Serrano v. Serrano

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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 ELISA SERRANO, an individual, ) ) Plaintiff/Appellant, ) ) v. ) ) MARTHA SERRANO, an individual; ) MARTIN CHACON, an individual; ) SHELLY T. BERRY, LLC, an Arizona ) limited liability company, dba ) RMA-UPTOWN aka REMAX UPTOWN; ) SAUL G. ENRIQUEZ and JANE DOE ) ENRIQUEZ, husband and wife, ) ) Defendants/Appellees. ) __________________________________) DIVISION ONE FILED: 01/10/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CV 10-0649 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2008-015451 The Honorable Douglas L. Rayes, Judge AFFIRMED Law Office of Sylvia L. Thomas L.L.C. By Sylvia L. Thomas Attorney for Plaintiff/Appellant Phoenix Dominguez Law Firm By Antonio Dominguez Attorney for Defendants/Appellees Serrano and Chacon Phoenix Saul Enriquez Defendant/Appellee In Propria Persona Scottsdale B R O W N, Judge ¶1 Elisa Serrano ( Appellant ) appeals the dismissal of her second amended complaint against several defendants. 1 She argues the trial court erred in ruling that the statutes of limitation were not tolled by the discovery rule. asserts that the statutes should have been She also equitably tolled because the defendants concealed facts from her that would have revealed the claims she alleges against them. For reasons that follow, we affirm the dismissal of plaintiffs claims. BACKGROUND 2 ¶2 Appellant and her then-husband, Mario Vasquez ( Mario ), purchased a home on Virginia Avenue ( the Virginia Avenue Home ) in January 1991. In April 2000, Mario was arrested and pled guilty to the attempted sexual abuse of two neighborhood children. Neighbors placed a large sign in the front yard identifying Mario as a sexual predator. For several months, windows were broken and threats were spray painted on the home and the fence around it using expletives to describe 1 Although Appellant s claims against her brother, Armando Serrano ( Armando ), and his girlfriend, Maria Rodriguez ( Maria ), were initially dismissed, the trial court granted Appellant s motion for reconsideration reinstating the claims against Armando and Maria. 2 In reviewing the grant of a motion to dismiss, we assume the truth of facts alleged in the complaint. Logan v. Forever Living Prods. Int l, Inc., 203 Ariz. 191, 192, ¶2, 52 P.3d 760, 761 (2002). 2 Mario as a child molester. Mario was placed on probation, but violated his terms of probation in April 2001, was incarcerated for six months, deported to and Mexico. upon his release Appellant in remained in October the 2001 country was with their four children and obtained a default divorce in 2002. ¶3 Unable to family for help. ( Martha ), and make ends meet, Appellant turned to her Appellant s sister, defendant Martha Serrano her brother-in-law, defendant Martin Chacon ( Martin ), offered Appellant a job as a manager and bartender at Kahlua s, a restaurant and bar they owned. Between October 2001 and December 2002, Appellant worked sixteen-hour shifts, seven days a week. During this time, Martha sporadically paid her between $400 and $800 per month, despite Appellant s demands to be paid her full wages. ¶4 In November 2001, Martha convinced Appellant that she should leave the Virginia Avenue Home and move to a different neighborhood where her family would not be subjected to threats and vandalism. Martha and defendant Saul Enriquez ( Saul ), an agent for defendants Shelley Berry and Re/Max Uptown, 3 offered her $20,000 Sherman toward Street the ( the purchase Sherman of Street 3 a home they Home ) in selected exchange on for We hereafter refer to Saul Enriquez, Shelley Berry, and Re/Max Uptown collectively as Enriquez. 3 Appellant signing a deed conveying the Virginia Avenue Home to Martha. ¶5 In November 2001, Martha and Enriquez had Appellant sign a blank quit claim deed without a notary present. Mario had been deported by this time and was therefore not available to sign the different RECORDED Uptown deed. deed, MAIL 5225 listing TO: N. In Martha Central December the 2001, mail-to Serrano, Ave, c/o Ste. Enriquez completed information Saul #102 a as WHEN Enriquez, Re/Max Phoenix, AZ 85012. Martha and Enriquez forged Appellant s and Mario s signatures on the deed rather than previously signed. on the blank deed that Appellant had Theresa Boorsma ( Boorsma ) notarized the allegedly forged signatures sometime in December 2001. 4 Martha and Enriquez recorded the completed, notarized quit claim deed on January 3, 2002. ¶6 In September 2002, Martha and Martin entered into a verbal agreement with Armando for the conveyance of the Virginia Avenue Home to him for $126,000. Armando transferred the title to his 1999 Ford truck to Martha as an earnest money deposit on the home. On December 4, 2002, Armando executed a deed of trust for $88,200 for the Virginia Avenue Home. On December 6, 2002, 4 only The year. notary acknowledgement 4 provides the month and Martha and Martin executed a warranty deed conveying the home to Armando. ¶7 to In December 2002, Martha and Saul approached Appellant open a restaurant and bar in Appellant s name. Martha promised Appellant an initial 50/50 profit share in exchange for Appellant operating Mariscos El Caribe and agreed to give the business to managed the Appellant restaurant once from it was going December 2002 well. to Appellant June 2003, but Martha did not split the profits with her or pay her an hourly wage, stating that the business was not making any money. ¶8 According to Appellant, it was not until February 2008, when she discovered that Armando had transferred his truck to Martha as a down payment on the Virginia Avenue Home, that she became suspicious of the actions of the various defendants. Appellant hired legal counsel, and in May 2008, she learned the Virginia Avenue Home had more equity in it than the $20,000 Martha and Martin gave her for it and that they had made a substantial amount of money when they sold it to Armando. Appellant also discovered at this time that Mario could not have signed the December 7, 2001 quit claim deed. learned through a forensic expert that both In June 2009, she her and Mario s signatures were forged on the recorded deed. ¶9 alleged Appellant s initial complaint, filed on July 1, 2008, nine counts against thirteen 5 defendants. The court granted Plaintiff s motion for leave to amend on September 17, 2008. Appellant s first amended complaint, filed on September 19, 2008, was dismissed without prejudice on August 14, 2009, because the claims were barred by the statute of limitations. The trial court directed Appellant to file her Second Amended Complaint by no later than September 4, 2009 and to state specifically any basis for tolling the statute of limitations the date or time frames of the alleged discovery. Appellant filed her second amended complaint on August 27, 2009. 5 Martin, Armando, and Maria filed motions to Martha, dismiss the complaint based on the statutes of limitations, and Enriquez later joined in comprehensive trial court Armando s discussion could not and with find Maria s counsel any motions. at factual oral Following argument, allegations in a the the complaint that are sufficient to support any theory that avoids the statute of limitations defense and accordingly dismissed Appellant s claims against all the defendants named in the complaint. 5 Appellant s forty-seven page second amended complaint alleged thirteen claims, including breach of contract, breach of the covenant of good faith and fair dealing, conversion, unpaid wages, unjust enrichment, fraudulent conveyance, fraudulent concealment, common law fraud, statutory fraud, fraudulent misrepresentation, aiding and abetting fraud, negligent misrepresentation, and breach of fiduciary duty. For convenience, we refer to the second amended complaint hereafter as the complaint. 6 ¶10 In March 2010, Appellant filed a motion for partial reconsideration dismiss and Appellant s Appellant a regarding motion motions alleged Armando s for as a to new Maria s trial. Armando sufficient and facts and to The motions court Maria, toll to granted the holding statute that of limitations as to Armando and Maria on counts 1-3, 5-8, and 1011. Appellant then filed a motion for new trial and a motion for partial reconsideration regarding the trial court s ruling on Martha and Martin s motion to dismiss. motions. Appellant timely appealed The court denied both the dismissal of her complaint as to Martha, Martin, Enriquez, and the Boorsmas. 6 DISCUSSION ¶11 We review the trial court s dismissal of a complaint based on statutes of limitation or other questions of law de novo. Andrews v. Eddie s Place, Inc., 199 Ariz. 240, 241, ¶ 1, 16 P.3d 801, 802 (App. 2000). A court should not dismiss a complaint under Rule 12(b)(6) 7 unless it appears certain that 6 Pursuant to a stipulation of the parties filed in this court in June 2011, the Boorsmas are no longer a party to this appeal. 7 Although Appellant attached a substantial number of documents to her response to defendants motions to dismiss, we are not obligated to convert the motions to dismiss to motions for summary judgment. See Brosie v. Stockton, 105 Ariz. 574, 576, 468 P.2d 933, 935 (1970) ( The element that triggers the conversion (from a motion to dismiss to one for summary judgment) is a challenge to the sufficiency of the pleader's claim supported by extra-pleading material. ). Here, even 7 the plaintiff would not be entitled to relief under any state of facts susceptible of proof under the claim stated. Universal Mktg. and Entm t, Inc. v. Bank One of Ariz., N.A., 203 Ariz. 266, 267-68, ¶ 2, 53 P.3d 191, 192-93 (App. 2002) (citation omitted). The court must look only to the complaint, assuming the truth of all well-plead factual allegations and indulging all reasonable inferences. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008). ¶12 In her complaint, Appellant alleges that the discovery rule operates to toll the applicable statute of limitations on eleven of her thirteen claims. On appeal, Appellant argues that the statutes should have been tolled based on the existence of a confidential relationship between Martha and Appellant which entitled Appellant to rely on Martha s representations without investigating their truth. Because Appellant raises argument for the first time on appeal, it is waived. this Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18, 169 P.3d 120, 125 (App. 2007). assuming the trial court considered material outside the complaint, that material was not submitted by the moving parties and therefore Appellant was not deprived of the opportunity to respond. Moreover, Appellant never requested that the trial court treat the motions to dismiss as motions for summary judgment, nor did she assert in her opening brief that we should examine the motions as if they are governed by Rule 56. Thus, our review is limited to the allegations of the amended complaint. 8 ¶13 Under the discovery rule, a cause of action does not accrue and the statute of limitations does not begin to run until the plaintiff knows or should with reasonable diligence know the facts underlying the defendant s wrongful conduct that caused an injury. Cannon v. Hirsch Law Office, P.C., 222 Ariz. 171, 181-82, ¶ 34, 213 P.3d 320, 330-31 (App. 2009). Most cases applying the discovery rule have a common thread : requiring [t]he injury or the act causing the injury, or both, have been difficult for the plaintiff to detect. Gust, Rosenfeld & Henderson v. Prudential Ins. Co., 182 Ariz. 586, 589, 898 P.2d 964, 967 (1995). a party to The discovery rule, however, does not permit hide behind its ignorance when reasonable investigation would have alerted it to the claim. ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 290, ¶ 12, 246 P.3d 938, 941 (App. 2010). ¶14 Because the statute of limitations and the facts relevant to the applicability of the discovery rule differ on Appellant s various claims, we address each in turn. A. ¶15 Fraud-Related Claims Appellant asserts a number of claims of fraud against Martha, Martin, Enriquez, and the Boorsmas. Under Arizona law, the statute of limitations for fraudulent conveyance, fraudulent concealment, abetting fraudulent fraud is three misrepresentation, and years. Stat. 9 Ariz. Rev. aiding and ( A.R.S. ) section 12-543(3) (2003). statutory fraud is one year. ¶16 The statute of limitations for A.R.S. § 12-541(5) (2003). Appellant alleges that Martha and Enriquez coerced her into signing a blank quit claim deed to the Virginia Avenue Home. But elsewhere in her complaint, Appellant states that she signed the deed with the intent to lawfully convey the Virginia Avenue Home to [Martha]. She further alleges Martha and Enriquez later filled in a different quit claim deed, listing Enriquez in the WHEN RECORDED MAIL TO: section, and forged both her and Mario s signatures. Appellant alleges that Boorsma notarized the second quit claim deed without identification, and Martha and Enriquez recorded it. Appellant asserts that she did not become suspicious of this transaction until she learned in February 2008 that Armando had transferred his pickup truck to Martha in Appellant 2002 argues as a that deposit the on statute the of Virginia Avenue limitations was Home. tolled until she consulted an attorney following this discovery. ¶17 Under the doctrine of equitable tolling, a defendant whose affirmative acts of fraud or concealment have misled a person from either recognizing a legal wrong or seeking timely legal redress may not be entitled to assert the protection of a statute of limitations. Porter v. Spader, 225 Ariz. 424, 428, ¶ 11, 239 P.3d 743, 747 (App. 2010). If fraudulent concealment is established, the statute of limitations is tolled until such 10 concealment is discovered. 990, 999 discovered or reasonably should have been Walk v. Ring, 202 Ariz. 310, 319, ¶ 35, 44 P.3d (2002) (quotation and citation omitted); see also Grimmett v. Brown, 75 F.3d 506, 514 (9th Cir. 1996) (noting fraudulent concealment plaintiff proves tolls defendant statute actively of limitations misled her and only if she had neither actual nor constructive notice of the facts constituting her cause of action despite exercising due diligence). ¶18 Under A.R.S. § 12-543(3), a cause of action in fraud accrues when the aggrieved party discovers facts constituting the fraud. The discovery dates from the time that [the party], by exercise of reasonable diligence, might have discovered the fraud. Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 358, 701 P.2d 851, 854 (App. 1985) (emphasis added). deed constitutes A.R.S. § 33-416 constructive (2007) notice ( The record of of Recordation of a its a contents. grant, See deed or instrument in writing authorized or required to be recorded, which has been duly acknowledged and recorded in the proper county, shall be notice to all persons of the existence of such grant, deed or instrument[.] ). The statutory period may begin to run on the date of recording if the recorded deed sets forth facts from which the aggrieved party should have realized it had a cause of action. Transamerica, 145 Ariz. at 358, 701 P.2d at 854. 11 ¶19 Home, The recorded quit claim deed to the Virginia Avenue which was signed more than a month after deported to Mexico, contains Mario s signature. Mario was This fact alone should have alerted Appellant that the deed had been altered after she signed it. Additionally, Appellant knew that she had signed a blank quit claim deed, which should have made her aware of the possibility the deed could be improperly manipulated. Had Appellant conducted any reasonable investigation about the status of the title of the Virginia Avenue Home she could have discovered Martha, the fraudulent Enriquez, and the conduct she Boorsmas in now alleges connection against with this transaction. ¶20 In addition, other facts existed which would have put a reasonable person on notice to investigate the fairness of the transaction within the limitations period. Martha s failure to pay Appellant s wages or share the profits of their restaurant despite repeated requests from Appellant cast doubt on Martha s trustworthiness. In addition, Appellant had owned the home for ten years when she signed the quit claim deed and had made significant improvements to the home during that period, which should have caused her to question whether the home had only $20,000 managing in equity. two Appellant restaurants, also suggesting had extensive she knowledge of general business transactions. 12 had at experience least some And Appellant had at least as much access to information that could have alerted her to the home s value as Martha did. See Sorrells v. Clifford, 23 Ariz. 448, 459, 204 P. 1013, 1017 (1922) (finding no right to rely upon representations as to value where parties had equal means of knowledge and appellant had opportunity to undertake investigation); Bianconi v. Smith, 3 Ariz. 320, 32425, 28 P. 880, 880-81 (1892) (holding appellant who failed to avail himself of knowledge readily within his reach could not claim the right to rely upon representations which he could have discovered to be false by the use of such knowledge). Appellant property could tax have looked assessments, at or her she mortgage could Moreover, statements have had the and home appraised. ¶21 In sum, Appellant s complaint does not allege facts establishing that she exercised reasonable diligence in discovering the alleged fraud in conjunction with the conveyance of the Virginia Avenue Home, nor does the complaint offer any explanation for Appellant s failure to do so until six years after the deed was recorded. The complaint s conclusory assertion, without any supporting facts, that [t]he discovery rule operates to toll any applicable statute of limitations is insufficient as a matter of law to satisfy the discovery rule. See Cullen, 218 Ariz. at 419, ¶ 7, 189 P.3d at 346 (stating a complaint that states only legal 13 conclusions, without any supporting factual allegations, notice pleading standard ). on its face existence of from the which does satisfy Arizona s Because the deed contains evidence Appellant alleged not should fraudulent have conduct, realized and there the were other circumstances that would have alerted a reasonable person to investigate the transaction, we conclude the statute of limitations began to run when the deed was recorded on January 3, 2002. Appellant s fraud-related claims pertaining to the Virginia Avenue Home transaction are therefore time-barred. ¶22 Appellant November 5, 2003, additionally Martha and asserts that Enriquez on or forged around Appellant s signature on the Business Asset Purchase and Sale Agreement, Bill of Sale, and other conveyance documents related to the sale of Mariscos El Caribe. Appellant further alleges that Martha and Enriquez concealed from Appellant the fraudulent conveyance of Mariscos El Caribe on November 30, 2003 and failed to pay Appellant her share of the business profits. conclusory conveyed operate allegations the to that restaurant toll the and statute Martha that of and the But despite her Enriquez discovery limitations as fraudulently rule to her should fraud claims against them in connection with the transfer, Appellant fails to point to any specific facts showing what prevented her from knowing of the alleged 2003 sale of her restaurant until 2008. In her complaint, she alleges that she worked twelve to 14 fourteen-hour shifts, seven days a week managing the restaurant in 2002 and 2003. Appellant makes no mention, however, of what arrangements she made for the management of her restaurant, or for the filing and payment of any taxes owed, when she moved out of state for two years beginning in June 2003. Nor does she indicate what prevented her from discovering upon her return to Arizona in 2005 that her restaurant had been sold. See ELM, 226 Ariz. at 290, ¶ 12, 246 P.3d at 941 (noting the discovery rule does not permit a party to hide behind its ignorance when reasonable investigation would have alerted it to the claim ); Gust, Rosenfeld & Henderson, 182 Ariz. at 589, 898 P.2d at 967 (stating discovery rule applies only when [t]he injury or the act causing the injury, or both, have been difficult for the plaintiff to detect ). Because Appellant failed to exercise reasonable diligence in discovering that her restaurant had been sold, we conclude that the discovery rule does not toll the statute of limitations on Appellant s fraud claims relating to the Mariscos El Caribe sale. B. ¶23 false Negligent Misrepresentation Fiduciary Duty and Breach of Appellant alleges that Enriquez and Boorsma provided information Appellant in transaction. to or connection Appellant withheld with also material the asserts 15 information Virginia that Avenue Boorsma from Home knowingly notarized the quit claim deed to without proper identification. the Virginia Avenue Home Appellant further asserts that Enriquez had a conflicting pecuniary interest in the Virginia Avenue Home and Sherman Street Home transactions because he represented Martha in purchasing the Virginia Avenue Home and Appellant in purchasing the Sherman Street Home. limitations is two years for negligent misrepresentation. ¶24 Despite breach of The statute of fiduciary duty and that the A.R.S. § 12-542(3) (2003). Appellant s conclusory statement discovery rule operates to toll the statutes of limitations on these two claims, Appellant should have been aware of the need to investigate the conduct of which she now complains based on the quit claim deed recorded in January 2003 containing Mario s signature more than two months after he was deported. See Transamerica, 145 Ariz. at 358, 701 P.2d at 854 ( The statutory period may begin to run on the date of recording if the recorded deed sets forth facts from which the aggrieved party should have realized it had a cause of action. ). In addition, Appellant was aware in 2001 and 2002 that Enriquez represented Martha in the Virginia Avenue Home transaction Sherman Street Home transaction. and Appellant in the See Cannon, 222 Ariz. at 181- 82, ¶ 34, 213 P.3d at 330-31 (stating statute of limitations begins to defendant s run when the wrongful plaintiff conduct 16 knows that the caused facts her underlying injury). Therefore, the discovery rule cannot operate to toll the statute of limitations as to Appellant s negligent misrepresentation and breach of fiduciary duty claims. C. ¶25 Breach of Contract Appellant alleges that Martha breached her partnership agreement with Appellant as to the Mariscos El Caribe restaurant by failing to make profit-share disbursements to Appellant in 2002 and 2003, making unauthorized payments to herself, and conveying the restaurant to a third-party without Appellant s knowledge in 2003. The statute of limitations for breach of an oral contract is three years. A.R.S. § 12-543(1). Because Appellant was aware in 2002 and 2003 of Martha s failure to pay profit-share disbursements, the discovery rule does not operate to toll the statute of limitations as to Appellant s breach of contract claim. That claim is therefore time-barred, and the trial court properly dismissed it. D. Breach of Covenant of Good Faith and Fair Dealing ¶26 Appellant further covenant of faith good alleges and fair that Martha dealing by breached the deliberately depriving Appellant of the benefits of the Mariscos El Caribe partnership in 2002 and 2003. The statute of limitations for breach of the covenant of good faith and fair dealing is two years. A.R.S. § 12-542(3). Appellant s claim for breach of the implied covenant of good faith and fair dealing is necessarily 17 tied to her breach of contract claim. See Maleki v. Desert Palms Prof l Props., L.L.C., 222 Ariz. 327, 333, ¶ 28, 214 P.3d 415, 421 (App. 2009) (noting that all contracts implied covenant of good faith and fair dealing). include an Thus, because Appellant was aware in 2002 and 2003 of the conduct which forms the basis for this claim, the discovery rule does not toll the statute of limitations, and the claim is time-barred. E. ¶27 Conversion Appellant converted [her] asserts Virginia that Avenue Martha, Home Martin, and and Enriquez systematically and permanently interfered with her rights of title and ownership therein. years. cannot The statute of limitations A.R.S. § 12-542(5). be converted because for conversion is two However, real property interests they are not chattels. See Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 406, 207 P.3d 654, 659 (App. 2008) (citing 1 Dan B. Dobbs, The Law of Torts § 63, at 130 (2001)). Appellant therefore cannot bring a claim for conversion as to her interest in the Virginia Avenue Home. F. ¶28 Unpaid Wages Appellant alleges that Martha failed to pay her wages for working at Cocteleria Pacifico in 2000 and 2001, at Kahlua s in 2001 and 2002, and at Mariscos El Caribe in 2002 and 2003. The statute of limitations for unpaid wage claims is one year. A.R.S. § 12-541(3); A.R.S. § 23-356(A) (Supp. 2011). 18 Appellant was aware in 2000 through 2003 that Martha failed to pay her wages, and even acknowledges in her complaint that she demanded at that time to be paid. G. ¶29 The claim is therefore time-barred. Unjust Enrichment Appellant alleges that Martha, Martin, and Enriquez were unjustly enriched by Martha and Martin inducing Appellant to convey the Virginia Avenue Home to them in 2001 and by their fraudulent conveyance of the Virginia Avenue Home to Armando in 2002. The statute of limitations for unjust enrichment is three years. A.R.S. § 12-543(1). claim, a plaintiff must To prevail on an unjust enrichment prove: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; enrichment and legal remedy. Ariz. 535, (4) the the absence of impoverishment; and justification (5) the for absence the of a Trustmark Ins. Co. v. Bank One, Ariz. N.A., 202 541, ¶ 31, 48 P.3d 485, 491 (App. 2002). As discussed above, Appellant s constructive notice of the alleged fraudulent activity relating to the Virginia Avenue Home started when the forged quit claim deed was recorded. As a result, she could have discovered the wrongful conduct and that Martha and Martin had been unjustly enriched. Appellant did not, however, bring such a claim within three years of the recording of the quit claim deed. Dismissal of this claim was therefore proper. 19 H. Intentional Infliction of Emotional Distress ¶30 In her consolidated dismiss, Appellant sought to response add a to the claim of motions to intentional infliction of emotional distress ( IIED ) by Martha and Martin to her complaint. However, the conduct which Appellant alleges forms the basis of the IIED claim coercing her to sign a blank quit claim completed deed, deed, forging her recording and the Mario s completed signatures deed, on and a later conveying the home to Armando for a profit is the same as the conduct underlying her fraud claims, which occurred in 2001 and 2002. The statute of limitations on IIED claims is two years, see A.R.S. § 12-542(1), shorter than the limitations period for Appellant s barred. fraud claims which we have concluded are time- Appellant has not alleged any additional facts that would permit application of the discovery rule as to the IIED claim based on Martha and Martin s conduct in connection with the Virginia Avenue Home transactions in 2001 and 2002. I. ¶31 Attorneys Fees and Costs Martha and Martin request an award of attorneys fees pursuant to A.R.S. §§ 12-341.01 (2003), -349 (2003). discretion, we deny their request. In our Enriquez requests an award of attorneys fees incurred in the trial court; however, he did not cross-appeal the trial court s decision to deny fees and has therefore waived any challenge to the court s ruling. 20 Martha, Martin, and Enriquez are entitled to an award of costs upon their compliance with Arizona Rule of Civil Appellate Procedure 21. CONCLUSION ¶32 We conclude that, even viewing the facts in the light most favorable to Appellant as the non-moving party, she has failed to allege sufficient facts to toll the applicable statute of limitations for any of her claims under the discovery rule or equitable tolling. The trial court s dismissal of her claims was therefore proper. Accordingly, we affirm the dismissal of Appellant s second amended complaint. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /s/ ___________________________________ PATRICIA K. NORRIS, Judge /s/ ___________________________________ PHILIP HALL, Judge 21

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