Opinion
1 CA-CV 12-0145
04-16-2013
GREGORY BEST, Plaintiff/Appellant, v. STATE OF ARIZONA ex rel. THOMAS HORNE, Attorney General, as successor to TERRY GODDARD, former Attorney General; ROBERT ZUMOFF and MARY ZUMOFF, husband and wife; DIANE DAVENPORT and JERRY DAVENPORT, wife and husband; ROBERTO RIVERA and JANE DOE RIVERA, husband and wife; CITY OF PHOENIX; JOY MEE and WILLIAM R. MEE, JR., wife and husband; SUSAN ARREOLA, formerly known as SUSAN SARGENT, and JOHN DOE ARREOLA, wife and husband; and MICHAEL JOHNSON and JANE DOE JOHNSON, husband and wife, Defendants/Appellees.
Mathew & Associates By Ivan K. Mathew Attorneys for Appellant Thomas C. Horne, Attorney General By Mark P. Bookholder, Assistant Attorney General 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Not for Publication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. CV2011-009088
The Honorable Maria Del Mar Verdin, Judge
AFFIRMED
Mathew & Associates
By Ivan K. Mathew
Phoenix Attorneys for Appellant Thomas C. Horne, Attorney General
By Mark P. Bookholder, Assistant Attorney General
Phoenix
And Berke Law Firm, PLLC
By Lori V. Berke
Jody C. Corbett
Attorneys for Defendants/Appellees
Phoenix
THOMPSON, Judge
¶1 Gregory Best appeals the trial court's dismissal of his wrongful institution of civil proceedings case against the State of Arizona and the City of Phoenix and their employees (collectively, here, governmental actors). For the reasons set forth below, we affirm.
"Wrongful institution of civil proceedings" is the correct legal term where the underlying matter was a civil action. Smith v. Lucia, 173 Ariz. 290, 291 n.1, 842 P.2d 1303, 1304 (App. 1992). Although occasionally used interchangeably, the term "malicious prosecution" is technically correct where the underlying action was a criminal one. See, e.g., Frey v. Stoneman, 150 Ariz. 106, 722 P.2d 274 (1986).
FACTUAL AND PROCEDURAL BACKGROUND
We take judicial notice of procedural facts as "reflected in the record of another superior court action." State v. Lynch, 115 Ariz. 19, 22, 562 P.2d 1386, 1389 (App. 1977).
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¶2 In 2003 and 2004, Best entered into purchase option contracts with many South Phoenix property owners. In 2006, the state filed a civil action asserting Best engaged in consumer fraud and racketeering. See State v. Best, No. CV2006-016293. On June 18, 2010, a stipulated judgment was entered pursuant to a compromise between the parties. The stipulated judgment in CV2006-016293 specifically stated that it was a voluntary compromise, with neither party admitting fault, and leaving each to bear their own costs and fees. As part of the stipulated judgment the trial court terminated Best's contract rights to seven of the disputed option purchase contracts while leaving Best the ability to proceed against the balance of seven option contracts. ¶3 Following the judgment in CV2006-016293, Best brought the instant wrongful institution of civil proceedings matter, CV2011-009088, alleging that the governmental actors acted in concert to make intentional, malicious and false allegations in various forms including in documents and sworn statements to his detriment. Best alleged that the government's civil suit against him had terminated in his favor and was dismissed with prejudice on June 18, 2010. The trial court granted defendants' joint motion to dismiss pursuant to Arizona Rule of Civil Procedure 12(b)(6) on the grounds Best was not the prevailing party in the state's suit against him. Judgment was entered. Best's motion for reconsideration was denied and this appeal followed.
DISCUSSION
¶4 We review de novo whether the erred in granting the motion to dismiss pursuant to Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). In our review, we accept the complaint's allegations as true and resolve all inferences in appellant's favor. Wallace v. Casa Grande Union High Sch. Dist. No. 82, 184 Ariz. 419, 424, 909 P.2d 486, 491 (App. 1995). We review questions of law de novo. Phoenix Newspapers, Inc. v. Dep't of Corrections, 188 Ariz. 237, 244, 934 P.2d 801, 808 (App. 1997). We will uphold a dismissal when it is certain that an appellant could not prove any set of facts entitling him or her to relief. See Wallace, 184 Ariz. at 424, 909 P.2d at 491. ¶5 To sustain his wrongful institution of civil proceedings case, Best was required to establish that the governmental actors "(1) instituted a civil action which was (2) motivated by malice, (3) begun [or maintained] without probable cause, (4) terminated in plaintiff's favor and (5) damaged plaintiff." See Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 416-17, 758 P.2d 1313, 1318-19 (1988) (citing Carroll v. Kalar, 112 Ariz. 595, 596, 545 P.2d 411, 412 (1976)). The governmental actors' joint motion to dismiss focused on the favorable termination element. ¶6 A verdict on the merits for the defendant is always a favorable termination. Frey, 150 Ariz. at 110, 722 P.2d at 278; Restatement (Second) of Torts § 674 cmt. j (1977). However, here we have no trial-only a voluntary dismissal based on compromise and settlement. While a plaintiff's dismissal of the underlying civil action may, under some circumstances, be considered a termination in defendant's favor, not all voluntary dismissals constitute favorable termination. See Lane v. Terry H. Pillinger, P.C., 189 Ariz. 152, 154, 939 P.2d 430, 432 (App. 1997)(citing Frey, 150 Ariz. at 110, 722 P.2d at 278; Restatement § 674 cmt. j. "When a termination or dismissal indicates in some fashion that the accused is innocent of wrongdoing, it is a favorable termination. However, if it is merely a procedural or technical dismissal it is not favorable." Frey, 150 Ariz. at 110, 722 P.2d at 278; see also W. Prosser & W. Keeton, Law of Torts § 119 at 874 (termination to be favorable must reflect on merits and not be merely a procedural victory; Lane, 189 Ariz. at 154-56, 939 P.2d at 433-35 (absent sufficient evidence that a jury might have believed plaintiffs on the favorable termination issue, the issue is for the court and there must be evidence that the original plaintiff dismissed his claim as meritless rather than for procedural reasons). ¶7 "The ultimate legal decision with respect to what constitutes a favorable termination rests with the judge." Frey, 150 Ariz. at 111, 722 P.2d at 279. Only "when the circumstances surrounding the termination of the prior proceedings are ambiguous" is the assistance of a jury necessary. Id. Here, the trial court stated "[t]here are no factual ambiguities in the Stipulated Judgment in the prior lawsuit at issue. The Court can determine as a matter of law whether one party prevailed. Neither Party prevailed in the prior lawsuit." We agree that the stipulated judgment was procedural and not a determination on the merits. We further find this determination was appropriately a matter of law for the trial court and, therefore, find no error in the trial court's dismissal of Best's complaint.
CONCLUSION
¶8 The trial court is affirmed.
__________________
JON W. THOMPSON, Judge
CONCURRING: ________________________
JOHN C. GEMMILL, Presiding Judge
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DONN KESSLER, Judge