Forrer v. Johansen/State

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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 SCOTT FORRER, M.D., ) ) Plaintiff/Appellant, ) ) v. ) ) VICKI JOHANSEN and JOHN DOE ) JOHANSEN, husband and wife; ) STATE OF ARIZONA, a body ) politic; and ARIZONA MEDICAL ) BOARD, a department of the State ) of Arizona, ) ) Defendants/Appellees. ) __________________________________) 1 CA-CV 10-0712 DIVISION ONE FILED: 07/28/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2010-003244 The Honorable Edward O. Burke, Judge (Retired) AFFIRMED David Monroe Quantz Esq. by David Monroe Quantz Attorneys for Plaintiff/Appellant O Connor & Campbell, P.C. by Dan O Connor Scott Mihalik Attorneys for Defendant/Appellee Vicki Johansen Tucson Phoenix Iafrate & Associates by Michele M. Iafrate Attorneys for Defendants/Appellees State of Arizona and Arizona Medical Board Phoenix P O R T L E Y, Judge ¶1 Dr. Scott Forrer, M.D., appeals the order dismissing his complaint against the Arizona Medical Board (the Board ) and Vicki Johansen for relief may be granted. failure to state a claim upon which For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Forrer Johansen on infliction filed a February of complaint 2, emotional 2010, against the alleging: stress; (2) (1) fraud; Board and intentional (3) fraudulent schemes and artifices; (4) intentional interference with future economic schemes advantage; and (5) practices; libel; (8) (6) civil slander; (7) racketeering; fraudulent (9) computer tampering; (10) tampering with a public record; (11) tampering with physical evidence. The claims are the result of three Board investigations that started in 2005 and ended in 2008. ¶3 former The first patient investigation filed a complaint began with in the May 2005 Board. when a Forrer responded by providing the patient s file but did not hear from the Board until June 8, 2006, when Johansen requested additional information. Later that month, an independent medical expert claimed that Forrer s file was incomplete. 2 Forrer, however, contends that his file was complete, but Johansen purposefully removed eleven pages to distort the file. ¶4 After Forrer s insurer filed a complaint against him with the Arizona Department of Insurance, which was forwarded to the Board, the second investigation began in July 2006. Johansen was again assigned to investigate the complaint, and Forrer provided included a Johansen nerve with the conduction evaluation ( the study ). relevant study and material, which electromyographic The printed date on the study was incorrect, so Forrer handwrote the correct date. When he was confronted with the study in October 2006, the handwritten date had been replaced with an incorrect typewritten date. Forrer alleges that Johansen purposefully removed the handwritten date and replaced result, the it with Board the accused incorrect Forrer typewritten of date. inadequately As a maintaining patient records. ¶5 when The third investigation was initiated in February 2008 another assigned as patient the filed a complaint. investigator. Forrer Johansen alleges was that again Johansen falsified prescription information in the patient s file to make it appear that he was overprescribing medicine. The investigation was subsequently dismissed. ¶6 Forrer sued, and the Board moved to dismiss the complaint pursuant to Arizona Rule of Civil Procedure 12(b)(6) 3 alleging that: (1) the claims were barred by the statute of limitations; (2) the notice of claim was untimely; criminal charges are not a basis for civil liability. and (3) Johansen joined the Board s motion and additionally claimed that she had not been properly served with a notice of claim. Forrer responded and, after a hearing, the trial court granted both motions to dismiss. Forrer appealed, and we have jurisdiction pursuant Revised to Arizona Statutes ( A.R.S. ) section 12- erred by 2101(B) (2003). DISCUSSION ¶7 Forrer contends that the trial court dismissing his claim based on the statute of limitations. 1 Rule 12(b)(6) provides that a party may move to dismiss a suit for [f]ailure to state a claim upon which relief can be granted. Our review is de novo, Dube v. Likins, 216 Ariz. 406, 411, ¶ 5, 167 P.3d 93, 98 (App. 2007), and we analyze the sufficiency of the complaint in light of Rule 8, which only requires sufficient factual allegations to give the opponent fair notice of the 1 Forrer, however, does not address whether the trial court erred by finding that Johansen was not properly served with a notice of claim. Because we can affirm the trial court on any ground argued below, see State v. Rojers, 216 Ariz. 555, 559, ¶ 17, 169 P.3d 651, 655 (App. 2007), and arguments not raised on appeal are waived, State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004), we affirm the trial court s grant of the motion to dismiss as to Johansen. We, therefore, only consider whether the trial court erred by dismissing the claims against the Board. 4 nature and basis for the claim, but must do more than include mere conclusory statements. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶¶ 6-7, 189 P.3d 344, 346 (2008) (quoting Mackey v. Spangler, 81 Ariz. 113, 115, 301 P.2d 1026, 1027-28 (1956)) (internal quotation marks omitted). ¶8 Claims against any public entity or public employee are subject to a one-year statute of limitations. 821 (2003). A.R.S. § 12- The one-year statute of limitations accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage. A.R.S. § 12-821.01(B) (2003); Dube, 216 Ariz. at 411, ¶ 7, 167 P.3d at 98. Stated differently, a cause of action does not accrue until the plaintiff knows or with reasonable diligence should action]. Doe v. Roe, 191 Ariz. 313, 322, ¶ 29, 955 P.2d 951, 960 (1998). know the facts underlying the cause [of We, therefore, must consider: (1) when the claim occurred; (2) the applicable limitations period; (3) when the claim was filed; and limitations period. (4) possible tolling or suspending the Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996). ¶9 Although, and as Forrer contends, the accrual date of a claim is usually a jury question, Doe, 191 Ariz. at 323, ¶ 32, 955 P.2d at 961, a statute of 5 limitations defense may be asserted as the basis for a motion to dismiss when it appears from the face of the complaint that the claim is barred. Anson v. Am. Motors Corp., 155 Ariz. 420, 421, 747 P.2d 581, 582 (App. 1987); Engle Bros., Inc. v. Superior Court, 23 Ariz. App. 406, 408, 533 P.2d 714, 716 (1975). A motion to dismiss is appropriate because averments of time and place are material when testing the sufficiency of a complaint. Rule 9(f); see 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1308 (3d ed. 2010) ( Since [Federal] Rule [of Civil Procedure] 9(f) makes allegations of time material, however, the defense of the statute may be raised on a motion to dismiss under [Federal] Rule [of Civil Procedure] 12(b)(6) when it is apparent from the face of the complaint that the time limit for bringing the claim for relief has passed. ). ¶10 Here, the complaint was filed on February 2, 2010. In order for Forrer s complaint to be timely, his claims would have needed to however, accrue arose October 2008. out after of February events 2, occurring suspected contends before Forrer s between May claims, 2005 and Forrer does not dispute that Johansen s actions occurred well before February 2, 2009. he 2009. wrongdoing that he hiring a could during not forensic the discover document suspicions. 6 In fact, he admits that investigations. the events analyst to in But he question confirm his ¶11 Although it is necessary to investigate a claim before filing a complaint, see Rule 11, Forrer was confronted with an altered document in October 2006, but he waited to investigate the issue until December 2008. Forrer noticed that missing pages in his file were replaced with page dividers in April 2007, but he took no action to investigate Johansen had purposefully distorted the file. his belief that Finally, Forrer claims that Johansen altered documents in October 2008 to make it appear that he was overprescribing medication, but he did nothing to investigate his claim until he filed his complaint in February 2010. ¶12 The discovery rule is not intended to allow plaintiffs to ignore their suspicions and postpone their investigations. Indeed, plaintiffs have a duty to investigate diligence to discover the necessary facts. with due Doe, 191 Ariz. at 324, 955 P.2d at 962; see Walk v. Ring, 202 Ariz. 310, 316, ¶ 23, 44 P.3d 990, 996 (2002); Little v. State, 225 Ariz. 466, 470, ¶ 13, 240 P.3d 861, 865 (App. 2010). Even if the forensic document analyst s opinion was necessary to file the complaint, but see Little, 225 Ariz. at 470, ¶ 13, 240 P.3d at 865 (stating that the court s holding in Walk does not provide or suggest that a plaintiff first must receive an expert medical opinion stating that malpractice has occurred ), Forrer could not delay his investigation for two years. 7 ¶13 Forrer, however, claims that he was prohibited and intimidated by the Board s rules and regulations from discussing the details of the investigations with anyone other than the Board s staff. Specifically, he cites A.R.S. § 32- 1451.01(C) (2007), which provides any information received and records or reports investigation kept procedure by the outlined available to the public. 2 board in as this a result chapter of the are not Section 32-1451.01, however, does not prohibit a doctor from investigating Board misconduct or from disclosing Board s the[] information investigation documents with to a letter any doctor s stated legal lawyer. that counsel Forrer [he] In fact, could the share retain[ed]. Section 32-1451.01(C), therefore, did not prevent Forrer from investigating his complaint. Grand v. Nacchio, 225 Ariz. 171, 175 n.1, ¶ 20, 236 P.3d 398, 402 n.1 (2010) ( In evaluating motions to dismiss, Arizona courts consider only the well-pled facts, not legal conclusions. ). ¶14 Because Forrer failed to file his complaint within the one-year statute of limitations period, the trial court did not err when it dismissed Forrer s complaint. 2 In his opening brief, Forrer claims that A.R.S. § 32-1451.01(C) provides that [t]he doctor and the doctor s attorney may not release any information obtained under this section to any other person. The quoted language previously appeared in A.R.S. § 32-1451(I) prior to 2002 when it was removed by the legislature. 2002 Ariz. Sess. Laws, ch. 165, § 1 (2d Reg. Sess.). 8 CONCLUSION ¶15 Based on the foregoing, we affirm the order dismissing Forrer s complaint. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ________________________________ LAWRENCE F. WINTHROP, Judge /s/ ________________________________ ANN A. SCOTT TIMMER, Chief Judge 9

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