Opinion
No. 1 CA-CV 17-0283
07-12-2018
JOSIAH ADAM ENGLISH, III, Plaintiff/Appellant, v. ALESHIA FESSEL, et al., Defendants/Appellees.
APPEARANCES Josiah Adam English, III, Phoenix Plaintiff/Appellant Broening Oberg Woods & Wilson, PC, Phoenix By Brian Holohan 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CV2015-091324
The Honorable Robert H. Oberbillig, Judge, Retired
AFFIRMED
APPEARANCES
Josiah Adam English, III, Phoenix
Plaintiff/Appellant
Broening Oberg Woods & Wilson, PC, Phoenix
By Brian Holohan
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
PERKINS, Judge:
¶1 Appellant Josiah English III challenges the trial court's dismissal of his complaint against Appellees Aleshia Fessel, Sarah Youngblood, Elizabeth Clements, and Community Legal Services ("CLS") alleging that they defamed him during his dissolution case. We conclude the alleged statements fall within the absolute litigation privilege and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 This case arises out of a dissolution action between English and his former wife, Blanca Gutierrez Calzoncit, which involved their two minor children. Fessel and Youngblood, of CLS, represented Calzoncit in the dissolution case and Clements assisted Calzoncit as a certified legal document preparer. In his complaint, English alleges Fessel elicited false testimony from Calzoncit by asking whether English had been convicted of custodial interference, and that Youngblood helped plan this false testimony. In addition, English alleges that Clements prepared a prehearing memorandum for Calzoncit that likewise falsely stated that English had been charged and convicted of custodial interference. English argues that because he was never charged or convicted of this offense, Appellees are liable for slander and libel.
¶3 Appellees moved to dismiss the complaint, arguing the complaint fails to state a claim upon which relief could be granted because the statements were absolutely privileged. The trial court dismissed the claims against Appellees on that basis. The court also awarded Appellees their filing fees as taxable costs pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-332 and 12-341 (2018).
¶4 Calzoncit died in January 2017, after which the court entered final judgment on all claims pursuant to Arizona Rule of Civil Procedure 54(c). English timely appealed the judgment, and on appeal argues that the
statements are not protected by privilege and filing fees are not taxable costs.
DISCUSSION
I. The Trial Court Properly Dismissed English's Claims Against Appellees.
¶5 We review the dismissal of a complaint under Rule 12(b)(6) de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We accept all well-pled facts as true and give English the benefit of all reasonable inferences arising therefrom. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008).
¶6 English contends the trial court erred in dismissing his complaint because Appellees abused the absolute litigation privilege by defaming him "maliciously and with reckless disregard for the truth."
¶7 A participant in judicial proceedings has an absolute privilege to defame "during the course and as a part of" the judicial proceeding. Green Acres Trust v. London, 141 Ariz. 609, 613 (1984) (quoting Restatement (Second) of Torts § 586 (1977)). This privilege extends to parties, witnesses, and attorneys, and is absolute, meaning "the speaker's motive, purpose or reasonableness in uttering a false statement do not affect the [privilege]." Id. at 613. The privilege only applies to a statement which has "some reference to the subject matter of the . . . litigation," although it need not be "strictly relevant." Id. (quoting Restatement (Second) of Torts § 586, cmt. c).
¶8 The relevant statements were published during the dissolution proceedings and regarded an accusation that English had committed custodial interference. The absolute privilege therefore applies.
¶9 English cites to Green Acres Trust for the proposition that the privilege does not extend to statements that are not made "in furtherance of the litigation and to promote the interest of justice." Green Acres Trust, 141 Ariz. at 613-14 (quoting Bradley v. Hartford Acc. & Indem. Co., 30 Cal. App. 3d 818, 826 (1973), overruled by Silberg v. Anderson, 50 Cal. 3d 205 (1990)). Green Acres Trust and the California case it quoted for this proposition dealt with statements that were made outside the litigation proceedings, but which related to the proceedings. Under those circumstances, the courts ruled that something more than mere relation to the proceedings was required for a privilege to apply. In this case, because the statements were made in the course of the proceedings, it is enough that
they related to the dissolution. For these reasons, the trial court did not err by dismissing English's claims against Appellees.
II. The Trial Court Did Not Err in Awarding Taxable Costs to Appellees.
¶10 Litigation expenses cannot be recovered as costs unless authorized by statute. Reyes v. Frank's Serv. & Trucking, LLC, 235 Ariz. 605, 608, ¶ 6 (App. 2014). Taxable costs are identified in A.R.S. § 12-332(A). We review whether certain expenses are taxable costs de novo. Foster ex rel. Foster v. Weir, 212 Ariz. 193, 195, ¶ 5 (App. 2006).
¶11 English contends Appellees' filing fees are not taxable costs, arguing that § 12-332(A) does not include filing fees in its enumeration of taxable costs. However, "[f]ees of officers" are taxable costs under § 12-332(A), and filing fees go to the clerk of the superior court, who is an officer of the court. A.R.S. § 12-284 (clerk of the superior court receives filing fees); § 12-284.02(C) (electronic filings are subject to the fee schedule of § 12-284). Because filing fees are fees of a judicial officer, the trial court did not err in awarding filing fees as taxable costs to Appellees.
CONCLUSION
¶12 For the foregoing reasons, we affirm the judgment in favor of Appellees. Appellees may recover their taxable costs incurred in this appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.