Hendershott v. Babeu ( 2015 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
DAVID HENDERSHOTT and LORRAINE HENDERSHOTT, husband
and wife; LARRY BLACK and BRENDA BLACK, husband and wife; JOEL
FOX and CHARLENE FOX, husband and wife, Plaintiffs/Appellants,
v.
SHERIFF PAUL BABEU, an unmarried man, in his personal capacity and
in his official capacity as Pinal County Sheriff; PINAL COUNTY, a
governmental entity; SHERIFF JOSEPH M. ARPAIO and AVA ARPAIO,
husband and wife; MARICOPA COUNTY, a governmental entity;
INVESTIGATIVE RESEARCH, INC., an Arizona corporation; KEITH
SOBRASKE and MELINDA SOBRASKE, husband and wife; FRANK D.
MUNNELL, in his individual and official capacity, Defendants/Appellees.
No. 1 CA-CV 14-0158
FILED 3-24-2015
Appeal from the Superior Court in Maricopa County
No. CV2012-007166
The Honorable Arthur T. Anderson, Judge
AFFIRMED
COUNSEL
David and Lorraine Hendershott, Peoria
Plaintiffs/Appellants
Larry and Brenda Black, Mesa
Plaintiffs/Appellants
Joel and Charlene Fox, Gilbert
Plaintiffs/Appellants
Audilett Kastner PC, Tucson
By Daryl A. Audilett
Counsel for Defendants/Appellees
And
Sacks Tierney, Scottsdale
By Jeffrey S. Leonard and James W. Armstrong
Co-Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 Lorraine and David Hendershott, Brenda and Larry Black,
and Charlene and Joel Fox (“Plaintiffs”) appeal from the trial court’s order
dismissing their complaint. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Plaintiffs, who are former employees of the Maricopa County
Sherriff’s Office, along with their spouses, filed a complaint naming Sherriff
Arpaio, Sherriff Babeu, Maricopa County, Pinal County, Investigative
Research Inc., Keith Sobraske, and Frank Munnell (“Defendants”) as
defendants. The complaint alleged several claims against the Defendants
based on an employment investigation and resulting termination of
Plaintiffs.
2
HENDERSHOTT et al v. BABEU et al.
Decision of the Court
¶3 Pinal County filed a motion to dismiss the complaint arguing
that it could not be held liable for the Pinal County Sherriff’s actions on a
respondeat superior theory. Maricopa County filed a Rule 12(b)(6) motion
to dismiss the complaint arguing the complaint did not comply with Rule
8 and failed to state a claim on which relief can be granted. The remaining
defendants joined in Maricopa County’s motion to dismiss. Meanwhile,
Defendant Munnell filed a motion for summary judgment arguing any
claim against him was barred because he had not been served with a notice
of claim.
¶4 The trial court granted Defendants’ motions to dismiss on the
respondeat superior theory and the basis of Rule 8 and Rule 12(b)(6)
respectively. The court also granted Munnell’s motion for summary
judgment. However, the court allowed Plaintiffs to file a motion to amend
the complaint in light of its rulings on the motions to dismiss.
¶5 Plaintiffs filed a motion to amend with an amended complaint
attached. Because the amended complaint was virtually identical to the
original complaint, the court denied Plaintiffs’ motion to amend as futile.
Both parties filed forms of judgment; over Plaintiffs’ objection, the court
signed the form proposed by the Defendants. Plaintiffs timely appealed.1
DISCUSSION
I. Rule 12(b)(6) Dismissal of the Complaint
¶6 On appeal, Plaintiffs argue the court erred in dismissing the
complaint on the basis of Rule 8 and Rule 12(b)(6).
¶7 Arizona is a notice pleading state. Coleman v. City of Mesa, 230
Ariz. 352, 356, ¶ 9 (2012). The purpose of a complaint is to “give the
opponent fair notice of the nature and basis of the claim.” Cullen v. Auto-
Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6 (2008) (quoting Mackey v. Spangler, 81
Ariz. 113, 115 (1956)). Thus, Arizona Rule of Civil Procedure 8(a)(2)
requires that a pleading contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” In contrast, a complaint “that
states only legal conclusions, without any supporting factual allegations,
does not satisfy Arizona’s notice pleading standard under Rule 8.” Cullen,
218 Ariz. at 419, ¶ 7. “If a pleading does not comply with Rule 8, an
opposing party may move to dismiss the action ’for failure to state a claim
1 In October 2014, Plaintiffs’ attorney’s motion to withdraw as counsel
of record on appeal was granted by this court.
3
HENDERSHOTT et al v. BABEU et al.
Decision of the Court
upon which relief can be granted’” under Rule 12(b)(6). Id. (citation
omitted)
¶8 Because dismissal under Rule 12(b)(6) is a determination that
“as a matter of law . . . plaintiffs would not be entitled to relief under any
interpretation of the facts susceptible of proof,” we review a trial court’s
12(b)(6) dismissal de novo. Coleman, 230 Ariz. at 356, ¶ 8 (quoting Fid. Sec.
Life Ins. Co. v. State Dep’t of Ins., 19 Ariz. 222, 224, ¶ 4 (1998)). Our
examination is limited to the pleading itself. Cullen, 218 Ariz. at 419, ¶ 7.
We will “assume the truth of the well-pled factual allegations and indulge
all reasonable inferences therefrom.” Id. However, “mere conclusory
statements are insufficient to state a claim upon which relief can be
granted.” Id.
¶9 The court granted Maricopa County’s motion to dismiss on
the grounds the complaint, as a whole, violated Rule 8. In addition, the
court ruled that Plaintiffs’ claims for negligent infliction of emotional
distress, abuse of process, inducement of breach of contract, constructive
fraud, and constructive discharge failed to state a claim under Rule 12(b)(6).
In our review, we address the legal sufficiency of each claim of the
complaint in turn.
¶10 The complaint contains a 7-page, 57-paragraph discussion of
Plaintiffs’ first cause of action, negligence. Plaintiffs list a number of duties
of care the Defendants breached; however, the complaint does not specify
which Defendant breached which duty. The complaint also fails to identify
what negligent actions were purportedly committed by each Defendant.
¶11 The trial court did not err in dismissing Plaintiffs’ negligence
claim. Plaintiffs’ claim does not provide adequate guidance for the
Defendants or the court to be on notice of the nature of each Defendant’s
liability. See Cullen, 218 Ariz. at 419, ¶ 6 (stating that the purpose of notice
pleading is to put the opposing party on notice of the claims against it).
Plaintiffs have not made a “short and plain” statement of their negligence
claim; rather, the complaint contains an incomprehensible listing of duties
and allegations of misconduct that provide no coherent explanation of the
basis for their claim.
¶12 Plaintiffs’ defamation claim is similarly vague and rife with
redundancy. The complaint identifies publication of the Babeu
investigation as the defamatory act, but does not identify which Defendant
is liable for defamation. Rather, Plaintiffs allege the defamation claim
applies to “all defendants.” The complaint also fails to allege the date the
4
HENDERSHOTT et al v. BABEU et al.
Decision of the Court
defamation claim may have accrued. Specifically, Plaintiffs do not indicate
when the Babeu investigation was published, thereby preventing any
opportunity to analyze whether Plaintiffs’ defamation claims are within the
statute of limitations. See Larue v. Brown, 235 Ariz. 440, 443, ¶ 15 (App. 2014)
(stating that one-year statute of limitations for defamation begins to run
upon publication).
¶13 To state a claim for negligent infliction of emotional distress,
a plaintiff must allege (1) he has suffered “shock or mental anguish . . .
manifested by physical injury,” (2) he was “within the zone of danger,” and
(3) the emotional distress resulted “from witnessing an injury to a person
with whom the plaintiff has a close personal relationship.” Quinn v. Turner,
155 Ariz. 225, 227 (App. 1987). The plaintiff must have been within the
“zone of danger,” in that the tortfeasor’s negligence directly affected the
plaintiff by creating an unreasonable risk of bodily harm to the plaintiff. Id.;
State Farm Mut. Auto. Ins. Co. v. Connolly ex rel. Connolly, 212 Ariz. 417, 423,
¶ 23 (App. 2006).
¶14 Plaintiffs claim the public announcement that they were fired
caused them to suffer emotional injuries. Plaintiffs do not, however, allege
they witnessed any injury or that they were in a “zone of danger” created
by Defendants’ negligence. The complaint does not state a claim for
negligent infliction of emotional distress.
¶15 A claim for abuse of process requires a plaintiff to allege the
defendant used a court process with the primary objective of pursuing an
improper motive. Crackel v. Allstate Ins. Co., 208 Ariz. 252, 259, ¶ 18 (App.
2004). An abuse of process claim may be based on “the full range of court
procedures provided by the civil litigation process.” Id. at 258, ¶ 17.
However, the tort may only be committed when a legal process, such as a
subpoena, has been misused. Id.¶16 Plaintiffs have failed to state an abuse of process claim. They
make much of the investigation procedures that resulted in their
termination; however, they do not identify any legal process that has been
abused by Defendants. Id. at 257, ¶ 14.
¶17 Plaintiffs’ aiding and abetting claim is also insufficient. A
claim for tortious aiding and abetting requires three elements: (1) “the
primary tortfeasor must commit a tort that causes injury to the plaintiff,”
(2) “the defendant must know that the primary tortfeasor’s conduct
constitutes a breach of duty,” and (3) “the defendant must substantially
assist or encourage the primary tortfeasor in the achievement of the
5
HENDERSHOTT et al v. BABEU et al.
Decision of the Court
breach.” Wells Fargo Bank v. Ariz. Laborers, Tmstrs. & Cement Masons, 201
Ariz. 474, 485, ¶ 34 (2002). Plaintiffs’ claim rests on the conclusory
statement that all of the Defendants assisted one another in committing the
tortious acts. Plaintiffs do not, however, identify the requisite primary
tortfeasor or the underlying predicate tort.
¶18 The elements of the tort of inducement of breach of contract
are: (1) “existence of a valid contractual relationship,” (2) “knowledge of the
relationship on the part of the interferor,” (3) “intentional interference
inducing or causing a breach,” (4) resulting “damage to the party whose
relationship has been disrupted,” and (5) “that the defendant acted
improperly.” Safeway Ins. Co. v. Guerrero, 210 Ariz. 5, 10, ¶ 14 (2005).
¶19 Plaintiffs have not alleged a viable claim for tortious
inducement of breach of contract because their complaint fails to allege any
third party responsible for inducing the breach of contract, nor does it
identify which Defendant was the alleged “interferor.” The complaint also
fails to specify the nature of the “intentional interference” that caused the
breach of Plaintiffs’ employment contracts.
¶20 Plaintiffs’ claim for intentional infliction of emotional distress
(IIED) is also insufficient. A claim of IIED requires (1) that conduct by the
defendant be extreme and outrageous, (2) that the defendant intended to
cause the emotional distress, or recklessly disregarded the certainty that it
would occur, and (3) that severe emotional distress actually occurred as a
result. Ford v. Revlon, Inc., 153 Ariz. 38, 43 (1987).
¶21 Plaintiffs have not alleged extreme and outrageous conduct.
Even giving Plaintiffs’ factual allegations a favorable reading, the
compilation and eventual publication of the investigation and the resulting
termination of Plaintiffs is not extreme and outrageous conduct giving rise
to liability for IIED.
¶22 To state a claim for constructive fraud, a plaintiff must allege
“a breach of legal or equitable duty which, irrespective of the moral guilt or
intent of the party charged,” would be considered “fraudulent because of
its tendency to deceive others, to violate public or private confidence, or to
injure public interests.” McAlister v. Citibank, a Subsidiary of Citicorp, 171
Ariz. 207, 214 (App. 1992). Arizona Rule of Civil Procedure 9(b) requires
that all allegations of fraud must state the circumstances constituting the
fraud with particularity. Rule 9(b). Here, the complaint repeatedly states
that the various Defendants breached a legal duty, but it points to no
particular circumstance that constituted the complained-of breaches. As a
6
HENDERSHOTT et al v. BABEU et al.
Decision of the Court
result, Plaintiffs have failed to state a claim of constructive fraud with the
required particularity.
¶23 Finally, to state a claim of constructive discharge, the plaintiff
must allege “objectively difficult or unpleasant working conditions to the
extent that a reasonable employee would feel compelled to resign.” Ariz.
Rev. Stat. (“A.R.S.”) section 23-1502(A)(1). To allege a cognizable claim, a
plaintiff must first give the employer fifteen days’ notice of intent to resign
to allow the employer an opportunity to cure the conditions. Id. Plaintiffs
assert that the press conference releasing information about the
investigation created intolerable working conditions. This vague and
unsupported statement aside, the complaint does not allege Plaintiffs
complied with the notice requirement of A.R.S. § 23-1502. Thus, the
complaint fails to state a claim of constructive discharge.
II. Denial of Motion to Amend
¶24 Plaintiffs next challenge the court’s denial of their motion to
amend the complaint. The trial court “has discretion whether to grant leave
to amend.” Tumacacori Mission Land Dev., Ltd. v. Union Pac. R. Co., 231 Ariz.
517, 519, ¶ 4 (App. 2013). Leave to amend should be granted liberally
“unless the court finds . . . futility in the amendment.” Id. (citation omitted).
¶25 In its order granting Maricopa County’s motion to dismiss,
the trial court gave Plaintiffs permission to file a motion to amend the
complaint. Plaintiffs filed a motion to amend and attached their proposed
first amended complaint. The amended complaint is virtually identical to
the original complaint; with the exception of the negligence claim, eight of
the nine causes of action were copied verbatim from the original complaint.
The primary changes in the amended complaint appear to be the removal
of Pinal County and Maricopa County as defendants, and some rewording
of the negligence claim. However, the amendments do not remedy the
pleading defects that lead to the dismissal of Plaintiffs’ original cause of
action for negligence. See, supra, ¶ 10. Accordingly, the trial court did not
err in denying Plaintiffs’ motion to amend as futile.
III. Grant of Defendant Munnell’s Motion for Summary Judgment
¶26 Plaintiffs assert the trial court improperly granted Munnell’s
motion for summary judgment. Plaintiffs’ sole argument on appeal is that
the court was required to examine the entire record before granting
summary judgment.
7
HENDERSHOTT et al v. BABEU et al.
Decision of the Court
¶27 Summary judgment is proper if there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of
law. Arizona Rule of Civil Procedure 56(c). We review the court’s
determination that entry of judgment was proper de novo. United Bank of
Ariz. v. Allyn, 167 Ariz. 191, 195 (App. 1990).
¶28 Munnell’s motion for summary judgment argued that
Plaintiffs failed to serve him with a notice of claim as required by A.R.S.
§ 12-821.01(A) (stating that claims against a public employee must be served
on the person or a person authorized to accept service). The notice of claim
statute requires notice be given to “both the employee individually and to
his employer.” Harris v. Cochise Health Sys., 215 Ariz. 344, 351 (App. 2007)
(quoting Crum v. Superior Court, 186 Ariz. 351, 352 (App. 1996)). The
purpose of the notice of claim statute is to allow the defendant an
opportunity to investigate and assess the liability arising from the claim. Id.“Failure to comply with the statute is not cured by actual notice or
substantial compliance.” Id.¶29 Munnell’s motion was supported by his affidavit avowing he
had never been personally served with a notice of claim. Plaintiffs filed no
response to Munnell’s motion in the trial court, and on appeal, they do not
point to any evidence in the record showing that Munnell was personally
served with a notice of claim. Our review of the record reveals an affidavit
of service indicating Munnell was served with a “demand for jury trial” and
“certificate re: compulsory arbitration.” However, there is no record that
he received a “notice of claim,” and we cannot infer that the documents
delivered to Munnell strictly complied with the notice of claim statute.
Substantial compliance will not cure Plaintiffs’ failure to serve Munnell
with a notice of claim; accordingly their claims against Munnell are barred,
and summary judgment was properly granted.
IV. Form of Judgment
¶30 Finally, Plaintiffs argue the court erred in signing the
Defendants’ proposed form of judgment instead of the form of judgment
proposed by Plaintiffs. In their brief, Plaintiffs do not cite to any legal
authority to support their argument. Accordingly, we will not address this
issue. Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (stating that
failure to provide citations to authorities can constitute abandonment and
waiver of the claim).
8
HENDERSHOTT et al v. BABEU et al.
Decision of the Court
CONCLUSION
¶31 For the reasons above, we affirm. Appellees have requested
attorney’s fees on appeal pursuant to A.R.S. §§ 12-341.01 and 12–349(A)(1)
on the basis the appeal was frivolous and without substantial justification.
“’Without substantial justification’ means that the claim or defense
constitutes harassment, is groundless and is not made in good faith.”
Reynolds v. Reynolds, 231 Ariz. 313, 318, ¶ 16 (App. 2013) (quoting A.R.S.
§ 12–349(F)). “All three elements must be proven by a preponderance of
the evidence and ‘the absence of even one element render[s] the statute
inapplicable.’” Id. (citing Cypress on Sunland Homeowners Ass’n v. Orlandini,
227 Ariz. 288, 301, ¶ 49 (App. 2011)). We affirm the judgment, but we
cannot say that the record and briefs on appeal support an award of
attorneys’ fees pursuant to A.R.S. § 12–349(A)(1). We therefore deny the fee
request. Appellees are entitled to their costs on appeal upon compliance
with Arizona Rule of Civil Appellate Procedure 21.
:ama
9