Opinion
No. 1 CA-CV 14-0539
01-28-2016
ALEXANDER T. MAHON, a single man, Plaintiff/Appellant, v. LAWRENCE A. HAMMOND aka LARRY HAMMOND; FRANCIS S. HAMMOND; THE MARITAL ESTATE OF LAWRENCE ("LARRY") A. HAMMOND AND FRANCIS S. HAMMOND, husband and wife; JEAN-JACQUES CABOU and SARAH M. CABOU; THE MARITAL ESTATE OF JEAN-JACQUES CABOU AND SARAH M. CABOU, husband and wife; SHARAD H. DESAI; JANE DOE DESAI; THE MARITAL ESTATE OF SHARAD H. DESAI AND JANE DOE DESAI, husband and wife; OSBORN MALEDON, P.A., an Arizona corporation, Defendants/Appellees.
COUNSEL Alexander T. Mahon, Esq., Florence Plaintiff/Appellant Coppersmith Brockelman, P.L.C., Phoenix By Keith Beauchamp, James J. Belanger, Shelley Tolman Counsel for Defendants/Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2013-009851
The Honorable J. Richard Gama, Judge
AFFIRMED
COUNSEL Alexander T. Mahon, Esq., Florence
Plaintiff/Appellant Coppersmith Brockelman, P.L.C., Phoenix
By Keith Beauchamp, James J. Belanger, Shelley Tolman
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined. WINTHROP, Judge:
¶1 Appellant, Alexander T. Mahon ("Mahon"), appeals the trial court's judgment dismissing with prejudice Mahon's claims for wrongful institution of civil proceedings ("WICP") and intentional infliction of emotional distress ("IIED") against Osborn Maledon, P.A., Lawrence A. Hammond, Jean-Jacques Cabou, and Sharad H. Desai (collectively, "the Attorneys"), and their spouses. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mahon is a former Assistant Attorney General, whose duties included applying for warrants on behalf of the Maricopa County Sheriff's Office ("MCSO"). On April 23, 2007, Mahon applied for a seizure warrant on behalf of MCSO. In part, the warrant authorized the seizure of property belonging to James G. Bennitt, Jr., and Kelley L. Bennitt, up to a maximum of $1,000,000, except for items of "unique sentimental significance," including wedding rings. The next day, MCSO detectives seized numerous assets held by the Bennitts—including Kelley Bennitt's wedding ring—with an aggregate value significantly greater than $1,000,000 as estimated by the Bennitts.
The warrant included more than forty defendants and a potential total seizure of more than $141,000,000.
¶3 After the seizure, James Bennitt was named in a criminal prosecution, case no. CR2008-006017, and a civil forfeiture action, case no. CV2007-011026. On April 24, 2008, the Bennitts, represented by the Attorneys, filed a counterclaim in the forfeiture action, naming Mahon and several other counter-defendants. The Attorneys' representation terminated in December 2010, while the forfeiture action was pending. The Bennitts also entered bankruptcy proceedings while the forfeiture action was pending. Thereafter, the State, the bankruptcy trustee, the Bennitts, and Mahon's counsel negotiated a settlement. Mahon's personal objection to the mutual dismissal of claims was rejected by the bankruptcy court, which approved the settlement. The parties, through counsel, thereafter stipulated in these state court proceedings to a dismissal of their respective claims with prejudice. The stipulation was signed by permission of Mahon's attorney on his behalf, and the court accepted the fully executed stipulation, and dismissed all claims with prejudice.
Mahon was not a plaintiff in the forfeiture action and appears to have been joined pursuant to Rule 19(a), Ariz. R. Civ. P.
¶4 A year later, Mahon commenced this action against the Attorneys for WICP and IIED, alleging the Attorneys filed the counterclaim out of "malice." The trial court granted the Attorneys' motion to dismiss Mahon's complaint with prejudice pursuant to Rule 12(b)(6), Ariz. R. Civ. P., and on June 23, 2014, issued a signed judgment in favor of the Attorneys. Mahon timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (Supp. 2015).
Mahon's complaint also included an abuse of process claim, which he voluntarily dismissed.
ANALYSIS
¶5 As an initial matter, we address the applicable standard of review for the dismissal. We review de novo a motion to dismiss. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). Mahon argues the trial court improperly applied the standard of review for a motion to dismiss by not indulging all reasonable inferences in his complaint. On a motion to dismiss, we assume the truth of the well-pled factual allegations and indulge all reasonable inferences therefrom. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008). We do not accept as true conclusions of law, inferences that are not necessarily implied by well-pled facts, unreasonable inferences, unsupported conclusions, or legal conclusions alleged as facts. Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005). The trial court properly applied the standard for a motion to dismiss and found that "[t]he conclusory allegations asserted by Plaintiff . . . are insufficient." We agree. As discussed below, Mahon's complaint fails to state a claim for which relief can be granted, even assuming the truth of Mahon's factual allegations and indulging reasonable inferences, because (1) Mahon cannot establish a necessary element of his WICP claim, and (2) Mahon's IIED claim is time-barred.
¶6 Mahon argues in the alternative that the Attorneys converted their motion to dismiss to a motion for summary judgment by attaching documents from the forfeiture action and the bankruptcy and, therefore, the trial court improperly excluded the extrinsic evidence he offered. Mahon's premise is incorrect. Consideration of public records does not convert a motion to dismiss into a motion for summary judgment. Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 64, ¶ 13, 226 P.3d 1046, 1050 (App. 2010). The trial court properly relied on the stipulation and dismissal in the forfeiture action and the bankruptcy trustee's approval of the settlement. As public records, these documents do not convert the Attorneys' motion to dismiss into one for summary judgment.
Mahon also claims procedural error because oral argument is required before the grant of a motion for summary judgment. We reject this argument because the trial court is authorized to decide the Attorneys' motion to dismiss without oral argument. See Ariz. R. Civ. P. 7.1(c)(2); Cristall v. Cristall, 225 Ariz. 591, 597, ¶ 29, 242 P.3d 1060, 1066 (App. 2010).
¶7 There was also no conversion of the Attorneys' motion based on Mahon's extrinsic evidence because, as Mahon concedes, the trial court did not consider that evidence. Submission of extrinsic evidence does not convert a motion to dismiss into one for summary judgment where the court does not rely on the extrinsic evidence. Belen Loan Inv'rs, LLC v. Bradley, 231 Ariz. 448, 452, ¶ 7, 296 P.3d 984, 988 (App. 2012). Like the trial court, we do not consider Mahon's extrinsic evidence in reviewing the ruling on the Attorneys' motion to dismiss. Therefore, we review de novo the Attorneys' motion to dismiss and will affirm only if Mahon is not entitled to relief under any facts susceptible of proof. See Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 (1996).
I. Wrongful Institution of Civil Proceedings (WICP)
¶8 Mahon's claim for WICP is based on his allegation that the Attorneys wrongfully filed the Bennitts' counterclaim based on malice. To prevail on a WICP claim, a plaintiff must establish that the defendant (1) instituted a civil action that was (2) motivated by malice, (3) begun without probable cause, (4) terminated in the plaintiff's favor, and (5) damaged the plaintiff. Wolfinger v. Cheche, 206 Ariz. 504, 509, ¶ 23, 80 P.3d 783, 788 (App. 2003). The trial court dismissed Mahon's WICP claim because Mahon could not establish that the counterclaim was terminated in his favor.
¶9 The existence of a favorable termination is a question of law. See Lane v. Terry H. Pillinger, P.C., 189 Ariz. 152, 156, 939 P.2d 430, 434 (App. 1997). A judgment on the merits is always a favorable termination. Frey v. Stoneman, 150 Ariz. 109, 110, 722 P.2d 274, 278 (1986). A dismissal with prejudice is not categorically a judgment on the merits, however, particularly when the dismissal is voluntary. See Wetzler v. Howell, 37 Ariz. 381, 385, 294 P. 611, 613 (1930) (stating that voluntary discontinuance of a cause by a plaintiff does not, as a rule, amount to a judgment on the merits (citations omitted)); cf. Rolph v. City Court of Mesa, 127 Ariz. 155, 158, 618 P.2d 1081, 1084 (1980) (stating that the dismissal of an indictment generally does not involve a determination of the defendant's guilt or innocence for purposes of double jeopardy). A voluntary dismissal is not a favorable termination unless it indicates the plaintiff—in this case, Mahon—is innocent of wrongdoing. See Lane, 189 Ariz. at 154, 939 P.2d at 432. To make such a determination, the court must evaluate whether the dismissal substantively reflects on the merits of the matter. Frey, 150 Ariz. at 111, 722 P.2d at 279. The counterclaim was dismissed upon the parties' stipulation. Mahon apparently did not completely agree with the underlying settlement, but nevertheless stipulated to the dismissal through counsel, which resulted in a dismissal order that included language directing the entry of judgment pursuant to Rule 54(b), Ariz. R. Civ. P.
¶10 The trial court relied on the signature of Mahon's attorney to enter the dismissal, and Mahon cannot now argue his attorney lacked authority. See, e.g., Robertson v. Alling, 237 Ariz. 345, 349, ¶ 17, 351 P.3d 352, 356 (2015). Mahon also failed to appeal the dismissal, and cannot now collaterally attack it. See Ariz. R. Civ. P. 77(a); Dockery v. Cent. Ariz. Light & Power Co., 45 Ariz. 434, 445-50, 45 P.2d 656, 660-62 (1935), superseded by statute on other grounds as recognized in In re Estate of Milliman, 101 Ariz. 54, 61, 415 P.2d 877, 884 (1966). The settlement involved dismissal of all claims and counterclaims, and the State paid $150,000 to the Bennitts' bankruptcy estate. Additionally, all parties, including Mahon, waived their right to seek attorneys' fees and costs. Insofar as the dismissal reflects on the merits of the matter, both sides gave something up. Having given something up, Mahon cannot now claim termination in his favor in an effort to negate the legal effect of the stipulated dismissal.
Amendment will not save Mahon's WICP claim, and the trial court properly dismissed Mahon's WICP claim without leave to amend. See Bishop v. State Dep't of Corr., 172 Ariz. 472, 475, 837 P.2d 1207, 1210 (App. 1992) (stating that a trial court does not abuse its discretion by denying a motion to amend if the amendment would be futile). --------
¶11 Beyond the effect of the stipulated dismissal, Mahon's complaint alleges that the dismissal with prejudice was a judgment on the merits in his favor, adjudicating that he had not committed any of the acts alleged in the counterclaim. Mahon's statements are incorrect legal conclusions not entitled to a presumption of truth. There is nothing else in Mahon's complaint to demonstrate a favorable termination. Failing on any one element means the whole WICP claim fails. See Wolfinger, 206 Ariz. at 509, ¶ 23, 80 P.3d at 788. Therefore, we affirm the trial court's dismissal of Mahon's WICP claim.
II. Intentional Infliction of Emotional Distress (IIED)
¶12 Mahon also claims he suffered emotional distress as a result of the counterclaim filed by the Attorneys, including feelings of financial insecurity, a loss of a sense of privacy, and anger. In Arizona, the tort of IIED may be recognized where the distress inflicted is so severe that no reasonable person could be expected to endure it. See Restatement (Second) of Torts ("Restatement") § 46 cmt. j (1965) (stating that some degree of transient emotional distress is part of the price of living among people, and only extreme emotional distress creates liability); Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987) (relying on the Restatement § 46 cmts. b, d). A claim for IIED must be brought within two years of the accrual date. Hansen v. Stoll, 130 Ariz. 454, 460, 636 P.2d 1236, 1242 (App. 1981); A.R.S. § 12-542(1) (2003).
¶13 The trial court found that Mahon's IIED claim was barred by the two-year statute of limitations because both the filing of the counterclaim and the Attorneys' withdrawal occurred more than two years before Mahon brought this action. We agree. The counterclaim was filed in April 2008, and the Attorneys withdrew in December 2010. Mahon filed this action nearly three years after their withdrawal—on October 28, 2013. Therefore, we affirm the trial court's dismissal of the IIED claim with prejudice.
¶14 Mahon nevertheless argues that IIED should be recognized as a "continuing" tort and that the statute of limitations should commence at the termination of the underlying proceeding. We disagree.
¶15 The continuing tort rule provides "that under certain conditions a tort is continuous, and in such cases the limitations period does not commence until the date of the last tortious act." L.F. v. Donahue, 186 Ariz. 409, 413, 923 P.2d 875, 879 (App. 1996) (citation omitted). No Arizona court has applied the continuing tort rule to emotional distress, and we see no reason to do so now. See, e.g., id. (rejecting application of the continuing tort rule to emotional distress); compare Garcia v. Sumrall, 58 Ariz. 526, 533, 121 P.2d 640, 643 (1942) (recognizing that trespass to property, if continuing, may extend the limitations period); Fix v. Union Pac. R.R. Co., 982 F. Supp. 2d 1052, 1056 (D. Ariz. 2013) (finding a continuing nuisance claim not barred by the statute of limitations). Conduct causing emotional distress where each act causes separate and cumulative injury does not trigger the continuing tort rule. L.F., 186 Ariz. at 413, 923 P.2d at 879. Simply stated, even assuming the filing of the counterclaim in April 2008 constituted intentional infliction of emotional distress, the tortious conduct was complete at that time. Mahon knew of it and the identity of the actors. Any cause of action for IIED accrued at that time.
¶16 Finally, Mahon argues that applying the statute of limitations in this matter deprives him of his constitutional right to access the court. Even if we assume arguendo that Mahon did not waive this argument by failing to raise it in the trial court, see K.B. v. State Farm Fire & Cas. Co., 189 Ariz. 263, 268, 941 P.2d 1288, 1293 (App. 1997), Mahon was not deprived of his ability to bring and pursue an action by operation of the statute of limitations. See generally Kenyon v. Hammer, 142 Ariz. 69, 87, 688 P.2d 961, 979 (1984) (recognizing that a statute that discriminates by completely depriving a specific group of access to the court is unconstitutional, but general statutes of limitations are permitted).
CONCLUSION
¶17 For the foregoing reasons, we affirm the trial court's judgment dismissing Mahon's complaint with prejudice. Because the Attorneys are the prevailing party, we award them their taxable costs on appeal upon compliance with Rule 21, ARCAP.