MEYER v. GUTIERREZ

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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 DANNY MEYER and MELISSA MEYER, husband and wife, Plaintiffs/Counterdefendants/ Appellees, v. ROBERT GUTIERREZ and MARILYN MILLER-GUTIERREZ, husband and wife, Defendants/Counterclaimants/ Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CV 12-0109 DIVISION ONE FILED: 12/27/2012 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2009-040193 The Honorable John Rea, Judge AFFIRMED Allen Law Group, PLC By Lynn M. Allen Attorneys for Plaintiffs/Counterdefendants/Appellees Phoenix Daniel R. Raynak Attorney for Defendants/Counterclaimants/Appellants Phoenix K E S S L E R, Judge ¶1 Defendants/Appellants Miller-Gutierrez ( Appellants ) Robert Gutierrez and Marilyn appeal from the trial court s order granting Danny and Melissa Meyer s post-verdict renewed motion for judgment of law on Appellants counterclaim for abuse of process. For the reasons that follow, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Appellants Meyers in 2000. moved into the house next door to the On December 31, 2009, the Meyers filed suit against Appellants alleging various claims for relief arising out of Appellants Meyers in the alleged context of harassment their and defamation relationship as of the neighbors. Appellants filed a counterclaim against the Meyers for abuse of process. The matter proceeded to a jury trial. ¶3 At the close of evidence, the Meyers moved for a judgment as a matter of law on the counterclaim pursuant to Arizona Rule of Civil Procedure 50(a). The court denied the motion. on claims The and on jury found Appellants for Appellants counterclaim. both As the damages Meyers on the counterclaim, the jury awarded Legal fees & court costs. ¶4 Appellants lodged a form of judgment, to which the Meyers objected because it includes an amount of attorneys fees not specified in the jury s verdict, such verdict leaving the damage amount to others and not based upon the evidence adduced at trial. The Meyers also renewed their motion for a judgment as a matter of law under Rule 50(b), arguing Appellants failed to present evidence to satisfy the elements of the abuse 2 of process counterclaim. After oral argument, the court granted the Rule 50(b) motion, dismissed the counterclaim and reversed the jury s assessment of fees and costs against the Meyers. court found unresponsive therefore, that and as the jury verdict inconsistent a matter with of on the law, the counterclaim jury no The was instructions judgment for and the Defendants/Counterclaimants can be entered on the Counterclaim. The court further found Defendants/Counterclaimants Counterclaim. that was the evidence insufficient produced to sustain by the their Appellants timely appealed, see ARCAP 9(b)(1), and we have jurisdiction pursuant to Arizona Revised Statutes section 12-2101(A)(2) (Supp. 2012).1 1 We cite to the most recent version of the statute when no revisions material to this decision have since occurred. 3 DISCUSSION ¶5 Appellants Rule 50(b) motion.2 ¶6 has contend the court erred in the We disagree. We review for an abuse of discretion. substantial granting latitude in deciding whether A trial court to upset the verdict . . . [because] [t]he judge sees the witnesses, hears the testimony, and has a special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record. Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 12, 961 P.2d 449, 451 (1998) (quoting Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978)). While a Rule 50(b) motion should be granted only if there is no substantial evidence upon which the jury could render its verdict, In re Frick s Estate, 13 Ariz. App. 247, 251, 475 P.2d 732, 736 (1970), the purpose of a Rule 50(b) motion is to permit the trial 2 court, after more mature Appellants brief also asserts the court erred in failing to grant a new trial on the abuse of process claim after granting the Rule 50(b) motion. However, Appellants provide no substantive argument on this issue. See ARCAP 13(a)(6) (a litigant must present significant arguments, set forth his or her position on the issues raised, and include citations to relevant authorities, statutes, and portions of the record). The failure to present an argument in this manner usually constitutes abandonment and a waiver of that issue. State v. Moody, 208 Ariz. 424, 452 n.9, 94 P.3d 1119, 1147 n.9 (2004) (citation omitted); see also Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) (holding appellate courts will not consider argument posited without authority. ). Consequently, we do not address the propriety of the court s refusal to order a new trial. 4 deliberation to revise its ruling in denying the motion for a directed verdict. Id. In conducting our review of the trial court s grant of a Rule 50(b) motion, we review the evidence in a light most favorable to upholding the jury verdict. Hutcherson, 192 Ariz. at 53, ¶ 13, 961 P.2d at 451. ¶7 To succeed on an abuse of process claim, a claimant must prove the other party committed (1) a willful act in the use of judicial process; (2) for an ulterior purpose not proper in the Wetzel, regular 133 Examples conduct Ariz. of 348, judicial process claim are of the 353, process proceedings. 651 P.2d that 876, may Nienstedt 881 (App. support noticing a deposition, an filing v. 1982). abuse of an entry of default, and general motion practice such as motions to compel production, for protective orders, sanctions and for continuances. 880-81. for change of judge, for Id. at 352-53, 651 P.2d at However, with respect to the cited act, a claimant must present evidence that the defendant committed a specific wilful act . . . not proper in the regular conduct of the proceedings evidence of to the support a claim defendant s mere for abuse of persistence process, in and litigation, even if based on an improper motive, does not sustain the tort. Crackel v. Allstate Ins. Co., 208 Ariz. 252, 258, ¶ 15, 92 P.3d 882, 888 (App. 2004) (quoting Morn v. City of Phoenix, 152 Ariz. 164, 166, 168, 730 P.2d 873, 875, 877 (App. 1986)). 5 That is, as long as the judicial process at issue is used for a proper purpose, an incidental motive of spite or an ulterior purpose of benefit to the defendant is liability for abuse of process. insufficient to establish Nienstedt, 133 Ariz. at 353, 651 P.2d at 881 (quoting Restatement (Second) of Torts § 682 cmt. b (1977)). ¶8 Here, Appellants contend the Meyers abused [judicial] process by making claims in the complaint that they knew were either privileged, untrue, or had no good faith basis to believe they were true, discovery as well process. as For making example, false claims Appellants during refer to the the Meyers statement in an interrogatory that they suffered over $900,000 in Appellants damages, also which reference they the later Meyers admitted allegation was false. regarding Appellants allegedly defamatory comments made at an injunction proceeding in this case in November 2011. ¶9 by Regarding the privileged and false statements made the Meyers during this litigation, and viewing such statements in the light most favorable to sustaining the jury s verdict on the counterclaim, we do not find evidence of abuse of process. Throughout trial, the court refused to admit purportedly defamatory statements made at the injunction hearing because they were privileged. It was not abuse of process to sue for defamation based on privileged statements. 6 See Morn, 152 Ariz. at 167, 730 P.2d at 876 (holding that the commencement of an action without justification, constitute abuse of process). in their amended statements complaint outside of without more, does not Moreover, the Meyers also alleged that judicial Appellants made proceedings. defamatory Likewise, the alleged false statements the Meyers made during discovery do not by themselves show a primary improper purpose in utilizing a judicial process. Specifically, Melissa Meyer s statements regarding damages made during discovery, statements she later conceded were false, do not demonstrate a primary improper purpose. It is not uncommon for statements regarding damages in a notice pleading context before discovery is completed to be inaccurate until a correct assessment of damages can be made.3 The statements do not demonstrate that the primary purpose of the Meyers use of a judicial process was improper. ¶10 Relying excessive illustrate misapprehend on funds the the Nienstadt, the Meyers holding Meyers abuse of Appellants spent of litigating process. Nienstedt, also which But argue this the case Appellants stands for the proposition that an abuse of process claim may properly be based on evidence that a defendant s primary purpose is to subject the 3 Melissa Meyers clarified that the defamation claim focused on statements made about the Meyers personally, not about their business entity as she apparently initially stated at her deposition before correcting herself. 7 claimant to excessive litigation expenses. at 354, 651 P.2d at 882. Nienstedt, 133 Ariz. Thus, the Meyers litigation expenses are irrelevant as to Appellants abuse of process counterclaim. ¶11 Further, we reject Appellants contention that the jury s verdict in their favor on the Meyers claims proves an abuse of process unbelievable. by the Meyers because the claims were Any implied inference from the defense verdicts that the Meyers continued this litigation even though they knew it had no basis is, by itself, not sufficient evidence of abuse of process.4 See Morn, 152 Ariz. at 167, 730 P.2d at 876 ( An abuse of process claim will not lie . . . where process . . . continued without justification. ). ¶12 In sum, Appellants do not point to evidence before the jury of a specific court process that the Meyers used primarily for an improper purpose. See Crackel, 208 Ariz. at 257-58, ¶ 14, 92 P.3d at 887-88 (noting abuse of process claimant must identify specific judicially sanctioned processes that have been abused; possess[ing] an improper purpose in sustaining the overall litigation [is insufficient] ). 4 Accordingly, on this Moreover, we note that the trial court denied Appellants motion for summary judgment, thereby finding that the Meyers complaint raised issues of material fact and was therefore at least implicitly not groundless. See Morn, 152 Ariz. at 168, 730 P.2d at 877. 8 record, we cannot conclude that the court abused its discretion in granting the Meyers Rule 50(b) motion. CONCLUSION ¶13 The order granting the Meyers renewed motion for judgment as a matter of law on the abuse of process counterclaim is affirmed. /S/ DONN KESSLER, Judge CONCURRING: /S/ ANDREW W. GOULD, Acting Presiding Judge /S/ DIANE M. JOHNSEN, Judge 9

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