Opinion
No. 2 CA-CV 2019-0163
03-31-2020
PATRICE E. BROWN, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF CORRECTIONS; BENNIE ROLLINS; DORA SCHRIRO; AND JOHN GAY, Defendants/Appellees.
COUNSEL Patrice E. Brown, Florence In Propria Persona Mark Brnovich, Arizona Attorney General By Michael E. Gottfried, Assistant Attorney General, Phoenix Counsel for Defendants/Appellees
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20183794
The Honorable Catherine Woods, Judge
AFFIRMED
COUNSEL Patrice E. Brown, Florence
In Propria Persona Mark Brnovich, Arizona Attorney General
By Michael E. Gottfried, Assistant Attorney General, Phoenix
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Patrice Brown appeals the trial court's ruling granting the motion to dismiss filed by the Arizona Department of Corrections ("Department"). That ruling was based on the court's determination that the Department "is not a jural entity capable of being sued," such that Brown was necessarily unable to state a claim against the Department upon which relief could be granted. Brown has conceded this determination by failing to challenge it. See Robert Schalkenbach Found. v. Lincoln Found., Inc., 208 Ariz. 176, ¶ 17 (App. 2004) ("Generally, we will consider an issue not raised in an appellant's opening brief as abandoned or conceded."); see also Turf Irrigation & Waterworks Supply v. Mountain States Tel. & Tel. Co., 24 Ariz. App. 537, 541 (1975) ("[W]here, as here, appellant's opening brief failed to address itself to substantial and determinative issues clearly developed and defined in the trial court, and these issues are again brought forth in the appellees' answering brief," an appellant's failure to file a reply brief leaves us "without any assistance in analyzing and deciding" the issues "upon which the trial court's decision could have been based and upon which appellant's hopes for reversal must depend.").
Although Brown filed his notice of appeal prematurely, the trial court's subsequent entry of final judgment cured that defect. Ariz. R. Civ. App. P. 9(c); see also Barassi v. Matison, 130 Ariz. 418, 422 (1981) ("[A] premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised need not be dismissed.").
The trial court also dismissed this action as to the other named defendants, but Brown has not challenged those rulings on appeal. Although two of those defendants were dismissed without prejudice, such dismissals entered after the statute of limitations has run fall under the exception to the final judgment rule codified at A.R.S. § 12-2101(A)(3). Garza v. Swift Transp. Co., Inc., 222 Ariz. 281, ¶ 15 (2009). We therefore have jurisdiction over Brown's appeal. --------
¶2 The trial court further found that any effort by Brown to amend the complaint to name an appropriate defendant would be futile because, inter alia, Brown had failed to file the lawsuit within the applicable statute of limitations. We agree. Indeed, in April 2016, Brown filed a similar lawsuit in Maricopa County, where the superior court dismissed his claims with prejudice because they were barred by the statute of limitations. Brown v. Zoley, Nos. 1 CA-CV 17-0039, 1 CA-CV 17-0130, ¶¶ 3-4 (Ariz. App. Sept. 19, 2017) (consol. mem. decision). Division One of this court affirmed that dismissal. Id. ¶ 7. Given that the present case arises out of the same factual allegation—a prison transfer across state lines in 2005—the statutory claims at issue in this action, which Brown filed in July 2018, would similarly have been barred by the statute of limitations even if filed against an entity capable of being sued. See id. ¶¶ 2, 4 (same statutory claims arising from same alleged incident); A.R.S. § 12-541(5) (one-year statute of limitations for actions "[u]pon a liability created by statute"); see also Bellamy v. Rollins, No. 1 CA-CV 17-0506, ¶ 4 (Ariz. App. June 28, 2018) (mem. decision) (same statutory cause of action arising from same allegation barred by one-year statute of limitations when filed in 2017; Brown a named plaintiff there as well, and Bellamy a named plaintiff here). And, the constitutional claims Brown raises here would likewise have been time barred if properly brought against any jural public entity or employee thereof. See A.R.S. § 12-821 ("All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward.").
¶3 Finally, the trial court ruled on the Department's motion to dismiss, even though it was filed after the presumptive filing deadline for responsive pleadings and after Brown had filed a motion for summary judgment. As the court noted, although the Department never answered the complaint, Brown never sought a default judgment against the Department, such that no legal basis existed "to strike or otherwise decline to consider" on its merits the Department's motion to dismiss. And, as the Department points out, a trial court "should decide a motion to dismiss before a summary-judgment motion—regardless of which was filed first—because there is no reason to search for factual disputes if a complaint does not state a claim upon which relief can be granted." Brown has not filed a reply brief to dispute this straightforward point.
Disposition
¶4 We affirm the ruling of the trial court.