Opinion
No. 1 CA-CV 18-0413
03-28-2019
MICHAEL L. SIMES, Plaintiff/Appellant, v. SARAH ANN SPARKMAN, et al., Defendants/Appellees.
COUNSEL Michael Simes LLC, Phoenix By Michael L. Simes Counsel for Plaintiff/Appellant Law Offices of Scott M. Clark PC, Phoenix By Scott M. Clark, Christopher R. Walker, Judy Drickey-Prohow 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2016-004759
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
COUNSEL Michael Simes LLC, Phoenix
By Michael L. Simes
Counsel for Plaintiff/Appellant Law Offices of Scott M. Clark PC, Phoenix
By Scott M. Clark, Christopher R. Walker, Judy Drickey-Prohow
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge James B. Morse Jr. and Judge Jon W. Thompson joined. SWANN, Judge:
¶1 Michael L. Simes appeals the dismissal of his complaint against Sarah Ann Sparkman, Shannon L. Vanderpool, Haya Zilberboim, Ayzik Oz Cohen, 945 West Broadway Road L.P., 945 West Broadway Road General Partners L.L.C., Emma Capital Investments, and First Communities Management, Inc. (collectively, "Defendants"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In December 2015, Simes leased an apartment in Mesa from 945 West Broadway, L.P. (the "Landlord"). The following month, Simes failed to pay his rent, and the Landlord issued a five-day notice of intent to terminate the lease. Thereafter, the Landlord filed a forcible detainer action in justice court, which resulted in Simes's eviction from the apartment. He did not appeal from the forcible detainer judgment.
¶3 Meanwhile, after receiving the five-day notice, Simes filed a lawsuit in superior court against Defendants, whom Simes alleged own or operate the apartments. The complaint asserted claims for common law fraud and violations of the Arizona Residential Landlord Tenant Act ("ARLTA"), A.R.S. §§ 33-1301 to -1381, and the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601 to -3631.
¶4 On the same day that he filed his complaint, Simes also applied for court-appointed counsel. See A.R.S. § 41-1491.32 (allowing a plaintiff alleging a discriminatory housing practice under Arizona law to apply for appointment of counsel); 42 U.S.C. § 3613(b) (allowing a plaintiff alleging a discriminatory housing practice under the FHA to apply for appointment of counsel). The superior court denied his application.
¶5 Meanwhile, Defendants moved to dismiss the complaint for failure to state a claim pursuant to Ariz. R. Civ. P. ("Rule") 12(b)(6). After eight months, Simes never responded or moved to amend.
¶6 Ultimately, the superior court granted Defendants' motion, dismissing Simes's complaint. After an unsuccessful motion for a new trial, Simes appealed.
DISCUSSION
¶7 On appeal, Simes challenges the denial of his application for court-appointed counsel and the dismissal of his complaint. I. THE SUPERIOR COURT DID NOT ERR IN DENYING SIMES'S REQUEST FOR COURT-APPOINTED COUNSEL BECAUSE HIS CLAIM HAD NO MERIT.
¶8 Under A.R.S. § 41-1491.32, "[o]n application by a person alleging a discriminatory housing practice . . . the superior court may appoint an attorney for the person." The FHA contains a similar provision, also using the words "may appoint." See 42 U.S.C. § 3613(b). When interpreting an unambiguous statute, "our analysis begins and ends with its plain language." State v. Streck, 221 Ariz. 306, 307, ¶ 7 (App. 2009). The plain language of A.R.S. § 41-1491.32 and 42 U.S.C. § 3613 is permissive, granting a court discretion to appoint counsel but not requiring it to do so.
¶9 There is no Arizona case law interpreting A.R.S § 41-1491.32 and very little interpreting 42 U.S.C. § 3613(b). Faced with an application for counsel under 42 U.S.C. § 3613, courts in other jurisdictions have looked for guidance from employment discrimination cases. See, e.g., Zhu v. Countrywide Realty Co., 148 F. Supp. 2d 1154, 1157 (D. Kan. 2001) ("Although little case law exists on the appointment of an attorney by the court under 42 U.S.C. § 3613(b), . . . the Court finds case law on the appointment of an attorney under 42 U.S.C. § 2000e-5 to be instructive . . . ."); Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997) ("We apply Title VII discrimination analysis in examining [FHA] discrimination claims.").
¶10 Simes relies on the Ninth Circuit's decision in Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301 (9th Cir. 1981), which involved a plaintiff who applied for court-appointed counsel in an employment discrimination lawsuit. In Bradshaw, the Ninth Circuit identified three factors relevant to a court's decision whether to appoint counsel: "(1) the plaintiff's financial resources, (2) the efforts made by the plaintiff to secure counsel, and (3) whether the plaintiff's claim has merit." Id. at 1318.
¶11 Simes might satisfy two of the three Bradshaw factors. First, he asserts in his application for counsel that he has limited financial resources. Second, the record reflects that Simes made multiple attempts to secure counsel. The problem for Simes lies in the third factor, which requires a showing that his claim has merit. As discussed at greater length below, Simes's complaint does not state a claim under ARLTA or FHA. For this reason, we cannot say the superior court abused its discretion in denying Simes's request for a court-appointed attorney. II. THE COURT DID NOT ERR BY DISMISSING SIMES'S COMPLAINT BECAUSE HE FAILED TO STATE A CLAIM FOR EACH ISSUE PRESENTED.
Simes also argues the superior court failed to set forth any Rule 52 findings of fact or conclusions of law. The court, however, is not required to state findings or conclusions when ruling on a motion. See Rule 52(a)(3).
¶12 Simes also argues the superior court erred in dismissing his complaint. We review the court's ruling on a motion to dismiss de novo. See Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). In doing so, 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 (2008).
A. Simes Failed to State a Claim for Common Law Fraud.
¶13 Simes's complaint asserts a claim for common law fraud. Under Rule 9(b), a complaint alleging fraud "must state with particularity the circumstances constituting fraud or mistake." An actionable fraud claim requires the concurrence of nine elements: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated, (6) the hearer's ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Nielson v. Flashberg, 101 Ariz. 335, 338-39 (1966).
¶14 Although Simes's complaint alleges some of the elements of fraud, it omits others. The complaint alleges that Defendants made false statements to Simes regarding a planned "gentrification" of the apartment complex, future remodeling efforts, and below-market rent. He alleges these statements were false and material and he relied on them in deciding to rent the apartment. The complaint, however, does not allege that Defendants knew the statements were false or were ignorant of their truth. Nor does the complaint allege how Simes was injured by relying on Defendants' statements. See Cullen, 218 Ariz. at 419, ¶ 7 (explaining that "mere conclusory statements are insufficient to state a claim upon which relief can be granted"). The complaint fails to state a claim for fraud.
B. Simes Failed to State a Claim Under ARLTA.
¶15 Simes's complaint also asserts a claim under ARLTA. On appeal, he argues that Defendants violated ARLTA, specifically A.R.S. §§ 33-1324(A) and -1364(A). Section 33-1324(A) requires a landlord to maintain the premises in fit and habitable condition, including maintaining "all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances." Section 33-1364(A) provides remedies to a tenant for a landlord's failure to provide essential services.
¶16 Simes's complaint alleges that Defendants violated ARLTA by (1) failing to make electricity available in the apartment when he signed the lease and (2) failing to provide him with a "habitable temporary residential dwelling unit" pending the provision of electricity to his apartment. (Emphasis added.) Simes's complaint, however, acknowledges that Defendants told him he "would need to establish an Account with the Utilities Division of the City of Mesa ("Mesa Utilities") for the provision of electricity to [his] apartment before [he] would be allowed to take occupancy, possession and use of [his] Apartment." Accordingly, the complaint reflects that Simes, not Defendants, was responsible for having the electricity turned on. The complaint fails to state a claim under ARLTA.
C. Simes Failed to State a Claim Under the FHA.
¶17 Finally, Simes's complaint asserts a claim under the FHA. On appeal, he argues that his complaint "sets forth factual averments that [he] was the victim of discriminatory housing practices." Specifically, he asserts that Defendants violated 42 U.S.C. §§ 3604(f)(3) and 3617.
¶18 Section 3604(f)(3)(A) defines discrimination to include "a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises . . . if such modifications may be necessary to afford such person full enjoyment of the premises." Nowhere in his lengthy complaint does Simes allege that Defendants refused his request to make reasonable modifications to his apartment at his own expense.
¶19 Section 3604(f)(3)(B) defines discrimination to include "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." Again, the complaint does not allege that Defendants refused to make reasonable accommodations to the apartment rules, policies, practice or services. Conversely, Simes concedes that Defendants made accommodations for his emotional support dogs.
¶20 Finally, § 3617 defines discrimination to include coercion, intimidation, threats, or interference with any right granted or protected under relevant sections of the FHA. In his complaint, Simes alleges that Defendants intimidated him by posting a two-day notice on the door of his apartment and by offering to repair his air-conditioning unit but failing to do so. Neither of these actions constitutes intimidation.
¶21 Although Simes was provided sufficient opportunity to amend his complaint in response to Defendants' motion to dismiss, he failed to do so. Because we conclude that Simes's complaint fails to state a claim, we affirm its dismissal. III. SIMES DID NOT RAISE THE ISSUE OF DEFENDANTS' ATTORNEY'S CONDUCT TO THE SUPERIOR COURT, SO HE CANNOT APPEAL IT NOW.
¶22 On appeal, Simes also challenges the "unprofessional conduct" of attorney Scott Clark, whose law firm represents Defendants. Simes's briefing does not reference any part of the record reflecting that this issue was raised or ruled upon by the superior court. See Sobol v. Marsh, 212 Ariz. 301, 303, ¶ 7 (App. 2006) ("As a general rule, a party cannot argue on appeal legal issues and arguments that have not been specifically presented to the trial court."). Moreover, Simes challenges the conduct of Clark during the eviction proceeding—a matter that is not before this court.
Simes explains that he "spent paltry efforts presenting the Superior Court with the Unprofessional Conduct of Attorney Clark in the Eviction Action because the Superior Court displayed no interest in it." --------
CONCLUSION
¶23 For the foregoing reasons, we affirm the decision of the superior court. We award costs to Defendants upon compliance with ARCAP 21.