Devries v. Capital Fund

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIMEA DEVRIES, Plaintiff/Appellant,

v.

CAPITAL FUND, II, Defendant/Appellee.

No. 1 CA-CV 23-0190
FILED 01-23-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-010208
The Honorable John R. Hannah Jr., Judge

VACATED AND REMANDED

COUNSEL

Timea DeVries, Prescott
Plaintiff/Appellant

The Law Office of Cynthia L. Johnson, Scottsdale
By Cynthia L. Johnson
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.

C A T L E T T, Judge:

¶1 Timea DeVries (“DeVries”) sued Capital Fund, II (“Capital
Fund”) after it evicted her. Capital Fund moved to dismiss. The superior
court denied that motion, concluding Capital Fund did not properly serve
it. Capital Fund re-served but did not re-file the motion to dismiss. DeVries
did not respond, so Capital Fund asked the superior court to summarily
adjudicate the served, but unfiled, motion to dismiss. The superior court
granted the motion and entered final judgment against DeVries. Because
Capital Fund did not re-file the motion to dismiss with the superior court,
there was no pending motion eligible for summary adjudication. We,
therefore, vacate the superior court’s judgment and remand for further
proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 DeVries sued Capital Fund seeking damages for emotional
and financial distress stemming from a prior eviction action Capital Fund
pursued against DeVries in 2020. Capital Fund moved to dismiss the
complaint for failure to state a claim. Capital Fund served the motion by
electronic mail. DeVries did not respond, so Capital Fund asked the court
to summarily adjudicate the motion. The court denied both motions,
finding Capital Fund did not properly serve DeVries because it was not
“clear that the two email addresses that appear[ed] on the mailing
certificates [were] valid” and the record did not reflect DeVries consented
to electronic service. The court stated, “IT IS ORDERED the defendant’s
Motion to Dismiss (Rule 12(b)(6)) and its Motion for Summary Adjudication
are denied,” leaving no motion pending with the court.

¶3 In response, Capital Fund filed a certificate of service, stating
“the undersigned has served [DeVries] both motions, along with this
Certificate of Service, via first class mail prepaid this day.” Capital Fund,
however, did not re-file the motion to dismiss with the court, still leaving
no motion pending.

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¶4 After some time, Capital Fund renewed its request for
summary adjudication of its previously denied, but not re-filed, motion to
dismiss. Capital Fund captioned the document as a “RENEWED MOTION
FOR SUMMARY ADJUDICATION OF CAPITAL FUND’S MOTION TO
DISMISS” and referenced the original motion to dismiss as “served on
October 14” and “[u]nopposed.” Capital Fund argued that the previously
denied motion to dismiss “state[d] more than adequate legal and factual
grounds.” When DeVries did not respond, the superior court dismissed the
complaint with prejudice and entered judgment for Capital Fund.

¶5 DeVries timely appealed. We have jurisdiction. See A.R.S. §
12-2101(A)(1).

DISCUSSION

¶6 DeVries appeals the superior court’s decision summarily
granting Capital Fund’s motion to dismiss, arguing the superior court could
not grant a motion to dismiss that was previously denied and not re-filed.
This court has explained that, generally, “a party must file a written
response whenever a motion is filed.” Schwab v. Ames Constr., 207 Ariz. 56,
59 ¶ 14 (App. 2004) (emphasis added). If an opposing party does not
respond to a filed motion, the superior court may summarily grant or deny
the motion. Id.; Ariz. R. Civ. P. 7.1(b)(2); Strategic Dev. & Constr., Inc. v. 7th
& Roosevelt Partners, LLC, 224 Ariz. 60, 65 ¶ 17 (App. 2010) (stating that the
non-moving party must respond to a “Rule 12(b)(6) motion within ten
days” or otherwise, “the superior court has discretion to grant the motion
summarily.”). To obtain summary adjudication, however, a motion must
be filed and pending with the court. See Byars v. Ariz. Pub. Serv. Co., 24 Ariz.
App. 420, 422 (1975) (“In determining whether this case was a proper one
for summary adjudication, we note that . . . all matters presented must be
considered in their most favorable aspect to the party opposing the
motion.”).

¶7 Here, Capital Fund did not re-file its motion to dismiss, and
thus there was no pending motion for the superior court to adjudicate
summarily. Capital Fund argues it re-served the motions to “conform with
the October 14, 2022 [minute entry].” But that minute entry did not merely
deny summary adjudication and require proper service, which would have
left the motion to dismiss pending—it denied the motion to dismiss. After
a motion to dismiss is denied, one cannot resurrect it by merely filing a new
certificate of service. One must instead re-file the motion with the court,
thereby maintaining a proper record and notifying the court and other
litigants that the relief requested is back on the table. If, thereafter, an

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opposing party does not respond, the filing party may seek summary
adjudication, or the court may summarily dismiss the case on its own. See
Strategic Dev. & Const., 224 Ariz. at 65 ¶ 17 (stating that the superior court
may grant a motion to dismiss if a party fails to respond).

¶8 Capital Fund argues that it “‘[r]enewed’ the [motion to
dismiss]” by renewing its request for summary adjudication. But Capital
Fund’s renewed request for summary adjudication did not purport to
renew the motion to dismiss, let alone re-file or even attach the motion to
dismiss. Instead, the renewed request simply treated Capital Fund’s initial
motion to dismiss as though it remained pending, despite that the superior
court denied that motion for insufficient service.

¶9 In granting dismissal, the superior court concluded Capital
Fund’s “Motion to Dismiss has now been properly served on the plaintiff.”
While that statement may have been true, it did not adequately consider the
court’s prior denial of the motion to dismiss and Capital Fund’s failure to
re-file it. Because the superior court did not have a motion to dismiss
pending before it, the court erred in summarily granting judgment against
DeVries. We express no views on the merits of DeVries’ claims, or the
arguments Capital Fund made in the motion to dismiss. We also need not
reach DeVries’ argument that the superior court erred in dismissing her
complaint without granting further leave to amend.

CONCLUSION

¶10 We vacate the superior court’s judgment and remand for
further proceedings consistent herewith. As the prevailing party on appeal,
DeVries is entitled to her costs on appeal (if any) upon compliance with
Arizona Rule of Civil Appellate Procedure 21.

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

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