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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


      NATHANIEL A. CALDERON, individually, Plaintiff/Appellee,

                                        v.

              KIMBERLY MENNENGA, Defendant/Appellant.

                             No. 1 CA-CV 14-0751
                               FILED 3-1-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-006319
                 The Honorable James T. Blomo, Judge

             JURISDICTION ACCEPTED; RELIEF DENIED


                                   COUNSEL

The Cavanagh Law Firm, P.A., Phoenix
By William F. Begley, Steven D. Smith, Brett T. Donaldson
Counsel for Defendant/Appellant

The Brill Law Firm, PLLC, Scottsdale
By Daniel S. Brill
Counsel for Plaintiff/Appellee
                       CALDERON v. MENNENGA
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.


T H U M M A, Judge:

¶1            Defendant Kimberly Mennenga appeals from the superior
court’s dismissal without prejudice of plaintiff Nathaniel Calderon’s
personal injury action against her, with each party to bear their own fees
and costs. Treating Mennenga’s timely appeal as a petition for special
action, the court accepts jurisdiction but denies relief.

                 FACTS AND PROCEDURAL HISTORY

¶2           In November 2011, Mennenga was driving on a Phoenix
freeway and ran into Calderon’s car, causing property damage later
quantified as $14.40. In March 2013, Calderon filed this case, claiming
Mennenga’s negligence caused the accident and caused Calderon property
damage and personal injury. Calderon’s filings stated the case was subject
to compulsory arbitration, meaning the amount in controversy did not
exceed $50,000. See Ariz. R. Civ. P. 72-77 (2016);1 Maricopa Co. L.R. 3.10(a).
Mennenga’s answer admitted fault but denied injuring Calderon.

¶3            Mennenga made a timely offer of judgment for $500, which
Calderon did not accept. See Ariz. R. Civ. P. 68. After an evidentiary
hearing, the arbitrator found for Mennenga and ordered Calderon to pay
$2,575.51 in taxable costs plus interest. Calderon appealed the arbitrator’s
decision to the superior court for a de novo trial.

¶4            The superior court set trial for October 2014. The parties
engaged in various pretrial motion practice, including Mennenga’s motion
for cost bond and related filings; a non-party’s motion to quash a subpoena
served by Mennenga and related filings, including Mennenga’s
unsuccessful request for sanctions and motion to strike; and Mennenga’s
motion to depose various non-party witnesses and related filings, including
Mennenga’s unsuccessful motion to strike.


1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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                        CALDERON v. MENNENGA
                           Decision of the Court

¶5            In mid-August 2014, Calderon filed a motion to dismiss,
“with each side to bear its own costs and fees.” The motion stated that the
case arose out of a “collision that caused $14.40 in property damage;” that
Mennenga’s insurer “currently has some 72 witnesses listed” and that, at a
settlement conference, Calderon offered to dismiss on the same terms but
that Mennenga’s insurer refused, “claiming there were currently too many
costs to be paid back on its end.”

¶6              Mennenga opposed Calderon’s motion, stating “the only
way” for Calderon “and his counsel to extract themselves from this
litigation is if they are subject to a judgment in” Mennenga’s favor and
sought more than $10,000 in attorneys’ fees and nearly $11,000 in costs
against Calderon. Noting that granting Calderon’s motion was
“discretionary with the court, but a hearing is required before such a motion
can be granted” according to Goodman v. Gordon, 103 Ariz. 538, 540 (1968),
Mennenga requested oral argument but did not request an evidentiary
hearing or suggest what additional information would be shown at such a
hearing. Simultaneously with her opposition to the motion to dismiss,
Mennenga: (1) filed a 29-page application for attorneys’ fees pursuant to
Ariz. R. Civ. P. 77(f) and A.R.S. § 12-349; (2) filed a verified statement of
costs and “notice of taxation;” and (3) lodged a proposed form of judgment
reflecting the relief Mennenga was requesting. After Calderon filed a reply,
but without holding oral argument, the superior court granted Calderon’s
motion and dismissed the case without prejudice, “with each side to bear
its own costs and fees.” See Ariz. R. Civ. P. 41(a)(2) (noting, unless otherwise
specified, such a dismissal “is without prejudice”).

¶7            Mennenga then filed an untimely motion for new trial, see
Ariz. R. Civ. P. 59, and two weeks later, a timely 68-page motion for relief
from judgment, see Ariz. R. Civ. P. 60(c), and a timely notice of appeal to
this court. Although the superior court set oral argument on Mennenga’s
Rule 60 motion, and her applications for fees and costs, Mennenga later
asked that oral argument be vacated, given that her notice of appeal
divested the superior court of jurisdiction. At Mennenga’s request, the
superior court vacated oral argument.

                                DISCUSSION

I.     Jurisdiction.

¶8             This court’s appellate jurisdiction is purely statutory. Ariz.
Const. art. 6, § 9; Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382,
386 (App. 1995). A decision beyond the limits of statutory appellate



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                        CALDERON v. MENNENGA
                           Decision of the Court

jurisdiction is a nullity. State v. Avila, 147 Ariz. 330, 334 (1985). Accordingly,
this court has an independent duty to determine whether appellate
jurisdiction is present. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465
(App. 1997).

¶9              Mennenga appeals from a dismissal without prejudice, which
is not a judgment or an appealable order, meaning this court lacks appellate
jurisdiction. See Kool Radiators, Inc. v. Evans, 229 Ariz. 532, 534 ¶ 8 (2012)
(citing cases). It does not appear, however, that either party has “an equally
plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Spec. Act. 1(a).
Accordingly, sua sponte treating Mennenga’s putative appeal as a petition
for special action, this court exercises its discretion to accept special action
jurisdiction. See A.R.S. § 12-120.21(A)(4); Ariz. R.P. Spec. Act. 1(a); accord
State v. Bayardi, 230 Ariz. 195, 197-98 ¶ 7 (App. 2012).

II.    Mennenga Has Not Shown The Superior Court Erred In
       Dismissing The Case Pursuant To Ariz. R. Civ. P. 41(A)(2) Without
       First Holding A Hearing.

¶10            The superior court was authorized to grant Calderon’s
motion to dismiss by “order of the court and upon such terms and
conditions as the court deems proper.” Ariz. R. Civ. P. 41(a)(2). Citing
Cheney v. Superior Court, 144 Ariz. 446 (1985), and Goodman, Mennenga
argues “there ‘must be’ a hearing” before the superior court could resolve
Calderon’s motion to dismiss. Although Mennenga noted in her response
to the motion to dismiss a belief that Goodman required a hearing, she did
not request such a hearing, requesting oral argument instead. Moreover,
Mennenga had a full and fair opportunity to oppose Calderon’s motion, did
so in writing and submitted nearly 40 pages of filings in opposing
Calderon’s motion and seeking fees and costs. Mennenga did not attempt
to show what additional information she would or could have offered had
a hearing been held in open court. Mennenga’s claim of error regarding the
hearing requires a showing of prejudice, and Mennenga did not show
prejudice in the court resolving the motion to dismiss on this record without
sua sponte setting and holding a hearing.

¶11            Mennenga correctly quotes Cheney as stating: “The right to
dismiss after an answer has been filed, however, is discretionary with the
trial court, and must be made by motion with notice to the defendants, a
hearing and a court order.” 144 Ariz. at 448 (citing Goodman, 103 Ariz. 538).
Cheney, however, affirmed the denial of a motion to dismiss without
prejudice. 144 Ariz. at 447. Accordingly, there was no need in Cheney to




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                       CALDERON v. MENNENGA
                          Decision of the Court

decide whether a hearing was required, let alone whether such hearing was
required when the parties did not request one.

¶12            In Goodman, the superior court granted a motion to dismiss
before the defendant had filed a response. 103 Ariz. at 539. When the
defendant objected, the court set aside the dismissal and, after a hearing,
determined that dismissal was inappropriate. Id. On plaintiff’s request for
interlocutory review, the Arizona Supreme Court overturned the superior
court’s determination, noting that “only the most extraordinary
circumstances will justify the trial court in refusing to grant a motion by a
plaintiff to dismiss without prejudice,” and concluding the defendant had
not established such circumstances. Id. at 539, 541. Because a hearing was
held, the reference to the need for a hearing in Goodman is dicta. And as
with Cheney, Goodman does not suggest in any way that a hearing is
mandated in the absence of a request. Given Mennenga’s failure to request
an evidentiary hearing, her lengthy written filings and her failure to claim
or show prejudice from the court not holding such a hearing, she has not
shown that Cheney or Goodman compel reversal here.

¶13            Goodman does make clear that the superior court must
consider the impact dismissal would have on all parties and act equitably.
Id. at 540-41. This is consistent with cases from other jurisdictions holding
that all parties must have the opportunity to be heard before dismissal is
ordered, not that a hearing in open court must be held any time dismissal
is requested. See Puerto Rico Mar. Shipping Auth. v. Leith, 668 F.2d 46, 51 (1st
Cir. 1981) (holding hearing is not required before dismissing case if trial
court is familiar with case and defendant had an opportunity to be heard
on motion to dismiss); Johnston v. Cartwright, 355 F.2d 32, 40 (8th Cir. 1966)
(holding hearing was not necessary where defendant’s attorney had notice
of motion to dismiss but sought no protective relief). Clearly, although no
oral argument or hearing was held, Mennenga had the opportunity to be
heard before the superior court granted Calderon’s motion to dismiss in
this case.

III.   Mennenga Has Not Shown The Superior Court Denied Her A
       Substantial Right.

¶14          Mennenga argues she had a substantial, but apparently not
vested, right to attorneys’ fees and costs, meaning dismissal without
awarding fees and costs was an abuse of discretion. In essence, Mennenga
claims the superior court lacked the discretion to dismiss the case unless it
awarded her fees and costs. Mennenga, however, cites no authority for this
proposition. Nor has she shown how her argument can be squared with the


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                        CALDERON v. MENNENGA
                           Decision of the Court

discretion vested in the superior court, allowing dismissal “upon such
terms and conditions as the court deems proper.” Ariz. R. Civ. P. 41(a)(2).

¶15           Mennenga does not claim a substantial right to fees and costs
from the arbitrator’s award, but rather claims such a right because “[h]ad
this case gone to trial, Mennenga would likely have been awarded her costs
pursuant to A.R.S. § 12-341, as well as Rule[s] 68(g) and 77(f).” Mennenga
cites no authority for the proposition that a possibility of success at trial, or
likelihood of an award of fees and costs depending upon the result of a trial,
constitutes a substantial right to such expenses before trial. Nor do her
claims under the cited statute and rules compel such a conclusion.

       A.     The Superior Court Was Not Required To Award Costs
              Under A.R.S. § 12-341.

¶16           “The successful party to a civil action shall recover from his
adversary all costs expended or incurred therein unless otherwise provided
by law.” A.R.S. § 12-341. Where a case is dismissed without prejudice based
on plaintiff’s inaction (and, by extension, on plaintiff’s motion), “the
defendant may be considered the successful party for purposes of
recovering costs pursuant to A.R.S. § 12-341.” Harris v. Reserve Life Ins. Co.,
158 Ariz. 380, 385 (App. 1988) (emphasis added). The superior court,
however, “has substantial discretion to determine who is a successful
party.” Assyia v. State Farm Mut. Auto. Ins. Co., 229 Ariz. 216, 223 (App. 2012)
(citation omitted). An abuse of discretion occurs when discretion is
exercised in a way that is manifestly unreasonable or on untenable grounds
or for untenable reasons. Quigley v. City Court of City of Tucson, 132 Ariz. 35,
37 (App. 1982).

¶17            Mennenga cites Harris for the proposition that the defendant
is the successful party when a plaintiff voluntarily dismisses the case. Harris
however, says that the superior court may find the defendant in such a case
to be the successful party. 158 Ariz. at 385. Because Mennenga has not
shown the superior court abused its discretion in finding she was not the
successful party, she has failed to show the court abused its direction in
declining to award costs pursuant to A.R.S. § 12-341.

       B.     The Superior Court Was Not Required To Award Sanctions
              Pursuant To Rules 68(g) Or 77(f).

¶18           A superior court is required to impose sanctions where a
“judgment” ultimately entered does not exceed an offer of judgment, Ariz.
R. Civ. P. 68(g) (allowing sanctions where offeree “does not later obtain a
more favorable judgment” than offer of judgment), or an arbitration award,


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                        CALDERON v. MENNENGA
                           Decision of the Court

Ariz. R. Civ. P. 77(f) (allowing sanctions if “judgment on the trial de novo is
not more favorable,” in specified way, than arbitration award). A judgment,
however, is “a decree and an order from which an appeal lies.” Ariz. R. Civ.
P. 54(a). As noted above, no judgment was entered in this case and a
dismissal without prejudice is not “an order from which an appeal lies.” Id.;
see also Kool Radiators Inc., 229 Ariz. at 534.2 Accordingly, because the
dismissal without prejudice was not a judgment within the meaning of Rule
54(a), the sanctions listed in Rules 68(g) and 77(f) are not applicable.

                               CONCLUSION

¶19            The superior court, in considering a motion made pursuant to
Rule 41(a)(2), has broad discretion in determining any conditions of
dismissal on “such terms and conditions as the court deems proper.” Ariz.
R. Civ. P. 41(a)(2). In this case, the superior court had various alternatives,
ranging from the order issued to imposing substantial cost shifting from
Mennenga to Calderon as a condition of dismissal. That court, after a full
and fair opportunity for Mennenga to address what those terms and
conditions should include, exercised its discretion and dismissed the case
with each party to bear its own fees and costs. On this record, Mennenga
has not shown that conclusion was an abuse of discretion. Accordingly, and
treating the timely, putative appeal as a petition for special action, this court
accepts special action jurisdiction but denies relief.




                                     :ama




2Although not cited by the parties, this court has held that a dismissal may
be a final order in certain circumstances as it pertains to attorneys’ fees. See
Callanan v. Sun Lakes Homeowners’ Ass’n No. 1, Inc., 134 Ariz. 332, 335 (App.
1982). Unlike this case, however, the appeal in Callanan was from the fee
award only, not from the dismissal of the case. Id. at 334. In addition, the
holding in Callanan was specific to a statute that has since been repealed,
and is thus not applicable here. Id. at 337.

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