Hunter v. Leyh-Brubaker

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES R. HUNTER, Plaintiff/Appellant,

v.

CYNTHIA A. LEYH-BRUBAKER; SUSANNE M. STERNBERG; and
DWAYNE E. ROSS, Defendants/Appellees.

No. 1 CA-CV 14-0362
FILED 12-22-2015

Appeal from the Superior Court in Maricopa County
No. CV2013-000011
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

James R. Hunter, San Luis
Plaintiff/Appellant

The Doyle Firm, P.C., Phoenix
By William H. Doyle, D. Andrew Bell
Counsel for Defendants/Appellees
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MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined.

S W A N N, Judge:

¶1 James R. Hunter appeals the superior court order dismissing
his racketeering case for failure to state a claim upon which relief can be
granted. Because he has not alleged facts sufficient to sustain a
racketeering action, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2002, Hunter retained attorney Cynthia A. Leyh
(now Leyh-Brubaker) to petition the court for post-conviction relief from
his 1994 conviction for first degree murder and armed robbery. After a
delay of nearly two and a half years, Leyh-Brubaker filed the petition in
June 2005. The court denied the petition, and we declined review.

¶3 In 2009, displeased with the handling of his petition, Hunter
then brought an action for breach of contract and negligence against Leyh-
Brubaker and her former law partners, Robert Billar and Susanne M.
Sternberg. The defendants hired attorney Carmen Fischer (now Fischer-
Garcia) as an expert witness. Hunter believed Fischer-Garcia’s testimony
about her experience, resume, and past ethics violations was false and
moved to have her videotaped testimony ruled inadmissible. He also
sought to introduce evidence concerning Leyh-Brubaker’s alleged ethics
violations. But the court rejected both requests. Sternberg and Leyh-
Brubaker testified at the trial about their firm and Hunter’s petition.
Hunter believed their statements were also false. The jury, however,
returned a verdict in favor of the defendants, and Hunter appealed. We
dismissed Hunter’s appeal for lack of jurisdiction.

¶4 In 2013, Hunter brought this action against Leyh-Brubaker,
Sternberg, and Fischer-Garcia for racketeering and conspiracy based on
their allegedly false testimony in the previous action. Hunter claimed that
they lied at trial “to defraud [him] from obtaining a favorable verdict and
judgement [sic] monetary award,” by “sway[ing] the jury into rendering
[an] erroneous verdict.” Hunter also sued the defendants’ counsel from
the previous action, Dwayne E. Ross, alleging that he was the architect of

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Decision of the Court
the conspiracy and that he hired Fischer-Garcia specifically to present
false testimony. The court granted the defendants’ motion to dismiss for
failure to state a claim upon which relief can be granted. Hunter appeals.

DISCUSSION

¶5 We review dismissal for failure to state a claim under Ariz.
R. Civ. P. 12(b)(6) de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7
(2012). A dismissal under Rule 12(b)(6) is proper when “as a matter of law
[ ] plaintiffs would not be entitled to relief under any interpretation of the
facts susceptible of proof.” Id. at 356, ¶ 8 (citation omitted). In evaluating
the dismissal, we “assume the truth of the well-pled factual allegations
and indulge all reasonable inferences therefrom.” Cullen v. Auto-Owners
Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). However, “mere conclusory
statements are insufficient” to sustain a claim. Id.

¶6 Hunter claims the defendants committed acts of racketeering by
forming a conspiracy to deprive him of a favorable outcome in his earlier
case. By statute, racketeering is “any act, including any preparatory or
completed offense, that is chargeable or indictable under the laws of the
state or country in which the act occurred . . . and that would be
punishable by imprisonment for more than one year under the laws of
this state,” and that involves one of a number of enumerated offenses for
“financial gain,” including “[a] scheme or artifice to defraud.” A.R.S. § 13-
2301(D)(4).

¶7 Arizona allows civil actions for injuries arising from “a
pattern of racketeering activity.” A.R.S. § 13-2314.04(A). The statute
defines this pattern as

[a]t least two acts of racketeering . . . that meet the following
requirements:

(i) The last act of racketeering activity that is alleged as
the basis of the claim occurred within five years of a prior act
of racketeering.

(ii) The acts of racketeering that are alleged as the basis
of the claim were related to each other or to a common
external organizing principle, including the affairs of an
enterprise. Acts of racketeering are related if they have the
same or similar purposes, results, participants, victims or
methods of commission or are otherwise interrelated by
distinguishing characteristics.

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(iii) The acts of racketeering that are alleged as the basis
of the claim were continuous or exhibited the threat of being
continuous.

A.R.S. § 13-2314.04(T)(3)(a)(i)-(iii).

¶8 Even accepting all Hunter’s allegations as true, they are
insufficient to support his claims. He claims that the act of
racketeering was the defendants’ “conspir[acy] to protect themselves
from a civil judgement [sic] . . . by use of false testimony and false
misleading concealing documents.” Hunter alleges that Fischer-Garcia
misstated the time period when she was a contract attorney for
indigent defense for the purpose of covering up a past ethical
violation. He further asserts defendant Leyh-Brubaker falsely testified
that she never lies and that Sternberg gave false testimony to the jury
concerning the reputation of the law firm and the number of state bar
complaints against the firm. Finally, he alleges that Ross was the
architect of the conspiracy and intentionally hired witness Fischer-
Garcia for the purpose of presenting false testimony. Hunter claims
that but for the false testimony of the defendants, the jury in the
previous action would not have found for the defendants.

¶9 A.R.S. § 13-2314.04 “require[s] that the related predicate acts
extend ‘over a substantial period of time,’ i.e., over more than ‘a few
weeks or months.’” Lifeflite Med. Air Transp., Inc. v. Native Am. Air
Servs., Inc., 198 Ariz. 149, 153, ¶ 13 (App. 2000) (citation omitted). Even
assuming that the actions of the defendants were sufficient to
constitute a conspiracy, and assuming they qualified as predicate acts
of racketeering, Hunter’s allegations still fall short of a pattern of
racketeering. According to Hunter, the predicate acts consisted of the
presentation of false testimony at a single trial. These acts, though
perhaps planned in advance, constituted a single effort that did not
continue over a period longer than “a few months.”

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CONCLUSION

¶10 For the foregoing reasons, we affirm the superior court’s
dismissal for failure to state a claim upon which relief can be granted.

:ama

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