Tavilla v. Phoenix

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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 DONNA M. TAVILLA, ) ) Plaintiff/Appellee, ) ) v. ) ) CITY OF PHOENIX, a municipal ) ) corporation; TIM J. NORTON, a ) Phoenix police officer, ) ) Defendant/Appellants. _________________________________ ) ) NICK TAVILLA and DONNA TAVILLA, ) ) Plaintiffs/Appellants, ) ) ) v. ) CITY OF PHOENIX, a municipal ) corporation; TIM J. NORTON, a ) Phoenix police officer, ) ) Defendants/Appellees. ) ) No. 1 CA-CV 10-0429 DIVISION ONE FILED: 10/11/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2002-018960 Cause No. CV 2007-011914 (Consolidated) The Honorable John Christian Rea, Judge AFFIRMED IN PART, REVERSED IN PART, REMANDED Treon Aguirre Newman & Norris PA By Richard T. Treon Meghann L. St. Thomas Attorneys for Plaintiffs/Appellees/Appellants Tavilla Phoenix Sanders & Parks PC By James Arthur Eaves Robin E. Burgess Attorneys for Defendants/Appellants/Appellees City of Phoenix and Norton Phoenix T I M M E R, Presiding Judge ¶1 of Appellants/cross-appellees Tim J. Norton and the City Phoenix awarded ( City ) appellee appeal Donna M. intentional a judgment Tavilla entered ( Donna ) infliction of after damages emotional a jury on her complaint for distress ( IIED ). Donna and her husband, Nick Tavilla ( Nick ), cross- appeal the trial court s dismissal of other claims set forth in their complaint. judgment For the reasons that follow, we affirm the adjudicating Donna s IIED claim and the court s dismissal of Nick s separately asserted claims except loss of consortium. We reverse the court s dismissal of Nick s loss of consortium claim successful IIED to the claim. extent We it remand is to derivative the trial of Donna s court for additional proceedings on that claim. BACKGROUND ¶2 During the time frame relevant to this lawsuit, the Tavillas owned and operated a car repair business in Phoenix. Nick performed tasks. For repairs, years prior and Donna handled to 2001, the all Tavillas administrative repaired and serviced undercover vehicles for the Phoenix Police Department 2 ( Department ) and Norton, contact/supervisor. From then time an officer, to time, served Norton as also their showed Department-seized vehicles to the Tavillas and other prospective buyers interested in bidding on the vehicles at auction. ¶3 The Tavillas contend that during the course of their business relationship with the Department, Norton sexually harassed Donna, thereby damaging the couple and their business. The Tavillas served notices of claim on the City and Norton making these allegations on March 29, 2002. After the parties failed to settle the claims, the Tavillas initiated this lawsuit on September 27, 2002, alleging several causes of action. Thereafter, the court dismissed or summarily adjudicated various claims asserted by the Tavillas in their original and amended complaints and in a consolidated case. The court also precluded as time-barred any claims based on events that occurred prior to October 1, 2001. The parties proceeded to a jury trial on November 30, 2009 on the sole remaining claim for intentional infliction of emotional distress, which emanated from Donna s allegation that Norton sexually harassed her in a telephone call that occurred on November 1, 2001. The jury returned a verdict in favor of Donna in the amount of $600,000, and the trial court entered judgment on the verdict on December 10. 3 After the trial court ruled on post-judgment motions, this timely appeal and cross-appeal followed. 1 DISCUSSION I. ¶4 Appeal The City and Mr. Norton (collectively, Defendants ) argue the trial court committed reversible error by: (1) denying their motion for mistrial and later a motion for a new trial on grounds of misconduct, (2) permitting the Tavillas to introduce evidence of Norton s other bad acts, and (3) denying Defendants motion for judgment as a matter of law ( JMOL ). We address each contention in turn. A. ¶5 Misconduct Defendants argue the trial court erred in denying their motions for mistrial and new trial because Donna engaged in misconduct by violating the court s pre-trial in limine order, which precluded evidence of Norton s alleged prior sexual harassment of Donna. 2 We review the court s rulings for an abuse 1 Donna conditionally cross-appeals, asking us to reverse various interim trial court rulings only in the event we reverse the judgment and remand for a new trial. Because we reject the arguments made by the City and Norton in their appeal, we do not address Donna s contentions of error. 2 The court reasoned that, although relevant to the extreme and outrageous nature of the November 1 telephone call, the other acts relevance was outweighed by the substantial danger that the jury would rely on [the other acts, now time-barred] rather than the November 1, 2001 telephone call in assessing liability or damages. 4 of discretion. Cervantes v. Rijlaarsdam, 190 Ariz. 396, 398, 949 P.2d 56, 58 (App. 1997) (mistrial); Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10, 222 P.3d 909, 912 (App. 2009) (new trial). We will reverse if Donna engaged in misconduct, the misconduct materially affected Defendants rights, and it is probable the misconduct actually influenced the verdict. Leavy v. Parsell, 188 Ariz. 69, 72, 932 P.2d 1340, 1343 (1997) (quoting Sanchez v. Stremel, 95 Ariz. 392, 395, 391 P.2d 557, 559 (1964)). ¶6 Defendants assert Donna engaged in misconduct by willfully violating the trial court s in limine order when she elicited the following testimony, which purportedly implied Norton had sexually harassed Donna prior to the November 1, 2001 telephone call: 3 1. Donna stated that during a party held in honor of the Phoenix Police chief in May 2000, Norton kept coming and sitting really close to me so I would move. 2. Donna and witness Angela Lee each related Norton had visited the Tavillas home, which doubled as Donna s office, at least once a week when Nick was out in order to help with invoices. When repeatedly questioned on the same subject, Norton denied he was ever in the home when Nick was out. 3 In their reply brief, Defendants point to two other instances in which Donna allegedly violated the court s order. Because these arguments were raised for the first time in the reply brief, we do not address them. See Romero v. Sw. Ambulance, 211 Ariz. 200, 204 n.3, ¶ 7, 119 P.3d 467, 471 n.3 (App. 2005) (holding issue raised for first time in reply brief waived on appeal). 5 3. Donna testified that Norton had called her many times at night while drinking beer and described the conversations as harassing and always just badgering me about the invoices. 4. Donna described a meeting she and Nick had with police chiefs on October 3, 2001, where she tried to explain to them that he [Norton] was harassing me so bad, it wasn t even normal. I mean it wasn t even like, Hey, could you get those invoices in? I mean I was being harassed, literally harassed. 5. While recounting the November 1 telephone call, Donna related she had asked Norton after he made sexually explicit remarks, You know, Tim, we ve gone over this, and when is this ever going to end? When is this ever going to end? ¶7 Defendants additionally point to two unanswered questions posed by Donna s attorney as further evidence of a wrongful campaign to imply a long course of sexual harassment by Norton against Donna: 6. Donna s attorney asked Norton why he was reluctant to admit he was often at the Tavillas home. The attorney withdrew the question after Defendants objected that the question misstated evidence. 7. Donna s attorney asked Phoenix Police Chief Jack Harris whether he had learned of a telephone call from Norton to Donna, which purportedly referred to information gleaned at the October 3, 2001 meeting. After objection and a bench conference, Donna s attorney asked specifically about the November 1 telephone call. 6 ¶8 The trial court held that while Donna s attorney may have buck[ed] against the corral of the pretrial order, the questions were not a motions in limine. direct violation of any of the . . . Defendants assert the court erred in this ruling because the attorney s line of questioning was akin to counsel s wrongful acts in Leavy, which governs this case. ¶9 In Leavy, the defendant in a personal injury lawsuit arising from a two-vehicle accident directly violated pretrial rulings by describing in opening statement that, according to hospital records, the plaintiff was probably not wearing a seatbelt and that an expert witness would testify to the high credibility of an eyewitness to the automobile accident. Ariz. at 71, 932 P.2d at 1342. court s wearing order a by asking seatbelt a 188 The defendant again violated the witness immediately whether after the the plaintiff accident. was Id. Finally, although the plaintiff s possible alcohol usage before the accident was not an issue to be tried, the defendant repeatedly referred to plaintiff s use of alcohol during trial. Id. The evidence was evenly balanced described by one juror as [e]xactly even and the jury unanimously found for the defense. Id. ¶10 The supreme court held that a new trial was needed because the defendant s misconduct had deprived the plaintiff of a fair trial. Id. at 73, 932 P.2d at 1344. 7 Acknowledging the difficulty of showing that the misconduct influenced the verdict in a close case, the court held that prejudice will be found when there has been significant misconduct affecting the essential rights of a litigant and when the very nature of the misconduct makes prejudice. Id. Leavy, it the (1) involving impossible to determine the extent of Thus, prejudice should be found when, as in misconduct deliberate was violations significant, of court especially orders, (2) if the misconduct is prejudicial because it related to essential issues in a close successful. case, and (3) the misconduct is apparently Id.; see also Styles v. Ceranski, 185 Ariz. 448, 453, 916 P.2d 1164, 1169 (App. 1996) (concluding a new trial on liability and damages warranted as plaintiff s argument unfairly exploited trial court rulings on admission of evidence and boldly disregarded pretrial orders limiting each party to one standard of care witness. ). ¶11 We are not persuaded the trial court abused discretion by refusing to grant a mistrial or new trial. its Unlike the defendant in Leavy and the plaintiff in Styles, Donna did not engage order. in misconduct by violating the court s in limine Although the trial court precluded evidence of sexual harassment prior to October 1, 2001, the court also denied the Defendants motions to preclude evidence of the economic and business relationship between the parties and to preclude Any 8 Suggestion Office[r] Norton Had Power Over Donna Tavilla. The court reasoned that because the history of the contractual and economic relationship between [the parties], and Norton s role in that relationship, is relevant to the issue of the extreme or outrageous nature of [Norton s] alleged conduct, even evidence relating to acts outside the claim period were relevant and admissible. ¶12 Much of the questioning to which the Defendants object was explicitly tied to the backlog of invoices due the City rather than to any sexual impropriety by Norton. 6-7, items 2-4, and 6. See supra ¶¶ As such, the questions constituted a permissible area of inquiry regarding the parties business and economic relationship and Norton s position of power over the Tavillas economic interests. Although Defendants complain that Donna s repeated use of the term harassment implied sexual harassment, the context of the questions and answers reveals that harassment referred to Norton s attempts to compel Donna to send the aging invoices. ¶13 While the questioning of Chief Harris, see supra ¶ 7, item 7, was initially muddled as to the date he learned of a telephone call between Donna and Norton, counsel eventually clarified the timing by asking specifically about the Chief s knowledge of the November 1 call. 9 This clarification ensured the Chief was not questioned about any calls prior to November 1, 2001, which would have violated the in limine order. ¶14 We also agree with the trial court that the inquiry that resulted in Donna s comment that Norton had sat closely to her at a party, see supra ¶ 6, item 1, did not violate the in limine order. The context of the line of questioning was geared to determining how Donna knew the number of beers Norton had consumed that evening. Additionally, because Donna had just testified that Norton had hounded and embarrassed her that evening about completing the invoices, it is more likely the jury concluded she moved from him to avoid discussing that issue rather than as a means to avoid sexual harassment. ¶15 Whether the remaining disputed area violated the in limine order is a closer question. 6, item 5. of See supra ¶ Donna s statements in the November 1 call, [W]e ve gone over this, and when is this ever going to end? this ever inquiry going to end? made immediately after When is Norton s sexually explicit remarks and before Donna cried and hung up the telephone gave rise to a reasonable similar remarks in the past. inference he had made Had an objection been made, the trial court would have been justified in sustaining it for the 10 same reasons it entered the in limine order. 4 n.2. See supra ¶ 5, But the questioning focused on what was related during the November 1 telephone call, which formed the core of the lawsuit, and did not directly Additionally, as argument, other no ask defense about counsel evidence introduced at trial. of events prior pointed prior to out that during sexual call. closing harassment was Thus, although the jury may have wondered whether Donna s comments concerned prior sexual harassment, 5 it could have reasonably concluded she referred to Norton s previously described prior harassment about invoice processing. On this record, we cannot say the court erred by concluding Donna s counsel did not violate the in limine order by his abuse its questions concerning the November 1 call. ¶16 In summary, the trial court did not discretion by denying the motions for mistrial and new trial based on allegations of misconduct. 4 The preferred course of action would have been to raise the issue to the court and opposing counsel before asking the question. 5 As Defendants note, a juror asked during trial when Norton first made sexual advances toward Donna, whether anyone was informed, and whether November 1 was the first instance. We do not address whether the question is indicative of prejudice as we conclude no misconduct occurred, and we therefore do not reach the issue of prejudice. See Leavy, 188 Ariz. at 72, 932 P.2d at 1343. We note, however, that the juror s question may have arisen as a result of hearing that despite the parties lengthy business relationship, the only evidence presented of sexual harassment occurred during the November 1 call, which may have struck the juror as odd and impacted Donna s credibility. 11 B. ¶17 Other act evidence Defendants next argue the trial court erred by permitting Donna to introduce evidence of Norton s other bad acts in violation of Arizona Rules of Evidence 403 and 404(b) and in limine orders. According to Defendants, the cumulative impropriety of this evidence deprived them of a fair trial. We review the trial court s evidentiary rulings for an abuse of discretion and reverse only if unfair prejudice resulted. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506, 917 P.2d 222, 235 (1996). (1) ¶18 Donna Sergeant s examination Defendants argue the trial court erred by permitting to ask examination Norton because whether the he court took had questioning in an in limine order. because the court did not never raised an objection. permit the police precluded this sergeant s line of We reject this argument the question; Defendants Also, Norton opened the door for the question by volunteering to the jury it was his choice not to be promoted. Despite the in limine order, Donna was entitled to impeach that statement by asking whether he sought promotion by taking the sergeant s examination. (2) ¶19 Beer and profanity Without elaboration, Defendants also contend the court erred by permitting evidence that Norton had a kind of liking 12 for the beer and used profanity toward his stepson. Because Defendants failed to object to these questions or testimony and the subjects were not governed by any in limine orders, however, Defendants have waived any claim of error. State v. Briggs, 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975). (3) ¶20 Theft Defendants contend the trial court erred by allowing Donna s attorney to ask Nick about allegations Norton had stolen property. But Defendants sat silent through this line of questioning until finally raising a relevancy objection, which the court sustained, and the questions were not the subject of an in limine order. (4) ¶21 The court did not err. Ex-Wife Defendants primarily focus their argument on testimony elicited regarding one of Norton s ex-wives. precluded evidence marriages. At then-wife when or comment upon trial, Donna s counsel questioning Norton, A pretrial ruling Officer Norton s referred and asked to prior Norton s Donna about profanity and threats made by Norton about his former spouse. Defendants contend these knowing violations of the in limine order are akin to those in Leavy and require reversal and a new trial. 6 6 Defendants present this argument in the sections of its opening and reply briefs addressing the trial court s alleged errors in 13 ¶22 Assuming the references to Norton s ex-wife violated the in limine order and constituted significant misconduct, we nevertheless decline to reverse as no prejudice resulted. Here, unlike the situation in Leavy, the misconduct did not relate to essential issues in the case. 1343. Specifically, married did not relate inflicted emotional telephone call. references to to and the distress on Additionally, the prejudiced him. whether 188 Ariz. at 72, 932 P.2d at fact of how many times allegation Donna we Norton s he via fail prior had intentionally the to Norton November understand marriages 1 how unduly In today s society, divorce is not generally regarded as a stigma. Moreover, Norton himself mentioned his ex-wife when testifying, so the jury was already aware of this fact. Although prejudicial, the references in limine to order profanity did not and threats prevent Donna were from pursuing this line of questioning; she was only precluded from associating these marriages. For subjects these with reasons, references even to assuming Norton s prior misconduct, we admitting evidence. Regarding references to Norton s prior marriages, however, the trial court sustained all objections to the contested questions based on the in limine order. Defendants do not cite any instance the court permitted questions on this topic over their objection. Consequently, we confine our analysis to Defendants contention that reversal is warranted for Donna s significant misconduct in knowingly violating the in limine order. 14 conclude Norton was not prejudiced by references to his prior marriage, and we decline to reverse on this basis. C. ¶23 Motion JMOL Defendants next argue the trial court erred by denying their motion JMOL. The court should grant a motion JMOL when a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. Ariz. R. Civ. P. 50(a)(1); see also Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990) ( [The] motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense. ) We review the denial of a motion JMOL de novo, viewing the evidence in the light most favorable to the non-moving party. Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz. 179, 181 82, ¶ 9, 24 P.3d 1274, 1276 77 (App. 2001). ¶24 To prove the IIED claim, Donna was required to show: (1) Norton s conduct was extreme and outrageous, (2) Norton either intended to cause Donna emotional distress or recklessly disregarded the near certainty of such distress, and (3) Donna suffered severe actions. Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987) emotional (citations distress omitted). 15 as a result Defendants of argue Norton s JMOL was required because Donna failed to present sufficient evidence to satisfy the first and third elements. We address each element in turn. (1) ¶25 Extreme and outrageous conduct Conduct is extreme and outrageous when the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community . . . in community would . . . Restatement which (Second) (1965)). When the position occupied jury knowledge that emotional distress condition. exclaim, of Torts assessing conduct, may by the . . . the by character among § peculiarly of some cmt. d defendant s things, [and] the (quoting 46, the other . . . of Id. of is reason member ( Restatement ) defendant plaintiff average Outrageous! consider, the an the defendant s susceptible physical or to mental Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76, 79, 716 P.2d 1013, 1016 (1986) (citations omitted). ¶26 The jury in this case heard evidence that Norton and the Tavillas had a lengthy business relationship and that Norton served as the Tavillas contact with the Department. Thus, it was reasonable to conclude that the Tavillas ongoing business relationship with the relations with Norton. Department depended in part on good At the time of the November 1 call, 16 Norton had been hounding and harassing Donna to process invoices the Department needed to stay abreast of what was owed to the Tavillas. The Department had sent the Tavillas a letter in October stating effective immediately they would no longer receive work from the Department, which had been the Tavillas largest source of income. Norton was aware of In addition, the jury heard evidence other stressors affecting Donna for example, the aftermath of a flood in her home that had displaced her family and Nick s serious physical ailments making her more susceptible to harassment. ¶27 Against this backdrop, Norton called Donna on November 1 and, in the midst of discussing an idea about solving the invoice problem, suggested she lay the invoices on her bed, remove her clothes and then rub all over them and get [her] scent, [her] smell, [her] [pussy] juices on them. He then proceeded to tell her he would like to take his false teeth out and gum or numb her and if Nick did not fuck [her] Norton would fuck [her] thereby christening the invoices. As the court noted when denying Defendants motion JMOL, the single phone call is made in the context of significant economic authority [and] the jury can infer that it was, in essence, have sex with me, or lose your business. Although Defendants argue that a single telephone call cannot give rise to an IIED claim, they cite no authority and we are not aware of any. 17 Indeed, illustrations of extreme and outrageous conduct set forth in the Restatement describe single acts as sufficient to support such claims. Restatement § 46 cmt. d, illus. 1 3. ¶28 Viewing the evidence in the light most favorable to Donna, as we must, we conclude the evidence adduced at trial was sufficient to raise a jury question whether the November 1 call was extreme and outrageous. (2) ¶29 Severe emotional distress Liability for IIED requires a showing of severe emotional distress resulting from the defendant s extreme and outrageous conduct. To prevail on the claim, the distress inflicted [must be] so severe that no reasonable man could be expected to endure it. Restatement § 46, cmt. j; see also Midas Muffler Shop v. Ellison, 133 Ariz. 194, 199, 650 P.2d 496, 501 (App. 1982) ( [A] line of demarcation should be drawn between conduct likely to cause mere emotional distress and that causing severe emotional distress. ) (citation omitted). Neither physical injury nor disabling response is required to constitute severe emotional distress. Skousen v. Nidy, 90 Ariz. 215, 219, 367 P.2d 248, 250 (1961). While the court must determine whether evidence of severe emotional distress can be found, it is the jury s task to determine whether such distress actually exists and whether the extreme and outrageous conduct 18 caused it. Midas, 133 Ariz. at 197, 650 P.2d at 499; Savage v. Boies, 77 Ariz. 355, 358, 272 P.2d 349, 351 (1954). ¶30 Donna s psychologist, Dr. Christine Grubb, testified that Donna suffered from post-traumatic stress disorder ( PTSD ), primarily as a result of Norton s harassment. Dr. Grubb described Donna as extremely depressed, very nervous, and anxious when they initially met and noted Donna was unable to drive herself to appointments. witness agreed that Donna Defendants psychologist-expert suffered from major although he disagreed with the PTSD diagnosis. that other stressors in Donna s life depression, Defendants argue contributed to her emotional distress; Donna and her psychologist, however, both described Donna s successful handling of other stressors and squarely attributed the distress to sexual harassment at the hands of Norton. The jury was free to agree with Donna and Dr. Grubb. ¶31 Viewing the evidence in the light most favorable to Donna, the jury had sufficient evidence before it to find that she suffered Norton s from extreme severe and emotional outrageous distress conduct. as a See result of Monaco v. Healthpartners of S. Arizona, 196 Ariz. 299, 304, ¶¶ 11-12, 995 P.2d 735, 739 (App. 1999) (finding that PTSD was sufficient to support a claim for negligent infliction of emotional distress); see also Taylor v. Metzger, 706 19 A.2d 685, 697 (N.J. 1998) ( Severe emotional distress means any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed including . . . omitted); accord by professionals posttraumatic Schnabel v. stress Tyler, trained to disorder. ) 630 A.2d do so, (citation 1361, 1368-69 (Conn. App. 1993), aff d, 646 A.2d 152 (Conn. 1994); Curtis v. Firth, 850 P.2d 749, 756-57 (Idaho 1993); Kraszewski v. Baptist Medical Ctr. Of Okla., Inc., 916 P.2d 241, 249 (Okla. 1996). ¶32 Because sufficient evidence raised a jury question on both the extreme and outrageous nature of Norton s conduct and the severity of Donna s distress as a result of that conduct, the trial court did not err in denying Defendants motion JMOL. II. ¶33 Cross-Appeal Nick dismissal of cross-appeals his claims for the trial IIED, court s loss of Rule 12(b)(6) consortium, and interference with contract, as well as the court s denial of his motions to amend his complaint to assert claims for equitable estoppel, a violation of 42 U.S.C. § 1983, and a breach of contract claim. discretion. P.3d 978, We review the court s rulings for an abuse of Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11, 130 980 (2006) (dismissal); Owen v. Superior Court (Moroney), 133 Ariz. 75, 80, 649 P.2d 278, 283 (1982) (motion to amend). 20 A. ¶34 IIED Nick alleged in the first amended complaint that Norton intentionally or recklessly inflicted emotional distress on him by making sexual advances toward Donna with the knowledge that Nick s health impaired his ability to have sexual relations with his wife. The City moved to dismiss this claim asserting (1) Nick was time-barred from basing an IIED claim on events that occurred prior to October 1, 2001, (2) Norton engaged in no extreme and outrageous acts toward Nick, and (3) Nick s claim is derivative of Donna s IIED claim, which is legally infirm. The trial court granted the motion without explanation, although it simultaneously denied the City s motion to dismiss Donna s IIED claim. ¶35 claim Nick argues the trial court erred in dismissing his for derivative IIED of because Donna s the IIED City claim. admitted Nick his does not claim was cite any authority to support his apparent position that the trial court is bound by a party s erroneous legal argument, and we are not aware of any. As we alluded previously, see supra ¶ 25, Arizona follows Restatement § 46 in assessing IIED claims. Section 46 explicitly addresses circumstances under which a third person can assert an IIED claim based on actions directed at another: 21 (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person s immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm. See also id. cmt. l. Here, Nick did not assert in his first amended complaint that he was present at the time Norton called Donna on November 1, 2001. To the contrary, the complaint alleged that some time after November 1 Donna told Nick about the call and Norton s past inappropriate acts. not allege outrageous he was present when toward Donna, conduct Norton Nick Because Nick did directed failed extreme to state and a cognizable claim and the trial court correctly dismissed the claim. B. ¶36 Loss of consortium Nick alleged in the first amended complaint that he lost consortium with his wife as a result of Norton s November 1, 2001 conduct. Defendants moved to dismiss, contending Nick could not state a claim for loss of consortium, a derivative claim, because Donna underlying claim. could not state a claim for IIED, the The court, somewhat vaguely, grant[ed] the 22 Motion to Dismiss as to the claims made by Nick Tavilla while ruling that Donna s IIED claim survived. ¶37 exist Loss of consortium is a derivative claim, so it cannot unless proven. all elements of the underlying cause [are] Barnes v. Outlaw, 192 Ariz. 283, 285-86, ¶ 8, 964 P.2d 484, 486-87 (1998) (citation omitted). Here, the underlying tort claim IIED as alleged by Donna survived, so Nick s derivative claim for loss of consortium is not barred on this ground. ¶38 Nor is the loss of consortium claim time-barred, as the City contends. The Tavillas notice of claim timely filed as to claims arising on November 1, 2001 explicitly included Nick s allegation of loss of consortium. The Tavillas agreed, however, that, per the court s earlier rulings, Donna Tavilla s claims for injuries resulting from Norton s improper conduct prior to October 1, 2001 (and therefore Nick Tavilla s claims for loss of consortium derivative of Donna s claims) are time barred. This admission, properly construed, admits only that Nick s claims are time barred if derivative to one of Donna s untimely claims. 1-based IIED Because the court ruled that Donna s November claim was timely and proper, Nick s loss of consortium claim derivative to the November 1-based IIED claim should have survived as well. 23 ¶39 We reverse the court s dismissal of Nick s loss of consortium claim derivative of Donna s surviving IIED claim and remand for further proceedings. C. ¶40 Interference with contract/breach of contract In their original complaint, the Tavillas alleged an intentional interference with contract claim based on Norton s conduct but affirmatively alleged Norton was acting within the scope and course of his employment with the City. moved to dismiss because an intentional Defendants interference with contract claim is available only when a third party improperly and intentionally interferes with performance of a contract, and an employee acting within the scope of employment is not a third party. Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 555, 905 P.2d 559, 564 (App. 1995) (emphasis added) (citation omitted). The Tavillas consent[ed] to dismissal of [this claim] without prejudice and with leave to file an amended complaint, and the court granted the motion to dismiss. Thereafter, the Tavillas filed a first amended complaint but did not allege claims for interference with contract or breach of contract. One year later, in September 2005, the Tavillas moved to file a second amended complaint that asserted, among other new claims, a claim for breach of contract. The court denied the motion as untimely, finding [t]he amendment would add new issues and claims to this matter. 24 The claims sought to be added are not newly discovered, simply, newly pled. In June 2006, the Tavillas again sought leave to amend the complaint to add a breach of contract claim, and the court again denied the request. ¶41 Rule 15, Arizona Rules of Civil Procedure, authorizes amendment of pleadings by leave of court, with [l]eave to amend [to] be freely given when justice requires. 15(a). Ariz. R. Civ. P. While leave to amend is entrusted to the trial court s discretion, policy favoring trial on the merits dictates amendment will be permitted unless there has been undue delay, dilatory action or undue prejudice. Owen, 133 Ariz. at 79, 649 P.2d at 282 (1982) (citations omitted). Tavillas lengthy delay in seeking Here, in light of the leave to amend their complaint to assert a known claim, we cannot say the trial court erred by denying the motions to amend. D. ¶42 Equitable estoppel and civil rights Nick finally asserts the trial court erred in denying his September 2005 and June 2006 motions to amend the first amended complaint to assert claims that (1) the City is equitably estopped to assert a statute of limitations defense as it failed to investigate the Tavillas complaints against Norton, and (2) the City and various police officials violated Nick s civil rights. The court denied both motions as untimely. See supra ¶ 40. 25 ¶43 In October 2007, the Tavillas filed a separate lawsuit arising out of the same conduct and asserting a § 1983 claim against the City the consolidated Defendants on and cases, the § police it 1983 officials. granted claim. After summary The court the court judgment for rejected the Tavillas argument that the statute of limitations . . . should be deemed not to have run until [the Tavillas] became aware that the City was required by policy to conduct an investigation of complaints against Norton. The court reasoned that the limitations period for the civil rights claims began to run in 2002 when the Tavillas expected an investigation but knew or should have known that the investigation was not conducted. The court also found no merit to the Tavillas equitable tolling argument as it was clear by 2002 that no investigation had been or would be conducted. The tolling argument was also the crux of the Tavillas motions for leave to amend. Consequently, the court did not abuse its discretion in denying the motion as granting it would have constituted a futile act. CONCLUSION ¶44 For the foregoing reasons, adjudicating Donna s IIED claim. we affirm the judgment We also affirm the court s dismissal of Nick s separately asserted claims except the claim for loss of consortium. We reverse the court s dismissal of Nick s loss of consortium claim to the extent it is derivative 26 of Donna s successful IIED claim, and we remand to the trial court for additional proceedings on that claim. /s/ Ann A. Scott Timmer, Presiding Judge CONCURRING: /s/ Patrick Irvine, Judge /s/ Daniel A. Barker, Judge 27

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