Best v. Mosely

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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 GREGORY BEST, ) ) Plaintiff/Appellant, ) ) v. ) ) BETHLYN and GARY MOSELY; JAMES ) and IRENE PRESTON; BETHESDA ) COMMUNITY BAPTIST CHURCH, ) ) Defendants/Appellees. ) ) __________________________________) DIVISION ONE FILED: 10/13/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CV 10-0700 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2009-003435 The Honorable J. Richard Gama, Judge AFFIRMED Gregory Best Plaintiff/Appellant In Propria Persona Phoenix Penilla Metzger & Biggers Law Firm By David R. Penilla and Garvey M. Biggers Attorneys for Defendants/Appellees Preston and Bethesda Community Baptist Church Phoenix ASU Civil Justice Clinic Sandra Day O Connor College of Law By Marcy Karin, Robert Lamb (Rule 38 Law Student), Melissa E. Posner (Rule 38 Law Student), Adam T. Reich (Rule 38 Law Student), Tempe Karen C. Stafford (Rule 38 Law Student) Attorneys for Defendants/Appellees Mosley B R O W N, Judge ¶1 Gregory dismissing his Best claims appeals against the trial several court s defendants Arizona Rule of Civil Procedure 12(b)(6). order pursuant to For the following reasons, we affirm. BACKGROUND ¶2 In December 2003, the City of Phoenix ( City ) adopted the Rio Salado Beyond the Banks Area Plan ( Area Plan ) in an effort to revitalize an area of South Phoenix. The City solicited redevelopment proposals, and Best submitted a plan for consideration. entered into In conjunction purchase option with his contracts proposed with plan, several he South Phoenix property owners, including Appellee Bethlyn Mosley. ¶3 In February 2009, Best filed a complaint containing ninety-nine allegations against Mosley and a number of other defendants, claiming tortious interference, conspiracy to defraud, and RICO violations. 1 the City and its employees devised a defamation, According to Best, conspiracy, which was furthered by the State and its employees and others, to ensure Best s development plan would not succeed. 1 Best alleged that Best s complaint also included allegations against several city and state employees. None of these other defendants are a party to this appeal. 2 the city and state employees and property owners whom Best had contracted with held meetings to defame Best and destroy his business. ¶4 2009. Mosley moved to dismiss the complaint in November After oral argument, the trial court granted the motion to dismiss, but granted Best leave to amend his complaint. February 2010, Best filed an amended complaint, which In added twenty-two allegations to the original complaint, including some additional verbiage against Mosley. The amended complaint also added Appellee James Preston as a defendant, who is the Pastor of Bethesda Community Baptist Church ( Church ). Best alleged that be Preston meetings in allowed which the Mosley church and facilities others to defamed and used for conspired against Best. ¶5 In April 2010, Preston moved to dismiss Best s amended complaint under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Shortly thereafter, Mosley filed a separate motion to dismiss the second amended complaint under the same rule. strike/motion for Best subsequently sanctions, motion filed for a motion to admissions of allegations of complaint, and a supplement to the motion for admissions. The trial court granted the motions to dismiss filed by Mosley and Preston with prejudice and certified its ruling under Rule 54(b). Best timely appealed. 3 DISCUSSION ¶6 This dismiss for court abuse reviews of an order discretion. granting Dressler v. a motion Morrison, Ariz. 279, 281, ¶ 11, 130 P.3d 978, 980 (2006). to 212 In relation to a Rule 12(b)(6) motion to dismiss, we look only to the pleading itself and consider the well-pled factual allegations contained therein. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008). We assume the truth of all well- pled construe factual inferences in allegations favor of and the all plaintiff. reasonable Id. factual However, mere conclusory statements are insufficient to state a claim upon which relief can be granted. ¶7 Id. In his reply brief, Best argues that this court can review whatever the ruling judge reviewed in making [its] decision, citing Backus v. State, 220 Ariz. 141, 204 P.3d 399 (App. 2008) (noting that we review de novo a decision granting a motion to dismiss when outside the pleadings). ¶8 In considered complaint its Best s and the decision is on materials We disagree. ruling, the trial Motion for admissions amended based complaint for court noted of that it allegations of Defendant[s] Bethlyn Gary Mosley and Motion to Strike subsequent pleading. and One of those pleadings, the motion for admissions, quoted portions of Mosley s deposition and included 4 a copy of a contract. In addition, Best filed a supplement to the motion for admissions, attaching Mosley s deposition. ¶9 Ordinarily, reliance on material extrinsic to the pleadings requires the court to treat the motion to dismiss as a motion for summary judgment. See Ariz. R. Civ. P. 12(b); Smith v. CIGNA HealthPlan of Ariz., 203 Ariz. 173, ¶ 8, 52 P.3d 205, 208 (App. 2002). conversion However, (from a motion [t]he to element dismiss that to triggers one for the summary judgment) is a challenge to the sufficiency of the pleader's claim supported by extra-pleading material. Brosie v. Stockton, 105 Ariz. 574, 576, 468 P.2d 933, 935 (1970) (internal quotations and citation omitted). The rationale underlying the conversion rule is that a plaintiff must be given an opportunity to respond when a motion to dismiss for failure to state a claim includes material extraneous to the complaint. Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 64, ¶ 14, 226 P.3d 1046, 1050 (App. 2010). Here, even assuming the trial court considered material outside the pleadings, that material was not submitted by the moving parties and therefore plaintiff was not deprived of the opportunity to respond. Moreover, Best never requested that the trial court treat the motions to dismiss as motions for summary judgment, nor did he make any assertion in his opening brief that we should examine 5 the motions as if they are governed by Rule 56. Thus, our review is limited to the allegations of the amended complaint. A. ¶10 Tortious Interference Best alleges that Mosley tortiously interfered with contractual relations he had with other property owners. There exists at common law a duty not to interfere with the contract of another. Bar J Bar Cattle Co., Inc. v. Pace, 158 Ariz. 481, 486, 763 P.2d 545, 550 (App. 1988). When this duty is breached, the an non-breaching party may bring action interference with contractual relations. for intentional See Snow v. W. Sav. & Loan Ass n, 152 Ariz. 27, 33, 730 P.2d 204, 211 (1986). prima facie case of intentional interference requires: A (1) existence of a valid contractual relationship, (2) knowledge of the relationship on the part of the interferor, (3) intentional interference inducing or causing a breach, (4) resultant damage to the party whose relationship has been disrupted, and (5) that the defendant acted improperly. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 493, 38 P.3d 12, 31 (2002) (quoting Restatement (Second) of Torts § 766 (1977)). ¶11 Best alleged he had a contract with the Cortezes to purchase their property and that Mosley knew of this contractual relationship. with this He also alleged Mosley intentionally interfered relationship by providing 6 the Cortezes with a cancellation document and telling the Cortezes that Best was cheating them. ¶12 Best did not allege, however, that Mosley s action resulted in the Cortezes breaching their contract with him. The amended complaint claimed that Mosley provided the Cortezes a cancellation document which they attempted to use to break their contract asserted with that Best. (Emphasis Mosley is added.) believed to Best have also vaguely tortuously [sic] interfered with numerous other property owners under contract with [Best]. Neither statement alleges that a breach occurred as a result of Mosley s alleged actions. at 419, ¶ 7, 189 P.3d at 346. See Cullen, 218 Ariz. Therefore, because Best fails to allege that a contract was actually breached as a result of Mosley s alleged interference, he has failed to plead a claim for tortious interference with a contractual relationship. B. We ¶13 Business Expectancy assume intentional Best interference intended with a to plead business a claim expectancy when for he alleged that the defendants encourage[ed] other area property owners not agreements yet with interference under [him]. with contract with Before prospective [Best] recovery business from can be relations entering had for or for preventing a contract, it must appear that a relationship or contract would otherwise have been entered into. 7 Marmis v. Solot Co., 117 Ariz. 499, 502, 573 P.2d 899, 902 (App. 1977) (citation omitted). Best failed to allege any facts suggesting that the other property owners he refers to would have entered into contracts with him to sell their property if it had not been for Mosley s alleged interference. Accordingly, Best has failed to state a claim for intentional interference with a business expectancy. C. ¶14 Defamation Best alleged that Mosley defamed [him] for the purpose of breaking trust [he] had earned with property owners and associates under contract. Specifically, he alleged that Mosley told the Cortezes, a couple whom Best states he had a contract with, that Best was cheating them. that the defendants (presumably Best also claimed including Mosley) told other persons under contract with Best that he was stealing their properties. ¶15 To plead a claim for defamation, a plaintiff must allege that (1) the defendant made a statement concerning the plaintiff to a third party; (2) the statement was false; (3) the defendant acted knowingly, recklessly, or negligently in disregarding the falsity of the statement; and (3) the statement harms the plaintiff s reputation for honesty or integrity, or otherwise brings the plaintiff into disrepute. See Rowland v. Union Hills Country Club, 157 Ariz. 301, 306, 757 P.2d 105, 110 8 (App. 1988); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989). ¶16 Best did claim there was a publication when he asserted that Mosley told the Cortezes that Best was cheating them. were However, Best failed to allege that Mosley s statements false. malicious He [and] claimed Mosley s unwarranted alleged and comments they were were without justification or excuse, but a statement can fit each of those descriptions and still be true. Furthermore, although Best generally claimed that he suffered financial damages, suggesting that Mosley made the statements for the purpose of breaking trust [Best] had earned with property owners, he does not state whether any contracts were actually breached as a result of Mosley s statements. Therefore, Best has failed to properly plead a claim for defamation. D. ¶17 Conspiracy to Defraud Best s overarching claim is that the defendants engaged in a conspiracy to defraud him and destroy his business. For a civil conspiracy to occur two or more people must agree to accomplish an unlawful purpose or a lawful object by unlawful means. Wells Fargo, 201 Ariz. at 498, ¶ 99, 38 P.3d at 36 (internal quotations and citations omitted). also accomplish the underlying tort. Id. The defendant must Damages in a claim for civil conspiracy do not arise out of the conspiracy itself, but 9 are those arising out of the acts committed pursuant to the conspiracy. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 131, 412 P.2d 47, 63 (1966). ¶18 Best purpose Mosley unlawful and destroying succeed. . alleged and that the injurious . . his with other harm common intent, to defendants business Best and design conspired with the impairing to purpose his right and do of to There is no legally recognized right to succeed in business. Similarly, causing injury to another s business is not unlawful per se, and an alleged conspiracy to do same is not a conspiracy to accomplish an unlawful purpose. Selby, 19 Ariz. App. 514, 517, 508 P.2d 773, Savard v. 776 (1973). Furthermore, Best has not successfully alleged that any specific unlawful act has been accomplished. ¶19 As far as we can tell, the only factual allegation Best has made against Preston is that he allowed [the] use of his church for the purpose of allowing the conspiracy against [Best] to be carried out. Best asserts that because of this alleged action, Preston and his church are liable for all the acts by all the other Defendants conspiracy. 10 in furtherance of the ¶20 A person is subject to liability for harm resulting to a third person if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. Restatement (Second) of Torts § 876 (1979). ¶21 Preston Best failed committed to any allege of the facts three tending acts to show described that above. Moreover, as explained above, supra ¶ 18, for there to be an actionable claim for conspiracy, the parties must have agreed to accomplish, and have actually accomplished, an unlawful purpose or act. Best has claimed neither. E. ¶22 Arizona RICO Claim Best stated that he filed his action pursuant to the Arizona Racketeering Act, [Arizona Revised Statutes ( A.R.S. ) section] 13-2301 et seq. ( Arizona RICO ). Arizona RICO authorizes a person who sustains reasonably foreseeable injury to his person, business or property by a pattern of racketeering activity, or by a violation of § 13-2312 involving a pattern of racketeering activity to bring suit for damages in superior court. A.R.S. § 13-2314.04(A) (2010). 11 ¶23 Racketeering is defined as an act that is chargeable or indictable under the laws of the state or country in which the act occurred[,] . . . that would be punishable by imprisonment for more than one year under the laws of this state . . . regardless of whether the act is charged or indicted, and involves at least one of several enumerated acts. 2301(D)(4) (2010). Section 13-2312 (2010) A.R.S. § 13- provides that a person commits the crime of illegal control of an enterprise by acquiring or maintaining, through racketeering or its proceeds, control of any enterprise. ¶24 A complaint is sufficient to state a claim under A.R.S. § 13-2314.04(A) when it alleges that (1) the plaintiff has suffered damage or injury as the result of a pattern of racketeering activity, and (2) the act which caused the injury was performed for financial gain, was one of the illegal acts enumerated in the statute, and was chargeable and punishable in accordance with the requirements of the statute. State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 595, 596-97, 667 P.2d 1304, 1310, 1311-12 (1983). Furthermore, a complaint sufficiently alleges a violation of A.R.S. § 13-2312 when it alleges that the injury was caused by defendant s illegal control or conduct of an enterprise by or through racketeering. P.2d 1312. 12 Id. at 597, 667 ¶25 Although Best alleged he was financially damaged by the acts of Mosley and other defendants, he did not connect this damage to any alleged racketeering activity. Best did assert that Mosley, along with others, bribed [other defendants] in exchange for their cooperation in furthering the conspiracy to defame and defraud. To the extent Best may have intended his allegation of bribery to serve as the basis for a racketeering claim, the allegation clearly fails because it is conclusory. Furthermore, Best does not allege that any of the acts committed by Mosley were chargeable and punishable by more than one year of prison. F. ¶26 deal Breach of Duty of Good Faith Best also alleged that Mosley violated her duty to in good faith with Best because she interfered with contracts between Best and others while Mosley was herself under contract with Best. In every contract, covenant of good faith and fair dealing. 151 Ariz. 149, 153, 726 P.2d 565, the law implies a Rawlings v. Apodaca, 569 (1986); Restatement (Second) of Contracts § 205 (1981). see also The essence of that duty is that neither party will act to impair the right of the other to receive the benefits which flow from their agreement or contractual relationship. Rawlings, 151 Ariz. at 153, duty 726 P.2d at 569. Here, this applies contractual relationship between Best and Mosley. 13 to the Nowhere in the amended complaint does Best allege that Mosley attempted to prevent him from exercising his rights under his contract with her. Therefore, Best has failed to plead a breach of the duty of good faith. CONCLUSION ¶27 Based on the foregoing, we find the trial court did not abuse its discretion in granting the motions to dismiss filed by Mosley and Preston and dismissing Best s claims against them with prejudice. 2 trial court. In the We therefore affirm the judgments of the exercise of our discretion, we deny Mosley s request for attorneys fees; however, both Mosley and Preston are entitled to an award of costs upon compliance with Arizona Rule of Civil Appellate Procedure 21(a). /S/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /S/ ___________________________________ PATRICIA K. NORRIS, Judge /S/ ___________________________________ PHILIP HALL, Judge 2 In light of our conclusion on the motions to dismiss, we need not address Best s argument that the trial court erred in its treatment of Best s motion for admissions, which questioned the honesty of Mosley s answer. 14

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