Sprinkle v. Neave

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VALENTYNA SPRINKLE, Plaintiff/Appellant,

v.

JULIO NEAVE, et al., Defendants/Appellees.

No. 1 CA-CV 21-0747
FILED 9-15-2022

Appeal from the Superior Court in Maricopa County
No. CV2019-014816
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

Valentyna Sprinkle, Phoenix
Plaintiff/Appellant

Law Offices of Collin T. Welch, Phoenix
By Taryn A. Campbell
Counsel for Defendants/Appellees
 SPRINKLE v. NEAVE, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

F U R U Y A, Judge:

¶1 This case arises from litigation involving an auto accident
between Valentyna Sprinkle and Julio Neave. Sprinkle appeals the superior
court’s ruling granting Neave’s Motion to Dismiss for failure to prosecute.
For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Sprinkle and Neave were involved in a two-car accident in
November 2017. The details of the accident are not at issue in this appeal,
but rather Sprinkle challenges the procedural ruling resulting in the
dismissal of her lawsuit.

¶3 The parties attended compulsory arbitration in July 2020. The
arbitrator found in Neave’s favor in August 2020 and Sprinkle timely
appealed the arbitration award to the superior court. The court set a trial
for September 2021.

¶4 Following Sprinkle’s appeal of the arbitration award, Neave
made repeated efforts to resolve discovery disputes with Sprinkle. Neave
attempted to discuss Sprinkle’s claims and obtain additional information,
including by email in November 2020 and by phone in March 2021. Sprinkle
did not supplement her initial Arizona Rules of Civil Procedure (“Rule”)
26.1 disclosures, respond to Neave’s requests for medical authorization,
request for deposition dates, or otherwise participate in discovery.

¶5 After waiting ten months for Sprinkle to participate in
discovery or move her case forward, Neave filed a motion to dismiss.
Sprinkle did not respond to the motion. The court dismissed Sprinkle’s case
with prejudice in August 2021.

¶6 Sprinkle filed a motion to strike the dismissal in September
2021, alleging that she had not been properly served with Neave’s motion.
The court ordered both parties to file responses regarding the service of
Neave’s motion to dismiss. Neave’s response indicated that pursuant to
Rule 5, the motion had been mailed to Sprinkle’s last-known address on file

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with the court. Sprinkle’s response confirmed that she was living at the
same address Neave had mailed his motion to when the motion was sent.
The court affirmed the dismissal. Sprinkle timely appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) §§ 12-
120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Sprinkle’s Deficient Briefing.

¶7 As a preliminary matter, Sprinkle’s brief on appeal is
deficient. Pursuant to rules governing appeals, an appellant’s opening brief
must contain certain required elements, including a statement of the
background facts, the issues presented for appeal, and an “argument”
containing the appellant’s contentions. Ariz. R. Civ. App. P. (“ARCAP”)
13(a)(5)–(7). Appellant’s argument must also include citations to legal
authorities in support of their contentions, references to the record, and a
statement of the appropriate standard of review. ARCAP 13(a)(7)(A)–(B).
An appellant who fails to make a “bona fide and reasonably intelligent
effort to comply with the rules” will waive issues and arguments “not
supported by adequate explanation, citations to the record, or authority.”
Ramos v. Nichols, 252 Ariz. 519 ¶ 8 (App. 2022) (quoting In re Aubuchon, 233
Ariz. 62, 64–65 ¶ 6). Pro se litigants are held to the same standards as
attorneys and are not afforded any special leniency. Id.

¶8 Sprinkle has waived any issues or arguments on appeal by
failing to comply with these requirements. For example, her opening brief
contains no citations to the Index of Record, it does not contain a statement
of the issues that she advances on appeal, and it fails to provide citations to
any relevant authorities supporting her arguments as to those issues.
Therefore, Sprinkle has not made a “bona fide and reasonably intelligent
effort” to comply with ARCAP 13’s requirements. Id. Sprinkle’s failure to
comply with ARCAP 13 must be treated as a waiver of all appealable issues
and requires that the court’s dismissal be affirmed. Ramos, 252 Ariz. at ¶ 11.

II. Sprinkle’s Failure to Respond.

¶9 Sprinkle’s appeal also fails because she did not respond to
Neave’s Motion to Dismiss.

¶10 When a party files a motion, Rule 7.1 requires the nonmoving
party to file any response within 10 days after the motion is served. Ariz. R.
Civ. P. 7.1(a)(3). The court can summarily grant a motion if the opposing
party does not timely respond. Ariz. R. Civ. P. 7.1(b)(2); Strategic Dev. &

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Const., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 64–65 ¶ 16–17 (App.
2010). Without clear abuse of discretion, we will not disturb the court’s
grant of an unanswered motion to dismiss. Arnold v. Van Ornum, 4 Ariz.
App. 89, 90 (1966).

¶11 Sprinkle’s first response to Neave’s Motion to Dismiss was
her “motion to strike of [sic] dismissal” filed in September 2021, more than
60 days after her deadline for filing a response had elapsed. Under Rule 7.1,
the court had the discretion to grant Neave’s motion to dismiss on this basis
alone.

III. Sprinkle’s Appeal Fails on the Merits.

¶12 In addition to failing to comply with briefing requirements on
appeal and responding to Neave’s motion in the superior court, Sprinkle’s
appeal also fails on the merits.

¶13 We review the court’s grant of a motion to dismiss for failure
to prosecute for an abuse of discretion. Slaughter v. Maricopa Cnty., 227 Ariz.
323, 326 ¶ 14 (App. 2011); see also Cooper v. Odom, 6 Ariz. App. 466, 469 (1967)
(noting that “trial courts have the inherent power to dismiss a case on their
own motion if the case has not been diligently prosecuted.”). A court abuses
its discretion when its use of that discretion is “manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.” Quigley v. City
Ct. of City of Tucson, 132 Ariz. 35, 37 (App. 1982). An abuse of discretion
requires more than merely a “difference in judicial opinion.” Id.

A. Sprinkle’s Failure to Prosecute.

¶14 Sprinkle abandoned her claims by failing to engage in
discovery for nine months after the court set a trial. The court may grant a
defendant’s motion to dismiss where the plaintiff failed to prosecute or
otherwise comply with the Rules. Ariz. R. Civ. P. 41(b). Such prosecution,
including timely discovery and disclosure, must be “diligently” pursued.
Passmore v. McCarver, 242 Ariz. 288, 292 ¶ 9 (App. 2017); see also Slaughter,
227 Ariz. at 326 ¶ 15 (finding that the plaintiff had not prosecuted her claims
where she had failed to conduct discovery and was unprepared for trial
more than two years after filing suit).

¶15 Here, Sprinkle failed to make required disclosures under Rule
26.1. In the nine months following the order setting trial, Neave’s counsel
attempted to communicate with Sprinkle to resolve discovery disputes. But
the record does not show Sprinkle made any additional disclosures. Nor
did she cooperate in resetting dates for her deposition or otherwise respond

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to Neave’s discovery requests during that time. Given Sprinkle’s failure to
engage in any meaningful discovery, the court did not abuse its discretion
in determining that Sprinkle abandoned her claim.

B. Sufficient Service.

¶16 Sprinkle also argues the court erred because Neave’s motion
to dismiss was not properly served. After initial appearances in a case,
motions and other filings may be served by mailing them to the opposing
party’s last-known address by United States mail. Ariz. R. Civ. P. 5(c)(2)(C).
Service is complete upon mailing. Id.

¶17 Neave mailed a copy of the Motion to Dismiss to Sprinkle’s
last-known address. Sprinkle confirmed to the court that Neave had sent
his motion to dismiss to her correct last-known address. Because Neave
properly mailed the motion to Sprinkle’s last-known address and she
confirmed that she lived there at the time of service, Sprinkle received
sufficient service of process under Rule 5. Therefore, Sprinkle’s arguments
on appeal do not establish her claim of improper service nor illustrate any
abuse of discretion by the court, and we must affirm the court’s dismissal.

CONCLUSION

¶18 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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