Watkins v. Arpaio

• Decision Date: 02 February 2016
• Docket Number: No. 1 CA–CV 14–0707.,1 CA–CV 14–0707.
• Parties: Lee WATKINS, an individual, Plaintiff/Appellant, v. Sheriff Joseph M. ARPAIO, in his individual and official capacities as Sheriff of Maricopa County, Defendant/Appellee.
• Court: Arizona Court of Appeals

367 P.3d 72

Lee WATKINS, an individual, Plaintiff/Appellant,

v.Sheriff Joseph M. ARPAIO, in his individual and official capacities as Sheriff of Maricopa County, Defendant/Appellee.

No. 1 CA–CV 14–0707.

Court of Appeals of Arizona, Division 1.

Feb. 2, 2016.

Robbins & Curtin, PLLC By Joel B. Robbins, Anne E. Findling, Phoenix, Counsel for Plaintiff/Appellant.

Sacks Tierney, PA By James W. Armstrong, Jeffrey S. Leonard, Scottsdale, Counsel for Defendant/Appellee.

Presiding Judge DIANE M. JOHNSEN delivered the opinion of the Court, in which Judge KENT E. CATTANI and Judge JOHN C. GEMMILL joined.

OPINION

JOHNSEN

, Judge:

¶ 1 Lee Watkins argues the superior court erred by dismissing on limitations grounds his claims against Maricopa County Sheriff Joe Arpaio for intentional infliction of emotional distress and false-light invasion of privacy. He argues the torts were "continuing wrongs" that did not finally accrue until less than a year before he filed his complaint. We hold that, under the circumstances, the statutes governing accrual and limitations of a claim against a public employee preclude application of the "continuing wrong" doctrine to save either of Watkins's claims.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Watkins is the founder and owner of Cactus Towing, which did business in Maricopa County for more than 15 years. Watkins supported a political opponent of Arpaio in the 2004 election and alleged that, under Arpaio's direction, the Sheriff's Office sought to punish him and his company by launching a groundless "sweeping investigation" of them in March 2005. Deputies seized the company's computers, business records, banking accounts, cash and trucks. At the same time, according to the complaint, the Sheriff's Office "orchestrated a media circus" to announce the false charges against him, triggering a "media festival [that] had no law enforcement purpose but was designed to cause injury to its victims without any due process." According to the complaint, "For years Sheriff Arpaio continued to make statements that the investigation was ongoing," until, in October 2010, the Maricopa County Attorney "finally concluded the investigation by declaring that there was nothing that could be prosecuted against Mr. Watkins."

¶ 3 Watkins sued Arpaio and Maricopa County in September 2011, alleging abuse of process, intentional interference with contractual and economic relationships, intentional infliction of emotional distress, and false-light invasion of privacy, all premised on the alleged politically motivated investigation. The superior court dismissed all of the claims, finding them barred by the one-year statute of limitations in Arizona Revised Statutes ("A.R.S.") section 12–821

(2016).¹

¶ 4 On appeal, this court affirmed the dismissal of the intentional-interference claim but reversed dismissal of the claims alleging false-light invasion of privacy and intentional infliction of emotional distress.² We held those claims were not barred by the one-year limitations period because the complaint alleged Arpaio made public statements accusing Watkins of criminal wrongdoing after the county attorney announced in October 2010 that he was dropping the investigation.

¶ 5 On remand, Arpaio moved for summary judgment, arguing no evidence supported the allegation that he made any public statements about Watkins after the investigation was dropped. The superior court granted Watkins's request for additional discovery pursuant to Arizona Rule of Civil Procedure 56(f)

. In due course, the court granted summary judgment in Arpaio's favor, dismissing the two remaining claims.

¶ 6 Watkins timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1)

(2016) and –2101(A)(1) (2016).

DISCUSSION

A. Legal Principles.

¶ 7 We review a grant of summary judgment de novo. Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 199, ¶ 15, 165 P.3d 173, 177 (App.2007)

. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). The moving party bears the burden of providing undisputed admissible evidence that would entitle it to judgment as a matter of law. Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 18, 292 P.3d 195, 199 (App.2012). "We view the facts and any inferences drawn from those facts in the light most favorable to the party against whom judgment was entered." Tierra Ranchos, 216 Ariz. at 199, ¶ 15, 165 P.3d at 177. We review questions of law concerning statutes of limitations de novo. Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App.1996).

B. Intentional Infliction of Emotional Distress.

¶ 8 A plaintiff suing for intentional infliction of emotional distress must prove the defendant caused severe emotional distress by extreme and outrageous conduct committed with the intent to cause emotional distress or with reckless disregard of the near-certainty that such distress would result. Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987)

. In the prior appeal, we held Watkins's complaint contained sufficient allegations to support a claim for intentional infliction of emotional distress. Watkins now urges us to hold that his intentional-infliction claim alleges a continuing wrong, such that the statute of limitations did not begin to run until the allegedly wrongful investigation concluded in October 2010.

¶ 9 Other courts have held that a tort claim based on a series of closely related wrongful acts may be treated as alleging a continuing wrong that accrues for limitations purposes not at the inception of the wrongdoing but upon its termination. See Kyle Graham, The Continuing Violations Doctrine, 43 Gonz. L. Rev. 271, 275 (2008)

(doctrine "aggregates multiple allegedly wrongful acts, failures to act, or decisions such that the limitations period begins to run on this collected malfeasance only when the defendant ceases its improper conduct").

¶ 10 Although no Arizona appellate court has addressed the issue, courts in other jurisdictions have applied a "continuing wrong" theory to comparable claims for intentional infliction of emotional distress. For example, in Mears v. Gulfstream Aerospace Corp., 225 Ga.App. 636, 484 S.E.2d 659, 662 (1997)

, a woman alleged her work supervisor subjected her to "constant abuse, stress, and harassment" over a period of years. The court explained that the "continuing tort" theory is particularly suited to some claims for intentional infliction of emotional distress:

Claimants bear a heavy burden in establishing the type of extreme and outrageous conduct necessary to sustain a claim for intentional infliction of emotional distress. In cases involving a series of acts allegedly producing emotional distress, one incident "might not, taken in isolation, rise to a level of conduct actionable under the law for emotional distress." Viewed cumulatively, however, that incident in combination with a claimed pattern of conduct may support the cause of action.

Id. at 664

(citations omitted). Under this reasoning, the limitations period on such a claim does not begin to run until the alleged tortious acts have ceased. Id. Accord Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir.2001) ("continuing violation" allows "a plaintiff [to] reach back to its beginning even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant's unlawful conduct"); Curtis v. Firth, 123 Idaho 598, 850 P.2d 749, 755 (1993) (limitations on intentional infliction claim based on a series of acts "is only held in abeyance until the tortious acts cease"); Feltmeier v. Feltmeier, 207 Ill.2d 263, 278 Ill.Dec. 228, 798 N.E.2d 75, 86–87 (2003) ; Bustamento v. Tucker, 607 So.2d 532, 538–39 (La.1992) ; McCorkle v. McCorkle, 811 So.2d 258, 263–64 (Miss.App.2001) ; Shannon v. MTA Metro–North R.R., 269 A.D.2d 218, 704 N.Y.S.2d 208, 209 (2000).³ Other courts have applied the "continuing wrong" doctrine to intentional-infliction claims that are based, as here, on alleged wrongful investigations. See Alexander v. United States, 721 F.3d 418 (7th Cir.2013) ; Llerando–Phipps v. City of New York, 390 F.Supp.2d 372 (S.D.N.Y.2005).⁴

¶ 11 The reasoning of these cases from other jurisdictions, which allow delayed accrual of an intentional-infliction claim that is based on a long series of acts, is not without merit. Watkins alleged Arpaio commenced a politically motivated investigation of him and his company in 2005 with great public fanfare by seizing his assets and business records. Although Watkins plainly knew of the allegedly outrageous acts by Arpaio at the outset of the investigation, by the nature of the thing, he was for the most part unaware of how the investigation was proceeding thereafter. Nevertheless, Watkins alleged that the continuing existence of the investigation until its announced conclusion in October 2010 caused him emotional distress.

¶ 12 Watkins's claim, however, is subject to Arizona statutes that expressly govern the accrual of "all actions" against a public entity or public employee. Under A.R.S. § 12–821

, "All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward." In turn, A.R.S. § 12–821.01(B) (2016) states, "For the purposes of this section, 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." Under these two statutes,

"[a] plaintiff need not know all the facts underlying a cause of action to trigger accrual. But the plaintiff must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury." Thus, "[t]he relevant inquiry is when did a plaintiff's ‘knowledge, understanding,

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