Opinion
1 CA-CV 22-0473
03-09-2023
COLTON HOY, Plaintiff/Appellant, v. ACT TOWING, LLC, et al., Defendants/Appellees.
Colton Hoy, Tempe Plaintiff/Appellant Udall Law Offices PLC, Mesa By William A. Udall Counsel for Defendant/Appellee Act Towing
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2021-016331 The Honorable Joan M. Sinclair, Judge
Colton Hoy, Tempe Plaintiff/Appellant
Udall Law Offices PLC, Mesa By William A. Udall Counsel for Defendant/Appellee Act Towing
Judge Brian Y. Furuya delivered the decision of the Court, in which Vice Chief Judge David B. Gass and Judge Maurice Portley joined.
The Honorable Maurice Portley, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution.
MEMORANDUM DECISION
FURUYA, JUDGE
¶1 Colton Hoy appeals a superior court order granting All City Towing's ("ACT's") motion to dismiss. For the following reasons, we dismiss the appeal as moot.
FACTS AND PROCEDURAL HISTORY
¶2 Hoy owned a truck, which he used for work and personal transportation for several years. ACT provides towing services and contracts with the City of Phoenix ("City") and the Phoenix Police Department ("PPD") to tow all vehicles when PPD directs ACT to do so.
¶3 On August 25, 2021, a PPD Officer contacted ACT to tow Hoy's truck because it was parked on a public right of way without displaying current registration in violation of Phoenix City Code ("P.C.C.") §§ 36-7(A), -162(B). According to Hoy, the temporary paper registration had been stolen without his knowledge. Although he noted that the truck was visible from his bedroom window and he claims to have moved it "at least once every one to two days," he insists he was not aware of the tow until September 7, 2021, almost two weeks later.
¶4 On September 12, 2021, five days after he noticed the truck missing, Hoy submitted an electronic request to the PPD for a hearing to determine whether he was entitled to his vehicle without paying ACT for storage fees. The PPD denied his request because he filed it more than 10 days after the tow. During this time, ACT had been adding $38.50 per day in storage fees to Hoy's bill.
¶5 Hoy filed a complaint in superior court, alleging, among other things, conversion, fraudulent transfer, and constructive trust. ACT moved to dismiss, alleging Hoy had failed to exhaust his administrative remedies, depriving the court of jurisdiction over his claims. In his response, Hoy argued that an administrative hearing would have been futile, that ACT had no standing to raise an exhaustion defense, that exhaustion was permissive instead of mandatory, and that he had exhausted his remedies. The court granted ACT's motion and Hoy timely appealed. However, Hoy did not request a stay, and ACT sold his vehicle.
¶6 On October 18, 2022, while this appeal was pending and after Hoy submitted his opening brief, the superior court dismissed the City and the Officer with prejudice. In further briefing on appeal, both parties included argument regarding whether the City and the Officer are indispensable parties, and if their dismissal rendered this appeal moot. Hoy filed a motion for reconsideration of the City and Officer's dismissals at the superior court on October 24, 2022, and we granted a stay of the appeal to permit the court to rule on that motion. The superior court then denied the motion for reconsideration.
DISCUSSION
¶7 "[T]he question of mootness is one of convenience and judicial discretion," and "is not solely a jurisdictional doctrine." Pointe Resorts, Inc. v. Culbertson, 158 Ariz. 137, 141 (1988). A party must be joined to an action if, as relevant here, "in that [party's] absence, the court cannot accord complete relief among existing parties." Arizona Rules of Civil Procedure 19(a)(1)(A). Such a party, when justice cannot be done in its absence, is an "indispensable party." Int'l Bhd. of Elec. Workers v. Kayetan, 119 Ariz. 508, 510 (App. 1978) (citation omitted). Further, when indispensable parties are dismissed while an appeal is pending, the appeal becomes moot. See id. at 509. We may consider the absence of indispensable parties for the first time on appeal as a question of law we review de novo. See Gerow v. Covill, 192 Ariz. 9, 14 ¶ 19 (App. 1998) (citations omitted).
¶8 ACT claims Hoy's appeal is moot because the superior court dismissed the City and Officer with prejudice and ACT had no discretion over whether to tow Hoy's truck. Hoy contends the City and the Officer are not indispensable parties because his complaint sought to enjoin ACT from selling his truck, so he can receive complete relief from ACT. He also contends ACT waived any argument that the City and the Officer are indispensable parties because Hoy did not plead any claims against them in his original complaint and ACT never contended they were indispensables parties in the superior court.
¶9 PPD assesses the propriety of a tow and determines which vehicles to tow. P.C.C. § 36-7(A). ACT does not do so; it merely tows the vehicles it is directed to tow. Indeed, it is owed payment regardless of whether the tow was justified-for tows found unjustified, the City pays the storage fees instead of the vehicle owners. P.C.C. § 36-8(F)(3). Further, the City is a necessary and proper party at hearings to determine the lawfulness of tows, but towing companies under contract with the City are not. Id.
¶10 Here, Hoy does not make any claim that ACT made a mistake within its own control, for example by towing his vehicle by mistake instead of another vehicle. Instead, ACT's liability under Hoy's complaint is entirely derivative from the City's as its putative agent. Hoy's claims against ACT depend upon a determination that the City and its Officer acted unlawfully; no relief is possible against ACT without their presence in the action. And because the City and Officer were dismissed, there are no longer any parties responsible for the decision to tow Hoy's truck. Thus, the City and Officer are indispensable parties whose dismissal during pendency of this appeal renders it moot. See Kayetan, 119 Ariz. at 509. Moreover, because Hoy failed to request a stay, ACT sold Hoy's truck and Hoy cannot recover it regardless of who remains a party. Without any direct personal liability, Hoy no longer has any claim against ACT upon which he could receive relief.
¶11 Hoy's argument that ACT failed to argue the City and Officer are indispensable parties in the superior court also fails to save his appeal from mootness. True, Hoy did not originally plead any claims against the City and Officer, but that was so he could await their response to his notice of claim. And his original complaint named them as defendants. Even so, we may consider arguments regarding indispensable parties raised for the first time on appeal. Gerow, 192 Ariz. at 14 ¶ 19.
¶12 Hoy makes several arguments on the merits of his appeal, including that exhaustion of his administrative remedies would have been futile, that ACT has no standing to argue exhaustion, that the controlling statutes and rules are too confusing, and that he did in fact exhaust his remedies. However, because we hold that his appeal is moot, we need not address these issues. See Pima Cnty. Hum. Rts. Comm. v. Ariz. Dep't of Health Servs., 232 Ariz. 177, 182 ¶ 17 n.5 (App. 2013). We therefore exercise our discretion to dismiss this appeal as moot and decline to consider the merits.
CONCLUSION
¶13 We dismiss the appeal.
¶14 As the prevailing party on appeal, we award ACT its taxable costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.