Opinion
No. 1 CA-CV 19-0688
11-19-2020
BRADFORD D. LUND, Plaintiff/Appellant, v. BURCH & CRACCHIOLO P.A., et al., Defendants/Appellees.
COUNSEL Horne Slaton, PLLC, Scottsdale By Sandra L. Slaton, Matthew J. Monaco Counsel for Plaintiff/Appellant Burch & Cracchiolo, P.A., Phoenix By Brian F. Murphy, Daryl Manhart, Laura Meyer Counsel for Defendants/Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2016-055128
The Honorable Cynthia J. Bailey, Judge (Retired)
AFFIRMED
COUNSEL Horne Slaton, PLLC, Scottsdale
By Sandra L. Slaton, Matthew J. Monaco
Counsel for Plaintiff/Appellant Burch & Cracchiolo, P.A., Phoenix
By Brian F. Murphy, Daryl Manhart, Laura Meyer
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann joined. WINTHROP, Judge:
¶1 Bradford D. Lund appeals the superior court's judgment in favor of Burch & Cracchiolo, P.A., et al. (collectively, "Defendants") on Lund's claims of abuse of process and invasion of privacy. Lund argues the court erred in partially granting Defendants' motion to dismiss, denying his motion for reconsideration, and granting Defendants' motion for summary judgment on the remainder of his complaint, all based on statute of limitations grounds. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2009, relatives of Lund retained Defendants to file a petition seeking appointment of a guardian and conservator for Lund based on his alleged congenital cognitive incapacity and inability to manage his financial affairs. See Lund v. Donahoe, 227 Ariz. 572, 576, ¶ 2 (App. 2011). The petitioners alleged that other family members—including Lund's father and stepmother—had isolated Lund to convert to their advantage income distributed to him from family trusts. Jeffrey Shumway represented Lund, who (along with the other respondents) opposed the petition. See id.
¶3 In September 2011, Defendants served a subpoena duces tecum on the law firm of Jennings, Strouss & Salmon ("JSS"), which had briefly represented Lund in a previous 2006 guardianship proceeding. The subpoena required the production of all "non-privileged" portions of the legal file in JSS' possession regarding Lund. Shortly thereafter, without first conducting a privilege review of the file's contents, JSS produced its entire file (239 pages of records) to Defendants, based on the mistaken assumption that Defendants represented Lund.
The original JSS file had been turned over to Lund on March 31, 2010, apparently at the telephonic request of Shumway, and the JSS file only contained a copy of the original file.
¶4 Lund's attorney, Shumway, became aware of the mistake and during a brief October 4, 2011 email exchange with Bryan Murphy, an attorney with Burch & Cracchiolo, Shumway notified Defendants that he believed certain portions of the JSS file were attorney-client privileged. Shumway noted he did not have a copy of the file in front of him, but requested that Defendants return materials clearly subject to the attorney-client privilege, and stated he would review the file that week at the JSS office and promptly notify Murphy of any other file materials he considered privileged. No further communications regarding the JSS file occurred between Shumway and Murphy in the next several weeks, and Murphy later asserted he forgot about the email exchange.
¶5 On October 27, 2011, as part of a second supplemental disclosure statement, see Ariz. R. Civ. P. ("Rule") 26.1, Defendants forwarded the documents in the JSS file to all other counsel involved in the 2009 guardianship/conservatorship proceeding.
Murphy sent the materials to Sandra Slaton, who at that time represented Lund's father and stepmother; James Bohm and Raymond Brown, California counsel for Lund; Joel Sannes, counsel for Rachel and Robert Schemitsch and Sabrina Lovejoy; and Joseph Boyle, the guardian ad litem.
One day earlier, Murphy used a document from the JSS file in support of a motion to compel discovery.
¶6 On November 14, 2011, Lund (and the other respondents) moved to disqualify Defendants as the petitioners' counsel for disclosing the contents of the JSS file. Lund asserted that because Defendants had "read, kept, and distributed" privileged materials, the only remedy to rectify the "breach of ethics and rules" would be disqualification.
Murphy maintained that determining whether the documents "are in fact privileged and whether their production is prejudicial" would necessarily require review by the court and that he intended to file the documents under seal for in camera review. This stance and the superior court's subsequent rulings led to extended appellate proceedings before the merits of the disqualification motion were addressed. See Lund v. Meyers ex rel. Cnty. of Maricopa, 230 Ariz. 445 (App. 2012), vacated, 232 Ariz. 309 (2013).
¶7 Defendants possessed both a hard copy of the JSS file and a digital copy stored on their office server. In May 2012, the digital copy of the JSS file was irretrievably lost in a server failure and, according to a declaration attested to by Murphy, the hard copy was never re-scanned into the computer system. On October 11, 2012, Murphy returned to JSS the hard copy file in Defendants' possession. As a result, the record indicates Defendants no longer had any copy of the JSS file after October 11, 2012.
The file included a physical client file and a compact disc containing an electronic copy that apparently had been previously prepared by or at the direction of Defendants.
¶8 On December 29, 2014, the superior court (now-retired Judge Edward W. Bassett) granted the motion to disqualify Defendants from further representation of the petitioners in the 2009 guardianship/conservatorship proceeding. Defendants challenged the disqualification by filing a special action with this court, arguing they had been denied due process by having to defend the motion without having access to the JSS file. On June 4, 2015, this court in its special action order affirmed the superior court's disqualification order. See Burch & Cracchiolo, P.A. v. Myers, 237 Ariz. 369, 380, ¶ 38 (App. 2015). The 2009 guardianship/conservatorship proceeding was finally resolved in July 2016.
The court's minute entry was filed December 30, 2014.
¶9 On December 28, 2016, Lund filed a complaint against Burch & Cracchiolo, Murphy, and others (Defendants). Lund alleged Defendants were liable for abuse of process and invasion of privacy based on their receipt and review of the privileged materials produced in response to the subpoena to JSS.
¶10 In January 2017, Defendants moved to dismiss the complaint. They argued (1) Lund's claims were barred by the two-year statute of limitations and (2) Lund's claim for invasion of privacy was also barred by the doctrine of absolute immunity attending judicial proceedings. Lund responded that the causes of action did not accrue upon Defendants' October 2011 disclosure and use of the assertedly privileged information because he did not at that time have "the requisite knowledge that a wrong had occurred which caused him injury," and instead, the limitations period began to run either when Judge Bassett granted his disqualification motion in December 2014, or when this court affirmed Judge Bassett's ruling on special action in June 2015. After further briefing and oral argument, the superior court took the matter under advisement.
¶11 In a minute entry filed June 21, 2017, the court granted the motion in part after finding claims based on conduct before December 29, 2014—two years preceding the filing of the complaint—were time-barred, but Lund could maintain an action for any tortious conduct occurring after that date:
Taking all of the allegations in the complaint as true, as required on a motion to dismiss, it is possible that . . . [D]efendants' allegedly tortious conduct - invading the privacy of privileged communications and misusing records containing those communications in litigation - was ongoing after the date two years prior to the filing of the complaint. If it was, [Lund] can maintain the action to redress that alleged conduct. He may not, however, seek a remedy for any conduct before that date, which is December 29, 2014.
¶12 Discovery closed in October 2018, and on November 1, 2018, Defendants moved for summary judgment as to any claim they had engaged in tortious misconduct after December 29, 2014. After responsive briefing, the superior court held oral argument on the motion for summary judgment and took the matter under advisement.
¶13 Meanwhile, in May 2019, Lund moved for reconsideration of the court's June 21, 2017 ruling on Defendants' motion to dismiss, arguing that, under Cruz v. City of Tucson, 243 Ariz. 69 (App. 2017), abuse of process could be a continuing tort that would toll the running of the statute of limitations before January 21, 2015, the date Defendants were substituted for as counsel in the 2009 guardianship/conservatorship proceeding.
¶14 Defendants responded, correctly noting that Cruz "never decided whether the continuing tort doctrine can be applied to a claim for abuse of process." Defendants also argued (1) the continuing tort doctrine had no application to Lund's claims for abuse of process and invasion of privacy, (2) continuing damages, as opposed to continuing tortious conduct did not extend accrual of the statute of limitations under the continuing tort doctrine, and (3) Lund could not identify any alleged tortious conduct that occurred after December 2014.
¶15 On August 15, 2019, the superior court struck Lund's reply in support of the motion for reconsideration, see Ariz. R. Civ. P. 7.1(e)(2), and denied Lund's motion for reconsideration premised on the continuing tort doctrine, explaining in part as follows:
Nothing [Lund] presented, including his reference to Cruz is persuasive to the Court that the continuing tort doctrine can be applied to a claim for abuse of process.
Further, [Lund] has not presented any authority that the continuing tort doctrine applies to his claim of invasion of privacy/intrusion claim.
Even if the continuing tort doctrine did apply, [Lund's] motion is devoid of any specific conduct that occurred after December 28, 2014[,] which he contends was part of the ongoing tort he alleges occurred. [Lund] clearly alleges that he suffered ongoing damages, but no ongoing tortious conduct.
¶16 In a separate minute entry issued that same day, the superior court granted Defendants' motion for summary judgment regarding claims they had engaged in tortious conduct after December 29, 2014. The court found no tortious activity related to the JSS file could have occurred, as Defendants did not then have a copy of the JSS file:
There are no facts alleged by [Lund], nor credible evidence from which a jury could conclude that Defendants had a hard copy of the JSS file after December 29, 2014 nor that the file was available in electronic form after the law firm server crash. Speculation about whether the jury would believe Defendants on these issues is not enough to survive a summary judgment motion.
¶17 On September 18, 2019, the superior court entered a final judgment dismissing Lund's claims. See Ariz. R. Civ. P. 54(c). We have jurisdiction over Lund's timely appeal pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) and 12-2101(A)(1).
ANALYSIS
¶18 Lund argues the superior court erred in finding his complaint barred by the statute of limitations. For the following reasons, we find no error.
I. Standard of Review and Applicable Law
¶19 We review de novo the superior court's ruling on a motion to dismiss a complaint under Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-8 (2012); Wilmot v. Wilmot, 203 Ariz. 565, 569, ¶ 10 (2002).
¶20 We also review de novo the court's grant of summary judgment, viewing the facts and all reasonable inferences therefrom in the light most favorable to the party against whom judgment was entered. Felipe v. Theme Tech Corp., 235 Ariz. 520, 528, ¶ 31 (App. 2014) (citation omitted). Summary judgment is appropriate when "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); accord Normandin v. Encanto Adventures, LLC, 246 Ariz. 458, 460, ¶ 9 (2019); Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 316, ¶ 8 (App. 1998). The party moving for summary judgment has the burden of establishing the absence of a genuine dispute of fact. Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 17 (App. 2012). When the moving party makes the necessary showing that no material facts are genuinely in dispute, the adverse party cannot rest on the pleadings but must show by competent evidence the existence of a genuine dispute of material fact requiring a trial. See Ariz. R. Civ. P. 56(e); Schwab v. Ames Constr., 207 Ariz. 56, 60, ¶ 16 (App. 2004); Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, 287, ¶ 16 (App. 2000). A motion for summary judgment should not be denied "simply on the speculation that some slight doubt . . . some scintilla of evidence, or some dispute over irrelevant or immaterial facts might blossom into a real controversy in the midst of trial." Orme Sch. v. Reeves, 166 Ariz. 301, 311 (1990). We will affirm if the superior court's disposition is correct for any reason. Zuck v. State, 159 Ariz. 37, 42 (App. 1988).
II. The Motion to Dismiss and Motion for Reconsideration
¶21 The superior court ruled that Lund's claims based on conduct before December 29, 2014, were barred by the statute of limitations. To determine whether a claim is time-barred, we examine four factors: "(1) when did the plaintiff's cause of action accrue; (2) what is the applicable statute of limitations period; (3) when did the plaintiff file his claim; and (4) was the running of the limitations period suspended or tolled for any reason?" Taylor v. State Farm Mut. Auto. Ins. Co., 182 Ariz. 39, 41 (App. 1994) (citation omitted), vacated in part on other grounds, 185 Ariz. 174 (1996).
¶22 Here, the second factor is undisputed: the two-year statute of limitations for torts applies to Lund's claims. See A.R.S. § 12-542 ("[T]here shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions . . . ."); see also Kenyon v. Hammer, 142 Ariz. 69, 76 n.6 (1984) (recognizing that § 12-542 governs general tort actions); Hatch v. Reliance Ins. Co., 758 F.2d 409, 414-15 (9th Cir. 1985) (applying the two-year statute of limitations under § 12-542 to a claim for abuse of process); Hansen v. Stoll, 130 Ariz. 454, 460 (App. 1981) (applying the two-year statute of limitations under § 12-542 to a claim for invasion of privacy). The third factor is also undisputed: Lund filed his complaint against Defendants on December 28, 2016.
A. Accrual of Lund's Claims
¶23 As for accrual, a cause of action generally accrues, and the statute of limitations period begins to run, when the plaintiff becomes aware of information that would put a reasonable person on notice to investigate whether a claim exists. Walk v. Ring, 202 Ariz. 310, 316, ¶¶ 22-23 (2002); Wyckoff v. Mogollon Health All., 232 Ariz. 588, 591, ¶ 9 (App. 2013). Although a plaintiff need not know all the facts to trigger accrual, he "must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury." Doe v. Roe, 191 Ariz. 313, 323, ¶ 32 (1998) (citations omitted). For a claim to accrue, a plaintiff must have "reason to connect the 'what' to a particular 'who' in such a way that a reasonable person would be on notice to investigate whether the injury might result from fault." Walk, 202 Ariz. at 316, ¶ 22 (citing generally Doe). Also, a plaintiff is not required to know the full extent of an injury before the statutory period begins to run. See Sato v. Van Denburgh, 123 Ariz. 225, 227 (1979).
¶24 When a cause of action accrued is usually a question of fact for the jury, Doe, 191 Ariz. at 323, ¶ 32, but it may be decided as a matter of law if the record shows when the plaintiff "unquestionably w[as] aware of the necessary facts underlying [his] cause of action," Thompson v. Pima Cnty., 226 Ariz. 42, 47, ¶ 14 (App. 2010).
¶25 Here, Defendants presented undisputed evidence showing Lund had sufficient knowledge for the action to accrue at least five years before he sued in December 2016. In late October 2011, Defendants provided the entire JSS file to other counsel in the 2009 guardianship/conservatorship proceeding, and on November 14, 2011, Lund filed his motion to disqualify Defendants as the petitioners' counsel for disclosing the contents of the JSS file, which allegedly contained attorney-client communications. In his motion, Lund argued not only for the sanction of dismissal, but also for attorneys' fees and for other sanctions and relief. Accordingly, by this time, Lund clearly had "a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury," Doe, 191 Ariz. at 323, ¶ 32, and was on notice to further investigate, Walk, 202 Ariz. at 316, ¶ 22. Once Lund knew the essential facts giving rise to the causes of action in his complaint, the causes of action had accrued. See Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588 (1995) (stating a claim accrues when "the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause" (citation omitted)).
B. Effect of the Disqualification Ruling
¶26 Lund states the first time he became aware he had a cause of action against Defendants was when Judge Bassett issued his December 29, 2014 ruling on Lund's motion to disqualify Defendants as counsel in the 2009 guardianship/conservatorship proceeding. Lund maintains he could not have prosecuted his action until that court finding, which, according to Lund, established for the first time that an actionable wrong existed.
¶27 The superior court ruled that Judge Bassett's order (and this court's subsequent special action order affirming Judge Bassett's order) had no impact on the commencement of the statute of limitations. We agree with the superior court. Concluding the statute of limitations was tolled until Judge Bassett ruled on the motion to disqualify would render the statute of limitations an illusory affirmative defense, because under that theory a claim often would never be "discovered" until a trial or a ruling affirming the merits of the claim occurred. Moreover, allowing such tolling in this case would give Lund the unilateral right to "toll" the statute of limitations by his own conduct—had he not filed a motion to disqualify Defendants, the statute of limitations for his claims of abuse of process and invasion of privacy would have accrued immediately, but because he opted to file a motion to disqualify based on the same factual basis as his claims in this case, Lund would grant himself an additional three-plus years before his claims in this matter would have accrued.
¶28 Lund relies on Commercial Union Insurance Co. v. Lewis & Roca, 183 Ariz. 250 (App. 1995), to argue he became aware of the cause of his damages only upon issuance of Judge Bassett's ruling. Commercial Union relied on Amfac Distribution Corp. v. Miller, 138 Ariz. 155, 156 (App. 1983), approved as supplemented, 138 Ariz. 152 (1983), "for the proposition that, in the context of litigation, attorney negligence is not actionable until the case in which the malpractice arose is finally resolved." 183 Ariz. at 255. But Commercial Union also held the Amfac rule does not apply when the injured party knows he had been damaged at the time of the malpractice and remains uncertain only as to the extent of the injury. See id.
¶29 That same reasoning applies here. Lund's argument—that he only suffered recognizable harm after Defendants' disqualification was resolved—improperly conflates the occurrence of harm with the extent of damages. See id. (recognizing that the occurrence of harm and the extent of damages are "two distinct concepts"). Commencement of the limitations period does not wait for all damages to occur; instead, the limitations period commences when the plaintiff incurs "some injury." Id. (citations omitted).
We also find inapposite Lund's reliance on Mayer Unified School District v. Winkleman, 219 Ariz. 562 (2009). The claims in Mayer accrued after a change in the controlling law put the plaintiffs on notice. Id. at 566, ¶ 16. In this case, by contrast, the law remained constant and nothing prevented Lund from prosecuting his claims beginning in 2011.
¶30 In support of his argument that he could not have successfully prosecuted his complaint until the disqualification issue was decided, Lund also cites two Kansas cases, Lindenman v. Umscheid, 875 P.2d 964, 972-74 (Kan. 1994), and Holick v. Burkhart, 2017 WL 67907, at *8 (D. Kan. Jan. 6, 2017), which cited Lindenman.
¶31 But, as the superior court in this case recognized, Lindenman (and by extension Holick) is inconsistent not only with Arizona law but with the prevailing rule in other jurisdictions. In an action for abuse of process, it is not necessary to establish the underlying litigation terminated in the plaintiff's favor. See Giles v. Hill Lewis Marce, 195 Ariz. 358, 361-62, ¶¶ 9, 12 (App. 1999) (discussing the elements of abuse of process and malicious prosecution, and noting that favorable termination of the underlying action is an element of the latter but not the former); see also Cruz, 243 Ariz. at 73, ¶¶ 16-17 (citing numerous cases standing for the proposition that a cause of action for abuse of process accrues from the date the alleged abuse occurs, and need not await termination of an action in the plaintiff's favor); Crackel v. Allstate Ins. Co., 208 Ariz. 252, 257, ¶ 11 (App. 2004) (identifying the elements of an abuse of process claim (quoting Nienstedt v. Wetzel, 133 Ariz. 348, 353 (App. 1982))); Zeman v. Baumkirchner, 1 CA-CV 15-0228, 2016 WL 3176442, at *3, ¶ 11 (Ariz. App. June 7, 2016) (mem. decision) ("Unlike an action for malicious prosecution, where the plaintiff is injured only if the underlying prosecution has terminated in favor of the plaintiff, such a condition is not a prerequisite to actions for abuse of process." (citing J.A. Bock, Annotation, When Statute of Limitations Begins to Run Against Action for Abuse of Process, 1 A.L.R. 3d 953 (2016) (first published 1965))). Thus, the general rule is that a cause of action for abuse of process accrues upon the act that constitutes the abuse, and not upon completion of the action in which the process issued. Accordingly, the accrual of the cause of action for abuse of process was not dependent on the outcome of the disqualification motion.
A citation must indicate if a decision is a memorandum decision. Ariz. R. Sup. Ct. ("Rule") 111(c)(2). Pursuant to Rule 111(c)(1)(C), "[m]emorandum decisions of Arizona state courts are not precedential and such a decision may be cited only: . . . for persuasive value, but only if it was issued on or after January 1, 2015; no opinion adequately addresses the issue before the court; and the citation is not to a depublished opinion or a depublished portion of an opinion." Zeman, which was issued after January 1, 2015, qualifies for citation under the conditions provided in Rule 111(c)(1)(C).
Neither, for that matter, was the accrual of Lund's claim for invasion of privacy dependent on the outcome of the disqualification motion. Lund's cause of action for invasion of privacy accrued when he knew, or in the exercise of reasonable diligence should have known, of the facts giving rise to his claim. Lund knew the facts necessary for his claim for invasion of privacy by late October or November 2011, when he filed his motion to disqualify Defendants based on those same facts.
C. Application of the Continuing Tort Doctrine for Tolling Purposes
¶32 Lund also argues the superior court erred as a matter of law when it failed to apply the continuing tort doctrine to his claims. He contends the continuing tort doctrine tolled the statute of limitations from running until at least Judge Bassett's ruling, and arguably longer, perhaps until January 21, 2015—the date Defendants were substituted for as counsel in the 2009 guardianship/conservatorship proceeding—or June 4, 2015—the date this court issued its special action order affirming the superior court's disqualification order.
¶33 Under the continuing tort doctrine, a tort claim based on a series of related wrongful acts may be considered continuous, and accrual may begin at the termination of the wrongdoing, rather than at the beginning, for statute of limitations purposes. Cruz, 243 Ariz. at 74, ¶ 20. Lund cites several cases, largely from other states, that have applied the doctrine, typically in the context of an alleged continuing trespass, nuisance, long-term exposure to toxic chemicals, or long-term pattern of intentional infliction of emotional distress. See, e.g., Fix v. Union Pac. R.R. Co., 982 F. Supp. 2d 1052, 1056 (D. Ariz. 2013) (continued trespass); Garcia v. Sumrall, 58 Ariz. 526, 533 (1942) (continued trespass); Hoery v. United States, 64 P.3d 214, 222 (Colo. 2003) (continued release of toxic pollution); Rickel v. Komaromi, 73 A.3d 851, 854 (Conn. App. Ct. 2013) (continued trespass and nuisance); Ambling Mgmt. Co. v. Purdy, 640 S.E.2d 620, 625-26 (Ga. Ct. App. 2006) (alleged personal injury from exposure to accumulating black substance); Feltmeier v. Feltmeier, 798 N.E.2d 75, 85-86 (Ill. 2003) (intentional infliction of emotional distress); Coulon v. Witco Corp., 848 So. 2d 135, 136-37 (La. Ct. App. 2003) (continued toxic exposure); Alston v. Hormel Foods Corp., 730 N.W.2d 376, 383-84 (Neb. 2007) (continued exposure to smoke and odor); Barrington ex rel. Barrington v. Sandberg, 991 P.2d 1071, 1074 (Or. Ct. App. 1999) (intentional infliction of emotional distress). These cases do not, however, apply the continuing tort doctrine to claims of abuse of process and invasion of privacy.
¶34 Relying on a federal district court case—Loumiet v. United States, 968 F. Supp. 2d 142, 153-55 (D.D.C. 2013), on reconsideration in part, 65 F. Supp. 3d 19 (D.D.C. 2014)—and Cruz, Lund argues the continuing tort doctrine can be applied to abuse of process claims, and by extension, invasion of privacy claims, made in Arizona.
¶35 In Loumiet, the United States District Court for the District of Columbia applied the continuing tort doctrine to various claims (including abuse of process and invasion of privacy) made by an attorney who alleged he had been subjected to a vindictive and retaliatory administrative proceeding by the Office of the Comptroller of the Currency ("OCC") based on his criticism of the OCC's investigation of a bank. 968 F. Supp. 2d at 145-47, 153-55. The holding in Loumiet, however, seems to overlook what Defendants describe as "the majority rule" that the continuing tort doctrine does not apply to claims for abuse of process or invasion of privacy. See, e.g., Rivell v. Priv. Health Care Sys, Inc., 887 F. Supp. 2d 1277, 1286 (S.D. Ga. 2012) (stating Georgia courts "have not extended the continuing tort doctrine to torts concerning invasion of privacy"); Jones v. Slay, 61 F. Supp. 3d 806, 844 (E.D. Mo. 2014) (concluding "the Missouri continuing tort or continuing wrong doctrine does not apply to an abuse of process claim" (citing Corley v. Jacobs, 820 S.W.2d 668, 672 (Mo. Ct. App. 1991))). In any event, without deciding which rule represents the majority view, we conclude that, at most, Lund has shown authority outside Arizona is split regarding this issue.
Although the Loumiet court did not dismiss the tort claims for violating the statute of limitations, it dismissed some claims, including abuse of process, based on other grounds not at issue here. See 968 F. Supp. 2d at 158.
In Loumiet, the plaintiff alleged the underlying prosecution itself constituted a continuing tort. See 968 F. Supp. 2d at 147, 153-55. In contrast, there is no allegation here that the institution or continuation of the 2009 guardianship/conservatorship proceeding itself constituted a tort such as malicious prosecution or abuse of process.
¶36 Additionally, as we have recognized, although Cruz acknowledged the argument made by the appellant in that case that the continuing tort doctrine might apply to a claim for abuse of process, Cruz never reached the merits of the issue. See supra ¶ 14; see also Cruz, 243 Ariz. at 74, ¶ 20. Further, Lund cites to no Arizona case that applies the continuing tort doctrine to claims for abuse of process and invasion of privacy, and given the facts of this case—much like the court in Cruz—we decline to do so now. Cf. Watkins v. Arpaio, 239 Ariz. 168, 173, ¶ 21 (App. 2016) ("We are unaware of any authority compelling the conclusion that a false-light claim is subject to the 'continuing wrong' doctrine, and we decline Watkins's request to apply it here."); Kimm v. Brannan, 2017 WL 4805114, at *3 (D. Ariz. Oct. 25, 2017) (declining to apply the continuing tort doctrine to claims for defamation and false-light invasion of privacy under Arizona law).
¶37 We reach this decision because, even were we to assume arguendo that the continuing tort doctrine applies to claims of abuse of process and invasion of privacy in Arizona, Lund has failed to allege, much less show, that any alleged wrongful conduct occurred after October 2012, when Defendants no longer had any copy of the JSS file. Although Lund alleged the prospect of Defendants' continued improper use of the JSS file existed even after Defendants no longer had access to the file, the prospect of, or potential for, continued tortious conduct is not the same as actual conduct. Lund's complaint failed to contain any allegations of specific conduct setting forth the elements of a continuous tort. See Feltmeier, 798 N.E.2d at 85 ("A continuing violation or tort is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation." (citations omitted)); cf. Torres v. Hosp. San Cristobal, 831 F. Supp. 2d 540, 544 (D.P.R. 2011) (recognizing that, "under Puerto Rico law, a continuous tort arises from ongoing unlawful conduct, rather than a continuing harmful effect" (citation omitted)). Thus, any continuing effects would go to additional damages, not to tolling of the cause of action.
Before oral argument, Lund filed a notice of supplemental citation, submitting an unreported federal district court memorandum opinion and order, Ali v. Raleigh County, Civil Action No. 5:17-CV-03386, 2018 WL 1582722, at *11 (S.D.W. Va. Mar. 29, 2018), in support of the proposition that an abuse of process claim continues until the wrongful conduct is terminated. Ali is distinguishable. In Ali, the district court, reviewing the grant of a motion to dismiss, noted the plaintiff had alleged the defendants not only committed an abuse of process when they wrongfully arrested him, but continued to abuse the process "as they conspired to coordinate their testimonies and failed to disclose exculpatory evidence," and that this alleged abuse continued until the plaintiff's acquittal. Id. Here, Lund has not alleged, much less shown, similar continuing conduct.
III. The Motion for Summary Judgment
¶38 Lund argues the superior court erred as a matter of law by granting Defendants' summary judgment motion. His argument is premised on his previous arguments—that the court misapplied the statute of limitations and erred when it declined to apply the continuing tort doctrine to his claims.
¶39 As we have concluded, however, the superior court correctly granted Defendants' motion for summary judgment because, even if we were to assume arguendo that the continuing tort doctrine might be applied to Lund's claims for abuse of process or invasion of privacy, we agree with the superior court that Lund "has not disclosed any competent evidence establishing that he has a claim for abuse of process or for invasion of privacy based on any acts that occurred after December 29, 2014." Nothing in the record indicates that, within the applicable statutory period, Defendants used any attorney-client privileged materials to exercise any tactical advantage they may have gained. Accordingly, Lund has not presented a genuine issue of material fact to survive a summary judgment motion.
Defendants also argue Lund's claim for invasion of privacy is barred by the absolute immunity from civil liability granted to attorneys in judicial proceedings. Because we affirm on other grounds, we need not decide this issue. --------
CONCLUSION
¶40 The superior court's judgment is affirmed. We award Defendants their taxable costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.