Eden v. Show Low

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JACE FRANK EDEN, Plaintiff/Appellant,
v.
CITY OF SHOW LOW, Defendant/Appellee.
No. 1 CA-CV 14-0318
FILED 4-23-2015
Appeal from the Superior Court in Navajo County
No. S0900CV201300378
The Honorable Michala M. Ruechel, Judge
AFFIRMED
COUNSEL
Jace Frank Eden, Florence
Plaintiff/Appellant
Show Low City Attorney’s Office, Show Low
By Franklin M. Brown
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.
EDEN v. SHOW LOW
Decision of the Court
J O N E S, Judge:
¶1 Jace Eden appeals the trial court’s dismissal of his complaint
against the City of Show Low (the City). For the following reasons, we
affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 In September 2013, Eden filed a complaint against the City
seeking an injunction and damages in excess of $10 million. He alleged the
City’s placement of a utility easement across commercial property owned
by Branding Iron Plaza L.L.C. and B.I.S.H. L.L.C. constituted a taking.2 The
City filed a motion to dismiss for failure to state a claim on the basis that
Eden did not serve a notice of claim upon the City in compliance with
Arizona Revised Statutes (A.R.S.) section 12-821.01(A),3 and was therefore
barred from bringing suit against the City. The trial court agreed, and
granted the City’s motion to dismiss.
¶3 Eden timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
1 In reviewing a motion to dismiss for failure to state a claim, we
assume the truth of the well-pleaded facts of the complaint and indulge all
reasonable inferences therefrom. Sw. Non-Profit Hous. Corp. v. Nowak, 234
Ariz. 387, 390-91, ¶ 10, 322 P.3d 204, 207-08 (App. 2014) (citing Cullen v.
Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008)).
2 The complaint also listed Branding Iron Plaza L.L.C., B.I.S.H. L.L.C.,
Addie Bethoon, Walter Bethoon, and Cody Eden as plaintiffs. However,
the notice of appeal is signed only by Jace Eden. As a non-attorney, Eden
cannot bring an appeal on behalf of the other plaintiffs. See Haberkorn v.
Sears, Roebuck & Co., 5 Ariz. App. 397, 399, 427 P.2d 378, 380 (1967) (holding
person not admitted to practice law in Arizona may not represent another
individual); Ramada Inns, Inc. v. Lane & Bird Adver., Inc., 102 Ariz. 127, 128,
426 P.2d 395, 396 (1967) (same for representation of companies). Therefore,
Eden is the only appellant in this appeal.
3 Absent material revisions from the relevant date, we cite a statute’s
current version.
2
EDEN v. SHOW LOW
Decision of the Court
DISCUSSION
¶4 We review the trial court’s grant of a motion for failure to state
a claim de novo. Pivotal Colo. II, L.L.C. v. Ariz. Pub. Safety Pers. Ret. Sys., 234
Ariz. 369, 370, ¶ 4, 322 P.3d 186, 187 (App. 2014) (citing N. Peak Constr.,
L.L.C. v. Architecture Plus, Ltd., 227 Ariz. 165, 167, ¶ 13, 254 P.3d 404, 406
(App. 2011)). We may, however, affirm the dismissal if correct for any
reason. Sw. Non-Profit Hous., 234 Ariz. at 391, ¶ 10, 322 P.3d at 208 (citing
Dube v. Likins, 216 Ariz. 406, 417 n.3, ¶ 36, 167 P.3d 93, 104 n.3 (App. 2007)).
¶5 Prior to considering the merits of the appeal, we first consider
whether Eden has standing to bring the claims. See Fernandez v. Takata Seat
Belts, Inc., 210 Ariz. 138, 140, ¶ 6, 108 P.3d 917, 919 (2005); Strawberry Water
Co. v. Paulsen, 220 Ariz. 401, 405-06, ¶¶ 7-8, 207 P.3d 654, 658-59 (App. 2008).
Generally, only persons with an ownership or valid leasehold interest in the
property at the time of the taking are entitled to compensation. See Boyd v.
Atchison, T. & S. F. Ry. Co., 39 Ariz. 154, 159, 4 P.2d 670, 671 (1931) (“[T]he
right of damages is personal to the owner, and does not pass with a deed.”);
Cardi Am. Corp. v. All Am. House & Apartment Movers, L.L.C., 221 Ariz. 85,
86, ¶ 6, 210 P.3d 1256, 1257 (App. 2009) (“In the absence of a contractual
provision to the contrary, a tenant has a compensable property interest in
the unexpired term of a lease upon condemnation.”) (citations omitted).
Here, however, Eden does not allege within his complaint that he had any
ownership interest in the property at issue until January 2015.4 Instead, he
asserts the property was originally purchased by B.I.S.H. L.L.C. and later
transferred to Branding Iron Plaza L.L.C.
¶6 Because Eden did not have an interest in the property at the
time of the taking in early 2013, he has not established his standing to bring
this action, or any basis at law for an award of damages. His complaint,
therefore, fails to state a claim upon which relief can be granted. We find
no error in the trial court’s dismissal of his complaint.
4 Eden asserts that Branding Iron L.L.C. transferred the property to
him individually, and the limited liability company was subsequently
terminated. This information was not included in the record to the trial
court at the time it entered its decision. See Ness v. W. Sec. Life Ins. Co., 174
Ariz. 497, 500, 851 P.2d 122, 125 (App. 1992) (limiting appellate review to
matters included in record of proceedings in the trial court) (citing GM Dev.
Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990)).
However, even if true, these facts are not sufficient to permit Eden to seek
damages that clearly predate his acquisition of the property.
3
EDEN v. SHOW LOW
Decision of the Court
CONCLUSION
¶7 We affirm the dismissal of Eden’s complaint. As the
prevailing party, the City is awarded its costs upon compliance with
ARCAP 21.
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