Opinion
1 CA-CV 10-0562 1 CA-CV 10-0706
11-22-2011
MARY F. D'AMBROSIO, Plaintiff-Appellant, v. MARICOPA COUNTY; MARICOPA COUNTY SUPERIOR COURT JUDGE JOHN REA; ZWILLINGER & GREEK, an Arizona professional corporation, Defendants-Appellees. MARY F. D'AMBROSIO, Plaintiff-Appellant, v. MARICOPA COUNTY; ZWILLINGER & GREEK, Defendant-Appellees.
Mary F. D'Ambrosio Pro Se Plaintiff/Appellant Phoenix Maricopa County Office of General Litigation Services Phoenix By Scott H. Zwillinger Sara Witthoft Attorneys for Defendant/Appellee Maricopa County Terry Goddard, Attorney General By Daniel P. Schaack, Assistant Attorney General Attorneys for Defendant/Appellee Judge Rea Phoenix Zwillinger Greek Zwillinger & Knecht P.C. By Scott H. Zwillinger Sara Witthoft Attorneys for Defendant/Appellee Zwillinger Phoenix
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
(Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2010-004815
The Honorable Robert Carter Olson, Judge
AFFIRMED
Mary F. D'Ambrosio
Pro Se Plaintiff/Appellant
Phoenix
Maricopa County Office of General
Litigation Services
Phoenix
By Scott H. Zwillinger
Sara Witthoft
Attorneys for Defendant/Appellee
Maricopa County
Terry Goddard, Attorney General
By Daniel P. Schaack, Assistant Attorney General
Attorneys for Defendant/Appellee Judge Rea
Phoenix
Zwillinger Greek Zwillinger & Knecht P.C.
By Scott H. Zwillinger
Sara Witthoft
Attorneys for Defendant/Appellee Zwillinger
Phoenix HALL, Judge
¶1 Mary D'Ambrosio appeals from the superior court's dismissal of her complaint. For the following reasons, we affirm.
¶2 In 2007, D'Ambrosio filed a complaint against Maricopa County (the County) in which she claimed to have been beaten by detention officers at the County jail (2007 Case). Zwillinger and Greek represented the County in the 2007 Case, which County Superior Court Judge John Rea subsequently dismissed. The record does not reflect that D'Ambrosio appealed from Judge Rea's dismissal order.
¶3 On February 24, 2010, D'Ambrosio filed a complaint against the County, Zwillinger and Greek, and Judge Rea (collectively, Defendants), in which she raised various allegations of fraud, misconduct and "abuses by the judicial system" in connection with the 2007 Case's dismissal. The case was assigned to Pinal County Judge Robert Carter Olson. The Defendants successfully moved to dismiss, arguing among other things that D'Ambrosio failed to state claims upon which relief could be granted. See Ariz. R. Civ. P. 12(b)(6). This appeal followed.
The complaint also names the City of Phoenix (City) as a defendant, but the record reveals the City was never served, and has never appeared in this case. None of the allegations in the complaint specifically apply to the City.
¶4 Arizona Rule of Civil Procedure 8(a)(2) requires that a complaint setting forth a claim for relief "shall contain . . . [a] short and plain statement of the claim showing that the pleader is entitled to relief." A plaintiff's failure to comport with this requirement entitles the defendant to dismissal of the complaint upon motion. Ariz. R. Civ. P. 12(b)(6).
¶5 We review de novo a trial court's decision granting a motion to dismiss for failure to state a claim. Canyon Ambulatory Surgery Ctr. v. SCF Arizona, 225 Ariz. 414, 417, ¶ 7, 239 P.3d 733, 736 (App. 2010). We assume the complaint's allegations are true and will "uphold dismissal only if the plaintiff [ ] would not be entitled to relief under any facts susceptible of proof in the statement of the claim." Id. (quoting T.P. Racing, L.L.L.P. v. Ariz. Dep't of Racing, 223 Ariz. 257, 259, ¶ 8, 222 P.3d 280, 282 (App. 2009) (citation omitted)). "Because Arizona courts evaluate a complaint's well-pled facts, mere conclusory statements are insufficient to state a claim upon which relief can be granted." Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008).
¶6 We have read D'Ambrosio's complaint and conclude it violates Rule 8. The complaint is essentially an inflammatory diatribe against Defendants (and others), and it appears to reflect D'Ambrosio's incorrect belief that she is somehow entitled to a "settlement" from the County in connection with the 2007 Case. The complaint contains improper conclusory assertions about alleged conduct by Defendants, and it otherwise fails to state any cognizable claim. For example, the complaint states: "[counsel for the County] said, 'the County did not want to settle' the case[,]" "FRAUD has occurred[,]" "[T]he court record has been tainted to show that Civil Procedure was followed," "I am appalled to find conflict of interest in the judges protect their employer, the County to continue their paychecks." These and other similar assertions in the complaint are insufficient to survive a motion to dismiss under Rule 12(b)(6).
The complaint also appears to be an improper collateral attack on the judgment dismissing the 2007 Case. See Duncan v. Progressive Preferred Ins. Co. ex rel. Estate of Pop, 228 Ariz. 3, 7, ¶ 13, 261 P.3d 778, 782 (App. 2011) (noting a collateral attack on a judgment "is an effort to obtain another and independent judgment which will destroy the effect of the former judgment[,]" and unless a judgment is void because the court lacked jurisdiction, the judgment cannot be collaterally attacked even if it is "erroneous or wrong, so that it could be reversed on appeal or set aside on direct attack.") (citations omitted). Further, regarding Judge Rea's order of dismissal in 2007, judicial immunity shields him from liability. See Acevedo by Acevedo v. Pima County Adult Prob. Dept. , 142 Ariz. 319, 321, 690 P.2d 38, 40 (1984) (noting "judges of courts of general jurisdiction are not liable in a civil action for damages for their judicial acts, even when such acts are in excess of their jurisdiction or are alleged to have been done maliciously or corruptly").
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¶7 Accordingly, we affirm the superior court's order granting Defendants their respective motions to dismiss. D'Ambrosio's pending motion "to settle the actions" is dismissed as moot.
PHILIP HALL, Judge CONCURRING:
MICHAEL J. BROWN, Presiding Judge
LAWRENCE F. WINTHROP, Judge