Opinion
No. 1 CA-CV 12-0461
06-04-2013
GREGORY BEST, Plaintiff/Appellant, v. MICHAEL JOHNSON, JOY MEE, SUSAN SARGENT (now known as SUSAN ARREOLA), GEORGE YOUNG, and PAULINE TAFOYA, Defendants/Appellees.
Gregory Best Plaintiff/Appellant in propria persona Berke Law Firm, PLLC by Lori V. Berke Jody C. Corbett Attorneys for Defendants/Appellees
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2009-003435
The Honorable J. Richard Gama, Judge
AFFIRMED
Gregory Best
Plaintiff/Appellant in propria persona
Phoenix Berke Law Firm, PLLC
by Lori V. Berke
Jody C. Corbett
Attorneys for Defendants/Appellees
Phoenix SWANN, Judge ¶1 Gregory Best appeals from the superior court's grant of summary judgment in favor of several employees of the City of Phoenix on limitations grounds. We conclude that summary judgment was warranted because Best's claims were barred by the limitations periods prescribed by A.R.S. §§ 12-821 and 12-821.01(A). We therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2On April 11, 2007, Best filed a notice of claim with the City of Phoenix. The notice of claim described tort claims against various public agencies and employees, all of which related to a purported fraud scheme to interfere with a land development plan that Best had proposed. Among the public employees identified in the notice of claim were Johnson (a City councilman), Mee and Sargent (former employees of the City's planning department), and Young (a former appointee to the Rio Salado Citizens Advisory Committee). The notice of claim also generally identified "the associates" of the Rio Salado Citizens Advisory Committee, a group including not only Young but also former committee appointee Tafoya. ¶3 In April 2008, Best filed an action in the superior court against the State and the City, alleging that they were vicariously liable for the tortious conduct of their employees, including Johnson, Mee, Sargent, and Young, in connection with Best's development plan. The State and the City moved to dismiss the complaint under the one-year limitations period prescribed by A.R.S. § 12-821. The superior court granted the motion to dismiss, Best appealed, and we affirmed in 1 CA-CV 08- 0827, holding that Best's claims were untimely because he filed his complaint more than one year after they accrued. Best v. State, 1 CA-CV 08-0827, 2009 WL 3526586, at *2-3, ¶ 8 (Ariz. App. Oct. 29, 2009) (mem. decision). The supreme court denied Best's petition for review. ¶4 While Best's action against the State and the City was still pending, he filed two additional notices of claim -- one in June 2008 and the other in August 2008. In the June 2008 notice of claim, Best asserted that in January 2008 he had received "undeniable proof" that Mee, Sargent, Young, and others were involved in "a covert and clear scheme to defraud, tortuously [sic] interfere, intentionally misle[a]d, deceive, defame and Libel and Slander" him in connection with his development plan. In the August 2008 notice of claim, Best indicated that in February 2008 he had uncovered evidence showing that Johnson and Tafoya were part of the fraud scheme. ¶5 Best then filed an action in the superior court against the City employees, several State employees, and several private parties, again alleging numerous tort claims related to his development plan. With respect to the private parties, the superior court entered a Rule 54(b) order of dismissal for failure to state a claim. We affirmed the dismissal in 1 CA-CV 10-0700, and the supreme court denied Best's petition for review. Best v. Mosely, 1 CA-CV 10-0700, 2011 WL 4857770, at *6, ¶ 27 (Ariz. App. Oct. 13, 2011) (mem. decision). With respect to the State employees, the superior court entered a Rule 54(b) summary judgment pursuant to A.R.S. §§ 12-821 and 12-821.01(A). We affirmed the summary judgment in 1 CA-CV 10-0465, and the supreme court denied Best's petition for review. Best v. Zumoff, 1 CA-CV 10-0465, 2011 WL 2693501, *4, ¶ 14 (Ariz. App. July 12, 2011) (mem. decision). ¶6 Like the State employees, the City employees moved for summary judgment under A.R.S. §§ 12-821 and 12-821.01(A), and also under the doctrine of res judicata. The court granted their motion in a final, appealable order. Best timely appeals. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
DISCUSSION
¶7 We review the grant of summary judgment de novo, viewing the facts in the light most favorable to Best. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). Summary judgment is appropriate when "the moving party shows that 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 Best contends that the claims against the City employees contained in the June and August 2008 notices of claim and the February 2009 complaint were timely under A.R.S. §§ 12-821 and 12-821.01(A) because they were distinct from the claims he asserted in the April 2007 notice of claim and the April 2008 action against the State and the City. We disagree. ¶9 A.R.S. §§ 12-821 and 12-821.01(A) provide that a person with a claim against a public entity or public employee must file a notice of claim within 180 days after the cause of action accrues, and must file a lawsuit within one year after the cause of action accrues. "[A] cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage." A.R.S. § 12-821.01(B). ¶10 The claims that Best made in the April 2008 complaint accrued in February 2007. Best v. State, 1 CA-CV 08-0827, at *2, ¶ 8; ARCAP 28(c) (memorandum decisions may be cited to establish res judicata, collateral estoppel, or law of the case). Best contends that his later claims were distinct from the claims in the April 2008 complaint because they were based on e-mails and a police report that were concealed from him until 2008. ¶11 We reject this contention. As we previously held in 1 CA-CV 10-0465, the e-mails and the police report attached to the August 2008 notice of claim relate directly to the claims made in the April 2008 complaint. Best v. Zumoff, 1 CA-CV 10-0465, *1-3, ¶¶ 4, 8-13; ARCAP 28(c). And the same is true of the e-mails attached to the June 2008 notice of claim. Those e-mails show a 2004 discussion between Young and Sargent related to the disputed land development decisions. The April 2008 complaint specifically alleged that Young and Sargent were part of the purported fraud scheme. ¶12 It is apparent that even if the e-mails and the police report were concealed from Best, he had sufficient knowledge in February 2007 to make the claims he advanced in the June and August 2008 notices of claim and the February 2009 complaint. "A plaintiff need not know all the facts underlying a cause of action to trigger accrual." Doe v. Roe, 191 Ariz. 313, 323, ¶ 32, 955 P.2d 951, 961 (1998). Instead, "the plaintiff must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury." Id. Cf. Walk v. Ring, 202 Ariz. 310, 319, ¶¶ 34-35, 44 P.3d 990, 999 (2002) (fraudulent concealment that obscures the cause of action will toll the limitations period until the concealment is discovered or reasonably should have been discovered). The allegations in the April 2007 notice of claim and April 2008 complaint plainly show that Best knew of the City employees' involvement in the alleged fraud scheme at the time his claims against the State and the City accrued in February 2007, and at that time could have asserted his claims against the employees. The mere discovery of new evidence relating to an old claim does not create a new claim. ¶13 Best next contends that his later claims were distinct because they arose from the City employees' conduct outside of the scope of their employment with the City. In support of their summary judgment motion, the City employees filed declarations consistent with Ariz. R. Civ. P. 80(i). Each employee's declaration described his or her employment with the City, and asserted that: (1) "[a]t all times relevant to the allegations" in both the April 2008 action and the February 2009 action the employee "acted solely within the course and scope of [his or her] employment"; (2) the employee did not have "any interactions with Gregory Best that were outside the authorized time and space limit of [his or her] employment"; and (3) all of the employee's decisions, actions and dealings with or concerning Best were "the kinds of decisions, actions and dealings [he or she] was employed by the City of Phoenix to perform" and were performed for the purpose of serving the City. ¶14 Best contends that these declarations could not support the City employees' motion for summary judgment because they were conclusory. We disagree. Consistent with Ariz. R. Civ. P. 56(e), the City employees' declarations were based on their personal knowledge of their interactions with Best. Their averments were sufficiently specific to meet the general allegation in Best's complaint that "Plaintiff believes the Defendant's actions alleged herein were conducted outside the scope of their employ" (an allegation that appears largely inconsistent with the June and August 2008 notices of claim, in which Best alleged that Young, Sargent, and Mee "misused their positions" and that Johnson "abused his position" and recruited Tafoya to aid his tortious conduct). The burden rested upon Best to produce evidence in support of his claims. Yet Best set forth no evidence to controvert the City employees' characterization of their actions as being within the scope of their employment. The court's consideration of the declarations was proper. See State Auto. & Cas. Underwriters v. Engler, 90 Ariz. 321, 324, 367 P.2d 665, 667 (1961) ("In the absence of the controverting affidavits by the defendant, . . . the factual recitations which were clearly within the language of Rule 56(e) were such that each of the two affiants were justified in stating the ultimate facts . . . ."). ¶15 Further, we reject Best's argument that the City employees could not have acted within the scope of their employment because their alleged wrongdoing included "stealing contracts" related to his development plan, which could not have been a duty they were hired to perform. "An employee's improper actions, even those serving personal desires, will be deemed motivated to serve the employer if those actions are incidental to the employee's legitimate work activity." Dube v. Desai, 218 Ariz. 362, 365, ¶ 11, 186 P.3d 587, 590 (App. 2008). ¶16 Best's claims against the City employees accrued at the same time that his claims against the State and the City accrued: February 2007. His June and August 2008 notices of claim and his February 2009 complaint were therefore untimely under A.R.S. §§ 12-821 and 12-821.01(A), and the City employees were entitled to summary judgment on this ground. We need not reach the issue of whether res judicata provides a separate ground for summary judgment.
We reject Best's contention that Tafoya was not a City employee. Uncompensated advisory board appointees are considered public employees for purposes of claims involving public entities. A.R.S. § 12-820(1). And though Best argues on appeal that Tafoya acted wrongfully with respect to a contract she entered into with him, the February 2009 complaint contains no mention of the personal contract.
CONCLUSION
¶17 The City employees were entitled to summary judgment because Best's claims against them were not timely asserted. We therefore affirm.
____________________
PETER B. SWANN, Presiding Judge
CONCURRING: ____________________
DIANE M. JOHNSEN, Judge
____________________
RANDALL M. HOWE, Judge