O. DARLENE JONOVICH; DJ'S CASA, LLC v. CITY OF GLOBE (pdf)

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO O. DARLENE JONOVICH, AS TRUSTEE OF THE DANIEL AND OLIVE DARLENE JONOVICH TRUST; AND DJ’S CASA, LLC, AN ARIZONA LIMITED LIABILITY COMPANY, Plaintiffs/Appellants, v. CITY OF GLOBE, AN ARIZONA MUNICIPAL CORPORATION, Defendant/Appellee. No. 2 CA-CV 2023-0136 Filed November 21, 2023 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Gila County No. S0400CV202100082 The Honorable David E. Wolak, Judge Pro Tempore AFFIRMED COUNSEL Stubbs & Schubart P.C., Tucson By G. Lawrence Schubart Counsel for Plaintiffs/Appellants Sims Mackin Ltd., Phoenix By Kristin M. Mackin Counsel for Defendant/Appellee JONOVICH v. CITY OF GLOBE Decision of the Court MEMORANDUM DECISION Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred. VÁ S Q U E Z, Chief Judge: ¶1 O. Darlene Jonovich and DJ’s Casa LLC appeal from the superior court’s grant of summary judgment in favor of the City of Globe. Jonovich and DJ’s Casa argue the court erred in determining their notice of claim was untimely and by dismissing their civil rights claim as a matter of law. For the reasons that follow, we affirm. Factual and Procedural Background ¶2 We view the facts and all reasonable inferences in the light most favorable to Jonovich and DJ’s Casa, the parties that opposed summary judgment below. See Modular Mining Sys., Inc. v. Jigsaw Techs., Inc., 221 Ariz. 515, ¶ 2 (App. 2009). In 2016, Jonovich purchased property in Globe and later met with the City’s zoning administrator “to inquire concerning [its] permitted uses” because she wanted to use it for commercial purposes as an event venue. After looking at a map, the zoning administrator told Jonovich that the property “was zoned for commercial use.” Jonovich thereafter expended over $300,000 to make modifications and improvements to ensure the property met “requirements for the commercial use of the [p]roperty as an event venue.” In 2019, the City issued a certificate of occupancy for the property and a commercial business license to DJ’s Casa. ¶3 In a March 4, 2020 letter, the City’s new zoning administrator informed Jonovich that the correct zoning for the property is single-family residential, not commercial, and that the business license was issued “in error.” Jonovich and DJ’s Casa appealed to the City’s board of adjustment, which denied the appeal on January 14, 2021. They then submitted a notice of claim to the City on January 29, 2021. Jonovich and DJ’s Casa later sued the City for gross negligence, violation of the Private Property Rights Protection Act, A.R.S. §§ 12-1131 to 12-1138, and a civil rights violation under 42 U.S.C. § 1983 based on damages incurred as a result of her reliance on the City’s representation that the property was zoned for commercial use. 2 JONOVICH v. CITY OF GLOBE Decision of the Court ¶4 The City moved for summary judgment arguing the gross negligence claim was “statutorily barred” as a result of Jonovich and DJ’s Casa’s failure to timely file the notice of claim. The City further asserted it had “statutory qualified immunity” on the gross negligence claim and the complaint failed to allege conduct to sustain such a claim in any event. The City also argued the complaint did not state a claim under the Private Property Rights Protection Act or § 1983 because Jonovich and DJ’s Casa had not alleged that the City had enacted a land use law reducing the fair market value of the property or that a constitutionally protected property interest had been violated. Jonovich and DJ’s Casa opposed the City’s motion and cross-moved for partial summary judgment on the timeliness of the notice of claim. ¶5 After oral argument, the superior court granted the City’s motion for summary judgment and denied Jonovich and DJ’s Casa’s cross-motion. The court agreed with the City that the gross negligence claim was barred because the claim accrued on March 4, 2020, when the City notified Jonovich “that the permits and approvals had been issued in error.” The court further determined that because Jonovich and DJ’s Casa had not alleged the City’s acts created an unreasonable risk of bodily harm, the City’s conduct did “not rise to the level of gross negligence.” It also concluded that Jonovich and DJ’s Casa had failed to state a claim under the Private Property Rights Protection Act or for civil rights violations. The court denied Jonovich and DJ’s Casa’s subsequent motion to vacate or amend its ruling and entered final judgment in favor of the City, from which Jonovich and DJ’s Casa appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A) and 12-2101(A)(1). Discussion ¶6 We review a court’s grant of summary judgment de novo and will affirm when “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532, ¶ 9 (2022) (quoting Ariz. R. Civ. P. 56(a)). I. Timeliness of Notice of Claim ¶7 On appeal, Jonovich and DJ’s Casa contend the notice of claim was timely because they were first required to appeal the zoning administrator’s decision to the board of adjustment. And they maintain the claim did not accrue until the appeal was denied in January 2021. 3 JONOVICH v. CITY OF GLOBE Decision of the Court ¶8 Under A.R.S. § 12-821.01(A), a person with a claim against a public entity must file a claim with the entity “within one hundred eighty days after the cause of action accrues.” “Any claim that is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.” Id. A cause of action 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 that caused or contributed to the damage.” § 12-821.01(B). However, if a claim “must be submitted to a binding or nonbinding dispute resolution process or an administrative claims process or review process,” the claim will not accrue until such processes have been exhausted. § 12-821.01(C). ¶9 Although § 12-821.01(C) delays the accrual date for the exhaustion of an administrative claims process, it only applies to “any claim that must be submitted to . . . an administrative claims process . . . pursuant to a statute, ordinance, resolution, administrative or governmental rule or regulation, or contractual term.” (Emphasis added.) Jonovich and DJ’s Casa conflate two distinct matters: the zoning appeal to the board of adjustment and the gross negligence claim. No statute, rule, or other law required administrative review of Jonovich and DJ’s Casa’s tort claim. Indeed, the board possesses neither special expertise to rule on the merits of the gross negligence claim nor the statutory authority to do so. See A.R.S. § 9-462.06; see also Univar Corp. v. City of Phoenix, 122 Ariz. 220, 224 (1979). Jonovich and DJ’s Casa’s zoning challenge required exhaustion of administrative remedies before seeking judicial review. But their gross negligence claim, which could not have been adjudicated by the board, did not.1 Thus, § 12-821.01(C) does not apply. ¶10 We therefore agree with the superior court that Jonovich and DJ’s Casa’s claim accrued on March 4, 2020, when they received the zoning administrator’s letter informing them of the previous zoning administrator’s error. See § 12-821.01(B). Accordingly, the January 2021 1 Notably, Jonovich and DJ’s Casa did not challenge the zoning administrator’s determination that the property is zoned residential, nor does our record indicate that they sought a variance to permit the commercial use of the property. And § 9-462.06(H)(1) provides that a board of adjustment may not “[m]ake any changes in the uses permitted in any zoning classification or zoning district, or make any changes in the terms of the zoning ordinance provided the restriction in this paragraph shall not affect the authority to grant variances.” 4 JONOVICH v. CITY OF GLOBE Decision of the Court notice of claim was untimely, and Jonovich and DJ’s Casa’s gross negligence claim was barred. See § 12-821.01(A). For the reasons that follow, that claim lacks merit in any event. II. Gross Negligence Claim ¶11 Jonovich and DJ’s Casa argue the superior court incorrectly found that the complaint failed to state a gross negligence claim. “Whether gross negligence exists is generally a fact question for the jury, but it may be resolved on summary judgment if ‘no evidence is introduced that would lead a reasonable person to find gross negligence.’” Badia v. City of Casa Grande, 195 Ariz. 349, ¶ 27 (App. 1999) (quoting Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 595 (App. 1991)). ¶12 Gross negligence requires an act “with reckless indifference to the . . . safety of others.” Noriega v. Town of Miami, 243 Ariz. 320, ¶ 35 (App. 2017) (omission in Noriega) (quoting Williams v. Thude, 180 Ariz. 531, 539 (App. 1994)); see also Walls, 170 Ariz. at 595 (gross negligence requires conduct that “creates an unreasonable risk of bodily harm to others but also involves a high probability that substantial harm will result”). “To establish gross negligence, the claimant essentially must show wanton misconduct that ‘is flagrant and evinces a lawless and destructive spirit.’” Badia, 195 Ariz. 349, ¶ 27 (quoting Scott v. Scott, 75 Ariz. 116, 122 (1953)). ¶13 As the City points out, Jonovich and DJ’s Casa alleged only monetary damages not bodily harm, and they have cited no authority that a gross negligence claim can be maintained absent a risk of physical harm. See Kemp v. Pinal County, 13 Ariz. App. 121, 123-24 (1970) (gross negligence creates “an unreasonable risk of bodily harm to another” and “a high degree of probability that substantial harm will result”). The superior court therefore did not err in finding that the zoning administrator’s “mistaken identification of the subject property during a discussion with . . . Jonovich does not rise to the level of gross negligence.” III. Civil Rights Violation ¶14 Jonovich and DJ’s Casa also alleged a civil rights claim based on having “acquired a vested, or other constitutionally protected . . . right to use the property as an event venue.” In granting summary judgment to the City on this claim, the superior court reasoned that Jonovich and DJ’s Casa failed to allege any facts to establish a deprivation of a constitutionally protected property interest. See Rivera v. City of Phoenix, 186 Ariz. 600, 602 (App. 1996) (building permit that is not legitimately issued does not “give rise to a vested right”). 5 JONOVICH v. CITY OF GLOBE Decision of the Court ¶15 On appeal, Jonovich and DJ’s Casa maintain the superior court erred because their claim “is not based on the validity of the permit” but rather “that the city is estopped to deny the right to continue the use as an event venue,” thus establishing a constitutionally protected right. But even assuming that estoppel could apply and give rise to a protectible property interest, the superior court rejected this precise equitable estoppel argument in Jonovich and DJ’s Casa’s separate statutory special action review of the board of adjustment decision, and they are therefore precluded from relitigating it now. ¶16 Jonovich and DJ’s Casa contend they are not precluded from raising this issue because “there was not a fair opportunity to resolve [the estoppel] issue in light of the [z]oning [a]dministrator’s assertion that neither the City, nor the [b]oard, had jurisdiction to consider or grant relief based on estoppel.” But that argument ignores that the superior court specifically considered and ruled on the same estoppel issue in the statutory special action, after briefing and oral argument. See Hancock v. O’Neil, 253 Ariz. 509, n.3 (2022) (defensive issue preclusion requires same issue in both proceedings, issue has been actually litigated and decided in prior proceedings, party against whom doctrine is to be invoked “had a full and fair opportunity to litigate the issue,” and issue was necessary to decide merits of prior action). Thus, Jonovich and DJ’s Casa failed to establish a constitutionally protected property interest, and their civil rights claim necessarily fails with it. Cf. Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, ¶ 44 (App. 2003) (due process claim requires constitutionally protected liberty or property interest). The superior court did not err in granting summary judgment in favor of the City on this claim.2 Attorney Fees on Appeal ¶17 Jonovich and DJ’s Casa request an award of attorney fees on appeal under Rule 21, Ariz. R. Civ. App. P., and 42 U.S.C. § 1988. Rule 21, however, “only establishes the procedure for claiming attorneys’ fees and does not create any substantive right to them.” And although § 1988(b) allows the court to award the prevailing party reasonable attorney fees, 2As noted above, the superior court also granted summary judgment to the City on Jonovich and DJ’s Casa’s claim brought under the Private Property Rights Protection Act. They do not challenge that decision on appeal. We therefore need not address it. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (arguments not developed on appeal deemed waived). 6 JONOVICH v. CITY OF GLOBE Decision of the Court Jonovich and DJ’s Casa are not the prevailing parties. Accordingly, we deny the request. However, as the prevailing party, the City is entitled to its costs incurred on appeal subject to its compliance with Rule 21(b). See A.R.S. § 12-341. Disposition ¶18 We affirm the superior court’s order granting summary judgment in favor of the City. 7

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