Greif v. Prescott City Attorney
| Decision Date | 02 October 2012 |
| Docket Number | 1 CA-CV 11-0767 |
| Parties | KEVIN C. GREIF and MARY A. MOREL, husband and wife, Plaintiffs/Appellants, v. PRESCOTT CITY ATTORNEY, GARY D. KIDD; CITY OF PRESCOTT FLOOD PLAIN BOARD, LORA LOPAS, STEVE BLAIR, TAMMY LINN, JIM LAMERSON, MARY ANN SUTTLES, JOHN HANNA; PRESCOTT FLOODPLAIN ADMINISTRATOR, RICHARD MASTIN; PRESCOTT DRAINAGE ENGINEER, GREGORY TOTH, Defendants/Appellees. |
| Court | Arizona Court of Appeals |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure)
The Honorable Kenton D. Jones, Judge
AFFIRMED
Kevin C. Greif and Mary A. Morel, In Propria Persona
Potts & Associates
By Walter Grochowski
Attorneys for Defendants/Appellees
NORRIS, Judge¶1 Plaintiffs/appellants Kevin Greif and Mary Morel timely appeal summary judgment in favor of defendants/appellees the Prescott City Attorney Gary Kidd, the City Floodplain Administrator Richard Mastin, the City Drainage Engineer Gregory Toth, members of the City Floodplain Board Lora Lopas, Steve Blair, Tammy Linn, Jim Lamerson, Mary Ann Suttle, and John Hanna (collectively, "individual defendants"), and the City of Prescott Floodplain Board ("Board"). Plaintiffs argue the superior court should not have dismissed their claims against the individual defendants and Board for failure to serve them with any notice of claim as required by Arizona Revised Statutes ("A.R.S.") section 12-821.01 (2003). They also assert the court should not have dismissed their claims against the Board because it was a "jural" entity capable of being sued. We disagree with both arguments and their subsidiary arguments and therefore affirm the superior court's judgment.
¶2 In 1982, the City of Prescott installed bollards and cables that acted as a barrier in a "low water crossing" of Granite Creek, near plaintiffs' property. According to plaintiffs' complaint, high water flows in January 2010 clogged the bollard/cable barrier with debris, which in turn diverted the water flow in the creek and damaged their property.
Plaintiffs sued the City, the individual defendants, and the Board, alleging they had failed to enforce floodplain regulations and negligently installed the barrier, and asserted two claims for relief. In their first claim for "equitable/injunctive relief," plaintiffs asked the court to order the City to remove the barrier and award them damages ("damage claim"). In their second claim, they alleged the "wrongful installation" of the barrier "constitute[d] a taking as defined by law for which [they were] entitled to compensation" ("takings claim").
¶3 While the City answered the complaint, the individual defendants and Board asked the superior court to dismiss them from the lawsuit because, among other things, plaintiffs had not served the individual defendants with any notice of claim as required by A.R.S. § 12-821.01 and Board was a non-jural governmental entity incapable of being sued. Because the parties "presented within their relevant pleadings matters outside the pleading," the court treated the motion to dismiss as one for summary judgment. Ariz. R. Civ. P. 12(b).
¶4 After briefing and oral argument, the court granted the individual defendants and Board summary judgment on plaintiffs' damage claim because plaintiffs only served the City with a notice of claim and, under Simon v. Maricopa Med. Ctr.,225 Ariz. 55, 234 P.3d 623 (App. 2010), service on the City did not "constitute service on an agent of Defendants other than the City." The court granted the individual defendants summary judgment on their takings claim because it believed such a claim could only be asserted against the government as the sovereign. The court also found the Board was a "non-jural entity" and, thus, could not be sued.
¶5 Plaintiffs moved for reconsideration. After briefing and oral argument, the court denied the motion.
¶6 We review the superior court's factual and legal determinations on a grant of summary judgment de novo, viewing the evidence and reasonable factual inferences in a light most favorable to plaintiffs as the non-moving parties. Mutschler v. City of Phoenix, 212 Ariz. 160, 162, ¶ 8, 129 P.3d 71, 73 (App. 2006) (citing Aranki v. RKP Inv., Inc., 194 Ariz. 206, 208, ¶ 6, 979 P.2d 534, 536 (App. 1999)).
¶7 A.R.S. § 12-821.01(A) provides:
Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure within one hundredeighty days after the cause of action accrues. . . . Any claim which is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.
Plaintiffs first argue they were not required to comply with this statute vis-à-vis the individual defendants because "their original complaint . . . request[ed] punitive damages for gross negligence and reckless misconduct and deprivation of their rights," and thus requested relief under 42 U.S.C. § 1983 (1996) ("§ 1983"). See Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988) (). Because plaintiffs mischaracterize the claims they actually pleaded in superior court, which did not tie their damage claim to § 1983, we disagree.
¶8 As an initial matter, we note the complaint, which essentially threw in the kitchen sink of legal theories, made it extremely difficult for the superior court (and now this court) to determine what claims plaintiffs actually filed against the individual defendants. To plead a § 1983 claim, however, a plaintiff need only allege facts Mulleneaux v. State, 190 Ariz.535, 539, 950 P.2d 1156, 1160 (App. 1997) (quotations and citations omitted). Applying this principle here, we acknowledge plaintiffs' complaint contained some miscellaneous statements that could have been construed as suggesting a § 1983 claim. Such a construction, however, would be inconsistent with plaintiffs' own clarification and characterization of their damage claim.
¶9 First, although plaintiffs quoted § 1983 in their written response to the motion to dismiss and generally accused the individual defendants of failing to administer federal, state, and city floodplain regulations, they never tied their damage claim to a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. Indeed, their response alleged their
¶10 Second, slightly shifting gears during oral argument on the motion to dismiss, plaintiffs argued they had made a § 1983 claim, but tied it only to their takings claim: 1
¶11 Third, during oral argument on their motion for reconsideration, the superior court sought further clarification by asking plaintiffs directly whether they had pleaded a § 1983 claim. In response, plaintiffs specifically identified paragraphs 44 and 45 of their complaint as comprising their § 1983 claim. These paragraphs referred only to common law principles of liability:
¶12 Accordingly, given plaintiffs' own characterizations of their § 1983 claim, we disagree their damage claim constituted a cognizable § 1983 claim against the individual defendants. See generally Morgan v. City of Phoenix, 162 Ariz. 581, 587, 785 P.2d 101, 107 (App. 1989) (). Thus, plaintiffs were required to serve the individual defendants with notice of their damage claim under A.R.S. § 12-821.01.
¶13 Plaintiffs next argue even if they were required to comply with A.R.S. § 12-821.01, they effectively did so. Specifically, they argue "[t]here is no statutory requirement that both the public entity and the public employee be notified," and because they served...
To continue reading
Request your trial