Martinez v. JCL

Annotate this Case

Download PDF

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 DIVISION ONE FILED: 10-21-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE RICHARD G. MARTINEZ, ) ) Plaintiff/Appellant, ) ) v. ) ) JOHN C. LINCOLN HEALTH NETWORK; ) MILUSE VITKOVA, M.D.; JIRI VITEK; ) LARRY POHORILY; LESLIE POHORILY; ) ) and AUTOPSY SERVICES, INC., ) ) Defendants/Appellees. ) No. 1 CA-CV 10-0032 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2008-017287 The Honorable Sam Myers, Judge The Honorable Hugh Hegyi, Judge AFFIRMED Richard G. Martinez In propria persona Olson, Jantsch & Bakker, P.A. By Thomas G. Bakker Sarah L. Sato Attorneys for Defendant/Appellee John C. Lincoln Health Network Thousand Oaks, CA Phoenix Holloway Odegard Forrest & Kelly, P.C. By Vincent J. Montell J.P. Harrington Bisceglia Attorneys for Defendants/Appellees Vitkova, Vitek, Pohorily and Autopsy Services, Inc. Phoenix J O H N S E N, Judge ¶1 Richard Martinez appeals from judgment in favor of the defendants. the superior court s For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Martinez s wife died of congestive heart failure after routine shoulder surgery on November 26, 2001. Dr. Miluse Vitkova to conduct an autopsy. later, Vitkova in and August 2004, Martinez hired Almost three years filed a assistant, Vitkova s Martinez complaint Larry Pohorily. 1 against Martinez alleged a variety of torts based on his contention that the defendants mishandled his wife s remains. Those claims were dismissed and the judgments affirmed on appeal. Indeed, this is Martinez s fifth appeal arising out of the events that followed his wife s death. A full history is recounted in our decisions in Martinez v. Donor Network of Ariz., 1 CA-CV 07-0144, 2008 WL 4133379, decision); at *1, ¶¶ Martinez 1-7 v. (Ariz. Vitkova, 1 App. 1 Feb. CA-CV 12, 2008) 07-0776, (mem. 2008 WL Martinez also named as defendants the respective spouses of Vitkova and Pohorily. For the sake of simplicity, we will not refer to them in this decision. 2 4790671, at *1-2, ¶¶ 1-7 (Ariz. App. Oct. 30, 2008) (mem. decision); Martinez v. John C. Lincoln Health Network, 1 CA-CV 08-0131, 2008 WL 4965944, at *1-2, ¶¶ 1-7 (Ariz. App. Nov. 18, 2008) (mem. decision); and Martinez v. SCI Ariz. Funeral Serv., Inc., 1 CA-CV 08-0466, 2009 WL 960800, at *1-2, ¶¶ 1-8 (Ariz. App. Apr. 9, 2009) (mem. decision). ¶3 Martinez s complaint in this case was filed July 21, 2008. It named as defendants Vitkova, Pohorily, John C. Lincoln Health Network ( John C. Lincoln ), Donor Network of Arizona ( Donor Network ) Services ). brought on The res and Autopsy superior judicata court grounds Services, granted by Inc. motions Vitkova, ( Autopsy to dismiss Pohorily, Donor Network and Autopsy Services and later entered judgment on the same grounds in favor of John C. Lincoln. ¶4 We have jurisdiction of Martinez s appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). DISCUSSION A. The Superior Court Correctly Dismissed Vitkova, Pohorily, Autopsy Services and Donor Network. ¶5 On appeal, Martinez argues the court questioned him roughly during oral argument on the motions to dismiss brought by Vitkova, Pohorily, Autopsy 3 Services and Donor Network, entitling him to a new trial pursuant to Arizona Rule of Civil Procedure 59(a)(1), (7) and (8). ¶6 A new trial motion brought pursuant to Rule 59(a) must be filed in the superior court and is not properly filed in this court. Cf. Adroit Supply Co. v. Elec. Mut. Liab. Ins. Co., 112 Ariz. 385, 389, 542 P.2d 810, 814 (1975) ( The grant or denial of the motion for a new trial is within the sound discretion of the trial court and we will not upset its ruling absent a clear showing of abuse of discretion. ). ¶7 Nevertheless, we will construe Martinez s argument on appeal to be that the court erred by granting the motions to dismiss. We review an order granting a motion to dismiss for abuse of discretion and review issues of law . . . de novo. Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11, 130 P.3d 978, 980 (2006) (citations omitted). [Res judicata] is a question of law and is therefore reviewed de novo. Pettit v. Pettit, 218 Ariz. 529, 531, ¶ 4, 189 P.3d 1102, 1104 (App. 2008). ¶8 The doctrine of res judicata promotes finality in litigation, the prevention of harassment and judicial economy. Circle K Corp. v. Indus. Comm n of Ariz., 179 Ariz. 422, 426, 880 P.2d 642, 646 (App. 1993). Under the doctrine of res judicata, a judgment on the merits in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. This doctrine binds the same 4 party standing in the same capacity in subsequent litigation on the same cause of action, not only upon facts actually litigated but also upon those points which might have been litigated. Pettit, 218 Ariz. at 531, ¶ 4, 189 P.3d at 1104. this court relied on the same Restatement (First) of Judgments evidence § 61 In Pettit, test (1942) from the to preclude a litigant from subsequently maintaining a second action based upon the same transaction, if the evidence needed to sustain the second action would have sustained the first action. Pettit, 218 Ariz. at 532-33, ¶¶ 8-9, 189 P.3d at 1105-06 (quoting the Restatement (First) of Judgments § 61). ¶9 In an amended complaint filed in 2005 in the prior case, Martinez alleged a multitude of claims against Vitkova, including fraud, breach negligent intentional of infliction including also of with emotional and infliction of remains, claims with emotional or negligent and negligence, tortious numerous interference misrepresentation distress, abetting alleged negligent intentional negligent interference conversion/aiding complaint contract, and conduct. against remains, distress, The Pohorily, negligent and negligence, and conversion/aiding and abetting tortious conduct. Each of the claims against Vitkova and Pohorily was based on facts relating to the autopsy; the claims alleged in various forms that the 5 defendants were liable to Martinez for mishandling his wife s remains in connection with the autopsy. ¶10 After the court granted Vitkova s motion for partial summary judgment Martinez in prior case, into entered the Vitkova, a Mutual Pohorily Release and Agreement ( Agreement ), in which Martinez agreed to dismiss all claims against the defendants and in exchange the defendants agreed not to pursue their claims for costs and attorney s fees. v. Vitkova, Thereafter, 1 CA-CV pursuant 07-0776, 2008 to Agreement, the WL 4790671, the Martinez at *1, superior dismissed all of Martinez s claims with prejudice. ¶ 3. court Id. Six months later, Martinez asked the superior court to rescind his signature from the Agreement. Id. at ¶ 4. his request, and this court affirmed. ¶11 action Martinez s against Damages Caused Damages Caused current Vitkova, by by Id. at ¶¶ 5, 21. complaint Pohorily Acting In Conversion. The court denied lists and Concert The breach of fiduciary duty by Vitkova. two causes Autopsy for Services, Conversion complaint of also and alleges Each of the claims is based on the alleged mishandling of Martinez s wife s remains during the autopsy. Among other things, Martinez alleges the defendants to conspired harvest his wife s organs consent and fraudulently removed his wife s brain. 6 without ¶12 Although the causes of action Martinez alleges against the defendants in this case are not precisely the same causes of action dismissed by agreement in the earlier litigation, they are barred by res judicata because they are based on evidence that would previously. 1106. have supported the claims that were dismissed See Pettit, 218 Ariz. at 533, ¶ 9, 189 P.3d at Each of the claims in the current case, like each of the claims dismissed previously, arises out of what Martinez alleges was the mishandling of his wife s remains. In the prior case, Martinez alleged that Vitkova and Pohorily breached a contract and committed various torts by mishandling the remains; in this case he alleges they committed conversion and breached a fiduciary duty by mishandling the remains. 2 ¶13 Moreover, actually litigated. litigated res and judicata those encompasses which might both have claims been Pettit, 218 Ariz. at 531, ¶ 4, 189 P.3d at 1104. Martinez argues his current conspiracy claims are different than 2 Martinez s allegation that the defendants conspired to commit conversion (he alleged conversion/aiding and abetting tortious conduct in the earlier litigation) adds nothing to his conversion claim in this case. See Consol. Tungsten Mines, Inc. v. Frazier, 87 Ariz. 128, 138, 348 P.2d 734, 741 (1960) ( A conspiracy itself furnishes no grounds whatever for a civil action. It is the doing of the thing for which the conspiracy was formed that furnishes the basis for such civil action. ); Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phoenix, Inc., 197 Ariz. 535, 545, ¶ 42, 5 P.3d 249, 259 (App. 2000) ( civil conspiracy requires an underlying tort which the alleged conspirators agreed to commit ). 7 the claims resolved against him in the earlier case. But the facts on which his current claims are based are the same as those set though forth his prior in his earlier complaints did complaints. not allege Therefore, a even conspiracy to commit conversion, the facts alleged in those complaints would have supported the conspiracy he now alleges. 3 ¶14 In Autopsy his Services current is a complaint, partnership Martinez composed alleges of that Vitkova and Pohorily and is liable for their actions with respect to the autopsy. prior Although Autopsy Services was not a defendant in the action, defensive Martinez s collateral claims estoppel. against See it Parklane are barred Hosiery Co. by v. Shore, 439 U.S. 322, 328 (1979); Wetzel v. Ariz. State Real Estate Dep t, 151 Ariz. 330, 333, 727 P.2d 825, 828 (App. 1986) ( Defensive use of [collateral estoppel] occurs when a party defending a claim asserts a previous judgment to which it was not a party to preclude litigation by an opponent who was a party to the prior determination. ). ¶15 Further, after a thorough review of the transcript of the oral argument on the motion to dismiss, we see no indication that the superior court was inappropriately terse with Martinez or unkind to him during the oral argument. 3 To the contrary, the In fact, Martinez admitted in the superior court that he discovered the conspiracy to illegally harvest his wife s remains in 2006 during discovery in his earlier case. 8 court displayed considerable patience, even taking care to explain to Martinez that its decision did not suggest Martinez s case was meritless or that his arguments on the merits were incorrect. The court merely clarified that Martinez was precluded from re-litigating issues already resolved by final judgment. In sum, the transcript contains no inappropriate language or conduct by the superior court. 4 B. The Superior Court Correctly Granted Summary Judgment in Favor of John C. Lincoln. ¶16 Martinez s complaint in this case alleged conversion, acting in concert for conversion and breach of fiduciary duty against John Dismiss or arguing the After in Lincoln. the claims giving considered C. hospital Alternative Motion against were Martinez the The motion notice as a it and for barred time motion filed for to a Motion Summary by res respond, summary to Judgment, judicata. the court judgment and granted it. 4 The court at the same time granted a motion to dismiss brought on res judicata grounds by Donor Network. The complaint in the current case alleged claims against Donor Network for conversion, acting in concert for conversion and breach of fiduciary duty. The complaint in the prior case alleged claims against Donor Network for negligent interference with remains, infliction of emotional distress, negligence and conversion/aiding and abetting tortious conduct. As with the claims against the other defendants, each of the claims against Donor Network was based on the alleged mishandling of Martinez s wife s remains. For the reasons set forth above, we conclude the superior court in this case correctly determined that Martinez s current claims against Donor Network are barred by res judicata. 9 ¶17 issue Summary judgment is proper when there is no genuine as to any material fact and [] the entitled to judgment as a matter of law. moving party is Ariz. R. Civ. P. 56(c)(1). We review a trial court s grant of summary judgment de novo. Corbett v. ManorCare of Am., Inc., 213 Ariz. 618, 621, ¶ 2, 146 P.3d 1027, 1030 (App. 2006). ¶18 bars We agree with the superior court that res judicata Martinez s claims against John C. Lincoln. Among Martinez s claims against John C. Lincoln in the earlier case were that the hospital negligently interfered with his wife s remains, negligently handled the remains and/or failed to take proper steps to ensure proper monitoring of the autopsy, and converted or remains. Martinez v. John C. Lincoln Health Network, 1 CA-CV 08-0131, 2008 aided WL and abetted 4965944, at the *1, conversion ¶ 3. The of his wife s superior court entered summary judgment in favor of John C. Lincoln in the earlier case, and this court affirmed. ¶19 Martinez s claims against Id. at ¶¶ 5, 17. John C. Lincoln in the current case are based on the same set of facts that allegedly supported his claims against the hospital in the prior case, namely that Pohorily harvesting to in John C. use the Lincoln allegedly hospital connection with morgue his allowed for wife s Vitkova illegal autopsy. and tissueIndeed, Martinez s claim for conversion is the same as one of the claims 10 dismissed in the earlier case. For this reason, res judicata precludes Martinez from re-litigating his claims against John C. Lincoln. See Pettit, 218 Ariz. at 533, ¶ 9, 189 P.3d at 1106. CONCLUSION ¶20 We affirm on res judicata grounds the superior court s entry of judgment in favor of Vitkova, Pohorily, Donor Network and John C. Lincoln. We also affirm the judgment in favor of Autopsy Services on grounds of defensive collateral estoppel. Appellees ask that we sanction Martinez by assessing him for their reasonable attorney s fees pursuant to A.R.S. § 12- 349(A)(1) (2003) and Arizona Rule of Civil Appellate Procedure 25. These provisions permit a court to assess fees or sanctions against a lawyer or party that [b]rings or defends a claim without substantial justification, A.R.S. § 12-349(A)(1), or that files a frivolous appeal, ARCAP 25. Although it is a close Martinez s question, we are not persuaded falls within the statute or the rule. that appeal We do not doubt the sincerity of Martinez s grief over the loss of his wife and his concern over the treatment of her remains. Nevertheless, we must emphasize that the law does not allow him to continue to litigate with Vitkova, Pohorily, Autopsy Services, Donor Network and John C. Lincoln over matters pertaining to the autopsy of his wife. Martinez s claims were resolved against him in the earlier lawsuits, and the orders dismissing those claims bar any 11 future claims he might seek to bring against those defendants arising from the handling of his wife s remains or her autopsy. Martinez should be on notice that in the event he initiates any additional claims against Vitkova, Pohorily, Autopsy Services or John C. Lincoln based on those matters, he will risk sanctions pursuant to A.R.S. § 12-349(A)(1) and/or ARCAP 25. ¶21 We grant appellees their costs subject to compliance with ARCAP 21. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ MICHAEL J. BROWN, Judge /s/ JOHN C. GEMMILL, Judge 12

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.