                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


                  LAURA L. MEDLEY, Plaintiff/Appellant,

                                         v.

                 STATE OF ARIZONA, Defendant/Appellee.

                             No. 1 CA-CV 13-0714
                               FILED 10-30-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-018693
             The Honorable Sally Schneider Duncan, Judge

                                  AFFIRMED


                                   COUNSEL

Laura L. Medley, Goodyear
Plaintiff/Appellant in Propria Persona

Arizona Attorney General’s Office, Phoenix
By Kelley J. Morrissey
Counsel for Defendant/Appellee
                           MEDLEY v. STATE
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Jon W. Thompson and Judge Diane M. Johnsen joined.


K E S S L E R, Judge:

¶1           Plaintiff-Appellant Laura L. Medley (“Medley”) appeals the
superior court’s judgment dismissing her claims against Defendant-
Appellee, the State of Arizona (“the State”). For the reasons stated below,
we affirm the superior court’s order dismissing Medley’s case with
prejudice.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In 2012, Medley filed a complaint against the State (“the
present case”) alleging that the failure of the Arizona Department of
Corrections (“ADOC”) to process Medley’s “legal mail in accordance with
[ADOC’s] Department Orders 902 and 914” resulted in the dismissal of a
previous case Medley had filed in 2010 (“the previous case”).1 Medley
claimed that such conduct amounted to intentional infliction of emotional
distress, asserting she could no longer eat or sleep and her health
deteriorated as a result of the dismissal of the previous case. Medley sought
an award of damages against the State. The State filed a motion to dismiss
the present case arguing, inter alia, that Medley’s claim and the issue she




1 Medley v. State, CV 2010-032522 (Maricopa Cnty. Super. Ct.). On January
19, 2012, the previous case was dismissed with prejudice as a result of
Medley’s failure to file a notice of claim with the Arizona Attorney
General’s office, as required by Arizona Revised Statutes (“A.R.S.”) section
12-821.01 (Supp. 2013). Medley appealed the dismissal of the previous
case, but shortly thereafter, we granted her motion to voluntarily dismiss
the appeal. See Order to Dismiss, State v. Medley, 1 CA-CV 12-0196 (Ariz.
App. July 6, 2012).



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                            MEDLEY v. STATE
                            Decision of the Court

presented were barred by the doctrines of res judicata and collateral
estoppel.2

¶3            After an order to show cause hearing, the superior court
vacated its previous denial of the State’s motion to dismiss the present case
and dismissed the present case with prejudice. The court based its decision
on the “reasons set forth on the record.” Medley has not provided us with
a record of this hearing, which would presumably have included the
reasons for the dismissal. Medley filed a motion for reconsideration, which
the court denied.

¶4            Medley filed a timely appeal.3 We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(1) (Supp. 2013).

                               DISCUSSION

I.     Standard of Review

¶5            We review a superior court’s order granting a motion to
dismiss de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-8, 284
P.3d 863, 866-67 (2012).




2 The State also argued the complaint in the current case was barred by the
applicable statute of limitations and A.R.S. § 31-201.01(L) (Supp. 2013), that
Medley failed to state a claim for intentional infliction of emotional distress,
that Medley could not assert a damages claim directly under the United
States Constitution, and that Medley failed to exhaust her available
administrative remedies prior to filing suit.
3 Medley’s notice of appeal was file stamped on October 28, 2013, thirty-five

days after entry of the superior court minute entry dismissing the present
case. This Court has held, however, “that a pro se prisoner is deemed to
have filed [her] notice of appeal at the time it is delivered, properly
addressed, to the proper prison authorities to be forwarded to the clerk of
the superior court.” Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App.
1995). The record reflects Medley’s notice of appeal was received by the
clerk of the superior court on October 23, 2013, thirty days after the entry of
judgment. As such, one may assume Medley delivered her notice of appeal
to the proper prison authorities before October 23, 2013, making her appeal
timely.


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                            MEDLEY v. STATE
                            Decision of the Court

II.    Jurisdiction

¶6             Relying on Sandretto v. Payson Healthcare Management, Inc., 234
Ariz. 351, 322 P.3d 168 (App. 2014), the State argues this Court lacks
jurisdiction to consider the superior court’s dismissal of the present case
because Medley’s notice of appeal stated she was appealing from the
“judgment entered in this action on the 16th day of October 2013.” The
minute entry outlining the court’s denial of Medley’s motion for
reconsideration was dated October 16, 2013; however, the court’s minute
entry granting the State’s motion to dismiss was dated September 19, 2013
and filed September 23, 2013. In Sandretto, the appellant’s notice of appeal
sought review from an order denying a motion for new trial, rather than
the judgment itself. 234 Ariz. at 355, ¶ 7, 322 P.3d at 172. We limited our
review to the denial of the motion for new trial, even though, in its briefs,
the appellant raised arguments pertaining to the underlying judgment. Id.

¶7               We have jurisdiction over Medley’s appeal. Generally, a
notice of appeal shall specify the party taking the appeal, the judgment or
part thereof appealed from, and the name of the court to which the appeal
is taken. ARCAP 8(c); see also ARCAP 8(a) (providing that “[f]ailure of an
appellant to take any step other than the timely filing of a notice of appeal
does not affect the validity of the appeal, but is a ground only for such
action as the appellate court deems appropriate, which may include
dismissal of the appeal.”). A defective notice of appeal is “sufficient as a
notice if it is neither misleading nor prejudicial.” Boydston v. Strole Dev. Co.,
193 Ariz. 47, 50, ¶ 12, 969 P.2d 653, 656 (1998); see also Hanen v. Willis, 102
Ariz. 6, 9-10, 423 P.2d 95, 98-99 (1967).

¶8             Concerning notices of appeal containing technical defects,
errors, or omissions, the Arizona Supreme Court held that “(1) where the
court of appeals has general subject matter jurisdiction as well as personal
jurisdiction over the parties, the court should strive to resolve an appeal on
the merits; (2) an appellant who fails to follow appellate procedure does so
at the risk of losing his right to judicial review on the merits; (3) such
sanction should generally result upon a showing of prejudice to an adverse
party; and (4) absent such prejudice, society’s interests in adjudicating
appeals on the merits should govern.” Hill v. City of Phoenix, 193 Ariz. 570,
574, ¶ 18, 975 P.2d 700, 704 (1999). Technical defects in notices of appeal,
such as the date of the order from which an appeal is taken, do not affect
appellate jurisdiction, so long as they are neither misleading nor prejudicial.
See Schwab v. Ames Constr., 207 Ariz. 56, 59, ¶ 11, 83 P.3d 56, 59 (App. 2004)
(holding that notice of appeal from order denying motion for relief from
judgment, rather than the underlying judgment, conferred jurisdiction on


                                       4
                            MEDLEY v. STATE
                            Decision of the Court

the appellate court to review the underlying judgment when motion
addressed alleged error in entering judgment). Absent prejudice to
appellee, we treat an appellant’s attempt “to appeal from the denial of a
[non-appealable order] that attacked an underlying judgment,” as an
“attempt[] to appeal from the judgment itself.” McKillip v. Smitty’s Super
Valu, Inc., 190 Ariz. 61, 64, 945 P.2d 372, 375 (App. 1997) (holding that a
notice of appeal which referred only to the denial of a motion for judgment
notwithstanding the verdict, rather than the underlying judgment,
sufficiently invoked appellate jurisdiction because it was neither
misleading nor prejudicial to the adverse party).

¶9              This case is closer to Schwab and McKillip than Sandretto.
Although Medley listed the incorrect date in her notice of appeal, she
referred to the judgment in the underlying case. Further, her notice of
appeal was neither misleading nor prejudicial to the State. Conversely, in
Sandretto, the appellant’s notice of appeal was clear that it was limited to
the order denying the motion for new trial and failed to reference the
judgment. Finally, similar to the order in McKillip, the order from which
Medley appealed, a denial of a motion for reconsideration, is a non-
appealable order.4 Therefore, because Medley’s notice of appeal was
neither misleading nor prejudicial to the State, this Court “will proceed . . .
‘on the theory that [Medley] intended and in good faith attempted to appeal
from a final judgment.’” McKillip, 190 Ariz. at 64, 945 P.2d at 375 (quoting
City of Joplin v. Joplin Water Works Co., 386 S.W.2d 369, 370 (Mo. 1965)).




4 “To be appealable, a special order after judgment must raise different
issues than those that would be raised by appealing the underlying
judgment . . . .” In re Marriage of Dorman, 198 Ariz. 298, 300, ¶ 3, 9 P.3d 329,
331 (App. 2000). Here, Medley raised no new issues in her motion for
reconsideration and an appeal from the superior court’s denial of Medley’s
motion for reconsideration would raise issues identical to those that could
have been raised in an appeal from the judgment. Therefore, this Court
would not have jurisdiction to independently review the denial of Medley’s
motion for reconsideration.



                                       5
                             MEDLEY v. STATE
                             Decision of the Court

III.   Collateral Estoppel

¶10           We address only the State’s argument about collateral
estoppel because it is dispositive.5 We agree with the State that Medley is
collaterally estopped from relitigating the issue of whether Medley’s
previous case was dismissed as a result of ADOC mishandling her outgoing
legal mail, specifically her notice of claim related to the previous case.

¶11            “We review the availability of collateral estoppel de novo.”
Garcia v. Gen. Motors Corp., 195 Ariz. 510, 513, ¶ 6, 990 P.2d 1069, 1072 (App.
1999). “[C]ollateral estoppel precludes the relitigation of a fact or issue
previously determined in a prior suit between the same parties or their
privies.” Wetzel v. Ariz. State Real Estate Dep’t, 151 Ariz. 330, 333, 727 P.2d
825, 828 (App. 1986). Collateral estoppel requires that “(1) the parties
actually litigated the issue in the prior proceeding; (2) the parties had a full
and fair opportunity [and motive] to litigate the issue; (3) the issue’s
resolution was essential to the decision; (4) the court entered a valid final
decision on the merits; and (5) a common identity of parties exists.” Calpine
Constr. Fin. Co. v. Ariz. Dep’t of Revenue, 221 Ariz. 244, 249, ¶ 25, 211 P.3d
1228, 1233 (App. 2009).

       A.     The parties actually litigated the issue during the previous
              case.

¶12             “When an issue is properly raised by the pleadings or
otherwise, and is submitted for determination, and is determined, the issue
is actually litigated.” Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573,
716 P.2d 28, 30 (1986). The issue of whether ADOC interfered with
Medley’s legal mail was raised and addressed on several occasions during
the previous case. First, on at least two occasions, at the request of Medley,
the superior court specifically ordered ADOC to comply with its internal
regulations in dealing with Medley’s legal mail. Further, in her response to
the State’s motion to dismiss the previous case, Medley alleged her notice


5 Although both Medley and the State address collateral estoppel and res
judicata in their briefs, we find Medley’s only claim in the present case was
that her previous case “was dismissed as a result of the [ADOC] tampering
with her legal mail precluding the notice of claim from being filed with the
Arizona Attorney General’s office.” Therefore, we do not address the
application of res judicata to Medley’s claim from the previous case that
two correctional officers planted or attempted to plant a white powdery
substance in her cell.



                                       6
                           MEDLEY v. STATE
                           Decision of the Court

of claim was not received by the Attorney General (“the AG”) as a result of
ADOC’s “decision to tamper with [Medley’s] outgoing legal mail.” In its
reply, the State highlighted that Medley lacked evidence on which to base
such a contention.6

¶13             In the previous case, the superior court held an evidentiary
hearing to resolve Medley’s contention that ADOC interfered with her
efforts to file a timely notice of claim. The transcript from that evidentiary
hearing is not in the record. Therefore, we are unable to review any
testimony or evidence Medley may have presented regarding her assertion
that her notice of claim did not reach the AG’s office as a result of ADOC
tampering with her outgoing legal mail.

¶14             “As to matters not in our record, we presume that the record
before the trial court supported its decision.” Ashton-Blair v. Merrill, 187
Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996). According to the superior
court’s minute entry dismissing the previous case, the court found no
credible evidence that Medley filed a timely notice of claim. Further, the
court found that Medley’s testimony regarding her notice of claim “was
inconsistent, uncorroborated, and ultimately, not credible.” As such, we
presume the evidence and testimony from the evidentiary hearing
supported the court’s decision to dismiss the case and that the court did not
find Medley’s assertions, including that her notice of claim was not received
by the AG’s office because ADOC tampered with her outgoing legal mail,
to be credible.

¶15           Medley properly raised the issue of whether her notice of
claim failed to reach the AG’s office as a result of ADOC’s tampering with
her outgoing legal mail during the previous case, most prominently in her
response to the State’s motion to dismiss the previous case. Further, the
issue was submitted for determination and determined by the superior
court during the aforementioned evidentiary hearing. Therefore, the issue
Medley raised in the present case was actually litigated by Medley during
the previous case.




6 This Court may take judicial notice of the superior court’s record in the
previous case. In re Sabino R., 198 Ariz. 424, 425, ¶ 4, 10 P.3d 1211, 1212
(App. 2000) (An appellate court may “take judicial notice of anything of
which the trial court could take notice,” including the superior court’s “own
records or those of another action tried in the same court.”).


                                      7
                            MEDLEY v. STATE
                            Decision of the Court

       B.     The parties had a full and fair opportunity and motive to
              litigate the issue during the previous case.

¶16           During the previous case proceedings, Medley had both
opportunity and motive to litigate whether her notice of claim did not reach
the AG’s office as a result of ADOC interfering with her outgoing legal mail.
As previously discussed, during the previous case, Medley was afforded
the opportunity to produce evidence supporting her allegations. Further,
Medley had motive to litigate this issue during the previous case, because
she was attempting to avoid dismissal of her claims. In her response to the
State’s motion to dismiss the previous case, Medley alleged the AG’s office
did not receive her notice of claim solely as a result of ADOC’s “decision to
tamper with [Medley’s] outgoing legal mail.” This being the sole
explanation provided by Medley for her failure to file a notice of claim and
because the failure to file a notice of claim under A.R.S. § 12-821.01 (Supp.
2013) may result in dismissal, Medley had motive to litigate any allegations
of misconduct on the part of ADOC with regards to her legal mail.

       C.     The issue’s resolution was essential to the decision.

¶17            The issue of whether ADOC tampered with Medley’s
outgoing legal mail was essential to the superior court’s decision to dismiss
Medley’s previous case. If the court had concluded there was a genuine
dispute of material fact as to whether ADOC had tampered with Medley’s
outgoing legal mail, causing her notice of claim not to arrive at the AG’s
office within the appropriate time period, the court would not have
dismissed Medley’s previous case. See Pritchard v. State, 163 Ariz. 427, 432,
788 P.2d 1178, 1183 (1990) (holding that late notice of claim was subject to
equitable tolling, waiver and estoppel); Pueblo Santa Fe Townhomes Owners’
Assoc. v. Transcon. Ins. Co., 218 Ariz. 13, 21, ¶ 30, 178 P.3d 485, 493 (App.
2008) (stating that equitable estoppel applies if a party intentionally or
negligently induces another to believe material facts, the other person
reasonably relies on such facts, and the other person is injured as a result);
see also City of Phoenix v. Fields, 219 Ariz. 568, 574, ¶ 27, 201 P.3d 529, 535
(2009) (stating that governmental entities may waive the notice of claim
statute based on conduct during litigation of the claim); J. James Fraiser III,
A Review of Issues Presented by § 11–46–11 of the Mississippi Tort Claims Act:
The Notice Provisions and Statute of Limitations, 65 Miss. L.J. 643, 666 (1996)
(noting that some states requiring strict compliance with notice of claim
provisions allow waiver or estoppel by pre-litigation conduct if such
conduct induced reliance by the claimant that a notice was not needed).




                                      8
                             MEDLEY v. STATE
                             Decision of the Court

       D.      The superior court entered a valid final decision on the merits.

¶18            In considering whether collateral estoppel applies, a final
judgment is “any prior adjudication of an issue in another action that is
determined to be sufficiently firm to be accorded conclusive effect.” Elia v.
Pifer, 194 Ariz. 74, 81, ¶ 33, 977 P.2d 796, 803 (App. 1998) (quoting
Restatement (Second) of Judgments § 13 (1982)). Rule 41(b) of the Arizona
Rules of Civil Procedure provides that “[u]nless the court in its order for
dismissal otherwise specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a dismissal for lack of
jurisdiction, for improper venue, or for failure to join a party under Rule 19,
operates as an adjudication upon the merits.” Medley contends that the
dismissal of the previous case did not constitute a final decision on the
merits because it was based on her failure to file a notice of claim in
accordance with A.R.S. § 12-821.01. Medley argues that the previous case
was dismissed for lack of jurisdiction, not on the merits.

¶19            Contrary to Medley’s argument, however, the filing of a
notice of claim “is not a jurisdictional prerequisite to bringing suit, but is a
requirement more analogous to a statute of limitations.” Pritchard, 163 Ariz.
at 430, 788 P.2d at 1181; see also Lee v. State, 225 Ariz. 576, 579, ¶ 10, 242 P.3d
175, 178 (App. 2010) (finding no reason “that the logic of our supreme
court’s holding in Pritchard should not apply equally to the current version
of” A.R.S. § 12-821.01).7 Further, the superior court dismissed Medley’s
complaint in the previous case with prejudice. Therefore, the superior court
entered a valid final decision on the merits in the previous case.

       E.      A common identity of parties exists.

¶20           Finally, both the previous and present cases involved the
same parties.




7The legislature again amended A.R.S. § 12-821.01, effective August 2, 2012,
to include language addressing the resolution of genuine issues of material
fact with regards to compliance with the statute. The changes are not
material to this decision


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                          MEDLEY v. STATE
                          Decision of the Court

                            CONCLUSION

¶21           Medley is collaterally estopped from litigating whether mail
tampering by ADOC prevented her from timely filing a notice of claim
before she filed the previous case. Accordingly, we affirm the superior
court’s order granting the State’s motion to dismiss Medley’s complaint.




                               :gsh




                                      10
