NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ERIKA JACOBS, Plaintiff/Appellant,
v.
DENTAL CARE AT MOON VALLEY, et al., Defendants/Appellees.
No. 1 CA-CV 19-0551
FILED 9-1-2020
Appeal from the Superior Court in Maricopa County
No. CV 2018-014234
The Honorable Joseph C. Welty, Judge
AFFIRMED
APPEARANCES
Erika Jacobs, Broomfield, CO
Plaintiff/Appellant
Resnick & Louis PC, Scottsdale
By Carol M. Romano
Counsel for Defendants/Appellees
JACOBS v. DENTAL CARE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann
joined.
C A M P B E L L, Judge:
¶1 Erika Jacobs appeals from the superior court’s order
dismissing her complaint against Dental Care at Moon Valley and Dr. Chad
Hines (collectively “defendants”). Because Jacobs failed to respond timely
to defendants’ motion to dismiss, the court did not abuse its discretion by
dismissing the complaint and we affirm.
BACKGROUND
¶2 In September 2017, Jacobs sought dental services from
defendants for tooth extraction, bone graft, fillings, and abscess draining.
After defendants filled her cavities, they asked Jacobs to sign informed
consent forms, allegedly after giving her injections, but before the tooth
extraction. After Jacobs refused to sign the consent forms, defendants
declined to perform the procedures.
¶3 In December 2017, Jacobs filed a complaint in a Maricopa
County justice court alleging defendants were negligent, subjected her to
unnecessary pain, and caused her to lose a day of work. Defendants filed a
motion to dismiss the complaint for failure to state a claim. Jacobs did not
file a response and the justice court dismissed her complaint.
¶4 In November 2018, Jacobs filed a complaint in superior court
alleging that defendants were negligent, had defamed her, and had violated
HIPPA. She sought $1500 in damages. Defendants filed a motion to dismiss
the complaint pursuant to Arizona Rule of Civil Procedure (“Rule”)
12(b)(6), arguing that the case was barred by the doctrine of res judicata and
that jurisdiction in superior court was improper because Jacobs only sought
$1500 in damages. See A.R.S. § 22-201(B) (justice court has exclusive
jurisdiction in matters with less than $10,000 in controversy). Jacobs did not
timely file a response.
¶5 Noting that Jacobs had not filed a response, the superior court
summarily granted the motion to dismiss pursuant to Rule 7.1(b)(2).
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JACOBS v. DENTAL CARE
Decision of the Court
Subsequently, Jacobs filed both an untimely response to the motion to
dismiss and a motion objecting to the dismissal, which the court treated as
motions for reconsideration. The court denied the motions. Jacobs filed a
motion to reinstate the case, which the court also denied. Jacobs timely
appealed.
DISCUSSION
¶6 On appeal, Jacobs argues that the superior court dismissed
her complaint “due to mishandling and oversighted timely motions of
objections sent in by [Jacobs] for processing.” She argues that the superior
court filed its order dismissing her complaint before her time to respond to
the motion to dismiss had expired, and that the court acted unethically by
granting the motion to dismiss. “We review an order granting a motion to
dismiss for abuse of discretion.” Dressler v. Morrison, 212 Ariz. 279, 281,
¶ 11 (2006).
¶7 At the outset, we note that Jacobs’s opening brief fails to
comply with ARCAP 13(a). Specifically, her statements of the procedural
path of the case and facts fail to include appropriate references to the record
and the argument section of the brief fails to provide the applicable
standard of appellate review and appropriate citations to the record and to
legal authority. See ARCAP 13(a)(4), (5), (7). We may dismiss an appeal
when the appellant fails to comply with the rules. Adams v. Valley Nat’l Bank
of Ariz., 139 Ariz. 340, 341–43 (App. 1984).
¶8 Even if we overlook the deficiencies in the opening brief,
however, we find no abuse of discretion. Without citation to the applicable
rules of procedure, or to any legal authority, Jacobs argues that she had 30
days to file a response to the motion to dismiss and that her response was
timely. We disagree. Defendants filed their motion to dismiss and mailed it
to Jacobs on February 19, 2019. Rule 7.1(a)(3) provides that unless another
rule applies, a response to a motion must be filed within 10 days after the
motion was served. Jacobs admits she did not mail her response to the
motion to dismiss to the superior court until March 20, 2019. The response
was received and filed by the court on March 27, 2019. See Rule 5.1(b)(1)
(“[A] document is deemed filed on the date the clerk receives and accepts
it.”). Because Jacobs’s response was untimely the superior court did not err
by dismissing her complaint or abuse its discretion in declining to reinstate
the case. We therefore do not address the merits of the motion. See Strategic
Dev. and Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 65, ¶ 17
(App. 2010).
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JACOBS v. DENTAL CARE
Decision of the Court
CONCLUSION
¶9 For the foregoing reasons, we affirm the superior court’s
dismissal of Jacobs’s complaint.
AMY M. WOOD • Clerk of the Court
FILED: AA
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