Opinion
No. 1 CA-CV 17-0240
05-24-2018
DAVIDA DYER, Plaintiff/Appellant, v. CITY OF YUMA, a political subdivision of the State of Arizona, Defendant/Appellee.
COUNSEL Yen Pilch & Landeen P.C., Phoenix By Neil Landeen, Michael Pang Counsel for Plaintiff/Appellant Jones, Skelton & Hochuli PLC, Phoenix By Michele Molinario, Jonathan Paul Barnes, Jr. Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yuma County
No. S1400CV201400455
The Honorable Lawrence C. Kenworthy, Judge
AFFIRMED
COUNSEL Yen Pilch & Landeen P.C., Phoenix
By Neil Landeen, Michael Pang
Counsel for Plaintiff/Appellant Jones, Skelton & Hochuli PLC, Phoenix
By Michele Molinario, Jonathan Paul Barnes, Jr.
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge James P. Beene joined. THOMPSON, Judge:
¶1 Appellant Davida Dyer appeals from an order (1) finding the mandate in her previous appeal, Dyer v. City of Yuma, Case No. 1 CA-CV 15-0221, 2016 WL 2658135 (May 10, 2016), was fully satisfied and (2) entering final judgment in favor of Appellee City of Yuma. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We recite the facts relevant to this appeal below. Additional background may be found in our first decision in this case, Dyer, 2016 WL 2658135 (May 10, 2016).
¶3 Dyer worked as a police officer with the City of Yuma Police Department. In July 2013, Dyer indicated in a supplemental report that she could positively identify a suspect but later recanted and confirmed she could not positively identify the suspect. Dyer was placed on administrative leave and then terminated for violation of department policies related to truthfulness, falsification of records and unbecoming conduct.
¶4 Dyer appealed her termination to the City's Merit System Board, which rejected her termination. After reviewing the Merit Board's decision, the City Administrator, on behalf of the City, upheld Dyer's termination, explaining that he rejected the Board's decision because (1) the Yuma County Attorneys' Office found the statements made by Dyer not credible and added her to the Brady List and (2) polygraph testing did not clear her.
¶5 Dyer sued the City arguing that it failed to comply with Arizona Revised Statutes (A.R.S.) section 38-1101(K), which states:
This statute has been subsequently modified and renumbered, without material change, and is currently codified as A.R.S. § 38-1106(H) (2015).
Except where a statute or ordinance makes the administrative evidentiary hearing the final administrative determination, an employer or a person acting on behalf of an employer may amend, modify, reject or reverse a decision made by a hearing officer, administrative law judge or appeals board after a hearing where the law enforcement officer or probation officer and the employer have been equally allowed to call and examine witnesses, cross-examine witnesses, provide documentary evidence and otherwise fully participate in the hearing if the decision was arbitrary or without reasonable justification and the employer or person acting on behalf of the employer states the reason for the amendment, modification, rejection or reversal.The trial court rejected Dyer's argument that the City failed to comply with A.R.S. § 38-1101(K) and dismissed Dyer's complaint.
¶6 In Dyer, relying on Berndt v. Arizona Dept. of Corrections, 238 Ariz. 524, 528, ¶ 15 (App. 2015), we reiterated that under A.R.S. § 38-1101(K), the City could only reject the Merit Board's decision if it: (1) found that the Board's action was arbitrary and capricious and (2) provided reasons for the rejection. Dyer, 2016 WL 2658135 at ¶13. We determined that the City failed to make a determination that the Merit Board's decision was arbitrary or without justification and therefore did not comply with § 38-1101(K). Id. at ¶15. Thus, we vacated the trial court's dismissal of the complaint and directed the court to remand the matter "to the City for further action consistent with this decision and in compliance with § 38-1101(K)." Id. at ¶21. We also awarded Dyer her reasonable attorneys' fees and costs on appeal. Id.
¶7 Several months after our Dyer decision, Dyer filed an application for order to show cause requesting the trial court to "order the City to appear and show cause as to why it should not be ordered to comply with the mandate from the Court of Appeals and immediately reinstate Dyer" and also determine the amount of retroactive compensation that is due and owing. The City opposed Dyer's application and moved for an order finding the Dyer mandate is fully satisfied. Along with its motion, the City submitted a revised decision from the City Administrator that determined the Merit Board's decision was arbitrary and lacked reasonable justification, along with the reasons for rejecting the Merit Board's recommendation of reinstatement.
¶8 The trial court denied Dyer's application and granted the City's motion, finding the Dyer mandate is fully satisfied. Dyer timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
DISCUSSION
¶9 We review the trial court's interpretation of regulations and statutes, and its application of the law to the facts, de novo. Sedona Grand, L.L.C. v. City of Sedona, 229 Ariz. 37, 40, ¶ 8 (App. 2012).
¶10 Dyer argues that in Dyer, we found that the Merit Board's decision was not arbitrary or without reasonable justification and, therefore, the City could not reject the Merit Board's decision and must reinstate Dyer. We disagree. In Dyer, the sole dispositive issue was whether the City could terminate Dyer's employment without complying with § 38-1101(K). Dyer, 2016 WL2658135 at ¶1. We determined that the requirements of A.R.S. § 38-1101(K) were not met and therefore we vacated the trial court's order dismissing Dyer's complaint. Dyer, 2016 WL2658135 at ¶ 21. Specifically, we stated that "[a]lthough the City provided reasons for its rejection of the Merit Board's decision, it did not make any finding that the Merit Board's decision was arbitrary or without reasonable justification." Id. at ¶14. Additionally, we determined that "the City made no findings as to whether the Merit Board acted arbitrarily or without reasonable justification when the Merit Board rejected Dyer's termination..." Id. at ¶15.
Dyer's argument in the trial court that the City must uphold the Merit Board's decision was based solely on her interpretation of Dyer. We find any argument beyond the interpretation of Dyer waived. Regal Homes, Inc. v. CNA Ins., 217 Ariz. 159, 171, ¶ 52 (App. 2007), citing J.H. Mulrein Plumbing Supply Co. v. Walsh, 26 Ariz. 152, 161 (1924) (citation omitted); see also Allstate Indem. Co. v. Ridgely, 214 Ariz. 440, 442, ¶ 7 (App. 2007) (stating that argument not raised below will not be considered on appeal).
¶11 In Dyer, we discussed the definition of arbitrary, as defined in Maricopa Cty. Sheriff's Office v. Maricopa Cty. Emp. Merit Sys. Comm'n, 211 Ariz. 219, 222, ¶ 14 (2005). We did not decide the arbitrariness or reasonableness regarding the Merit Board's decision. Dyer, 2016 WL2658135 at ¶15. Nor could we. As explained in Dyer, the City, not the court, first determines whether the Merit Board's acted arbitrarily or without reasonable justification. Dyer, 2016 WL 2658135 at ¶16.
Dyer argues that because we stated that the Legislature has directed the employer, not this court, to make the arbitrariness and reasonableness determination "in the first instance" (Dyer, 2016 WL 2658135 at ¶ 16), the City could not revise its decision after the date of its original decision to comport with A.R.S. § 38-1101(K). We disagree with Dyer's interpretation. By the plain meaning of A.R.S. § 38-1101(K), the City, not the court, is tasked with making the initial determination of arbitrariness of the Merit Board's decision.
¶12 We also disagree with Dyer's argument that in order to comply with Dyer, "the Yuma County Superior Court must have ordered the City to adopt the Merit Board's decision and reinstate Dyer." We vacated the trial court's dismissal of Dyer's complaint and instructed the matter be remanded for action consistent with Dyer and § 38-1101(K). Dyer, 2016 WL 2658135 at ¶21. We did not order that the trial court adopt the Merit Board's decision or reinstate Dyer. We did not voice approval of the Merit Board's decision or require that the City follow it.
¶13 Finally, Dyer argues that she should receive back pay and benefits from the date of her initial termination until the revised report that overruled the Merit Board and upheld her termination. After examining the record, we conclude that Dyer waived any claim for backpay during this time period because it was not raised prior to her appeal. We will not consider any argument on appeal that was not raised in the trial court. Regal Homes, Inc., 217 Ariz. 159, 171.
Dyer argues that she could not have made the argument until the trial court entered its final order. We disagree. Dyer could have made the argument in her application for order to show case, her response to the City's motion for order finding that the court of appeals mandate is fully satisfied, or at the oral argument on the matter. Dyer failed to provide a transcript of the hearing. She failed to do any of these things. Thus, she waived the argument.
ATTORNEYS' FEES
¶14 Dyer requests an award of her attorneys' fees and costs pursuant to A.R.S. §§ 12-341, -341.01, -348, -2030 and 38-1104(G). The City requests its attorneys' fees under A.R.S. § 38-1104(G). In our discretion, we decline to award fees to either party. We award costs to the City upon compliance with ARCAP 21.
Section 38-1104(G) has been subsequently modified and renumbered, without material change, and is currently codified as A.R.S. § 38-1107(E) (2015). --------
CONCLUSION
¶15 For the foregoing reasons, we affirm.