IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County

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1 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c; ARCAP 28(c; Ariz. R. Crim. P IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE GREGORY BEST, v. Plaintiff/Appellant, STATE OF ARIZONA; CITY OF PHOENIX, Defendants/Appellees. 1 CA-CV DEPARTMENT B MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. CV The Honorable John A. Buttrick, Judge AFFIRMED Gregory Best Plaintiff/Appellant, In Propria Persona Terry Goddard, Attorney General By W. Lloyd Benner, Assistant Attorney General Attorneys for Defendant/Appellee State of Arizona Berke Law Firm PLLC By Lori V. Berke and Jody C. Corbett Attorneys for Defendant/Appellee City of Phoenix Phoenix Phoenix Phoenix N O R R I S, Judge 1 Gregory Best appeals the superior court s judgment in favor of the State of Arizona ( State and the City of Phoenix

2 ( City granting their joint motion to dismiss Best s complaint because it was time-barred under Arizona Revised Statutes ( A.R.S. section (2003 and striking a second answering memorandum he had filed in response to the State s motion to dismiss. Best argues the superior court should have granted his motion for default judgment against the City rather than its motion to dismiss and should not have ruled his complaint was time-barred under A.R.S , dismissed his claims under section 1983 of Title 42 of the United States Code ( U.S.C. ; and struck his Trial Memorandum in Support of Oral Arguments. For the following reasons, we disagree with each of Best s arguments and affirm the superior court s judgment. FACTS AND PROCEDURAL BACKGROUND 2 Best filed a complaint against the State and City on April 11, as amended July 21, which alleged the State and City were vicariously liable for the tortious conduct of their respective employees in defrauding and defaming him, intentionally interfering with his contractual relations and business expectancies, converting his property, and committing abuse of process. The State moved to dismiss for failure to state a claim, see Ariz. R. Civ. P. 12(b(6, asserting Best s complaint was time-barred by the one-year statute of limitations for actions against public entities, see A.R.S After the City joined the State s motion, the court granted the motion 2

3 and dismissed Best s complaint; it also granted the State s motion to strike a response Best had filed to the State s reply in support of its motion to dismiss. 1 Best timely appealed. 2 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S (A(1 and -2101(B ( As an appendix to his opening brief, Best attached a transcript of the oral argument on the State s and City s motion to dismiss and the State s motion to strike. The State and City ask that we strike the transcript, arguing it does not comply with Arizona Rule of Civil Appellate Procedure ( ARCAP 11(b(3 because Best did not order it from an authorized transcriber, nor did he promptly file with the superior court clerk and serve on the other parties a copy of the designation of record ordered from the transcriber. We agree the transcript does not comply with ARCAP 11(b(3. We decline to exercise our discretion under ARCAP 3 to accept the noncompliant transcript. As such, it is not part of the record on appeal, and we have not considered it in resolving this appeal. 2 After filing his notice of appeal, Best moved for reconsideration of the superior court s dismissal of his complaint. Although the record on appeal does not contain a ruling by the superior court on this motion, the parties state in their briefs the court denied it. The superior court did not, however, have jurisdiction to rule on Best s motion once Best filed his notice of appeal. See Lightning A Ranch Venture v. Tankersely, 161 Ariz. 497, 499, 779 P.2d 812, 814 (App ( A trial court loses jurisdiction of a case while an appeal is pending, except with regard to matters in furtherance of the appeal.. Thus, any argument Best raised for the first time in his motion for reconsideration was never properly before the superior court and is therefore waived on appeal. See Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, , 17, 158 P.3d 232, (App

4 DISCUSSION I. Motion for Default Judgment 3 Best first argues the superior court should not have dismissed his complaint against the City, but rather should have granted his earlier motion for default judgment. Best served his amended complaint on the City on July 23, On August 12, 2008, he simultaneously filed an application for entry of default and a motion for default judgment against the City. That same day, the City joined the State s motion to dismiss Best s amended complaint for failure to state a claim. 4 As an initial matter, relying on Arizona Rule of Civil Procedure 5.1(a(1, Best asserts the City s joinder in the State s motion to dismiss was improper and thus a nullity because the assistant city attorney who filed the motion did not first file a notice of appearance. Best did not raise this argument before the superior court; therefore, he has waived it on appeal. Airfreight Express, 215 Ariz. at , 17, 158 P.3d at But even if Best had not waived the argument, it is not well taken. Rule 5.1(a(1 provides: No attorney shall appear in any action or file anything in any action without first appearing as counsel of record. (Emphasis added. The assistant city attorney satisfied the requirements of Rule 5.1(a(1 and appeared as counsel of record when he 4

5 filed the City s joinder in the State s motion to dismiss; no separate notice of appearance was required. 5 Best s contention the superior court should have granted his motion for default judgment is without merit. A plaintiff may apply to the clerk of the superior court for the entry of default against a defendant if the defendant has failed to plead or otherwise defend within 20 days of being served with the plaintiff s summons and complaint. See Ariz. R. Civ. P. 55(a, 12(a(1(A. Here, the City filed its joinder on the 20th day after service and thus did not fail to plead or otherwise defend with the 20 day deadline. Best s motion for a default judgment was, therefore, a legal nullity, and the superior court properly denied it. II. Dismissal Pursuant to A.R.S Best next argues the superior court should not have dismissed his complaint because it was not time-barred under A.R.S We review de novo the superior court s dismissal of a complaint under Rule 12(b(6 based on its application of a statute of limitations. Dube v. Likins, 216 Ariz. 406, 411, 5, 167 P.3d 93, 98 (App In so doing, we assume the truth of the allegations set forth in the complaint and uphold dismissal only if [Best] would not be entitled to relief under any facts susceptible of proof in the statement of the claim. Redhair v. Kinerk, Beal, Schmidt, Dyer 5

6 & Sethi, P.C., 218 Ariz. 293, 294, 2, 183 P.3d 544, 545 (App (quoting Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 ( Section provides: All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward. A cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage. A.R.S (B (2003; Dube, 216 Ariz. at 411, 7, 167 P.3d at 98 (definition of when a cause of action accrues under (B applies to limitation period in ; Id. at 421, 1-2, 167 P.3d at 108 (supplemental opinion. 8 Here, Best filed a notice of claim with the State and City on April 11, 2007, outlining his claims against the two public entities and stating the specific amount for which he was willing to settle, in accordance with A.R.S (A. When he filed his complaint against the State and City one year later, and again when he amended the complaint in July 2008, Best attached a copy of the notice of claim as an exhibit to his complaint. In the notice of claim, Best stated: The following is a condensed summary of facts to help understand the basis upon which liability is claimed for each named 6

7 department and/or individuals. The period of time is from 1995 to the present. Irreversible damage to Mr. Best occurred on October 26, A culmination of the illegal efforts, by the below named, became known on February 22, (Emphasis added. Thus, according to the notice of claim, as of February 22, 2007, Best was (1 aware he had been damaged, and (2 knew the cause, source, act, event, instrumentality or condition which caused or contributed to [his] damage. See A.R.S (B. Therefore, his causes of action against the State and City accrued on that date. Because he did not file his complaint until more than a year later, his suit was time-barred under A.R.S Best, however, asserts the superior court should not have based its dismissal solely on the dates listed in his notice of claim because the alleged conspiracy between State and City employees to defraud him continued beyond February 22, 2007, and [d]amage occurs every single day it continues. 3 Thus, according to Best, an issue of fact existed as to when his causes of action accrued, and disputed issues of fact must be 3 As part of this argument, Best argues the court completely ignored a second notice of claim he filed with the State and City in August 2008 and attached as an exhibit to a document he filed prior to oral argument entitled Plaintiff s Trial Memorandum in Support of Oral Arguments. However, the second notice of claim, which references the same allegations of misconduct as the first, does not change the fact Best was aware he had been damaged and knew the cause or source of those damages at least by February 22,

8 resolved by a jury, not the superior court. Best s continuation argument is not well taken. 10 Contrary to Best s assertions, his complaint did not allege any ongoing fraudulent conduct by State or City employees. Further, regardless of whether Best continued to suffer additional damages beyond February 22, 2007, it is clear from the face of the notice of claim that as of that date, he was aware he was being damaged and knew the cause or source of his damages. Therefore, no issue of fact existed as to when his causes of action accrued, and the superior court properly dismissed his complaint as time-barred under A.R.S Cf. Normandeau v. City of Phoenix, 516 F. Supp. 2d 1054, 1066 (D. Ariz ( The continuation of a conspiracy beyond the date when injury occurs does not alone extend the statute of limitations.. 11 Best further contends the State and City intentionally and actively conceal[ed] evidence, thus tolling the statute of limitations. In making this argument, he relies on Mohave Electric Cooperative, Inc. v. Byers, 189 Ariz. 292, 310, 942 P.2d 451, 469 (App. 1997, in which this court held imputed notice does not trigger the statute of limitations when the information continues to be actively concealed. Best s reliance on Mohave is misplaced. The issue in Mohave was whether notice of the tortious actions of a principal s agents 8

9 could be imputed to the principal for purposes of triggering the statute of limitations when the agents were wrongfully concealing their conduct from the principal. Id. at , 942 P.2d at Here, there is no issue as to imputed notice and no principal-agent relationship; rather, Best clearly stated in his notice of claim he had actual knowledge of the fact he had been damaged and the cause thereof on February 22, Therefore, the State s and City s subsequent actions could not have tolled the statute of limitations under Mohave. Because Best had the burden of demonstrating the statute of limitations was tolled, see Engle Bros., Inc. v. Superior Court, 23 Ariz. App. 406, 408, 533 P.2d 714, 716 (1975 (when face of complaint reflects claim was barred by statute of limitations, burden of proving statute was tolled devolves upon party opposing dismissal, and failed to do so, we see no error in the superior court s dismissal of his complaint pursuant to A.R.S Best also asserts several arguments relating to whether he was required to file a notice of claim before bringing suit, see A.R.S , often incorrectly citing A.R.S as the notice of claim statute. Because the superior court dismissed his complaint based on his failure to comply with the one-year statute of limitations in A.R.S and did not address whether he had complied with the notice of claim requirements set forth in A.R.S , we do not address these arguments. 9

10 III. Survival of 42 U.S.C Claims 12 Best also argues his complaint should not have been dismissed in its entirety as time-barred because he asserted causes of action under 42 U.S.C (2006, which has a twoyear rather than a one-year statute of limitations. See A.R.S (2003 (two-year statute of limitations in personalinjury torts; Wallace v. Kato, 549 U.S. 384, 387 (2007 (limitations period for 1983 actions is that which the State provides for personal-injury torts. This argument is also not well taken. 13 To state a claim for relief in an action brought under 1983, a plaintiff must establish a person acting under color of state law deprived him of a right secured by the Constitution or laws of the United States. 42 U.S.C. 1983; Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, (1999. A state is not a person for purposes of 1983 and, therefore, is not a proper party to a state court action brought pursuant to Will v. Mich. Dep t of State Police, 491 U.S. 58, 64 (1989; Garcia v. State, 159 Ariz. 487, 488, 768 P.2d 649, 650 (App A municipality, however, is a person for purposes of 1983, but may not be held vicariously liable for the actions of its employees unless they commit a constitutional tort while executing an official policy or custom of the municipality. Monell v. Dep t of Soc. Servs. of New York, 436 U.S. 658,

11 (1978; Challenge, Inc. v. State, 138 Ariz. 200, 203, 673 P.2d 944, 947 (App Because a 1983 claim may not be brought against the State, Best s complaint failed to state a claim under Further, Best s complaint did not allege the City employees for whose actions he claimed the City was vicariously liable committed any constitutional torts against him while executing an official policy or custom of the City. In fact, Best s complaint makes no reference whatsoever to Because Best s complaint did not state a claim against either party under 1983, the two-year statute of limitations for claims brought pursuant to 1983 did not apply, and the superior court properly dismissed the complaint in its entirety as time-barred. 6 5 Best argues that a one-line citation to 1983 as an allegation he was prepared to prove in the notice of claim attached to his complaint was sufficient to state a claim upon which relief could be granted, and, if not, he should have been allowed to amend his complaint to include a reference to The record, however, contains no request to amend the complaint to allege facts sufficient to state a claim for relief against the City under Instead, Best merely requested the right to add all Federal and State statutes violated by the Defendants when a cooperative discovery is carried out and the totality of the wrongs become fact and uncovered. Even if the court had allowed Best to transfer the citation to 1983 contained in his notice of claim to his complaint, the complaint still would not have alleged sufficient facts to state a claim against the City under Best also asserts his complaint contained an underlying RICO claim which also had a two-year statute of limitations. He did not, however, raise this argument in the superior court and has therefore waived it on appeal. 11

12 IV. Motion to Strike 15 Finally, Best argues the superior court should not have struck his Trial Memorandum in Support of Oral Arguments, which he filed three days before oral argument on the State s and City s motion to dismiss and the State s motion to strike the response he filed to the State s reply in support of its motion to dismiss. This argument is without merit. The court did not strike Best s Trial Memorandum in Support of Oral Arguments, but instead struck his response to the State s reply in support of its motion to dismiss. Further, the court did not abuse its discretion in striking Best s response. See Birth Hope Adoption Agency, Inc. v. Doe, 190 Ariz. 285, 287, 947 P.2d 859, 861 (App (standard of review for superior court s decision on a motion to strike is abuse of discretion. Arizona Rule of Civil Procedure 7.1(a provides that a party may file an answering memorandum in response to an adverse party s motion, to which the party asserting the motion may file a reply memorandum, but does not authorize the party opposing the motion to file a response to the asserting party s reply. Therefore, the superior court properly struck Best s response to the State s reply. Airfreight Express, 215 Ariz. at , 17, 158 P.3d at

13 CONCLUSION 16 For the foregoing reasons, we affirm the superior court s judgment dismissing Best s complaint and striking his response to the State s reply in support of its motion to dismiss. As the successful parties to this appeal, we award the State and City their costs on appeal pursuant to A.R.S (2003 upon their compliance with ARCAP 21. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ SHELDON H. WEISBERG, Judge /s/ MARGARET H. DOWNIE, Judge 13