Johnson v. Secure

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JUNE JOHNSON, et al., Plaintiffs/Appellants,

v.

SECURE VENTURES LLC, Defendant/Appellee.

No. 1 CA-CV 23-0317
FILED 1-25-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-051559
The Honorable Patricia K. Norris, Judge Pro Tempore

AFFIRMED

COUNSEL

June Johnson, Sun City
Plaintiff/Appellant

Carl Johnson, Sun City
Plaintiff/Appellant

Evans, Dove, Nelson, Fish & Grier PLC, Mesa
By Trevor J. Fish, Douglas N. Nelson
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.

C A T L E T T, Judge:

¶1 Carl and June Johnson (the “Johnsons”) appeal the superior
court’s order dismissing their complaint for failure to state a claim. The
Johnsons alleged three claims arising out of an eviction proceeding initiated
by Secure Ventures LLC (“Secure Ventures”)—a negligence claim against
the McDowell Mountain Justice Court (“Justice Court”), an “[i]ntentional
[t]ort” claim against Secure Ventures, and a claim for intentional infliction
of emotional distress against Secure Ventures. The Johnsons also sought
punitive damages. Because, as a matter of law, the Johnsons cannot recover
under any of their three theories, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Secure Ventures purchased the Johnsons’ home at a trustee’s
sale and demanded the Johnsons vacate. When the Johnsons refused,
Secure Ventures filed a forcible detainer action in the Justice Court, which
issued a judgment evicting the Johnsons. But the superior court, on appeal,
concluded that the Justice Court did not have jurisdiction. After additional
trial and appellate proceedings, this court ultimately agreed with the
superior court that the Justice Court lacked jurisdiction over Secure
Ventures’ forcible detainer action. See Secure Ventures, LLC v. Gerlach, 249
Ariz. 97, 101 ¶ 12 (App. 2020).

¶3 Secure Ventures then filed a forcible detainer action in
superior court. The superior court granted judgment in Secure Ventures’
favor, finding the Johnsons guilty of forcible detainer and wrongful
possession. This court affirmed that judgment. See Secure Ventures v.
Johnson, CA-CV 20-0135, 2020 WL 7705624 (Ariz. Ct. App. Dec. 29, 2020)
(mem. decision).

¶4 Over two years later, the Johnsons brought this action against
Secure Ventures, alleging a “[c]laim to recover the economic damages”
incurred in the justice court litigation. Secure Ventures moved to dismiss
the Johnsons’ complaint for failure to state a claim. The superior court

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granted the motion in part, concluding the Johnsons were precluded from
recovering expenses incurred from the justice court litigation. But the court
denied the motion as to the Johnsons’ tort claims, instead instructing the
Johnsons to amend the complaint to “specifically delineate each claim being
made and the facts in support of the claim(s)” and to “specify which tort
claim(s) is/are alleged.”

¶5 The Johnsons filed an amended complaint, alleging a “legal
claim of negligence tort . . . against the McDowell Mountain Justice Court,”
as well as an “[i]ntentional [t]ort” claim and a claim for “[i]ntentional
infliction of emotional distress against” Secure Ventures. The Johnsons
included a “legal claim” for punitive damages against Secure Ventures.
Secure Ventures again moved to dismiss, which the superior court granted
with prejudice, concluding further opportunity to amend would be futile.

¶6 The Johnsons timely appealed. We have jurisdiction. See
A.R.S. § 12-120.21(A)(1).

DISCUSSION

¶7 We review the dismissal of a complaint for failure to state a
claim de novo. Hopi Tribe v. Ariz. Snowbowl Resort Ltd. P’ship, 245 Ariz. 397,
400 ¶ 8 (2018). We assume the complaint’s well-pleaded facts are true and
“affirm only if, as a matter of law, the plaintiffs would not be entitled to
relief under any interpretation of the facts susceptible of proof.” Id.
(cleaned up).

I. “Intentional Tort” Claim

¶8 The Johnsons first argue that the superior court erred by
concluding that their “intentional tort” claim against Secure Ventures was
insufficiently specific. The Johnsons argue that the facts they pled in the
amended complaint’s “[i]ntentional [t]ort” section are sufficient to prove
several different tort claims.

¶9 Arizona follows a notice pleading standard. Ariz. R. Civ. P.
8; Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 6 (2008). That standard
is meant to “give the opponent fair notice of the nature and basis of the
claim and indicate generally the type of litigation involved.” Cullen, 218
Ariz. at 419 ¶ 6. Rule 8 requires a plaintiff to include “a short and plain
statement of the claim” to put opposing parties on notice of the specific
nature of the claim against which they must defend. Ariz. R. Civ. P. 8(a)(2).

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¶10 The Johnsons’ amended complaint states that their “second
legal claim is [i]ntentional [t]ort against the defendant Secure Ventures”
and then includes several paragraphs of facts describing the events
surrounding the Johnsons’ eviction. Other than intentional infliction of
emotional distress (discussed below), the amended complaint, however,
nowhere alleges that Secure Ventures committed any specific intentional
tort.

¶11 An intentional tort is a category of torts describing a civil
wrong resulting from an intentional act—it is not a specific tort claim. See
Intentional Tort, Black’s Law Dictionary (11th ed. 2019). Thus, merely
alleging Secure Ventures committed an intentional tort against the
Johnsons was insufficient to put Secure Ventures on notice of the specific
claim it needed to defend.

¶12 On appeal, the Johnsons argue they sufficiently pled an
intentional tort claim against Secure Ventures that established “intentional
interference in free-living, tortious interference in privacy, and tortious
interference with business expectancy.” But identifying specific tort claims
in appellate briefing cannot remedy the inadequacy of their actual pleading
in the superior court, which they were instructed to amend and given an
opportunity to do so. See Harris v. Cochise Health Sys., 215 Ariz. 344, 349 ¶
17 (App. 2007) (“[A]n appellate court will not consider issues not raised in
the trial court.”). The superior court properly dismissed this claim.

II. Intentional Infliction of Emotional Distress

¶13 The Johnsons next argue the superior court erred when it
dismissed their intentional infliction of emotional distress claim. The tort
of intentional infliction of emotional distress requires: (1) extreme and
outrageous conduct by the defendant; (2) either intent to cause emotional
distress or recklessly disregard of the near certainty that such distress will
result from the defendant’s conduct; and (3) for severe emotional distress
to occur because of the defendant’s conduct. Ford v. Revlon, Inc., 153 Ariz.
38, 43 (1987). “A plaintiff must show that the defendant’s acts were ‘so
outrageous in character and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community.’” Mintz v. Bell Atl. Sys. Leasing Int’l,
Inc., 183 Ariz. 550, 554 (App. 1995) (citation omitted).

¶14 The Johnsons’ amended complaint alleges Secure Ventures’
conduct was extreme and outrageous because Secure Ventures changed the
locks on the property four times, which prevented the Johnsons from

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accessing most of their possessions. Contrary to that legal theory, this court
has held that a landlord changing the locks, even when wrongfully evicting
a tenant, without more, cannot support an intentional infliction of
emotional distress claim. See Country Escrow Serv. v. Janes, 121 Ariz. 511,
513 (App. 1979).

¶15 In Janes, the landlord changed the locks on the Janes’ retail
property and denied access to their belongings without providing the
required notice. Id. The Janes confirmed there was no physical altercation
or other “outburst” related to the lock changing. Id. Though the landlord
was guilty of wrongful eviction, this court held the Janes could not
successfully assert an intentional infliction of emotional distress claim
because the landlord’s conduct was, as a matter of law, not extreme or
outrageous. Id.

¶16 Though the Johnsons prevailed on their jurisdictional
challenge, Secure Ventures prevailed on the right to possession. The
Johnsons’ allegations, even when considered true, show Secure Ventures
did nothing more than act to vindicate its legal rights, and it was ultimately
successful in doing so. When a defendant “has done no more than to insist
upon his legal rights in a permissible way,” the conduct cannot be
considered “extreme and outrageous.” See Mintz, 183 Ariz. at 554 (quoting
Restatement (Second) of Torts § 46, cmt. g (1965)). When Secure Ventures
obtained the eviction judgment in justice court, it was an open question
whether the Justice Court had concurrent jurisdiction. Accordingly,
because the Johnsons failed to plead extreme and outrageous acts sufficient
to state a claim for relief, the superior court properly dismissed this claim.

III. Negligence Claim Against McDowell Mountain Justice Court

¶17 The Johnsons next argue that because they were the
prevailing party in the Justice Court, Secure Ventures is required to return
approximately $24,000 in rent bonds the Johnsons paid. The Johnsons’
amended complaint alleges two legal theories for recovering the rent bonds.
The first is their claim for “[i]ntentional [t]ort” against Secure Ventures. As
discussed, a generic claim for intentional tort is insufficient to state a claim
for relief.

¶18 The second theory is in the amended complaint’s first cause
of action for negligence “against the McDowell Mountain Justice Court.”
The superior court properly dismissed this claim for two reasons. First, the
amended complaint did not name the Justice Court as a defendant. Second,
even if the Justice Court had been a defendant, the claim would fail under

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the doctrine of judicial immunity. See Acevedo by Acevedo v. Pima Cnty. Adult
Prob. Dep’t, 142 Ariz. 319, 321 (1984) (“Judges of courts of general
jurisdiction are not liable in a civil action for damages for their judicial acts,
even when such acts are in excess of their jurisdiction or are alleged to have
been done maliciously or corruptly.”); see Davis v. Burris, 51 Ariz. 220, 223–
25 (1938) (applying judicial immunity to justices of the peace).

¶19 On appeal, the Johnsons disavow bringing a cause of action
against the Justice Court, arguing instead that they were “just highlight[ing]
the ignorance of law and facts in the Justice Court.” Yet the Johnsons’
amended complaint specifies the negligence cause of action is “against the
McDowell Mountain Justice Court,” not Secure Ventures. Consequently,
the negligence claim, even if intended to run only against Secure Ventures,
was insufficient to notify Secure Ventures of a negligence claim. See
Verduzco, 240 Ariz. at 225 ¶ 11. The superior court properly dismissed the
claim.

IV. Punitive Damages

¶20 Finally, the Johnsons argue that because they sufficiently
alleged claims for damages, the court erred in dismissing their “fourth legal
claim [for] punitive damages[.]” Punitive damages are a monetary remedy
appropriate in certain circumstances when a party has also been awarded
actual damages or an equitable remedy—punitive damages are not a
standalone legal claim. See Medasys Acquisition Corp. v. SDMS, P.C., 203
Ariz. 420, 424 ¶ 19 (2002). Because the superior court did not err in
dismissing the Johnsons’ substantive claims, their punitive damages
request fails.

ATTORNEYS’ FEES

¶21 Secure Ventures requests attorneys’ fees on appeal under
A.R.S. §§ 12-341.01 and 12-349. In the exercise of our discretion, we deny
that request. We award Secure Ventures its costs on appeal upon
compliance with Arizona Rule of Civil Appellate Procedure 21.

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CONCLUSION

¶22 We affirm the superior court’s judgment.

AMY M. WOOD • Clerk of the Court
FILED: AA

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