TEMPLAR v. MOODY

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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 ) ) ) Plaintiff/Appellant, ) ) v. ) ) LAURI ANN MOODY, SHANNON S. ) BRADLEY, JANE DOE INSURANCE CO., ) ) Defendants/Appellees. _______________________________________ ) L. S. TEMPLAR, DIVISION ONE FILED: 10/30/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 12-0001 DEPARTMENT A MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2010-098688 The Honorable John R. Ditsworth, Judge AFFIRMED IN PART; VACATED AND REMANDED IN PART L.S. Templar In Propria Persona Mesa N O R R I S, Judge ¶1 This appeal arises out of superior court orders dismissing L.S. Templar s common law tort and 42 U.S.C. § 1983 (2012) claims against Lauri Moody and Shannon Bradley, Moody s former attorney. ¶2 Templar sued Bradley and Moody, alleging claims for abuse of process, malicious prosecution, 1 unlawful imprisonment, negligent and intentional fraud, and mail fraud. infliction of emotional distress, He also alleged claims against Bradley and Moody under 42 U.S.C. § 1983. The record reflects these claims were grounded on first, allegedly wrongful accusations Bradley and Moody made against him, which resulted in various family court orders regarding a child he had with Moody ( family court allegations ); Bradley and criminal Moody made convictions trespass, and second, and allegedly against him, incarceration custodial wrongful which for interference accusations resulted assault, in his criminal ( criminal court allegations ); and third, allegedly wrongful accusations Moody made to police -- after Templar had been released from prison in March 2010, allegedly at Bradley s suggestion -- accusing him of criminal misconduct ( post-incarceration allegations ). ¶3 The superior court granted Bradley s motion to dismiss. Subsequently, after Templar served Moody and moved for summary judgment against her, Moody filed an Answer and Motion 1 We recognize that if the underlying action the correct legal term is wrongful institution proceedings, rather than malicious prosecution, a applies when the underlying action is criminal. Terry H. Pillinger, P.C., 189 Ariz. 152, 153 n.1, 939 431 n.1 (App. 1997). 2 is civil, of civil term that Lane v. P.2d 430, to Dismiss, which the court deemed to be a cross-motion for summary judgment, which it also granted. ¶4 On appeal, Templar argues the court should not have dismissed his claims against Bradley and Moody. Before addressing this argument, as an initial matter, we note this appeal is unique answering brief. because neither Bradley nor Moody filed an Thus, we could regard their failure to do so as a confession of error and reverse the superior court s orders dismissing Templar s claims against them. See ARCAP 15(c). In our discretion, we decline to do so, Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994) (confession of reversible error doctrine is discretionary), and have reviewed the record and elected to address the merits of Templar s claims against Bradley and Moody. As we explain, the superior court properly dismissed Templar s claims grounded on his family court and criminal should not court have allegations, dismissed his but, claims with one grounded exception, on his it post- incarceration allegations. I. Family Court and Criminal Court Allegations ¶5 As a matter of law, the superior court properly dismissed Templar s claims insofar as they were grounded on his family court allegations. Through these claims, Templar was attempting to collaterally attack the family court orders and 3 destroy their effect. As our supreme court has recognized, a party may not collaterally attack a prior judgment because such an attack is independent judgment. an impermissible judgment to destroy effort the to effect obtain of another the former Cox v. Mackenzie, 70 Ariz. 308, 312, 219 P.2d 1048, 1051 (1950). ¶6 For a similar reason, as a matter of law, the superior court also properly dismissed all of Templar s claims insofar as they were grounded on the criminal court allegations. Through these claims, Templar was attempting to collaterally attack his convictions and destroy their effect. See Heck v. Humphrey, 512 U.S. 477, 484-86, 114 S. Ct. 2364, 2371-72, 129 L. Ed. 2d 383 (1994) (criminal defendant cannot use 42 U.S.C. § 1983 civil suit to collaterally attack criminal convictions); cf. Cox, 70 Ariz. at 312, 219 P.2d at 1051 (plaintiff may not collaterally attack probate court order by filing civil action). II. Post-Incarceration Allegations ¶7 Although the superior court properly dismissed Templar s claims against Bradley and Moody insofar as they were grounded on his family court and criminal court allegations, with one insofar exception, as they it were should not grounded allegations. 4 have on dismissed his his claims post-incarceration ¶8 First, appeal, that the the record superior reflects, court as Templar dismissed all argues of his on claims against Bradley simply because he failed to appear at the oral argument on Bradley s motion to dismiss. Because Templar had filed a written response to Bradley s motion, the dismissal of his claims unwarranted. against Bradley for this reason alone was Cf. Estate of Lewis v. Lewis, 229 Ariz. 316, 324, ¶ 19, 275 P.3d 615, 623 (App. 2012) (court improperly dismissed complaint for conference; plaintiff s [t]he failure imposition of to the appear most at severe pretrial sanctions contemplated by the rules should be reserved for those occasions where the otherwise violation is have World or The should v. willful Inc., 582 So. 2d 102, 103 (Fla. Dist. Ct. App. 1991))). thus Insua or Air, court (citing persistent Wide superior aggravated. flagrant, considered the merits Templar s claims against Bradley before dismissing them. of Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998) (dismissal is appropriate under Arizona Rule of Civil Procedure 12(b)(6) only if as a matter of law [ ] plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof ). ¶9 Templar s Second, claims as discussed, against Moody 5 the superior after court deciding to dismissed treat her Answer and Motion to Dismiss as a summary judgment motion. so doing, however, the record does not reflect the In court notified the parties it intended to treat Moody s motion as a summary judgment motion. CA-CV 10-0786, 2012 This was improper. WL 4357427 (Ariz. Young v. Rose, 1 App. Sept. 25, 2012) (judgment vacated because superior court did not notify parties it would treat motion judgment and material relevant Templar thus failed did to to to dismiss not give such plead a as them a opportunity motion). factual motion Further, allegations for summary to present insofar supporting as his claims as necessary to withstand dismissal under Rule 12(b)(6), if requested to do so, a superior court should give the nonmoving party . . . an opportunity to amend the complaint if such an amendment cures its defects. Wigglesworth v. Mauldin, 195 Ariz. 432, 439, ¶ 26, 990 P.2d 26, 33 (App. 1999). 2 ¶10 Despite these procedural errors, the superior court properly dismissed Templar s 42 U.S.C. § 1983 claims against Bradley and Moody. actors. Neither Bradley nor Moody were government Only a government actor can be liable under 42 U.S.C. 2 For example, Templar failed to plead all the required factual elements in support of his common law fraud and statutory mail fraud claims. See Peery v. Hansen, 120 Ariz. 266, 269, 585 P.2d 574, 577 (App. 1978) (nine elements of fraud); Pereira v. United States, 347 U.S. 1, 8, 74 S. Ct. 358, 362, 98 L. Ed. 435 (1954) (to prevail on mail fraud claim, plaintiff must prove scheme to defraud and mailing of letter, etc. for purpose of executing scheme). 6 § 1983. Rand v. Porsche Fin. Servs., 216 Ariz. 424, 429, ¶ 17 167 P.3d 111, 116 (App. 2007). CONCLUSION ¶11 For the foregoing reasons, we affirm the superior court s dismissal of Templar s claims against Bradley and Moody insofar as they were grounded on the family court and criminal court allegations. We vacate, however, the superior court s dismissal of his claims against Bradley and Moody insofar as they were grounded on his post-incarceration allegations remand for further proceedings consistent with this decision. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ ANN A. SCOTT TIMMER, Presiding Judge /s/ MARGARET H. DOWNIE, Judge 7 and

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