Opinion
No. 1 CA-CV 15-0857
12-13-2016
JESSIE LEWIS, Plaintiff/Appellant, v. HARLA DAVISON and ZACH MURPHY, Defendants/Appellees.
COUNSEL Jessie Lewis, San Luis Plaintiff/Appellant Broening Oberberg Woods & Wilson, Phoenix By Donald Wilson, Jr., Jathan P. McLaughlin Counsel for Defendant/Appellee Harla Davison Jones, Skelton & Hochuli, P.L.C., Phoenix By Mark D. Zukowski, Jason P. Kasting, Jonathan P. Barnes Counsel for Defendant/Appellee Zach Murphy
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2015-005520
The Honorable Patricia A. Starr, Judge
AFFIRMED
COUNSEL Jessie Lewis, San Luis
Plaintiff/Appellant Broening Oberberg Woods & Wilson, Phoenix
By Donald Wilson, Jr., Jathan P. McLaughlin
Counsel for Defendant/Appellee Harla Davison Jones, Skelton & Hochuli, P.L.C., Phoenix
By Mark D. Zukowski, Jason P. Kasting, Jonathan P. Barnes
Counsel for Defendant/Appellee Zach Murphy
MEMORANDUM DECISION
Acting Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Mark R. Moran joined. THUMMA, Judge:
The Honorable Mark R. Moran, Judge of the Arizona Superior Court, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 Plaintiff Jessie Lewis appeals from a final judgment, entered after the grant of a motion to dismiss, dismissing his claims against defendants Harla Davison and Zach Murphy. Because Lewis has shown no error, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
In reviewing the grant of a motion to dismiss for failure to state a claim, this court assumes the truth of all well-pleaded facts alleged in the complaint. Fidelity Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224 ¶ 4 (1998).
¶2 Davison and Murphy, at various times, served as court-appointed counsel to represent Lewis in a criminal case. In that case, following a March 2015 jury trial, Lewis was convicted of misconduct involving weapons and, in May 2015, was sentenced to an 11-year prison term. Lewis appealed, and this court affirmed in July 2016. Lewis filed a petition for review of that July 2016 decision with the Arizona Supreme Court, which remains pending. Accordingly, the mandate in that appeal has not yet issued.
This court takes judicial notice of the record in Lewis' criminal appeal, which includes superior court filings in that matter. See, e.g., Ariz. R. Evid. 201; State ex. rel. Corbin v. Tocco, 173 Ariz. 587, 590 n.1 (App. 1992).
¶3 In April 2015, as a self-represented litigant, Lewis filed this civil suit alleging ineffective assistance of counsel (a denial of his "right to representation"); legal malpractice and Arizona racketeering claims. See Arizona Revised Statute (A.R.S.) section 13-2314.04 (2016).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. Within these three claims, and asserted as a part of each claim, Lewis also asserted a denial of his due process and equal protection rights. --------
¶4 Davison moved to dismiss for failure to state a claim upon which relief could be granted, and Murphy joined in that motion. Lewis twice sought to amend his complaint, with Davison and Murphy arguing amendment would be futile. After full briefing, in November 2015, the superior court granted the motions to dismiss, and because the proposed amendments did "not remedy the deficiencies of his first complaint," denied Lewis' requests to amend as futile. As explained in the resulting minute entry, the court construed Lewis' right to representation assertion as an ineffective assistance of counsel claim, which "must be adjudicated in the context of Rule 32, Ariz. R. Crim P." The court dismissed the legal malpractice claim, because such a cause of action "does not accrue until the appellate process is complete and injury and damages can be ascertained," citing Glaze v. Larsen, 207 Ariz. 26, 29-30 ¶ 15 (2004), meaning the dismissal of that claim was without prejudice. And the court concluded Lewis' racketeering claim failed because he "provides no factual basis to support that allegation. Nor does it appear that Lewis can allege facts that would support that claim, as evidenced by his Amended Complaint."
¶5 After entry of a final judgment, Ariz. R. Civ. P. 54(c), Lewis timely appealed. This court has jurisdiction over the appeal pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. § 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶6 This court reviews de novo the grant of a motion to dismiss for failure to state a claim, Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7 (2012), and can affirm dismissal if correct for any reason, see Dube v. Likins, 216 Ariz. 406, 417 ¶ 36 n.3 (App. 2007). This court reviews a ruling on a motion to amend a complaint for an abuse of discretion. See Hall v. Remero, 141 Ariz. 120, 124 (App. 1984).
I. The Superior Court Properly Dismissed The Ineffective Assistance of Counsel Claim.
¶7 Lewis argues that his complaint "did in fact" state a claim "of being deprived" of his right to assistance of counsel (ineffective assistance of counsel). A claimant who wishes to assert an ineffective assistance of counsel claim, however, must do so in a proceeding under Arizona Rule of Criminal Procedure 32, not a civil lawsuit. Cf. State v. Spreitz, 202 Ariz. 1, 3 ¶ 9 (2002) ("[I]neffective assistance of counsel claims are to be brought in Rule 32 proceedings. Any such claims improvidently raised in a direct appeal, henceforth, will not be addressed by appellate courts regardless of merit."). Lewis has not cited any authority supporting a contrary position, has not shown the superior court erred in this conclusion and has not shown his ineffective assistance of counsel claim properly could have withstood the motion to dismiss.
II. The Superior Court Properly Dismissed The Racketeering Claim.
¶8 Lewis' racketeering claim consists of citing A.R.S. § 13-2314.04 in his complaint. By statute, to properly assert a racketeering claim, a plaintiff must allege many things, including "a pattern of racketeering." A.R.S. § 13-2314.04(A). And racketeering, in turn, "means any preparatory or completed offense, that is chargeable or indictable under the laws of the state or country in which the act occurred" involving or intended to result in specified actions. A.R.S. § 13-2301(D)(4)(b). The complaint, however, does not make these allegations. Nor can Lewis cure this deficiency by, on appeal, alleging that defendants "aided and abetted" with each other and others "to conspire to injur[e] and oppress" Lewis. On this record, the superior court properly dismissed the purported racketeering claim. See, e.g., Jeter v. Mayo Clinic Arizona, 211 Ariz. 386, 389 ¶ 4 (App. 2005) ("This court will not accept as true allegations consisting of conclusions of law, inferences or deductions that are not necessarily implied by well-pleaded facts, unreasonable inferences or unsupported conclusions from such facts, or legal conclusions alleged as facts."); MacMillan v. Schwartz, 226 Ariz. 584, 591 ¶ 33 (App. 2011) ("Merely mentioning an argument in an appellate opening brief is insufficient.").
III. The Superior Court Properly Dismissed The Legal Malpractice Claim As Premature Because The Mandate On Lewis' Appeal Of His Criminal Conviction Has Not Yet Issued.
¶9 The superior court dismissed the legal malpractice claim as premature, noting the claim "does not accrue until the appellate process is complete and injury and damages can be ascertained." As noted above, the appellate process for Lewis' criminal conviction is ongoing and the mandate in that case has not yet issued. And Lewis has not shown that an exception to that requirement should apply. Accordingly, the superior court properly dismissed Lewis' legal malpractice claim as premature and, accordingly, without prejudice. See Glaze, 207 Ariz. at 29-30.
IV. The Superior Court Did Not Abuse Its Discretion In Denying Lewis' Requests To Amend.
¶10 The superior court denied Lewis' requests to amend his complaint as futile. It is unclear whether Lewis challenges that ruling on appeal. To the extent he does, if a proposed amendment "is futile," the superior court "should deny leave to amend." Walls v. Arizona Dept. of Pub. Safety, 170 Ariz. 591, 597 (App. 1991). A complaint stating "only legal conclusions, without any supporting factual allegations, does not satisfy Arizona's notice pleading standard." Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7 (2008).
¶11 Lewis' requests to amend failed to provide any additional or proper factual basis for any of his purported claims; instead they merely recounted the facts alleged in the initial complaint, and stated additional conclusions of law. Because Lewis did not properly assert facts that would entitle him to relief, the superior court did not err in denying his requests to amend as futile. See Walls, 170 Ariz. at 597.
CONCLUSION
¶12 The judgment, which dismissed the legal malpractice claim without prejudice and all other claims with prejudice, is affirmed.