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Moses v. Hertz Corp.

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-CV 13-0493 (Ariz. Ct. App. Jun. 26, 2014)

Opinion

No. 1 CA-CV 13-0493

06-26-2014

LAFAYETTE MOSES, Plaintiff/Appellant, v. THE HERTZ CORPORATION, a Delaware corporation; SANTEE A. GRAVES and JONI GRAVES, husband and wife; LINETTE PADUA and GLEN PADUA, wife and husband; SCOTT GREEN and MERNA WEST, husband and wife, Defendants/Appellees.

Sterns and Tennen, Phoenix By Leslie I. Tennen Counsel for Plaintiff/Appellant Thomas, Thomas & Markson, P.C., Phoenix By Jeffrey J. Spamer Counsel for Defendants/Appellees


NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.


Appeal from the Superior Court in Maricopa County

No. CV2010-001877

The Honorable Mark H. Brain, Judge


AFFIRMED


COUNSEL

Sterns and Tennen, Phoenix
By Leslie I. Tennen
Counsel for Plaintiff/Appellant
Thomas, Thomas & Markson, P.C., Phoenix
By Jeffrey J. Spamer
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in which Michael J. Brown and Judge Jon W. Thompson joined. HOWE, Presiding Judge:

¶1 Lafayette Moses appeals the superior court's grant of summary judgment in favor of Hertz Corporation, Santee A. Graves, Linette Padua, and Scott Green (collectively, Hertz). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Moses rented a car from Hertz for one week in April 2007. He listed his Scottsdale post office box address and personal phone number as his contact information. At the time of the rental, Moses's driver's license had been suspended.

¶3 Moses then requested several one-week extensions on his rental agreement, which Hertz granted. The last extension expired on June 5, 2007. When Moses failed to return the rental car on that date, Hertz sent Moses two written notices—and left numerous voice mail messages—requesting that Moses return the car.

¶4 Moses did not return the car, however, and Hertz reported the car as stolen to the Scottsdale Police Department on September 20, 2007. The police discovered the car in a motel parking lot. When Moses admitted to the investigating officer that he had rented the car and that it had been a month or two since he had contacted Hertz, the officer arrested him for theft of a motor vehicle on September 24, 2007. Moses was subsequently tried and acquitted.

¶5 Two years, four months, and two days after his arrest, Moses sued Hertz on January 26, 2010, alleging: negligence, assault, battery, malicious prosecution, false imprisonment, defamation, trespass to chattel, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent training and supervision, conversion, tortious breach of contractual duty, breach of contract, and punitive damages.

¶6 Hertz moved for summary judgment, arguing that the applicable statute of limitations barred all of Moses's claims, except malicious prosecution and breach of contract. Hertz claimed that absolute immunity prevented Moses from asserting a malicious prosecution claim. Hertz also raised a breach of contract counterclaim, arguing that the contract between Hertz and Moses should be rescinded because Moses made a material misrepresentation by presenting a suspended driver's license at the time of the rental. The court granted Hertz's motion on all counts, except for the competing breach of contract claims. Regarding the malicious prosecution claim, the court found that Moses had failed to set forth material facts that would support the requisite elements of malice and lack of probable cause. The court found a question of fact regarding the competing breach of contract claims and ordered the issue to arbitration.

¶7 Following the arbitration hearing, the arbitrator dismissed Moses's breach of contract claim. Granting Hertz's breach of contract counterclaim, the arbitrator awarded Hertz $2,559.85 in damages. Moses appealed the arbitration ruling and requested a jury trial.

¶8 Hertz moved for summary judgment on Moses's breach of contract claim, arguing that Moses "failed to present any evidence capable of establishing an entitlement to contract damages under the rental agreement." Moses objected, arguing that genuine issues of material fact existed about whether he breached the rental agreement. Moses contended that "Hertz breached the [rental agreement] by failing to send any written notice addressed to [Moses]." The court granted Hertz's motion. Moses timely appealed.

DISCUSSION

¶9 Moses raises three issues on appeal. Rejecting his claims, we affirm the superior court's judgment.

1) Malicious Prosecution and Punitive Damages Claims

¶10 Moses argues that the superior court erred by granting Hertz's motion for summary judgment on Moses's malicious prosecution and punitive damages claims. In reviewing a grant of summary judgment, we view the facts in a light most favorable to the party opposing the judgment. CSA 13-101 Loop, LLC v. Loop 101, LLC, 233 Ariz. 355, 359 ¶ 12, 312 P.3d 1121, 1125 (App. 2013). "Our task is to determine whether a genuine issue of material fact for trial exists, and, if not, whether the trial court correctly applied the substantive law." Id. (quoting Aaron v. Fromkin, 196 Ariz. 224, 227 ¶ 10, 994 P.2d 1039, 1042 (App. 2000)).

¶11 The tort of malicious prosecution requires that the plaintiff establish that the defendant, as the complaining witness, maliciously instituted or continued criminal proceedings against the plaintiff without probable cause, and that the proceedings terminated in the plaintiff's favor. Lantay v. McLean, 2 Ariz. App. 22, 23, 406 P.2d 224, 225 (1965); see also Bearup v. Bearup, 122 Ariz. 509, 510, 596 P.2d 35, 36 (App. 1979). The existence of probable cause to prosecute the plaintiff for the offense at issue is a complete defense to a malicious prosecution claim. Hockett v. City of Tucson, 139 Ariz. 317, 320, 678 P.2d 502, 505 (App. 1983). Probable cause is a question of law for the court to determine. Id.

¶12 Hertz established that defense. A person commits unlawful failure to return rented property if the person knowingly fails to return the property within 72 hours after the time provided for return in the rental agreement. A.R.S. § 13-1806. The uncontradicted evidence showed that Moses had rented the car and had knowingly failed to return it to Hertz within 72 hours of the June 5, 2007, expiration date. This constituted probable cause to prosecute Moses. With probable cause established, Moses could not maintain the claim for malicious prosecution. Moreover, because Hertz had reason to report Moses for failing to return the car, Moses could not show that Hertz acted maliciously. No genuine factual dispute existed on the malicious prosecution claim, and the superior court correctly granted summary judgment.

Moses also argues that the superior court erred in granting summary judgment on his punitive damages claim. But as the court recognized, punitive damages is not an independent cause of action, but a remedy, see Medasys Acquisition Corp. v. SDMS, P.C., 203 Ariz. 420, 424 ¶ 19, 55 P.3d 763, 767 (2002). Moreover, punitive damages requires proof of evil motives, Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986), and the superior court correctly found no evidence of any evil motive.

2) Contract Claim

¶13 Moses argues that the court erred by granting Hertz's motion for summary judgment on the breach of contract claims. He contended that "Hertz breached the [rental agreement] by failing to send any written notice addressed to him. We find no error. The evidence showed that when Moses failed to return the car, Hertz sent Moses two certified letters to his Scottsdale post office box requesting that he return the car. Hertz also left messages on his telephone daily asking him to return the car. We may reasonably infer that Moses was aware of these notices because he left a message with Hertz on June 12, 2007, promising to return the car. Although Moses subsequently denied receiving these notices, mere denials without supporting evidence are insufficient to create a genuine issue of material fact. Ariz. R. Civ. P. 56(e)(4); see Siner v. Stewart, 9 Ariz. App. 101, 103, 449 P.2d 635, 637 (1969) (opponent of summary judgment motion must file affidavit or present evidence controverting facts alleged to be true in summary judgment motion). Because no genuine dispute existed that Hertz notified Moses of the expired rental agreement, the superior court did not err in granting summary judgment in favor of Hertz.

3) Tort Claims

¶14 Moses argues that the court erred in granting summary judgment "on the tort claims other than for malicious prosecution as being barred by the statute of limitations." The statute of limitations for claims for false imprisonment, and injuries done to the character or reputation of another by libel or slander, must be commenced and prosecuted within one year after the cause of action accrues. A.R.S. § 12-541. Claims for injuries done to another person are subject to a two-year statute of limitations. A.R.S. § 12-542(1).

¶15 These statutes of limitations bar Moses's tort claims. Except for the defamation claim, Moses's remaining tort claims accrued on the date of his arrest, on September 24, 2007. He did not sue Hertz, however, until January 26, 2010, well after the applicable statute of limitations for all but his defamation tort claims. His defamation claim accrued on September 20, 2007, when Hertz reported the car stolen to the police. Because Moses did not raise his defamation claim until after the one-year statute of limitations for injuries done to one's character or reputation, that claim is also barred. Clark v. Airesearch Mfg. Co. of Ariz., Inc. a Div. of Garrett Corp., 138 Ariz. 240, 241, 673 P.2d 984 (App. 1983) ("It has been generally held that in defamation cases the cause of action accrues and the statute of limitations begins to run on the date of publication of the defamatory material."). Accordingly, the superior court did not err in granting summary judgment on Moses's remaining tort claims.

¶16 Moses also argues for the first time on appeal that "[t]he [tortious] acts and omissions of [Hertz] did not comprise an isolated incident and did not end with the arrest of [Moses] in September, 2007." Because this argument was not raised before the superior court, it is waived on appeal. See In re MH 2008-002659, 224 Ariz. 25, 27 ¶ 9, 226 P.3d 394, 396 (App. 2010). Even had Moses raised this argument, the statute of limitations would still bar his claims because continuing torts accrue on the date of the last tortious act—the date of Moses's arrest for all but his defamation claim, and the date Hertz reported the car stolen to police for the defamation claim. See Floyd v. Donahue, 186 Ariz. 409, 413, 923 P.2d 875, 879 (App. 1996).

CONCLUSION

¶17 For these reasons, we affirm.


Summaries of

Moses v. Hertz Corp.

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-CV 13-0493 (Ariz. Ct. App. Jun. 26, 2014)
Case details for

Moses v. Hertz Corp.

Case Details

Full title:LAFAYETTE MOSES, Plaintiff/Appellant, v. THE HERTZ CORPORATION, a Delaware…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 26, 2014

Citations

No. 1 CA-CV 13-0493 (Ariz. Ct. App. Jun. 26, 2014)