arizona Rule of Civil Procedure 54(b) and thus was not appealable. Yoder filed another notice of appeal in December 2010. In March 2011, the trial court entered final judgment for Brewer, Ryan, and Walton, dismissing the case in its entirety.
Ryan, Walton, and Brewer were included on the notice of appeal but were dismissed by this Court because no final judgment had yet been entered at the trial level.
¶4 This Court has jurisdiction to review the judgment on the claims against Brewer, Ryan, and Walton under Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (Supp. 2011).Although Yoder's December 2010 appeal was premature because the November 2010 order did not include Rule 54(b) language, the entry of the final judgment in March 2011 as to the remaining defendants cured that prematurity. Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981).
We cite the current version of statutes when no revisions material to this decision have since occurred.
DISCUSSION
¶5 Yoder does not clearly articulate the issues for review. It is not this Court's duty to decipher and develop arguments not clearly presented. See Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143, 750 P.2d 898, 901 (App. 1987). Appellate litigants must present significant arguments, set forth their position on the issues raised, and include citations to relevant authorities, statutes, and portions of the record. ARCAP 13(a)(6), (b)(1); see also Higgins v. Higgins, 194 Ariz. 266, 270, ¶ 12, 981 P.2d 134, 138 (App. 1999) (holding a pro per litigant to the same familiarity with court procedures as an attorney). The failure to present an argument in compliance with the rules usually constitutes abandonment and a waiver of that argument. State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004).
¶6 While Yoder has listed numerous issues on appeal, to the extent we understand them, they can be summarized as follows:
1. Did the trial court err in ignoring Yoder's response to Ryan's and Walton's motion to dismiss?
2. Was Yoder entitled to entry of a default judgment?
3. Did the trial court err in denying Yoder's requests for a change of judge either as a matter of right or for cause?
¶7 To the extent we understand the arguments presented, we address them in turn.
Yoder's articulation of the issues is either confusing, duplicative of the issues as we summarize them, or raises issues not before us. For example, Yoder argues that one issue on appeal is whether "any court or judge have [sic] discretion on const, rights, rules of law & an injunction?" We decline to address that issue because Yoder presents no cognizable argument on it. See cases cited supra ¶ 5. Yoder also contends that an additional issue is whether he was "denied effective, meaningful access to the court by plain error & fraud when Appellant filed a reply to Appellee's Motion to Dismiss which was ignored by the court resulting in manifest const. error, prejudice & a denial of fundamental fairness which requires reversal?" We think this issue is subsumed by our summary of the first issue. Yoder also claims that he was entitled to a jury trial. This issue is subsumed by our discussion of the three issues we summarize in the body of this decision. Finally, Yoder claims the trial court erred in granting summary judgment for St. Mary's Hospital. By memorandum decision, a different panel of this Court has already affirmed that summary judgment in the separate appeal Yoder filed from that judgment. Yoder v . St . Mary's Hosp ., No. 1 CA-CV 10-0537, 2011 WL 797480 (App. March 8, 2011). Accordingly, we will not address that issue.
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I. Dismissal of claims against Appellees
¶8 We review the trial court's dismissal of a party's claims for an abuse of discretion. Arnold v . Van Ornum , 4 Ariz. App. 89, 91, 417 P.2d 723, 725 (1966). The trial court did not abuse its discretion when it dismissed Yoder's case against Ryan, Walton, and Brewer.
A . Dismissal of claims against Ryan and Walton
¶9 Because Yoder did not timely respond to Ryan's and Walton's motion to dismiss, the trial court properly dismissed his claims. According to Arizona Rule of Civil Procedure 7.1(b), "if the opposing party does not serve and file the required 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." Although Yoder claims that he was "denied effective, meaningful access to the court" in filing his reply, "which was ignored," no response to Ryan's and Walton's motion to dismiss appears in the record, nor does Yoder identify the portion of the record that should serve as his response. Thus, the trial court did not improperly conclude that Yoder acquiesced in the dismissal by not responding to Ryan's and Walton's motion.
B . Dismissal of claims against Governor Brewer
¶10 We agree that the claims against Governor Brewer should be dismissed, but disagree on the trial court's reasoning. In granting her motion to dismiss, the trial court construed Yoder's allegations against Governor Brewer to be allegations against the state but found that Yoder had "grossly exceeded" his time limit for serving process on the Attorney General. Assuming that Yoder's claims are against the state, making the Attorney General the proper recipient of service under Arizona Rule of Civil Procedure 4.1(h), the trial court's conclusion of untimely service is not supported by the record. After Yoder filed his claim on November 7, 2009, the Attorney General's Office received service on January 6, 2010, within 120 days as required under Arizona Rule of Civil Procedure 4(i).
¶11 We can, however, affirm the trial court for any reason supported by the record. State v. King, 213 Ariz. 632, 635, ¶ 8, 146 P.3d 1247, 1277 (2006). If a plaintiff fails to properly serve a defendant according to statutory requirements, a court shall not exercise jurisdiction over the defendant. E . g ., Endischee v . Endischee , 141 Ariz. 77, 79, 685 P.2d 142, 144 (App. 1984). To serve an individual, Rule 4.1(d) states that service "shall be effected by delivering a copy of the summons and of the pleading to that individual personally or by leaving copies thereof at that individual's dwelling house or usual place of abode." To the extent we understand the complaint, Yoder's claims are against Brewer personally and not in her official capacity, and the state is not included as a defendant in this action. As such, by serving the summons and complaint on the Attorney General's Office and not Governor Brewer individually, Yoder failed to bring Brewer under the trial court's jurisdiction.
¶12 Thus, Yoder's claims against Brewer were properly dismissed.
II . Denial of entry of default judgment
¶13 We review a court's decision on a motion for default judgment for an abuse of discretion. Gen . Elec . Capital Corp . v . Osterkamp , 172 Ariz. 191, 193, 836 P.2d 404, 406 (App. 1992).
¶14 Yoder's basis for arguing that his motion for default judgment should have been granted is that Ryan and Walton "failed to file an answer w/in the required time limits pursuant to Rule 12(a)(1)(A) ArizRCivP." Under Arizona Rule of Civil Procedure 12(a), a party has twenty days from service of process to appear and defend. Arizona Rule of Civil Procedure 6(b) allows a court to grant an extension for good cause, which is generally granted unless bad faith exists or an extension will prejudice the adverse party. See Toy v . Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App. 1997).
¶15 Walton was personally served on December 23, 2009, and an authorized agent accepted service for Ryan on January 6, 2010. Yoder's notice of default referencing Walton was filed on January 15, 2010. Ryan and Walton moved for additional time to appear and defend on January 22, 2010, citing that counsel received the file on January 14, 2010. Yoder filed another notice of default on January 26, 2010, explicitly referencing Brewer and Ryan. Brewer moved to quash service against her on February 1, 2010, based on improper service. In his February 2010 "Opposition to Defendant's Enlargement of Time for Fraud upon the Court," Yoder stated that he "would be prejudiced if [the] State got an enlargement of time which would violate due process," but did not indicate how he would be prejudiced.
¶16 Because Ryan and Walton properly requested an extension and nothing in the record suggested bad faith or that the extension prejudiced Yoder, the trial court did not abuse its discretion in denying Yoder's requests for default judgment.
III . Trial court bias
¶17 Yoder claimed that the trial judge was "incompetent" and biased against him but does not point to anything specific in the trial court record to support his allegation.
¶18 Under Arizona Rule of Civil Procedure 42(f)(1)(D)(ii), after an assigned judge has ruled on contested issues and granted or denied motions, the parties have waived their right to change that judge as a matter of right. Yoder filed his request for a change of judge as a matter of right in June 2010. The trial court properly denied Yoder's request because the judge had already ruled on contested issues.
¶19 Yoder's subsequent requests for a change of judge for cause under Rule 42(f)(2) were transferred to the civil presiding judge, who denied the requests. To show bias, an appellant must point to facts other than the trial judge's decisions in the case, and adverse judicial rulings do not demonstrate bias or prejudice. See Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (App. 1977). Yoder's affidavit in support of his request provides no substantive basis for a change of judge; rather, it makes conclusory and inflammatory statements attacking the trial judge's competence and impartiality.
¶20 Appellate review of the denial of a change of judge may only be obtained by special action. Taliaferro v . Taliaferro , 186 Ariz. 221, 223, 921 P.2d 21, 23, (1996) (appellate review for change of judge as matter of right can be reviewed only by special action); Lopez v . Kearney , 222 Ariz. 133, 134, ¶ 1, 213 P.3d 283, 284 (App. 2009) (accepting jurisdiction of denial of change of judge for cause in criminal proceeding). We exercise our discretion to consider the appeal of this issue as a special action, but deny relief. Yoder provided no cognizable basis of recusal for cause.
CONCLUSION
¶21 For the foregoing reasons, we affirm the dismissal of Yoder's claims, accept jurisdiction over the notice of change of judge issue, but deny relief.
DONN KESSLER, Judge CONCURRING: MARGARET H. DOWNIE, Presiding Judge PETER B. SWANN, Judge