Opinion
No. 1 CA-CV 12-0021
10-16-2012
STEPHEN G. GRANGE, Plaintiff/Appellant, v. MICHAEL AARON HARWIN, Defendant/Appellee.
Law Office of Roger D. Smith By Roger D. Smith Attorney for Plaintiff/Appellant Udall Law Firm, LLP By Peter Akmajian and Michele G. Thompson Attorneys for Defendant/Appellee
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(Not for Publication -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. CV2010-053143
The Honorable Michael R. McVey, Judge
AFFIRMED
Law Office of Roger D. Smith
By Roger D. Smith
Attorney for Plaintiff/Appellant
Scottsdale
Udall Law Firm, LLP
By Peter Akmajian and Michele G. Thompson
Attorneys for Defendant/Appellee
Tucson
BROWN, Judge ¶1 Stephen Grange appeals the trial court's dismissal of his legal malpractice claim against his former attorney, Michael Harwin. Grange contends his complaint set forth a viable cause of action, and the court erred in failing to permit him to amend it. Grange further asserts the court erred in denying his requests to have the case reassigned to a different judge. For the following reasons, we affirm.
BACKGROUND
¶2 In September 2010, Grange filed a pro se complaint alleging legal malpractice against Harwin. According to the complaint, Grange retained Harwin on May 1, 2007, to develop and pursue claims Grange could assert against state officials under 18 U.S.C. § 242 (2012), and to:
Expose prior abuse of authority specifically the illegal arrest and false imprisonment from May 3rd 2006 to June 11th 2006 that was effected in [sic] by members of the Maricopa County Adult Probation Department in provable conspiracy with Judge [Carey] Snyder Hyatt, a sitting judge in Maricopa county Superior Court who had illegally intruded into my case.¶3 The complaint alleged that after Grange hired Harwin, Grange learned new information relating to his 2006 false arrest and imprisonment allegation that could be used against state officials. The complaint detailed this new information. The complaint also alleged Grange was falsely arrested and imprisoned in 2007 based on a "back-dated" document. Finally, the complaint alleged Harwin failed to inform Grange of the 180-day limit for filing a claim against a public entity or employee under Arizona Revised Statutes ("A.R.S.") section 12-821.01 (2012) and thus, Grange lost the right to sue these state officials. Grange sought $1,750,000 in damages "pertaining to the false arrest [he] initially hired Harwin to assist in exposing." Harwin moved to dismiss under Arizona Rule of Civil Procedure 12(b)(6), arguing the 180-day limit for bringing a claim against a public employee had expired before Grange retained him, and therefore he could not have failed to inform Grange of the limitation period before it had run. Harwin also argued the complaint otherwise failed to state a claim because it was "overly generalized, lacking sufficient factual allegations either of the underlying case or of the allegations of 'legal malpractice[.]'" Before ruling on Harwin's motion, the court denied Grange's two requests for a change of judge. ¶4 The court granted the motion to dismiss on two grounds: (1) the complaint was not accompanied by a certificate that stated whether an expert opinion was necessary to prove Grange's malpractice claim as required by A.R.S. § 12-2602(A) (2012); and (2) Grange's statutory notice of claim regarding the 2006 arrest had expired well before Grange retained Harwin. The court noted Grange acknowledged he had "substantial information that he was wronged as early as June 2006." ¶5 Attempting to cure the defects in his complaint, Grange filed a "Petition for Reinstatement of Malpractice Suit." He alleged the original complaint included "new information" that was "in and of itself was actionable by the plaintiff if he had been properly and appropriately advised by his legal counsel as to his rights and responsibilities and under A.R.S. 12-821.01." With this petition he filed an "Amended Suit for Legal Malpractice" and a "Motion for Waiver of Expert Witness under A.R.S. 12-2602." The court treated these documents as a motion to amend the original complaint and denied it. The court entered judgment on November 4, 2011, and Grange timely appealed.
We cite the current version of the statutes because changes material to our analysis have not since occurred.
The court also determined that the complaint alleged a breach of contract claim, which the court did not dismiss. However, Grange eventually agreed to dismiss that claim with prejudice; thus, we do not further discuss it in this decision.
In his reply brief, Grange asserts that his failure to file the certificate with the original complaint does "not warrant dismissal of the case" and "was a de minimis error at best." Because Grange failed to raise that argument in his opening brief, we do not address it. See State v. Cohen, 191 Ariz. 471, 474, ¶ 13, 957 P.2d 1014, 1017 (App. 1998) (noting that "[a]n appellate court can disregard substantive issues raised for the first time in the reply brief." (internal quotations and citations omitted)).
DISCUSSION
¶6 We review dismissal of a complaint under Rule 12(b)(6) de novo and affirm only if a plaintiff would not be entitled to relief under any interpretation of the facts susceptible of proof. Coleman v. City of Mesa, 230 Ariz. 352, ____, 284 P.3d 863, 867 (2012) (citation omitted). Arizona Rule of Civil Procedure Rule 8 governs the sufficiency of a claim and requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ariz. R. Civ. P. 8(a)(2); see also Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6, 189 P.3d 344, 346 (2008) (citation omitted). This rule establishes a "notice pleading standard, the purpose of which is to 'give the opponent fair notice of the nature and basis of the claim and indicate generally the type of litigation involved.'" Id. If a pleading falls short of Rule 8's requirements, an opposing party may move to dismiss the action pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Id. at 419, ¶ 7 (quoting Ariz. R. Civ. P. 12(b)(6)). We look only to the pleading itself when reviewing a 12(b)(6) motion and accept as true all well-pled factual allegations, drawing all reasonable inferences from them in the plaintiff's favor. Id.; see also McDonald v. City of Prescott, 197 Ariz. 566, 567, ¶ 5, 5 P.3d 900, 901 (App. 2000). "However, we do not accept as true allegations consisting of conclusions of law, inferences or deductions not necessarily implied by well-pled facts, unreasonable inferences or unsupported conclusions from such facts, or legal conclusions alleged as facts." Jeter v. Mayo Clinic Ariz. , 211 Ariz. 386, 389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005).
A. Motion to Dismiss ¶7 Grange initially argues the court erred in granting the motion to dismiss because his complaint should have been subject to a "less stringent standard[]" based on Grange's pro se status. We reject this argument because Arizona law is well-settled that courts hold parties appearing in propria persona to the same standards as attorneys. Old Pueblo Plastic Surgery, P.C. v. Fields, 146 Ariz. 178, 179, 704 P.2d 819, 820 (App. 1985). ¶8 Grange asserts that regardless of his pro se status at the trial court, his original complaint properly pled a claim for legal malpractice arising from the May 1, 2007 arrest, the day he retained Harwin. Specifically, he argues his complaint alleged (1) he was illegally arrested on May 1, 2007 "for failing to comply with an order to appear," (2) the Maricopa County Adult Probation Department "falsifi[ed] an order to appear and backdate[ed] it;" and (3) these actions constituted "the second such illegal arrest and resulted in yet more false imprisonment[.]" Finally, his complaint asserts Harwin's failure to advise Grange of the 180-day limit for filing claims against public officials "resulted in a failure to identify the action in a timely fashion" and the right to sue under A.R.S. § 12-821.01. ¶9 We are not convinced Grange's allegations, in the context of his entire complaint, adequately state a claim upon which relief may be granted. Ariz. R. Civ. P. 12(b)(6); see also Cullen, 218 Ariz. at 419, ¶¶ 6-7, 189 P.3d at 346; Builders Finance Co. v. Holmes, 89 Ariz. 157, 159, 359 P.2d 751, 752 (1961) ("[T]he test as to whether a complaint is sufficient to withstand a motion to dismiss is whether enough is stated therein[.]"). Nor are we persuaded these facts properly give Harwin "fair notice of the nature and basis of the claim" against him as is required. Mackey v. Spangler, 81 Ariz. 113, 115, 301 P.2d 1026, 1027-28 (1956). ¶10 As to the 2007 arrest, Grange alleges that Harwin's negligence cost him the opportunity to bring a claim under 18 U.S.C. § 242. This cannot adequately state a claim showing Grange is entitled to relief, however, because U.S.C. § 242 does not provide for a private right of action. See Dugar v. Coughlin, 613 F. Supp. 849, 852, n.1 (S.D.N.Y. 1985). Additionally, any "fair notice" of these 2007 claims Harwin could have received were overshadowed by the vast majority of Grange's complaint, which focused solely on the new information that allegedly supports the 2006 claims. For example, in his prayer for relief, Grange seeks damages based on "the false arrest I initially hired Harwin to assist in exposing." We believe this had to be the 2006 arrest, because at the time Grange hired Harwin the 2007 arrest had not yet taken place. Also, when Grange was in jail for the 2007 arrest he agreed with Harwin to use the resulting witness violation hearing to impeach public agencies "that had caused the plaintiff harm in prior legal action." (Emphasis added.) Furthermore, Grange has failed to allege any facts indicating that "but for [Harwin's] negligence, [Grange] would have been successful in the prosecution . . . of the original suit," which is an essential allegation to show Grange is entitled to relief. Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12, 83 P.3d 26, 29 (2004) (citation omitted); see also Ariz. R. Civ. P. 8(a)(2) (requiring a short and plain statement "showing that the pleader is entitled to relief") (emphasis added)). ¶11 Although Grange mentions the 2007 arrest, construing the complaint as a whole, it is evident that his primary focus was on the facts and information surrounding the 2006 claim. The limited discussion and allegations regarding the 2007 arrest were not independently alleged in a manner sufficient to properly give Harwin "fair notice" of this claim against him as a basis of the legal malpractice suit. In short, Grange's allegations pertaining to the 2007 arrest are simply too vague and conclusory in the context of his entire complaint to survive a motion to dismiss. See Jeter, 211 Ariz. at 389, 121 P.3d at 1259. We therefore conclude that dismissal of Grange's original complaint was warranted.
Grange argues the complaint alleged he first obtained information in 2007 regarding purported improprieties committed by the probation department and Judge Hyatt in connection with his 2006 "illegal arrest," and the 2007 information effectively tolled the 180-day limit for his claim until the date he acquired the new information. We disagree. "[A] cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage." A.R.S. § 12-821.01(B). By his own admission, Grange sufficiently knew or should have known in 2006 of any damage caused by public officials. Instances of specific, purportedly improper state actions that Grange subsequently discovered in support of his 2006 claim were merely further evidence of alleged wrongdoing by the state. This new information did not toll the 180-day limit imposed by A.R.S. § 12-821.01(A). Thus, any malpractice claim arising out of the 2006 imprisonment and arrest was time-barred and dismissal was warranted.
As to his amended complaint, Grange argues it referred to the 2007 arrest as a basis for the malpractice claim thereby curing the original complaint. For the above mentioned reasons, we likewise conclude Grange's amended complaint fails to state a claim upon which relief may be granted. His amended complaint failed to cure the deficiencies of his original complaint and the trial court did not abuse its discretion in denying Grange's motion to amend his complaint. Cagle v. Carr, 101 Ariz. 225, 227, 418 P.2d 381, 383 (1966).
B. Motion to Recuse ¶12 On November 8, 2010, Grange filed a "Motion to Recuse," arguing the assigned judge would not act fairly because he was acquainted with P., someone "who has blatantly influenced [Grange's] case in the past." The motion was assigned to the presiding civil judge for ruling pursuant to Ariz. R. Civ. P. 42(f)(2)(D). The presiding judge denied the motion because Grange did not file an accompanying affidavit as required by A.R.S. § 12-409 and because the motion "lacks any merit or factual support[.]" On December 28, 2010, Grange filed a "Second Motion to Request Case Be Reassigned Due To Conflict of Interest" and included an unsworn affidavit by his girlfriend. The presiding civil judge denied the second motion because the affidavit failed "to establish any basis to disqualify the assigned Judge." ¶13 Grange contends the court erred in denying his motions to reassign the case. He admits that his motions did not satisfy the requirements of A.R.S. § 12-409 for a change of judge for cause under Rule 42(f)(2); however, he argues the court should have treated the motions as requests to change the judge as a matter of right under Rule 42(f)(1). ¶14 We find no error. After being informed by minute entry that the court was treating his first motion as a change of judge for cause under Rule 42(f)(2), Grange did not inform the court that he intended to exercise his right to a change of judge as a matter of right under Rule 42(f)(1). He never filed a "Notice of Change of Judge" as explicitly required by Rule 42(f)(1)(A). Instead, Grange proceeded again to request the case be reassigned because of the assigned judge's purported conflict of interest. Rule 42(f)(1)(A) specifically admonishes a party seeking a change of judge as a matter of right from specifying the grounds for the reassignment. On this record, we discern no reason why the court should have treated Grange's motions as an attempt to exercise his right to a change of judge under Rule 42(f)(1).
Section 12-409 states:
A. If either party to a civil action in a superior court files an affidavit alleging any of the grounds specified in subsection B, the judge shall at once transfer the action to another division of the court if there is more than one division, or shall request a judge of the superior court of another county to preside at the trial of the action.
B. Grounds which may be alleged as provided in subsection A for change of judge are:
1. That the judge has been engaged as counsel in the action prior to appointment or election as judge.
2. That the judge is otherwise interested in the action.
3. That the judge is of kin or related to either party to the action.
4. That the judge is a material witness in the action.
5. That the party filing the affidavit has cause to believe and does believe that on account of the bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial.
CONCLUSION
¶15 For the foregoing reasons, we affirm the judgment of the trial court.
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MICHAEL J. BROWN, PRESIDING JUDGE
CONCURRING: _______________
ANDREW W. GOULD, JUDGE
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DONN KESSLER, JUDGE