Schwake v. AG's Office

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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. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE MOLLY SCHWAKE, Plaintiff/Appellant, v. ARIZONA ATTORNEY GENERAL S OFFICE, Defendant/Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 02-09-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CV 09-0071 DEPARTMENT B MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2008-070482 The Honorable Harriett Chavez, Judge AFFIRMED Molly Schwake Plaintiff/Appellant In Propria Persona Waddell Terry Goddard, Attorney General By Hunter Perlmeter, Assistant Attorney General Attorney for Defendant/Appellee Phoenix B A R K E R, Judge ¶1 Molly Schwake ( Schwake ) appeals the trial court s dismissal of her complaint for failure to state a claim upon which relief can be granted. For the following reasons, we affirm. Facts and Procedural History ¶2 On August 29, 2008, Schwake filed a pro per complaint on behalf of herself, Frenz-a-Salon LLC, and On Judy s Wings LLC, against complaint the did Office not relief sought. of contain the City factual Attorney allegations General. or state The the On September 26, 2008, the Arizona Attorney General moved to dismiss the complaint under Arizona Rule of Civil Procedure 12(b)(6) or in the alternative request for a more definite statement. Schwake filed a motion to deny the motion to dismiss on October 10, 2008. difficult to understand. This motion was also On December 10, 2008, the trial court granted the Attorney General s motion to dismiss, but did not sign a final order. The court noted that it found it difficult to understand the basis of Plaintiff s complaint and, therefore, there is insufficient notice of claim. December 29, 2009. Schwake appealed on The trial court issued a signed order on April 29, 2009, which reinstated the appeal. ¶3 We have jurisdiction Statute section 12-2101(B) (2003). 2 pursuant to Arizona Revised Discussion ¶4 On appeal from a motion to dismiss for failure to state a claim, we assume the allegations of the complaint are true and uphold the dismissal only if Schwake is not entitled to any relief stated in the facts of the complaint. McAlister v. Citibank, 171 Ariz. 207, 211, 829 P.2d 1253, 1257 (App. 1992). ¶5 While we recognize Schwake is not trained in the law, legal conclusions, without any supporting factual allegations, do not satisfy Arizona s notice pleading standard under Arizona Rule of Civil Procedure 8. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008). a short and plain statement of pleader is entitled to relief. the claim Rule 8 requires showing that Ariz. R. Civ. P. 8(a)(2). the This gives the opponent fair notice of the nature and basis of the claim and involved. indicate[s] generally the type of litigation Mackey v. Spangler, 81 Ariz. 113, 115, 301 P.2d 1026, 1027-28 (1956). Neither this court nor the trial court are permitted to speculate about hypothetical facts that might entitle the plaintiff to relief. Cullen, 218 Ariz. at 420, ¶ 14, 189 P.3d at 347 (quoting Cullen v. Koty-Leavitt Ins. Agency, Inc., 216 Ariz. 509, 515, ¶ 12, 168 P.3d 917, 923 (App. 2007)). ¶6 Schwake s complaint was laden with legal jargon and conclusions, void of supporting facts or a prayer for relief, and contained very few complete sentences. 3 On appeal, Schwake argues that the Attorney General should have investigated the overall circumstances surrounding the real property purchase she sets forth in her opening brief. However, from the complaint and motion to deny, it is entirely impossible to decipher that this was the relief she was seeking. As an example, we set forth the complaint s concluding paragraph: Made part of this Complaint; Defendants City Attorneys, Attorney General Department, Superior Court of the Maricopa County Intensive Collection Management Program, actions taken are a proposal of rebellion and Treason, Violation of Anti-Trust Laws, Internal Espionage, breach by all Banks, all utilities companies, all public department involved in veterans Funding, social security accounts, all secure accounts, all public department Collecting for fee s and fines and administrating Justus in the Maricopa County for the State of Arizona. All performances are illegal Actions and are still considered treason against the American Public and the Public of the Maricopa County in the State of Arizona. Therefore Not legal standing in the Civil Courts. With a pleading of this nature, the trial court s dismissal for failure to state a claim was appropriate. ¶7 On appeal, Schwake presents a well-written brief with factual allegations and argument, albeit with no citations to the record. However, based on the unintelligible complaint, there is no means to link the assertions in the opening brief to the complaint filed below. Accordingly, provides no basis to reverse the dismissal. 4 the opening brief Conclusion ¶8 For the above stated reasons, we affirm the trial court s dismissal for failure to state a claim. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ___________________________________ PETER B. SWANN, Judge 5

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