Iknadosian v. Mahon ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
GEORGE IKNADOSIAN, a single man; X-CALIBER GUNS, LLC, an
Arizona limited liability company; and X-CALIBER PROPERTIES, LLC,
an Arizona limited liability company, Plaintiffs/Appellants,
v.
ALEX MAHON, Defendant/Appellee.
No. 1 CA-CV 13-0205
FILED 06-05-2014
Appeal from the Superior Court in Maricopa County
No. CV2010-009700
The Honorable Arthur T. Anderson, Judge
AFFIRMED
COUNSEL
Baker & Baker, Phoenix
By Thomas M. Baker
Counsel for Plaintiffs/Appellants
Burch & Cracchiolo PA, Phoenix
By Melissa Iyer and Daryl Manhart
Counsel for Defendant/Appellee
IKNADOSIAN v. MAHON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 George Iknadosian, X-Caliber Guns, LLC, and X-Caliber
Properties, LLC (collectively, “Appellants”) appeal the trial court’s grant
of summary judgment in favor of Appellee Alex Mahon on the grounds
Appellants failed to serve Mahon with a notice of claim pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-821.01(A) (2014). For the
reasons discussed below, we affirm.
Procedural History
¶2 In 2008, Iknadosian was arrested and charged for allegedly
conducting illegal sales and transfers of firearms through his businesses,
X-Caliber Guns, LLC and X-Caliber Properties, LLC. Certain personal and
business property was seized, and a forfeiture proceeding was initiated by
the State. Both the criminal charges and the forfeiture case were
dismissed in 2009.
¶3 The State filed a second forfeiture case against Appellants in
2010 (hereinafter, the “Forfeiture II” case). Mahon was the Assistant
Attorney General who was responsible for prosecuting the Forfeiture II
case.
¶4 While the Forfeiture II case was pending, in March 2010,
Appellants filed a lawsuit for malicious prosecution and conversion
against the State of Arizona, the City of Phoenix, a Phoenix police officer,
and the Arizona Attorney General. This lawsuit was based on the 2009
criminal case and the 2009 forfeiture case. Mahon was not named as a
defendant in this lawsuit.
¶5 On February 13, 2011, the Forfeiture II case was dismissed.
Thereafter, on July 5, 2011, Appellants requested leave to file a second
amended complaint. In their amended complaint, Appellants sought to
add a claim against Mahon for malicious prosecution based on his
participation in the Forfeiture II case. The trial court granted Appellants’
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IKNADOSIAN v. MAHON
Decision of the Court
motion, but Appellants did not actually file their second amended
complaint until March 20, 2012.
¶6 Mahon eventually filed a motion to dismiss Appellants’
second amended complaint. The trial court treated Mahon’s motion as a
motion for summary judgment, and granted the motion on the grounds
Appellants failed to serve him with a notice of claim as required by A.R.S.
§ 12-821.01(A).1 Appellants filed a timely notice of appeal.
Discussion
¶7 We review de novo a grant of summary judgment, viewing
the evidence in the light most favorable to the party opposing the motion.
Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003) (internal
citation omitted). A party seeking summary judgment must support its
motion with specific facts that are admissible as evidence. See Ariz. R.
Civ. P. 56(e); GM Dev. Corp. v. Cmty. American Mortg. Corp., 165 Ariz. 1, 8,
795 P.2d 827, 834 (App. 1990). A party opposing a motion for summary
judgment must contest the accuracy of the moving party’s
evidence/affidavit with specific, admissible facts. See Ariz. R. Civ. P.
56(e); Florez v. Sargeant, 185 Ariz. 521, 526, 917 P.2d 250, 255 (1996). A
court may grant summary judgment when “there is no genuine dispute as
to any material fact and the moving party is entitled to judgment as a
matter of law.” Ariz. R. Civ. P. 56(a).
¶8 Appellants contend they personally served Mahon with a
notice of claim through his “authorized agent,” Junell Williams, a
receptionist at the Attorney General’s Office. Appellants argue that their
alleged service on Williams creates a genuine issue of material fact and, as
a result, the trial court erred in granting summary judgment in favor of
Mahon.
¶9 A person with a claim against a public employee must,
within 180 days after the claim accrues, “file” a copy of the notice of claim
with the employee. A.R.S. § 12–821.01(A); Harris v. Cochise Health Sys., 215
Ariz. 344, 351, ¶ 25, 160 P.3d 223, 230 (App. 2007). This requirement is met
where a copy of the notice of claim is (1) personally delivered to the
1 The trial court references A.R.S. § 12-341.01(A) as the basis for its
ruling, but cites the language from A.R.S. § 12-821.01(A). Thus, the court’s
reference to A.R.S. § 12-341.01(A) appears to be a clerical error.
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IKNADOSIAN v. MAHON
Decision of the Court
employee, either in person or by mail, (2) left with a person of suitable age
who is residing with the employee, or (3) served on a person who is
authorized to accept service on behalf of the employee. Simon v. Maricopa
Med. Ctr., 225 Ariz. 55, 61, ¶ 20, 234 P.3d 623, 629 (App. 2010); see Lee v.
State, 218 Ariz. 235, 239, ¶ 19, 182 P.3d 1169, 1173 (2008) (filing of notice of
claim may be accomplished through regular mail); Ariz. R. Civ. P. 4(d)
(rule governing service of summons on individuals). If the notice of claim
is not properly filed within 180 days, the claim is barred. Falcon ex rel.
Sandoval v. Maricopa Cnty., 213 Ariz. 525, 527, ¶ 10, 144 P.3d 1254, 1256
(2006). Because strict compliance with the statute is required, “[f]ailure to
comply with the statute is not cured by actual notice or substantial
compliance.” Harris, 215 Ariz. at 351, ¶ 25, 160 P.3d at 230; see Simon, 225
Ariz. at 62, ¶ 24, 234 P.3d at 630.
¶10 Appellants’ claim for malicious prosecution against Mahon
accrued on February 13, 2011, the date the Forfeiture II case was
dismissed. Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 10, 83 P.3d 26, 29 (2004).2 As
a result, Appellants were required to serve Mahon with a notice of claim
no later than August 12, 2011. A.R.S. § 12-821.01(A).
¶11 Appellants concede that Mahon was never personally served
with a notice of claim. In addition, Appellants do not claim they delivered
a copy of the notice to a person residing at Mahon’s residence. The sole
issue is whether the receptionist at the Attorney General’s Office was
Mahon’s “authorized agent” to receive service of the notice of claim on
March 21, 2011.3
2 Throughout the proceedings in the trial court, Appellants asserted
that their claims against Mahon accrued when the Forfeiture II case was
dismissed on February 13, 2011. Now, for the first time on appeal,
Appellants argue that their claim for malicious prosecution accrued on
August 16, 2012. We do not consider this new argument because it was
not raised in the trial court. Harris, 215 Ariz. at 349-50, ¶¶ 17-23, 160 P.3d
at 228-29; Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13
P.3d 763, 768–69 (App. 2000).
3 Appellants also argue that Mahon was served by certified mail at
the Attorney General’s Office on March 22, 2011. This argument was first
raised in Appellants’ motion for reconsideration, after the trial court
issued its summary judgment ruling. However, on appeal we may only
consider the evidence submitted by Appellants in support of their motion
for summary judgment. Cella Barr Assocs., Inc. v. Cohen, 177 Ariz. 480, 487
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IKNADOSIAN v. MAHON
Decision of the Court
¶12 Mahon submitted two personal affidavits in support of his
motion, as well as an affidavit from Williams, the receptionist. In his
affidavits, Mahon testifies that he has never been personally served with a
copy of the notice of claim, and he has never appointed or authorized
anyone, including Williams, to accept delivery of the notice on his behalf.
Mahon avows that Williams never worked for him, and other than
passing contact in the office, Mahon was only vaguely familiar with
Williams.
¶13 At the time of the alleged service of the notice in March 2011,
Mahon states that he had been retired from the Attorney General’s Office
since September 2010, only worked part-time as a “return retiree” for 4-5
hours every 2-3 months, and was self-employed in his own consulting
business. Mahon testifies that he was in Mexico on the date Williams was
allegedly served, and he had not worked in the main office for the
Attorney General for approximately six months. Finally, Mahon avows
that he was not aware of any claim by Appellants until April 2012.
¶14 Williams corroborates Mahon’s affidavit testimony.
Williams states that on March 21, 2011, she was working as a receptionist
at the main office for the Attorney General. Williams avows that she has
never been authorized or appointed by Mahon to accept service of any
documents on his behalf. Moreover, Williams avows she never
represented to anyone that she had the authority to accept service of
documents on Mahon’s behalf. Finally, Williams testifies that she does
not recall receiving personal delivery of a notice of claim on the subject
date, and that a review of her records for that date do not reflect that she
received any such document.
¶15 In opposition to Mahon’s affidavits, Appellants submitted
the affidavit of their process server. In the affidavit, the process server
states, “I personally served a copy” of the notice of claim on Mahon at the
Attorney General’s Office “by leaving true cop(ies)…with Junell Williams,
receptionist, stated authorized to accept.”
n.1, 868 P.2d 1063, 1070 n.1 (App. 1994). Moreover, Appellants provide no
further evidence in support of this argument other than the fact the
certified mail receipt is signed by “Joseph Montoya”- there is nothing in
the record establishing who this individual is, or whether he was
authorized to accept service on behalf of Mahon.
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IKNADOSIAN v. MAHON
Decision of the Court
¶16 A person may act as an authorized agent to accept service of
process only if they are “actually appointed” by another person to do so.
Kalakosky v. Collins, 125 Ariz. 326, 327, 609 P.2d 596, 597 (1980); Bowen v.
Graham, 140 Ariz. 593, 596, 684 P.2d 165, 168 (App. 1984). One of the
reasons for strict adherence to this rule is that, with respect to a notice of
claim, the person served “may not appreciate the significance of a notice
of claim or realize that such a claim must be acted upon within sixty
days.” Falcon, 213 Ariz. at 529, ¶ 26, 144 P.3d at 1258. See A.R.S. § 12–
821.01(E) (“A claim against a public entity or public employee . . . is
deemed denied sixty days after the filing of the claim unless the claimant
is advised of the denial in writing before the expiration of sixty days.”).
¶17 “It is well established that individuals may not be served by
merely leaving the Complaint and Summons at their place of business.”
Babb v. Bridgestone/Firestone, 861 F. Supp. 50, 51 (M.D. Tenn. 1993). Thus,
delivery to a receptionist at a defendant’s place of employment is
insufficient service. Id; see Webster Dictionary Corp. v. Ginzburg, 70 F.R.D.
412, 413 (N.D. Ill. 1975) (service on receptionist held improper); Allison v.
Utah Cnty. Corp., 335 F. Supp. 2d 1310, 1314 (D. Utah. 2004) (service
insufficient on a defendant prosecutor where plaintiff left summons and
complaint with receptionist; there was no showing that defendant had
authorized anyone to accept service on her behalf); Amnay v. Del Labs, 117
F. Supp. 2d 283, 286 (E.D.N.Y. 2000) (leaving a copy with a defendant’s
secretary was insufficient service of process); West v. Paige, 835 F. Supp. 20,
22 (D. Me. 1993) (“service upon a secretary at his place of employment . . .
does not satisfy the service requirements”); Lamont v. Haig, 539 F. Supp.
552, 556–57 (D.S.D. 1982) (service of process on defendants’ secretaries at
their places of business was inadequate).
¶18 Finally, a process server’s “[c]onclusory statements that a
defendant was properly served are insufficient to overcome a defendant’s
sworn affidavit that he was never served.” Howard v. Klynveld Peat
Marwick Goerdeler, 977 F. Supp. 654, 658 (S.D.N.Y. 1997). See also French v.
Angelic, 137 Ariz. 244, 246-47, 669 P.2d 1021, 1023-24 (App. 1983) (process
server’s affidavit stated that summons and complaint were allegedly
served at defendant’s “residence” by leaving copies with a woman at a
residence where the mailbox had defendant’s name on it; appellate court
held there was sufficient evidence to support trial court’s finding there
was insufficient service of process based on defendant’s affidavit that she
did not live at the subject residence).
¶19 All of these authorities make it clear that only Mahon had
the authority to appoint Williams as his authorized agent to accept
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IKNADOSIAN v. MAHON
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service. Here, both Mahon’s and Williams’ affidavits state that Mahon did
not authorize Williams to accept service on his behalf. The only evidence
Appellants offer to rebut these detailed affidavits is the conclusory
affidavit of their process server, which asserts that someone, possibly
Williams, “stated” she was authorized to accept service for Mahon. This
bare, conclusory assertion is insufficient to create a genuine, triable issue
regarding service of the notice of claim.
¶20 Accordingly, we affirm the trial court’s grant of summary
judgment.
Cross-Appeal
¶21 In his answering brief, Mahon also asserts two issues on
cross-appeal: (1) Appellants’ claim against Mahon is barred by the one-
year limitation period of A.R.S. § 12-821, and (2) Mahon is immune from
suit under the common law and A.R.S. § 13-4314(E). While Mahon raised
these issues below, the court did not consider them in making its ruling.
We therefore do not reach these issues on appeal. Rhoads v. Harvey
Publ’ns, Inc., 131 Ariz. 267, 269, 640 P.2d 198, 200 (App. 1981) (noting that
the power to affirm a summary judgment on grounds not considered by
the trial court “must be exercised with extreme caution”).
Attorneys’ Fees
¶22 We deny Appellants’ request for attorneys’ fees pursuant to
A.R.S. § 12-348. Appellants’ case has been dismissed, and therefore
Appellants are not entitled to an award of fees as a prevailing party under
the statute.
Conclusion
¶23 For the reasons discussed above, the trial court’s judgment is
affirmed.
:gsh
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