Opinion
1 CA-CV 20-0472
06-15-2021
CLINT SCHULER, et al., Plaintiffs/Appellants, v. ALLIANCE TRUSS LLC, et al., Defendants/Appellees.
Clint Schuler, Mesa Plaintiff/Appellant Plezana Schuler, Mesa Plaintiff/Appellant May Potenza Baran & Gillespie, Phoenix By John P. Carter, Alexander J. Daniel Counsel for Defendants/Appellees Alliance Osborn Maledon PA, Phoenix By Geoffrey Sturr Counsel for Defendants/Appellees Callahan
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2020-092159 The Honorable Janice K. Crawford, Judge
Clint Schuler, Mesa Plaintiff/Appellant Plezana Schuler, Mesa Plaintiff/Appellant
May Potenza Baran & Gillespie, Phoenix By John P. Carter, Alexander J. Daniel Counsel for Defendants/Appellees Alliance
Osborn Maledon PA, Phoenix By Geoffrey Sturr Counsel for Defendants/Appellees Callahan
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
MEMORANDUM DECISION
HOWE, Judge
¶1Clint Schuler appeals the dismissal of his complaint. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2Schuler-on behalf of Gentry Estates, LLC-signed a credit agreement with Alliance Truss, LLC, a lumber supply company. Schuler also executed a personal guarantee for the payment of any monies owed, indicating that he was unmarried. Although Schuler was married, no personal guarantee was obtained from his wife.
¶3Alliance furnished materials to Gentry Estates on credit, but the amount owed went unpaid. Alliance then sued Gentry Estates and Schuler to recover the amount owed. Alliance later added Schuler's wife as a defendant once it learned that Schuler was married. Thereafter, Alliance obtained a judgment for the amount owed and its attorneys' fees. Alliance also pursued a fraud claim for Schuler's failure to indicate that he was married and, after an arbitration hearing, Alliance was awarded damages for that claim. A second judgment was then entered, incorporating the initial amount owed, as well as the arbitration award.
¶4The judgment went unpaid and Alliance pursued its rights as a judgment creditor by, among other things, moving for an examination of Schuler's wife, the sole member of Schuler, PLLC. The trial court granted the motion but Schuler's wife did not appear for the examination.
¶5Instead, Schuler emailed Alliance's counsel a draft complaint and stated that "[i]f you want to avoid service of process on this new litigation, discontinue all collection efforts against Schuler, PLLC." Alliance refused and Schuler filed the instant action alleging that Alliance had violated the Fair Debt Collection Practices Act, engaged in abuse of process, and engaged in malicious prosecution.
¶6Alliance moved to dismiss the complaint arguing that the Fair Debt Collection Practices Act was inapplicable because Alliance was not a debt collector and the debt was commercial, not personal. It also argued that Schuler did not plead facts sufficient to support an abuse of process claim. It further argued that Schuler's malicious prosecution claim failed because Alliance was the successful party in the underlying action. The trial court granted Alliance's motion to dismiss, and Schuler timely appealed.
DISCUSSION
¶7Schuler argues that the trial court erred by dismissing his complaint because it did not know "all [the] facts of the previous litigation and [the] pending litigation." We review the dismissal of a complaint de novo, assuming as true the complaint's well-pled facts, and we will affirm only if as a matter of law, the plaintiff would not be entitled to relief under any interpretation of the facts susceptible of proof. Hopi Tribe v. Ariz. Snowbowl Resort Ltd. P'ship, 245 Ariz. 397, 400 ¶ 8 (2018).
¶8The trial court properly dismissed Schuler's claim that Alliance had violated the Fair Debt Collection Practices Act because that Act does not apply to commercial loans. The term "debt" for purposes of the Act means an obligation to pay money arising out of a transaction in which the money, property, or services "are primarily for personal, family or household purposes." 15 U.S.C. § 1692a(5). The parties do not dispute that the debt Gentry Estates incurred was of a commercial nature and therefore, the Act does not apply. See Bloom v. I.C. System, Inc., 972 F.2d 1067, 1069 (9th Cir. 1992).
¶9The trial court correctly dismissed Schuler's abuse of process claim because he failed to allege facts sufficient to support that claim. "The elements of an abuse-of-process claim are (1) a willful act in the use of judicial process (2) for an ulterior purpose not proper in the regular conduct of the proceedings." Crackel v. Allstate Ins. Co., 208 Ariz. 252, 257 ¶ 11 (App. 2004). Schuler's complaint did not allege any specific facts to support his abuse of process claim. Rather, his complaint rested on conclusory allegations that Alliance engaged in unjust civil proceedings while violating the Fair Debt Collection Practices Act. The Act was inapplicable to the commercial debt, however, see 15 U.S.C. § 1692a(5), and mere conclusory allegations are insufficient to state a claim for abuse of process, see Cleckner v. Ariz. Dep 't of Health Services, 246 Ariz. 40, 42 ¶ 6 (App. 2019).
¶10 Schuler does not appear to challenge the trial court's dismissal of his malicious prosecution claim. Nevertheless, the trial court properly dismissed Schuler's malicious prosecution claim because Alliance was the successful party in the underlying lawsuit. See Chalpin v. Snyder, 220 Ariz. 413, 419 ¶ 20 (App. 2008) (malicious prosecution requires that the initial action terminate in the plaintiffs favor). Because Schuler was not entitled to relief under any interpretation of the facts, the trial court properly granted Alliance's motion to dismiss.
CONCLUSION
¶11 For the foregoing reasons, we affirm. Alliance requests its attorneys' fees incurred on appeal. But because Alliance does not provide any basis for its request, we decline to award Alliance its attorneys' fees. See ARCAP 21(a)(2) ("A claim for fees under this Rule must specifically state the statute, rule, decisional law, contract, or other authority for an award of attorneys' fees."). As the prevailing party, however, Alliance is entitled to its costs incurred on appeal upon compliance with ARCAP 21.