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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSIAH ADAM ENGLISH, III, Plaintiff/Appellant,

v.

THERESE A. GANTZ, et al., Defendants/Appellees.

No. 1 CA-CV 20-0299 

Appeal from the Superior Court in Maricopa County

No. CV2019-000906

The Honorable James D. Smith, Judge

AFFIRMED

COUNSEL

Josiah Adam English, III, Phoenix

Counsel for Plaintiff/Appellant

Broening Oberg Woods & Wilson PC, Phoenix

By Donald Wilson, Jr., Kelley M. Jancaitis

Counsel for Defendant/Appellee Gantz

Berry Law Group PLLC, Phoenix

By Christopher J. Berry, Carmine DiPiero

Counsel for Defendant/Appellee Sanders

FILED 1-19-2021
ENGLISH, III v. GANTZ, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

H O W E, Judge:

¶1 Josiah English, III, appeals the trial court’s dismissal of his 

complaint against Carla Sanders and Therese Gantz with prejudice. For the 

following reasons we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 English is a pretrial detainee at the Maricopa County Jail on 

a charge of first-degree capital murder in the intentional shooting death of 

his ex-wife in front of their children. Following his arrest, the State sought 

to have his children declared dependent as to him and to have his parental 

rights terminated.

¶3 In January of 2019, English sued Gantz and Sanders—and 

seven other attorneys—for legal malpractice in his criminal and juvenile 

proceedings. In April of 2019, he moved to amend the complaint and extend 

the time to serve defendants. The court informed him that at the time of the 

motion, he did not need the court’s leave to amend the complaint and 

therefore denied the motion to amend. The court subsequently extended

English’s time to complete service until December 31, 2019, stating that it 

would likely not extend the deadline any further. English never filed an

amendment to the initial complaint.

¶4 On December 17, 2019, English served Sanders through the 

Maricopa County Office of Legal Defender’s authorized agent, Rick Miller. 

Sander’s moved for dismissal based on improper service, having never 

authorized Miller to accept personal service on her behalf; English’s failure 

to comply with A.R.S. § 12.821.01; and failure to state a claim in which relief 

could be granted on any of the asserted facts of the complaint.

¶5 Gantz moved for dismissal in January of 2020, claiming a legal 

malpractice suit cannot be sustained based on her acting strictly in an 

advisory role and that there were no possible facts English could assert that 

would suggest otherwise. Gantz mailed the motion to dismiss to English’s 
ENGLISH, III v. GANTZ, et al.

Decision of the Court

3

address used in his moving papers. English did not file a responsive brief 

or move to amend his complaint after either of the motions to dismiss. 

¶6 The court found that English, by not answering the motions,

had tacitly conceded the motions’ merits and granted the motions, 

requesting a lodged form of judgment from the defendants within 20 days.

Defendants subsequently submitted their lodged form of judgments,

requesting the dismissals be with prejudice, to which English did not object. 

The court signed the judgments dismissing defendants Gantz and Sanders 

with prejudice and English timely appeals.

DISCUSSION

¶7 English concedes in his opening brief that his cause of action 

for legal malpractice has not accrued and that dismissal was warranted. He

maintains, however, the trial court erred when it dismissed his complaint 

against Sanders and Gantz with prejudice. We review the trial court’s ruling

and order for an abuse of discretion. Legacy Foundation Action Fund v. 

Citizens Clean Elections Commission, 243 Ariz. 404, 405 ¶ 6 (2018); see also 

Strategic Dev. & Const., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 64 

¶ 16 (App. 2010).

¶8 Under Rule 7.1(a), a non-moving party must respond to a 

motion within ten days. Ariz. R. Civ. P. 7.1(a). If the nonmoving party does 

not timely respond, the superior court has the discretion to grant the motion 

summarily. Ariz. R. Civ. P. 7.1(b); see also Strategic Dev. & Const., Inc., 224 

Ariz. at 65 ¶ 17. Rule 41 governs whether a dismissal is with or without 

prejudice and includes any involuntary dismissal except for dismissals

based on a “lack of jurisdiction, improper venue, or failure to join a party 

under Rule 19.” Ariz. R. Civ. P. 41(b). Unlike a plaintiff's first voluntary 

dismissal pursuant to Rule 41(a), involuntary dismissals under Rule 41(b) 

are considered an adjudication on the merits; they are presumptively with 

prejudice and need not be substantively based. Ariz. R. Civ. P. 41; see also 

Workman v. Verde Wellness Ctr., Inc., 240 Ariz. 597, 601 ¶ 8 (App. 2016).

Lastly, “if a plaintiff believes that a dismissal with prejudice is 

unnecessarily harsh, he may move the court to amend or alter its order.” 

Phillips v. Ariz. Bd. of Regents, 123 Ariz. 596, 598 (1979). Then, “if that relief 

is not granted he may appeal a final order to the Court of Appeals.” Id. 

¶9 English has waived his ability to appeal the dismissal with 

prejudice. English did not file a responsive pleading as required by Rule 

7.1, move to amend the complaint under Rule 15, or object to the lodged 

form of judgment. English also did not move to amend or alter the
ENGLISH, III v. GANTZ, et al.

Decision of the Court

4

judgment. Because English did not bring the issue to the attention of the 

superior court at any time during the proceedings and has not 

demonstrated extraordinary circumstances for failing to do so, he has 

waived the right to present it here. See Phillips, 123 Ariz. at 596; see also

Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) (“Because a trial court [. . .] 

should be afforded the opportunity to correct any asserted defects before 

error may be raised on appeal, absent extraordinary circumstances, errors 

not raised in the trial court cannot be raised on appeal.”).

¶10 Even if English had not waived his argument, he does not 

offer any law to support his position that an involuntary dismissal should 

be without prejudice under Rule 41(b). He does not argue that the dismissal 

was based on a “lack of jurisdiction, for improper venue, or for failure to 

join a party under Rule 19,” Ariz. R. Civ. P. 41(b), which are exceptions to 

the presumption that an involuntary dismissal operates as an adjudication 

on the merits. Ariz. R. Civ. P. 41(b). His argument, rather, contravenes Rule 

41(b)’s plain language. Id. see also Phillips, 123 Ariz. at 596. The trial court 

did not abuse its discretion in dismissing with prejudice. Ariz. R. Civ. P.

41(b); see also Strategic Dev. & Const., Inc., 224 Ariz. at 65 ¶ 17.

¶11 English asks for substantive and procedural leeway because 

he is a pro per litigant. A pro per litigant, however, “is held to the same 

familiarity with court procedures and the same notice of statutes, rules, and 

legal principles as is expected of a lawyer.” Higgins v. Higgins, 194 Ariz. 266, 

270 ¶ 12 (App. 1999); see also Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, 

287 ¶ 16 (App. 2000) (“[A] party who conducts a case without an attorney 

is entitled to no more consideration from the court than a party represented 

by counsel, and is held to the same standards expected of a lawyer.”).

¶12 For the first time on appeal, English contends that he was 

never served with Gantz’s motion to dismiss and was therefore denied due 

process. We generally do not consider issues, even constitutional issues, 

argued for the first time on appeal. Englert v. Carondelet Health Network, 199 

Ariz. 21, 26 ¶ 13 (App. 2000). Because English failed to raise this claim 

before the trial court, it has been waived. See id.; see also Trantor, 179 Ariz. at

300; Lee v. State, 218 Ariz. 235, 237 ¶ 8 (2008) (“The denial of receipt of mail 

creates an issue of fact that the factfinder must resolve to determine if 

delivery actually occurred.”); Kessen v. Stewart, 195 Ariz. 488, 495 ¶ 26 (App. 

1999) (noting the reviewing court is “not the appropriate forum for 

resolving factual disputes” and thus the appellate court will not consider 

new evidence on appeal, assuming new evidence has been offered.).
ENGLISH, III v. GANTZ, et al.

Decision of the Court

5

CONCLUSION

¶13 For the reasons stated, we affirm.