Opinion
2 CA-CV 2022-0114
06-08-2023
Neal Taylor, an individual, Plaintiff/Appellant, v. State of Arizona, a body politic; Catholic Community Services of Southern Arizona, Inc., a non-profit corporation, Defendants/Appellees.
Ahwatukee Legal Office P.C., Phoenix By David L. Abney Counsel for Plaintiff/Appellant. Rusing Lopez &Lizardi P.L.L.C., Tucson By Michael J. Rusing and Mark D. Lammers Counsel for Defendant/Appellee State of Arizona. Humphrey &Petersen P.C., Tucson By Andrew J. Petersen Counsel for Defendant/Appellee Catholic Community Services of Southern Arizona, Inc.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Cochise County No. S0200CV202000242 The Honorable Jason A. Lindstrom, Judge.
Ahwatukee Legal Office P.C., Phoenix By David L. Abney Counsel for Plaintiff/Appellant.
Rusing Lopez &Lizardi P.L.L.C., Tucson By Michael J. Rusing and Mark D. Lammers Counsel for Defendant/Appellee State of Arizona.
Humphrey &Petersen P.C., Tucson By Andrew J. Petersen Counsel for Defendant/Appellee Catholic Community Services of Southern Arizona, Inc.
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, CHIEF JUDGE.
¶1 Neal Taylor appeals from the superior court's grant of summary judgment in favor of defendants State of Arizona and Catholic Community Services of Southern Arizona, Inc. ("CCS"). Taylor argues the court erred by concluding his claims were time barred. He also argues that the state and CCS breached their respective duties of care owed to him while he was a foster child under the care of David and Barbara Frodsham. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts and reasonable inferences therefrom in the light most favorable to Taylor, the party opposing summary judgment. See Windhurst v. Ariz. Dep't of Corr., 252 Ariz. 240, ¶ 2 (App. 2021). In 1997, just before his twelfth birthday, Taylor was adjudicated dependent and made a ward of the state. For the next several years, he moved between shelters, foster care homes, detention centers, and group homes. He became close friends with the Frodshams' son and, in June 2002, was placed in their care as an unlicensed, non-relative placement.
¶3 In August 2002, the Frodshams submitted an application for a foster license with the help of CCS, a foster care licensing agency under contract with the state. After CCS conducted a home study, background checks, and reference checks, the Frodshams were licensed by the state as foster parents in October 2002. Taylor lived with the Frodshams until June 2003, several months before his eighteenth birthday. During that time, his foster father, David Frodsham, sexually abused him on at least two occasions. In 2016, David Frodsham was convicted of three counts of sexual conduct with a different minor and was sentenced to a seventeen-year prison term.
¶4 In May 2020, Taylor filed a civil action against the state and CCS. His complaint included allegations of negligence, gross negligence, and vicarious liability arising from the sexual abuse that occurred while living with the Frodshams. In an amended complaint, Taylor added claims for negligent hiring, retention, supervision, and enablement, as well as agency and respondeat superior liability.
Taylor also named several parties that are not parties to this appeal.
¶5 CCS and the state moved for summary judgment and joined in each other's motions, and Taylor opposed. The superior court concluded Taylor's claims were time barred under A.R.S. § 12-514, which required him to file his cause of action by December 2015. The court further found that an amendment to § 12-514, which revived time-barred claims under certain circumstances, did not apply to Taylor's claims. Specifically, the court determined that because there was no evidence the state or CCS knew or had actual knowledge of any misconduct by David Frodsham, Taylor's claims were untimely under section (3)(C) of the amendment. It therefore granted summary judgment in favor of CCS and the state. Taylor appealed from the court's final judgments. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
The superior court's final judgment under Rule 54(b), Ariz. R. Civ. P., in favor of the state was entered in August 2022. Taylor appealed from this judgment. Taylor and the state agreed to stay the appeal for the superior court to enter judgment as to CCS. We granted the stay and revested jurisdiction with the superior court. The court entered final judgment under Rule 54(b) in favor of CCS, and Taylor filed a notice of appeal as to this judgment. We then vacated the stay of appeal and revested jurisdiction in this court.
Discussion
¶6 Summary judgment is proper when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review a superior court's grant of summary judgment and questions of law relating to a statute of limitations defense de novo. Logerquist v. Danforth, 188 Ariz. 16, 18 (App. 1996). We also review questions of statutory interpretation de novo. Price v. City of Mesa, 236 Ariz. 267, ¶ 7 (App. 2014).
¶7 In 2019, the legislature passed House Bill 2466, which revised the statute of limitations for civil actions arising from sexual contact or sexual conduct committed against a minor, 2019 Ariz. Sess. Laws, ch. 259, § 1, and it was codified in part at § 12-514. As relevant to Taylor's negligence claims, he was required to commence his cause of action arising from the sexual abuse committed against him by David Frodsham around 2002, within twelve years after he turned eighteen. See § 12-514(A)(1). House Bill 2466 also provided that Taylor could commence his cause of action no later than December 31, 2020, "against a person who was not the perpetrator of the sexual conduct or sexual contact if that person knew or otherwise had actual notice of any misconduct that creates an unreasonable risk of sexual conduct or sexual contact with a minor by an employee, a volunteer, a representative or an agent." 2019 Ariz. Sess. Laws, ch. 259, § 3. Taylor filed his complaint in May 2020, more than sixteen years after his eighteenth birthday.
¶8 On appeal, Taylor argues the superior court improperly determined that the statute of limitations had expired by finding the evidence did not amount to actual notice or knowledge of "any clear or objective risks of sexual misconduct toward Taylor." In moving for summary judgment, CCS argued "there is no evidence [it] knew or had actual notice of the alleged misconduct." Similarly, the state asserted Taylor had failed to "muster any support for his claim[]" that the state knew or had actual notice of misconduct that created an unreasonable risk he would be sexually abused by David Frodsham. In his response, and on appeal, Taylor argues two instances should have alerted the state and CCS to "some sort of misconduct" at his foster home.
For the first time in his reply brief, Taylor advances the theory that CCS was a joint venturer with the state and therefore any knowledge or actual notice by the state of any misconduct extended to CCS. However, because he failed to include this argument in his opening brief, and, instead, focuses his statute-of-limitations argument on the state, we could deem this issue waived as it concerns CCS. See Ramos v. Nichols, 252 Ariz. 519, ¶ 11 (App. 2022). Nevertheless, because CCS has not objected to this omission in its answering brief, see Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, n.2 (App. 2011), and because we prefer to resolve cases on the merits, see Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984), in the exercise of our discretion, we address the merits of Taylor's claims against CCS.
¶9 First, while the Frodshams' foster parent license was pending, one of the Frodshams' daughters reported to her school counselor that she and her older sister were repeatedly sexually abused by their brother. DCS investigated this claim and found it to be unsubstantiated. During the investigation, the daughter recanted her allegation and later testified that she had lied about the abuse to get her brother in trouble.
¶10 Taylor argues this incident provided the state and CCS with "knowledge and actual notice of misconduct within the home that created a dangerous and unusual risk of sexual conduct or sexual contact with a minor." He suggests that we read the statute as providing vicarious liability for any sexual conduct or sexual contact committed against a minor when the non-perpetrator party knew or had actual notice of any misconduct. In support of this argument, Taylor maintains that by using "a" instead of "the" when describing the non-perpetrator's employee, volunteer, representative, or agent, the revived statute of limitations does not require that the misconduct be by the person who actually committed the sexual contact or sexual conduct. We disagree.
¶11 When reviewing issues involving statutory construction, we apply the statute's plain language when it is clear and unambiguous, giving effect to our legislature's intent. State v. Gongora, 235 Ariz. 178, ¶ 5 (App. 2014). Here, we apply the last antecedent rule, which recognizes that absent our legislature's contrary intent, a qualifying phrase applies to the phrase immediately preceding it. See New Sun Bus. Park, LLC v. Yuma County, 221 Ariz. 43, ¶ 15 (App. 2009). Thus, the clause "by an employee, a volunteer, a representative or an agent" qualifies the preceding clause "that creates an unreasonable risk of sexual conduct or sexual contact with a minor." 2019 Ariz. Sess. Laws, ch. 259, § 3(C). More specifically, it provides additional information about who could potentially create an unreasonable risk of sexual conduct with a minor, thus detailing the nature of the misconduct. We therefore conclude that the misconduct creating a risk of sexual conduct or sexual contact with a minor must be committed by an employee, representative, volunteer, or agent of the non-perpetrator party. Because the alleged sexual abuse reported to DCS was committed by the Frodshams' son, the revived statutes of limitations does not apply to Taylor's claims against CCS and the state.
¶12 Second, during a 2019 interview with a private investigator, Taylor stated that while he was living with the Frodshams he had made three phone calls to his former case manager in an attempt to report the sexual abuse but was ultimately unable to speak with him. Although Taylor maintains the case manager "negligently failed to fully and objectively investigate" these phone calls, the case manager denied they were ever placed. The case manager explained that there was no record of the calls and that, if they had occurred, he would have some documentation and would have addressed the situation immediately by reporting it to his supervisor and the current case manager. When the private investigator asked if Taylor ever told anyone about the abuse, Taylor stated he did not tell anyone, including the case manager he had tried to contact.
¶13 Viewing the facts in the light most favorable to Taylor, this evidence only establishes that he attempted to report the abuse by David Frodsham. This attempt however is insufficient to establish knowledge or actual notice as required by the revived statute of limitations. See 2019 Ariz. Sess. Laws, ch. 259, § 3. Indeed, Taylor admitted during a 2016 police interview relating to the criminal case against David Frodsham that he did not tell anyone about the abuse around the time it was occurring. In sum, the record before us shows that in 2002, neither the state nor CCS knew or had actual notice that David Frodsham was sexually abusing Taylor. Therefore, the revived statute of limitations was inapplicable to his cause of action. The superior court did not err in granting summary judgment to the state and CCS.
In light of our affirming the superior court's conclusion that Taylor's claims are time barred, we need not address his related claims that (1) the state owed a duty of care to protect Taylor, (2) CCS owed Taylor a derivative, correlative, and corresponding duty of care, and (3) David Frodsham was an agent of the state and CCS.
Attorney Fees on Appeal
¶14 Taylor requests his costs under A.R.S. §§ 12-331, 12-341, 12-342, and Rule 21, Ariz. R. Civ. App. P. We decline to award costs because Taylor did not prevail on appeal. See §§ 12-341, 12-342. The state requests that we "award its costs incurred on appeal" under A.R.S. § 12-341.01 and Rule 21(a). Because the cited statute and rule are for an award of attorney fees, we interpret the state's request as one for attorney fees. Section 12341.01 permits a court to award a successful party its reasonable attorney fees for "any contested action arising out of a contract." Because Taylor's claims are founded solely in tort, we decline to award the state its attorney fees. However, the state and CCS are entitled to their costs on appeal upon compliance with Rule 21(b). See § 12-341.
Disposition
¶15 We affirm the superior court's grant of summary judgment to the state and CCS.