Borges v. Chavez ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ROGERS BORGES, Plaintiff/Appellant,
v.
MARIBEL DEL CARMEN ROMO CHAVEZ, Defendant/Appellee.
No. 1 CA-CV 21-0253
FILED 12-9-2021
Appeal from the Superior Court in Maricopa County
No. CV2019-054802
The Honorable Jacki Ireland, Judge Pro Tempore
The Honorable Sally Schneider Duncan, Judge
AFFIRMED IN PART; VACATED IN PART
APPEARANCES
Rogers Borges, Phoenix
Plaintiff/Appellant
BORGES v. CHAVEZ
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Samuel A. Thumma joined.
P O R T L E Y, Judge:
¶1 Rogers Geremay Borges Pupillo (“Borges”) appeals the
dismissal of his civil complaint against Maribel Del Carmen Romo Chavez
(“Chavez”). For the following reasons, we affirm the dismissal of the
complaint, but we vacate the superior court’s order rejecting Borges’ notice
of appeal.
FACTS AND PROCEDURAL HISTORY
¶2 Borges and Chavez lived together and were engaged to be
married. In September 2019, after being in a motorcycle accident with
resulting serious head injuries, Borges was hospitalized. Unfortunately,
Chavez ended their engagement and relationship while Borges was in the
hospital.
¶3 In November 2019, Borges filed a complaint against Chavez,
seeking the return of an engagement ring and various other property he
gave her, and money. The case was subject to compulsory arbitration, and
after a hearing, the arbitrator issued an award ordering Chavez to return
the ring and some other property to Borges. Chavez timely appealed from
the award. In November 2020, at a hearing where both parties (who were
self-represented) were present, the court scheduled an April 2021 jury trial.
In February 2021, the court issued a minute entry setting a
scheduling/status conference via Microsoft Teams “to discuss trial setting
dates.” The conference was set for 9:00 a.m. on March 15, 2021. The minute
entry included the following warning to the parties: “If there is a failure to
appear, the Court may make such orders as are just, including granting the
relief requested by the party who does appear.”
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
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BORGES v. CHAVEZ
Decision of the Court
¶4 Borges failed to timely appear for the 9:00 a.m. March 15
scheduling conference, and at 9:07 a.m., the superior court found he had
“failed to appear with no good cause” and dismissed his complaint.
Starting later that morning, Borges sent a series of emails to the court
attempting to resurrect his case. He did not, however, file a motion for
reconsideration nor a motion to set aside the judgment.
¶5 The court entered a final judgment dismissing the case the
next morning. See Ariz. R. Civ. P. 54(c).
JURISDICTION
¶6 Although no one has raised the issue, we have an
independent obligation to determine whether we have jurisdiction over an
appeal. Dabrowski v. Bartlett, 246 Ariz. 504, 511, ¶ 13 (App. 2019). We must
dismiss an appeal if we lack appellate jurisdiction. Id.¶7 After Borges filed a timely notice of appeal, the superior court
issued an order “rejecting” Borges’ notice of appeal “for non-compliance
with the Rules of Appellate Procedure.” Any decision as to appealability
of an order, or the effectiveness of a notice of appeal, is for this court to
decide. See Schultz v. Hinshaw, 18 Ariz. App. 557, 558 (1972). We therefore
vacate the superior court’s order rejecting Borges’ notice of appeal. See id.¶8 Additionally, in dismissing the complaint, the superior court
did not say whether the dismissal was with or without prejudice, and it is
clear that the statute of limitations had not yet run on Borges’ complaint.
See Ariz. Rev. Stat. (“A.R.S.”) § 12-543(1) (providing a three-year statute of
limitations on actions “[f]or debt where the indebtedness is not evidenced
by a contract in writing”). A judgment dismissing a complaint without
prejudice generally is not appealable, Workman v. Verde Wellness Ctr., Inc.,
240 Ariz. 597, 600, ¶ 7 (App. 2016), because it does not bar the plaintiff from
refiling the action, Union Interchange, Inc. v. Van Aalsburg, 102 Ariz. 461, 464
(1967). A dismissal that technically is without prejudice can be appealable,
however, if it results in finality. Bank of New York Mellon v. Dodev, 246 Ariz.
1, 7, ¶ 19 (App. 2018).
¶9 If the plaintiff fails to prosecute or to comply with the Arizona
Rules of Civil Procedure or a court order, the defendant may move to
dismiss the action, and unless the dismissal order states otherwise, such a
dismissal “operates as an adjudication on the merits.” Ariz. R. Civ. P. 41(b).
“[C]ourts often describe a judgment as being ‘on the merits’ if it finally
resolves an action in a manner that precludes later relitigation of the claims
involved.” 4501 Northpoint LP v. Maricopa Cnty., 212 Ariz. 98, 101, ¶ 16
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BORGES v. CHAVEZ
Decision of the Court
(2006) (citing Gould v. Soto, 14 Ariz. 558, 561-62 (1913); Restatement (Second)
of Judgments (“Restatement”) § 19 cmt. a (1982)). “Such a judgment may
result from an actual trial on the substantive issues[,] but it need not do so.”
Id. (citing Restatement § 19 cmt. a). An appealable final judgment is a
judgment that decides and disposes of a case on its merits, leaving no
question open for judicial determination. Green v. Lisa Frank, Inc., 221 Ariz.
138, 146, ¶ 14 (App. 2009) (citations omitted). The superior court’s final
judgment in this case left all issues before the court decided, leaving no
open questions for subsequent determination by the superior court.
Accordingly, we have jurisdiction under A.R.S. § 12-2101(A)(1).
ANALYSIS
I. Chavez’ Failure to File an Answering Brief
¶10 Chavez did not file an answering brief, and this court issued
an order submitting the appeal for decision on the record and the opening
brief. Although this court has discretion to consider Chavez’ failure to file
an appropriate answering brief as conceding error, see ARCAP 15(a)(2);
Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982), we decline to do so here,
see, e.g., In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002); Hoffman
v. Hoffman, 4 Ariz. App. 83, 84-85 (1966).
II. Dismissal of Borges’ Complaint
¶11 We review the court’s dismissal of Borges’ complaint for an
abuse of discretion. Slaughter v. Maricopa Cnty., 227 Ariz. 323, 326, ¶ 14
(App. 2011); Troxler v. Holohan, 9 Ariz. App. 304, 306 (1969) (“[T]he
involuntary dismissal of an action pursuant to Rule 41(b) is a matter
directed to the sound discretion of the trial court.”). “A court abuses its
discretion when its ruling is manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.” Henderson v. Henderson, 241
Ariz. 580, 590, ¶ 31 (App. 2017) (citation and internal quotation marks
omitted).
¶12 On this record, we cannot say that the superior court abused
its discretion requiring reversal. Borges did not properly challenge the
dismissal before the judgment was entered nor did he file a motion to set
aside the judgment. And in his opening brief, Borges makes no argument
that the court erred in dismissing his complaint; instead, his brief recounts
his view of the facts, ostensibly as support for his belief that he would have
been successful on the merits had a jury trial gone forward. Because Borges
does not argue that dismissal was improper, he has waived the issue. See
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BORGES v. CHAVEZ
Decision of the Court
State ex rel. Montgomery v. Mathis, 231 Ariz. 103, 124, ¶ 82 (App. 2012); Belen
Loan Inv’rs, LLC v. Bradley, 231 Ariz. 448, 457, ¶ 22 (App. 2012).
¶13 Moreover, the record before us does not clearly identify why
Borges was late in contacting the superior court on March 15, 2021. His
subsequent emails to the court provide inconsistent explanations for his
failure to timely log on to Microsoft Teams, suggesting on the one hand that
he had tried to log on before 9:00 a.m. but may have encountered technical
difficulties, but at the same time stating he was unsure what time the
conference was scheduled to begin and suggesting the court should waive
any lateness because of his past diligence. Without more, we cannot say the
superior court abused its discretion in dismissing Borges’ complaint.
CONCLUSION
¶14 The superior court’s order rejecting Borges’ notice of appeal
is vacated, but the court’s judgment dismissing Borges’ complaint is
affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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