Opinion
No. 1 CA-CV 12-0413
01-31-2013
RAPHAEL NYAGONG WANI Plaintiff/Appellant v. ARIZONA DEPARTMENT OF HEALTH SERVICES, Defendant/Appellee.
Raphael N. Wani In Propria Persona Thomas C. Horne, Attorney General by Joel Rudd, Assistant Attorney General Aubrey Joy Corcoran, Assistant Attorney General Attorneys for Defendant/Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. LC2011-000758-001
The Honorable Crane McClennen, Judge
AFFIRMED
Raphael N. Wani
In Propria Persona
Phoenix Thomas C. Horne, Attorney General
by Joel Rudd, Assistant Attorney General
Aubrey Joy Corcoran, Assistant Attorney General
Attorneys for Defendant/Appellee
Phoenix HALL, Judge ¶1 Raphael Nyagong Wani appeals from the superior court's dismissal of his administrative appeal for lack of jurisdiction. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The facts relevant to the issue on appeal are not disputed. Wani was committed to the Arizona State Hospital (ASH) after he was found guilty except insane of a violent crime. On November 22, 2010, Wani was physically restrained and then medically sedated by ASH staff. The next day, Wani filed a grievance alleging he had been physically abused by ASH staff. On March 30, 2011, the Arizona Department of Health Services Division (the Department) responded to Wani's grievance by stating it had reviewed the evidence regarding the allegation of abuse and found the allegation unsubstantiated. Wani then requested an administrative hearing to appeal the Department's decision. ¶3 On July 11, 2011, the Administrative Law Judge (ALJ) held a hearing. After receiving testimony from Wani and ASH's investigator, the ALJ concluded Wani had failed to carry his burden of proving by a preponderance of the evidence that ASH staff physically abused him on November 22, 2010. On August 8, 2011, the Department issued its final decision adopting the ALJ's findings and conclusions. The Department's final decision advised Wani that he had "a period of thirty-five (35) days after the receipt of this decision to request judicial review by filing a complaint in Superior Court." ¶4 On November 28, 2011, Wani filed a request for judicial review of the ALJ's decision in superior court. The Department filed a motion to dismiss, alleging that Wani's request for judicial review was untimely and statutorily barred. On April 23, 2012, the superior court dismissed Wani's request for judicial review for lack of jurisdiction. ¶5 Wani timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (Supp. 2012).
DISCUSSION
¶6 Although Wani discusses throughout his appellate briefing the events that allegedly transpired on November 22, 2010, the only issue before us is whether the superior court erred by dismissing Wani's request for judicial review for lack of jurisdiction. ¶7 We review de novo a superior court's dismissal for lack of jurisdiction. Satterly v. Life Care Centers of Am., Inc., 204 Ariz. 174, 177, ¶ 5, 61 P.3d 468, 471 (App. 2003). ¶8 Pursuant to A.R.S. § 12-904(A) (Supp. 2012),
[a]n action to review a final administrative decision shall be commenced by filing a notice of appeal within thirty-five days from the date when a copy of the decision sought to be reviewed is served upon the party affected. . . . Service is complete on personal"[T]he right to appeal from any ruling including an administrative decision exists only by force of statute and is limited by the terms of the statute." Guminski v. Arizona State Veterinary Med. Examining Bd., 201 Ariz. 180, 182, ¶ 8, 33 P.3d 514, 516 (App. 2001). Thus, the statutory time limit for seeking judicial review of an administrative decision is jurisdictional. Smith v. Ariz. Dep't of Corr., 135 Ariz. 160, 162, 659 P.2d 1305, 1307 (App. 1983) ("Time limits prescribed for an appeal for an administrative agency decision are jurisdictional in Arizona."). "[T]he failure to seek review of an administrative agency decision within the time and in the manner provided by [statute] results in the decision becoming final and not subject to judicial review for mere legal error or factual insufficiency." Guminski, 201 Ariz. at 182, ¶ 8, 33 P.3d at 516 (quoting State ex rel. Dandoy v. City of Phoenix, 133 Ariz. 334, 337, 651 P.2d 862, 865 (App. 1982)). ¶9 In this case, the Department issued its final administrative decision on August 8, 2011. As acknowledged by Wani, the Department mailed the decision to him on August 9, 2011. Applying A.R.S. § 12-904(A), Wani had forty days from the date the decision was mailed to file his complaint. Because the fortieth day, September 18, 2011, was a Sunday, the deadline for filing a complaint was Monday, September 19, 2011. Therefore, Wani's November 28, 2011 request for judicial review was untimely and the superior court did not err by dismissing the request for lack of jurisdiction.
service or five days after the date that the final administrative decision is mailed to the party's last known address.
In his reply brief, Wani argues for the first time that he initially filed his request for judicial review timely, but it was mailed back to him to correct deficiencies. Generally, we do not address claims raised for the first time in a reply brief. See Varsity Gold, Inc. v. Porzio, 202 Ariz. 355, 357, ¶ 9, 45 P.3d 352, 354 (App. 2002) (explaining that arguments raised for the first time in a reply brief deprive the other party of the opportunity to respond and are therefore waived). Nonetheless, even if we were to consider Wani's claim, we would reject it. In his response to the motion to dismiss, Wani claimed that he initially filed his request for judicial review on August 22, 2011, within the statutory period, and that any delay was attributable either to the mail service or processing by the superior court. Wani did not claim in the superior court, as he does in his reply brief, that his repeated attempts to timely file a request for judicial review were returned by the superior court due to technical defects. Therefore, this claim was not raised in the superior court, and is waived. See Winters v. Ariz. Bd. of Educ., 207 Ariz. 173, 177, ¶ 13, 83 P.3d 1114, 1118 (App. 2004) ("When a challenge is not raised with specificity and addressed in the
CONCLUSION
¶10 For the forgoing reasons, we affirm.
___________
PHILIP HALL, Judge
CONCURRING: ___________
MARGARET H. DOWNIE, Presiding Judge
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MAURICE PORTLEY, Judge
erior court, we generally do not consider it on appeal.").