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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

MEMORANDUM DECISION

WINTHROP, Judge.

¶1 After Jacquelyn Reagor ("Reagor") died, her surviving children—Keith, Kenneth, Kendra, and Kim Reagor (collectively, "Appellants")—filed a wrongful death lawsuit, naming several defendants. Following multiple extensions to continue the matter on the inactive calendar, the trial court dismissed the complaint and denied Appellants' motion to reinstate the matter on the inactive calendar. Appellants appealed, and for the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 Reagor passed away on April 11, 2010, after overdosing on narcotic drugs prescribed for pain management. Nearly two years later— on April 6, 2012—Appellants filed a wrongful death action2 against Angelo L. Chirban, M.D. and his alleged wife, Marilyn Chirban, Scottsdale Pain Management Center, Jeffrey Gubernick, and Community Drug Store, L.L.C. (collectively, "Defendants").3 In their complaint, Appellants alleged the Chirbans had prescribed the drugs on which Reagor overdosed, and the prescriptions were filled by a pharmacy (Community Drug Store, L.L.C.) owned by Gubernick, who allegedly operated as a business partner with Dr. Chirban. Appellants further alleged that during her treatment, Reagor had become addicted to the drugs being prescribed to her, and despite knowing so, the Chirbans had continued to prescribe those drugs and Gubernick had continued to fill the prescriptions.

¶3 Appellants encountered difficulty in serving Defendants. Although they hired a process server to locate and serve Dr. Chirban and Gubernick, the process server was not successful in locating or serving either Defendant.4 Appellants moved to extend the time for service, and on July 17, 2012, the trial court granted a sixty-day extension for completion of service. On September 7, 2012, Appellants filed a motion for alternative service by publication. Meanwhile, on September 12, 2012, the trial court issued a 150-day order, ordering the parties to file a motion to set and certificate of readiness on or before January 2, 2013, or the case would be placed on the inactive calendar and dismissed on or after March 4, 2013. See generally former Ariz. R. Civ. P. ("Rule") 38.1. On September 14, 2012, Appellants filed a second motion to extend the time to serve Defendants. The court granted the second motion to extend the time to serve Defendants, but did not explicitly rule on Appellants' request for alternative service.

¶4 The case was first placed on the inactive calendar on January 2, 2013. On January 12 and 22, 2013, Appellants personally served Gubernick and Marilyn Chirban, respectively. On February 1, 2013, Appellees (Gubernick and Community Drug Store, L.L.C.) filed an answer and moved for dismissal.

¶5 On March 4, 2013—the day the case was first subject to dismissal per the court's previous orders—Appellants filed their first motion to continue the matter on the inactive calendar.5 The trial court extended the matter on the inactive calendar until June 5, 2013.

¶6 On June 13, 2013, Appellants filed their second motion to continue the matter on the inactive calendar.6 Appellees objected, arguing Appellants' supporting explanation for the motion was insufficient and misleading.7 On June 20, 2013, the trial court continued the matter on the inactive calendar until September 19, 2013.

¶7 On July 3, 2013, Appellees filed a notice of non-party at fault, stating that, due to the limited discovery conducted by Appellants, including their continued failure to provide their initial disclosure statement and expert affidavit, Appellees lacked sufficient information to identify any non-parties at fault, but sought to reserve the right to name such parties as discovery progressed. On August 23, 2013, Appellees filed a motion for orders compelling Appellants to obtain and serve a preliminary expert opinion affidavit and staying the proceedings until such time. See A.R.S. §§ 12-2603(A)-(B), (E) (Supp. 2015), -2604 (Supp. 2015). Appellants did not respond to the motion. Instead, on August 30, 2013, Appellants moved for leave to amend their complaint by adding Bricker, the nurse practitioner who had allegedly worked with Dr. Chirban and signed some of Reagor's prescriptions.8

¶8 On September 18, Appellants filed their third motion to extend the matter on the inactive calendar.9 Appellees again objected, arguing that Appellants had essentially done nothing to move the case forward since the last extension, and requesting that they (Appellees) be dismissed from the matter. Appellees also requested, pursuant to Rule 16(a), Ariz. R. Civ. P., that the court set a hearing to expedite disposition of the case.

¶9 In a minute entry filed September 27, 2013, the trial court continued the matter on the inactive calendar for the third time—until December 19, 2013. The court also provided the following warning: "This matter will be dismissed without further notice, unless prior to said date a proper Judgment is entered or filed, a Stipulation for Dismissal is presented, or a Motion to Set and Certificate of Readiness is filed."

¶10 In October 2013, the court granted Appellants' motion for leave to amend their complaint and later granted Appellees' motion for an order compelling Appellants to obtain and serve a preliminary expert opinion affidavit and staying the proceedings until such time. The court also granted Appellees' request for a Rule 16(a) hearing, and set a telephonic hearing for November 14, 2013. At the hearing, the court ordered Appellants to produce their preliminary expert affidavits and expert witness list by November 27, 2013.

¶11 On December 27, 2013, Appellants served Bricker. At a January 8, 2014 status conference, Appellants advised the court they had recently served a named Defendant (presumably Bricker) and requested additional time to effectuate service on another Defendant (presumably Dr. Chirban). The court again extended the dismissal date in the case—until March 31, 2014.

¶12 On January 14, 2014, counsel for Bricker filed a notice of appearance and a notice of filing of bankruptcy on behalf of Bricker. Bricker's counsel stated that Bricker had filed for bankruptcy in 2011, resulting in an automatic stay of any proceedings against Bricker, and suggested the portion of Appellants' case against Bricker could not be prosecuted until the stay was lifted by the bankruptcy court. On February 11, 2014, Appellants filed their Second Amended Complaint, adding Bricker as a Defendant.

¶13 On March 14, 2014, the trial court held a status conference. After a discussion regarding service of process and the status of the case, the court again extended the dismissal date—until June 12, 2014—and further warned: "This matter will be dismissed without further notice, unless prior to said date a proper Judgment is entered or filed, a Stipulation for Dismissal is presented, or a Motion to Set and Certificate of Readiness is filed."10

¶14 On June 10, 2014, Appellants filed another motion for an extension of time on the inactive calendar. They stated they had retained a bankruptcy attorney, who had filed a motion in the bankruptcy court "last week" to lift the stay involving Bricker, and they anticipated a wait of several weeks to get a hearing. Appellees objected to the matter remaining on the inactive calendar and asked the court to dismiss the lawsuit against them.11

¶15 In a signed minute entry order filed June 24, 2014, the trial court noted that, with the exception of Appellants' motion to extend time on the inactive calendar, no further pleadings had been filed, despite the court's previous warning. Accordingly, the court denied Appellants' motion and dismissed the matter without prejudice as to all Defendants for lack of prosecution.

¶16 Appellants did not file a notice of appeal from the court's June 24, 2014 order of dismissal. Instead, on July 2, 2014, Appellants filed a motion to reinstate the matter on the inactive calendar. Appellants cited no authority for their motion, but asked the court to reconsider its decision and generally argued they had encountered numerous problems that prevented the case from proceeding in a timely fashion—including difficulties in effectuating service of process, difficulties in identifying qualified expert witnesses and obtaining their written opinions, limited time and resources, difficulties in hiring a bankruptcy attorney, and confusion over how to proceed while the bankruptcy stay involving Bricker was in place. In an unsigned minute entry filed July 11, 2014, the trial court summarily denied Appellants' motion to reinstate the matter on the inactive calendar.

¶17 On August 11, 2014, Appellants filed a notice of appeal. The notice of appeal did not, however, identify the June 24, 2014 order of dismissal as the document from which Appellants appealed; instead, Appellants' notice of appeal identified only the trial court's July 11, 2014 denial of their motion for reinstatement on the inactive calendar as the order sought to be appealed.12

¶18 Because Appellants had appealed from an unsigned minute entry, this court suspended this appeal and revested jurisdiction in the trial court for the purpose of allowing Appellants to seek a signed order from that court. See Eaton Fruit Co. v. Cal. Spray-Chem. Corp., 102 Ariz. 129, 130, 426 P.2d 397, 398 (1967). In December 2014, Appellants obtained the signed order, and this court reinstated the appeal on January 6, 2015.13

ANALYSIS

¶19 Appellants argue the trial court abused its discretion by (1) dismissing their lawsuit for failure to prosecute and (2) failing to set aside the dismissal and reinstate the matter on the inactive calendar.14 Before we may address Appellants' arguments, however, we must decide the parties' jurisdictional arguments.

I. Jurisdiction

¶20 We first examine whether the trial court's signed15 June 24, 2014 order of dismissal without prejudice constituted an appealable order. In general, a dismissal without prejudice is not a final judgment and is therefore not an appealable order. See McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, 74, ¶ 4, 202 P.3d 536, 539 (App. 2009); see also A.R.S. § 12-2101(A)(1) (Supp. 2015) (providing for appellate jurisdiction for appeals from a final judgment). Nonetheless, "an order dismissing a case for want of prosecution under Rule [38.1, formerly Uniform Rule V,]" is an appealable order. See Campbell v. Deddens, 93 Ariz. 247, 250, 379 P.2d 963, 965 (1963); see also McMurray, 220 Ariz. at 74, ¶ 4, 202 P.3d at 539 (recognizing an exception when the statute of limitations bars a plaintiff from refiling a claim, so that the court's order of dismissal effectively determines the action and prevents final judgment from which an appeal might be taken (citing State v. Boehringer, 16 Ariz. 48, 51, 141 P. 126, 127 (1914))); A.R.S. § 12-2101(A)(3) ("An appeal may be taken . . . [f]rom any order affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken."). On this record, the trial court's June 24, 2014 order was a final order subject to appeal.

¶21 A party generally must file a notice of appeal no later than thirty days after entry of the judgment from which the appeal is taken. See ARCAP 9(a). "In the absence of a timely notice of appeal following entry of the order sought to be appealed, we are without jurisdiction to determine the propriety of the order sought to be appealed." See Lee v. Lee, 133 Ariz. 118, 124, 649 P.2d 997, 1003 (App. 1982); accord In re Marriage of Thorn, 235 Ariz. 216, 218, ¶ 5, 330 P.3d 973, 975 (App. 2014).

¶22 In this case, Appellants did not file a notice of appeal from the trial court's signed June 24, 2014 order of dismissal without prejudice. Instead, on July 2, 2014, Appellants moved to reinstate the matter on the inactive calendar, and shortly thereafter (July 11), the trial court summarily denied Appellants' motion to reinstate the matter on the inactive calendar. Appellants then filed a notice of appeal from the denial of their motion to reinstate on August 11.

¶23 Appellants suggest their motion to reinstate the matter on the inactive calendar might be characterized as a time-extending motion— specifically under Rule 60(c), Ariz. R. Civ. P.—which might allow them to incorporate the trial court's June 24, 2014 order into their appeal. We disagree. A motion to reinstate is not listed among the motions that extend the time for filing a notice of appeal. See ARCAP 9(e)(1)(A)-(E). Moreover, Appellants did not specifically reference Rule 60(c) or any other time-extending motion in their motion to reinstate the case on the inactive calendar. Although we look to the substance and not the form of a motion in determining what type of motion has been made, see, e.g., Munger Chadwick, P.L.C. v. Farwest Dev. & Constr. of the Sw., LLC, 235 Ariz. 125, 126, ¶ 4, 329 P.3d 229, 230 (App. 2014) (citation omitted), nothing in Appellants' motion to reinstate may be fairly characterized as invoking the provisions of Rule 60(c), and Appellants acknowledge they asked the court to "reconsider the dismissal of this action."16 We therefore conclude Appellants' motion is best characterized as a non-time-extending motion for reconsideration. Moreover, even were we to assume arguendo that Appellants' motion to reinstate could be construed as a time-extending motion, Appellants' August 11, 2014 notice of appeal did not specifically identify the June 24, 2014 order of dismissal as a judgment or order from which Appellants sought an appeal; instead, the notice of appeal identified only the trial court's July 11, 2014 denial of their motion for reinstatement on the inactive calendar as the order sought to be appealed. "The court of appeals acquires no jurisdiction to review matters not contained in the notice of appeal." Lee, 133 Ariz. at 124, 649 P.2d at 1003 (citations omitted).

¶24 Because Appellants did not timely appeal the trial court's June 24, 2014 order of dismissal (or in fact appeal the order at all), we lack jurisdiction to consider Appellants' arguments on appeal related to that order, and may only consider Appellants' appeal of the court's order denying Appellants' motion to reinstate the matter on the inactive calendar. That order constituted an appealable "special order made after final judgment." A.R.S. § 12-2101(A)(2); Johnson v. Elson, 192 Ariz. 486, 488, ¶ 6, 967 P.2d 1022, 1024 (App. 1998).

II. The Trial Court's Denial of Appellants' Motion for Reinstatement

¶25 Appellants maintain the trial court abused its discretion in denying their motion to reinstate the matter on the inactive calendar. We disagree.

¶26 We review the trial court's denial of Appellants' motion to reinstate for an abuse of discretion. See generally Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16, 204 P.3d 1082, 1087 (App. 2009) (reviewing the denial of a motion for reconsideration for an abuse of discretion); Maher v. Urman, 211 Ariz. 543, 550-51, ¶¶ 21-25, 124 P.3d 770, 777-78 (App. 2005) (reviewing the denial of a request for relief pursuant to Rule 60(c) and A.R.S. § 12-504(A) (2003) (savings statute) for an abuse of discretion); Johnson, 192 Ariz. at 488-89, ¶ 9, 967 P.2d at 1024-25 (reviewing a court's decision to set aside a dismissal pursuant to Rule 60(c) for an abuse of discretion).

¶27 Appellants reference Rule 60(c) in their appellate briefs, but do little to advance an argument associated with the specific provisions of that rule. Moreover, as we have noted, Appellants did not specifically reference Rule 60(c) in their motion to reinstate the case on the inactive calendar and nothing in their motion to reinstate may be fairly characterized as invoking the provisions of Rule 60(c). Accordingly, Appellants have waived any arguments related to Rule 60(c) by failing to make them below. See Maher, 211 Ariz. at 551, ¶ 24, 124 P.3d at 778.

¶28 Additionally, Appellants provided insufficient grounds for setting aside the dismissal of their case and reinstating the case on the inactive calendar. See generally Jepson v. New, 164 Ariz. 265, 270, 792 P.2d 728, 733 (1990). Here, after taking judicial notice of the bankruptcy court's recent order lifting the stay imposed as to Bricker as a nominal party, we cannot say the trial court abused its discretion in denying Appellants' motion to reinstate the matter.17 The trial court was not given the opportunity to consider the effect of the bankruptcy court's recent order, and the record overwhelmingly supports denial of the motion for reinstatement in any instance. The trial court had continued the matter on the inactive calendar on five separate occasions before denying Appellants' request for a sixth continuance, despite minimal progress by Appellants in the prosecution of their case. The court's prior extension—granted March 14, 2014, and extending the case on the inactive calendar until June 12, 2014—had warned that the court would dismiss the matter "without further notice, unless prior to said date a proper Judgment is entered or filed, a Stipulation for Dismissal is presented, or a Motion to Set and Certificate of Readiness is filed." None of those things happened. Further, Appellants did little to move the case along, providing the court with only another motion for an extension of time on the inactive calendar since the previous extension. Appellants had still not effectuated service of process on Dr. Chirban, they had been dilatory in their discovery obligations, they had not vigorously pursued their case, and they were seriously remiss in advising the court of the case's status. See id. Moreover, they point to nothing in the interim between dismissal of the case and their motion for reinstatement that would support reconsideration of the court's decision. Although Appellants are correct that the running of the statute of limitations may present an extraordinary hardship to them, that fact alone does not constitute grounds for relief in this case. Accordingly, the trial court did not abuse its discretion in denying Appellants' motion to reinstate the matter on the inactive calendar.18

CONCLUSION

¶29 Appellants did not timely appeal the trial court's June 24, 2014 order of dismissal (or in fact appeal the order at all), and we lack jurisdiction to consider Appellants' arguments on appeal related to that order. With respect to Appellants' appeal of the trial court's order denying Appellants' motion for reinstatement on the inactive calendar, the trial court's order is affirmed. Appellees are awarded their taxable costs on appeal contingent upon compliance with ARCAP 21.