Alosi v. Hewitt

• Citation: 276 P.3d 518,634 Ariz. Adv. Rep. 31,229 Ariz. 449
• Decision Date: 03 May 2012
• Docket Number: No. 1 CA–CV 11–0004.,1 CA–CV 11–0004.
• Parties: Joseph ALOSI and Joyce Alosi, husband and wife, Plaintiffs/Appellants, v. William Wesley HEWITT, Defendant/Appellee.
• Court: Court of Appeals of Arizona

229 Ariz. 449

276 P.3d 518

634 Ariz. Adv. Rep. 31

Joseph ALOSI and Joyce Alosi, husband and wife, Plaintiffs/Appellants,

v.William Wesley HEWITT, Defendant/Appellee.

No. 1 CA–CV 11–0004.

Court of Appeals of Arizona, Division 1, Department B.

May 3, 2012.

Mariscal, Weeks, McIntyre & Friedlander, P.A. By Anne L. Tiffen, Todd A. Baxter, and Alex & Gaxiola, P.C., By Andrew R. Alex, Phoenix, Co-counsel for Plaintiffs/Appellants.

The Sorenson Law Firm, LLC By Johnny J. Sorenson, Nikki J. Johnson, Tempe, Attorneys for Defendant/Appellee.

OPINION

SWANN, Judge.

[229 Ariz. 450]¶ 1 While driving, Audrey Fuller accidentally collided with Joseph Alosi and injured him. Alosi sued Fuller, the company that employed her, and a related company that owned the car she was driving. Alosi eventually moved to amend his complaint to add the owner of both of those companies, William Hewitt, as a defendant. Because Hewitt and Fuller were involved with one another romantically, Alosi argued that Hewitt was properly a defendant in the action under the family purpose doctrine. Because Fuller was employed by Hewitt's company, Alosi also argued that Hewitt was liable under an agency theory. The court denied leave to assert liability under the family purpose doctrine, but allowed the addition of Hewitt on a theory of respondeat superior. Ultimately, the court granted summary judgment in favor of Hewitt.

¶ 2 Alosi appeals, and we affirm the trial court's ruling concerning the family purpose doctrine as well as the court's entry of summary judgment against him on the agency theory.

FACTS AND PROCEDURAL HISTORY

¶ 3 The accident happened on the morning of November 29, 2007, while Fuller was driving a car owned by General Property Mortgage, one of Hewitt's companies. Fuller acknowledged in her deposition that she was running two errands in the car that morning: she was transporting a two-year-old boy to school, and she was dropping off a letter for General Property Lending.

¶ 4 General Property Lending is another company owned by Hewitt. Fuller began working for that company in December 2005 after a mutual friend encouraged her to get reacquainted with Hewitt, whom she had known in high school. The letter Fuller was going to deliver that morning was addressed to Jay Fischer, the president of General Property Lending. Fuller testified that she was delivering the letter for Hewitt.

¶ 5 Fuller's plan was to drive the letter from Hewitt's house to a courier service that would deliver it to General Property Lending, which was based in Colorado. Fuller had spent the night at Hewitt's house because they were in a “romantic relationship,” having become, in Fuller's words, “boyfriend and girlfriend.” Consequently, Fuller often spent the night at Hewitt's house in Carefree, Arizona, or at his house in Denver, Colorado. Although Fuller described Hewitt's Colorado house as her “residence,” she would often fly to Arizona and spend anywhere from a few days to a full month with Hewitt at his house in Arizona.

¶ 6 During his deposition, Hewitt testified that while the two lived together, Fuller would do “regular household things.” She would go shopping, pick up groceries, and take care of personal bills. He said that she was a great cook and that she cleaned up after him. Additionally, Hewitt testified that Fuller picked up “our mail, her mail and my mail.”

¶ 7 After dropping off the letter that morning, the second errand Fuller ran in the car was to drop a young boy off at school. On appeal, Hewitt characterizes the boy as his “young houseguest.” At that time, the boy lived with his mother and would sometimes visit Hewitt. Hewitt was paying for the boy's tuition at a Montessori school. Hewitt had asked Fuller once or twice before to take the boy to school—it was something she did “very rarely”—and on the morning of November 29, Fuller was in charge of getting the boy to Montessori.

¶ 8 Fuller first drove to the delivery service that she had planned on using. When she arrived, she discovered that it had gone out of business. At that point, she decided to drive the boy to school. But once she got near the school, she missed the turnoff. When she turned the car to go back, she drove through a stop sign and collided with Alosi's motorcycle.

¶ 9 On November 10, 2008, Alosi filed a complaint against Fuller, General Property Lending, General Property Mortgage and other related business entities. The complaint alleged that Fuller collided with Alosi's motorcycle by driving negligently. It also alleged that General Property Lending and General Property Mortgage and the related entities were liable for Fuller's negligence because she was acting as their agent.

¶ 10 On September 8, 2009, Alosi filed a motion for leave to amend the complaint to add Hewitt as a defendant. Alosi argued that Hewitt should be joined as a defendant under the family purpose doctrine as well as under an “agency and respondeat superior” theory. On November 20, 2009, the trial court denied the motion to amend under the family purpose doctrine; it found that “[t]he individuals involved were not a ‘family’ under that doctrine on the undisputed facts.” It granted the motion, however, with respect to “the agency claim” against Hewitt.

¶ 11 On May 28, 2010, Hewitt filed a motion for summary judgment on the agency claim. Hewitt's motion emphasized the fact that he and Fuller had a boyfriend-girlfriend relationship, and he argued that as a matter of law, a boyfriend is not vicariously liable for the driving of his girlfriend even if she were driving on a joint errand at the time of the accident. The court granted the motion on August 13, 2010, finding “that there [was] no genuine issue of material fact regarding the issue of whether Mr. Hewitt is vicariously liable for Ms. Fuller's driving.” The court also noted that all other claims in the case had been settled. A final judgment in favor of Hewitt was entered on November 1, 2010.

¶ 12 Alosi timely appeals, raising two issues. The first is whether the trial court improperly denied his motion to amend the complaint to include a claim against Hewitt under the family purpose doctrine. The second is whether the court improperly granted Hewitt summary judgment on the agency theory. We have jurisdiction under A.R.S. §§ 12–120.21 and –2101.

STANDARDS OF REVIEW

¶ 13 When a motion to amend a pleading is denied, we review the denial for a clear abuse of discretion. MacCollum v. Perkinson, 185 Ariz. 179, 185, 913 P.2d 1097, 1103 (App.1996). Generally, denying a party leave to amend is an abuse of discretion when the party “merely seeks to add a new legal theory.” Id. But a “trial court does not abuse its discretion by denying a motion to amend if it finds ... futility in the amendment.” Bishop v. State Dep't of Corr., 172 Ariz. 472, 474–75, 837 P.2d 1207, 1209–10 (App.1992). When reviewing the denial, we presume that the facts alleged in the complaint are true. MacCollum, 185 Ariz. at 185, 913 P.2d at 1103.

¶ 14 When a motion for summary judgment is granted, we review the judgment de novo. Johnson v. Hispanic Broadcasters of Tucson, Inc., 196 Ariz. 597, 598, ¶ 2, 2 P.3d 687, 688 (App.2000). We view the evidence in the light most favorable to the party against whom summary judgment was entered, and we resolve all inferences from the evidence in that party's favor. Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App.1996).

DISCUSSION

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING LEAVE TO AMEND THE COMPLAINT TO INCLUDE THE FAMILY PURPOSE DOCTRINE.

¶ 15 Alosi relies on Pesqueira v. Talbot, 7 Ariz.App. 476, 480, 441 P.2d 73, 77 (1968), for the elements of the family purpose doctrine:

[T]here must be a family with sufficient unity so that there is a head of the family, the motor vehicle responsible for the injury must have been one ‘furnished’ by the head of the family to a member of the family and this vehicle must have been used on the occasion in question by the family member with the implied or express consent of the head of the family for a family purpose.

According to Alosi, the facts alleged establish those elements. He argues that the relationship between Hewitt and Fuller is such that it can be called a “family,” and that Hewitt is clearly its “head.” Alosi insists that because the doctrine does not depend upon the “technicality of marriage,” the trial court abused its discretion by denying him leave to amend his complaint.

¶ 16 Alosi bolsters his argument with the broad definition of “family” set forth in Brown v. Stogsdill: “a group of individuals living under one roof and usually under one head: HOUSEHOLD.” 140 Ariz. 485, 487, 682 P.2d 1152, 1154 (App.1984) (quoting Webster's New Collegiate Dictionary 410 (1980)). Alosi also points us to the following language in that case:

For the family purpose doctrine the family is not limited to parents and their minor dependent children. An adult who is not dependent and who is self-sustaining can still be considered a member of the household for the purposes of the family purpose doctrine so long as the family itself is a family unit with a family head.

Id. (emphasis added).

¶ 17 Analysis of the history and purpose of the family purpose doctrine leaves us unpersuaded that it has any application to these facts. We begin with the first Arizona case to introduce the doctrine, Benton v. Regeser, 20 Ariz. 273, 179 P. 966 (1919). In that case, Regeser was riding his bicycle and was injured when a minor, Bryan Benton, negligently drove a truck into him. The truck belonged to Bryan's father, R.L. Benton. Id. at 275, 179 P. at 966. The complaint alleged that Bryan was acting as R.L.'s agent and “was operating the car at the time of the accident in the business of his father.” Id. at 274, 179 P. at 966. The issue in the case was cast as whether Bryan's father could be held liable for Bryan's negligence “under the doctrine of respondeat superior.” Id. at 275, 179 P. at 967.

¶ 18 ...