brown/mariscalv. Zoley ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
PATRICE EDMOND BROWN, Plaintiff/Appellant,
v.
GEORGE ZOLEY, et al., Defendants/Appellees.
DAVID MARISCAL, Plaintiff/Appellant,
v.
GEORGE ZOLEY, Defendant/Appellee.
Nos. 1 CA-CV 17-0039
1 CA-CV 17-0130
(Consolidated)
FILED 9-19-2017
Appeal from the Superior Court in Maricopa County
Nos. CV 2016-091333
CV 2016-092804
The Honorable David K. Udall, Judge
AFFIRMED
COUNSEL
Patrice Edmond Brown, Florence
Plaintiff/Appellant
David Mariscal, Florence
Plaintiff/Appellant
The Herzog Law Firm, Scottsdale
By Michael R. Herzog
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell joined.
D O W N I E, Judge:
¶1 Patrice Edmond Brown and David Mariscal (collectively,
“Appellants”) appeal the dismissal of their respective civil complaints.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Appellants filed civil complaints against George Zoley, the
Geo Group, Inc., Bennie Rollins, and John Gay (collectively, “Appellees”).
Appellants’ claims arose out of their incarceration with the Arizona
Department of Corrections. They alleged that Appellees violated Arizona
Revised Statutes (“A.R.S.”) section 31-472 by not obtaining their written
consent before transferring them to a prison facility in Texas.1
¶3 Appellees filed motions to dismiss, arguing that, even
assuming A.R.S. § 31-472 contemplates a private cause of action,
Appellants’ claims were barred by the statute of limitations. The superior
1 A.R.S. § 31-472 provides, in pertinent part, that a state agency may
not transfer an inmate outside the state unless the inmate “has executed,
in the presence of the warden or other head of the institution . . . a written
consent to the transfer.”
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Decision of the Court
court granted the motions and dismissed Appellants’ complaints with
prejudice. Appellants timely appealed, and this Court consolidated the
two appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A) and
-2101(A)(1).
DISCUSSION
¶4 Brown’s complaint — filed on April 4, 2016 — alleged that
Appellees “engaged in illegally transporting over 500 inmates, classified
as sex-offenders, across state lines into Pecos TX where we were housed
. . . until late December of 2006.” Mariscal’s complaint — filed September
14, 2016 – asserted the same claim.
¶5 A.R.S. § 12-541 requires a claim to be brought within one
year after the cause of action accrues “[u]pon a liability created by statute,
other than a penalty or forfeiture.” A cause of action accrues “when the
plaintiff knew or by the exercise of reasonable diligence should have
known of the defendants’ conduct.” Mayer v. Good Samaritan Hosp., 14
Ariz. App. 248, 252 (1971).
¶6 Although Appellants contend they did not learn of A.R.S.
§ 31-472 until just before filing their civil complaints, they were
indisputably aware in 2005 and 2006 of the facts upon which their claims
are based. Ignorance of the law does not toll the running of the statute of
limitations. See Kowske v. Life Care Ctrs. of Am., Inc., 176 Ariz. 535, 537
(App. 1993) (discovery rule applies to the facts giving rise to the cause of
action, “not to the legal significance of such facts.”); see also Republic Nat’l
Bank of N.Y. v. Pima County, 200 Ariz. 199, 204, ¶ 21 (App. 2001) (A cause
of action does not accrue under the discovery rule “until the plaintiff
knows or, in the exercise of reasonable diligence, should know the facts
underlying the cause.” (emphasis added)).
¶7 Because Appellants’ claims accrued in 2006, at the latest,
their civil actions filed in 2016 were barred by the statute of limitations
and the superior court properly dismissed their complaints with
prejudice.
¶8 Brown contends the superior court erroneously refused to
consider his “oppositional reply” filed in response to Appellees’ motion to
dismiss. The superior court did not consider that filing because it
concluded there was no evidence it had been filed with the Clerk of Court.
But even assuming the court erred, Brown can demonstrate no
corresponding prejudice. See, e.g., Creach v. Angulo, 186 Ariz. 548, 550
(App. 1996) (“the error must have been prejudicial to the substantial rights
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Decision of the Court
of the party”); Ariz. R. Civ. P. 61 (errors that do not affect a party’s
substantial rights are not grounds for reversal). Nothing in his
“oppositional reply” alters the conclusion that, as a matter of law, his
claims were time-barred.
¶9 Mariscal’s assertion that the superior court prematurely
dismissed his complaint without allowing a response to Appellees’
“Supplement to Previously Filed Motion to Dismiss” fares no better.
Appellees’ supplemental filing simply clarified that the motion to dismiss
had been filed pursuant to Ariz. R. Civ. P. 12(b)(6). Mariscal has not
established how the additional citation to a Rule of Civil Procedure
prejudiced his substantial rights. An “affirmative defense of a statute of
limitations may be raised in a motion to dismiss if it appears on the face of
the complaint that the claim is barred.” Republic Nat’l Bank of N.Y., 200
Ariz. at 204, ¶ 20.
CONCLUSION
¶10 For the foregoing reasons, we affirm the judgment of the
superior court. As the prevailing parties on appeal, Appellees are entitled
to recover their taxable costs upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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