Novak v. Maricopa Cty

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DAVID NOVAK, Plaintiff/Appellant,

v.

MARICOPA COUNTY, Defendant/Appellee.

No. 1 CA-CV 16-0115
FILED 12-27-2016

Appeal from the Superior Court in Maricopa County
No. CV 2015-054358
The Honorable Aimee L. Anderson, Judge

AFFIRMED

COUNSEL

David Novak, Fountain Hills
Plaintiff/Appellant In Propria Persona

Maricopa County Attorney’s Office, Civil Services Division, Phoenix
By J. Randall Jue
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.
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Decision of the Court

D O W N I E, Judge:

¶1 David Novak appeals from a judgment dismissing his
complaint against Maricopa County. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Novak was convicted of theft, a class 3 felony, and was
placed on three years’ probation on February 5, 2015. The minute entry
from the sentencing hearing states that Novak was “prepared to pay
restitution today in the total amount of $6,033.76.” The superior court did
not issue a criminal restitution order (“CRO”) at the time of sentencing.

¶3 The State later filed a Motion for Ordering Immediate
Payment of Restitution, alleging that restitution remained unpaid and that
the probation department could not take action against Novak “due to the
fact that restitution was never ordered by the Court separate and apart
from the restitution agreement contained within the plea agreement.” The
superior court granted the State’s motion and filed a CRO on May 8, 2015.

¶4 On May 18, 2015, Maricopa County perfected a restitution
lien against vehicles titled in Novak’s name with the Arizona Department
of Transportation, Motor Vehicle Division. Novak subsequently filed a
“Petition for Damages” (“Complaint”), alleging the County illegally
recorded the lien and refused to remove it after he paid restitution to the
victim because he would not pay a $899 collection fee.

¶5 The County filed a motion to dismiss pursuant to Rule
12(b)(6), Arizona Rules of Civil Procedure, arguing the CRO was
statutorily authorized and the collection fee was included in the CRO.
After full briefing, the superior court granted the County’s motion, and
Novak timely appealed. This Court has jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

¶6 This Court reviews the grant of a Rule 12(b)(6) motion de
novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). 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). “Dismissal is appropriate under Rule 12(b)(6) only if as a
matter of law plaintiffs would not be entitled to relief under any
interpretation of the facts susceptible of proof.” Coleman, 230 Ariz. at 356,
¶ 8.

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Decision of the Court

¶7 We requested supplemental briefing from the parties
addressing the effect, if any, of Novak’s discharge from probation and the
County’s December 2015 filing in the criminal matter of a satisfaction of
judgment stating that Novak had “fully satisfied” the CRO. Given this
action, to the extent Novak’s complaint sought to have the restitution lien
removed, that request is now moot. But as the County observed in its
supplemental brief, Novak also requested damages “for the period from
the institution of the lien . . . to the date when the lien was released.” That
aspect of Novak’s claim is not moot.

¶8 Novak incorrectly contends a CRO may issue only after an
individual is released from probation. A.R.S. § 13-805(B) states that the
court, upon ordering a defendant to pay restitution, “may enter a criminal
restitution order in favor of each person who is entitled to restitution for
the unpaid balance of any restitution order.”1 Once a CRO issues, it may
be recorded and enforced “as any civil judgment.” A.R.S. § 13-805(E).
Enforcement includes perfecting a restitution lien pursuant to A.R.S.
§ 13-806(A) (“The state or any person entitled to restitution pursuant to a
court order may file in accordance with this section a restitution lien.”). A
restitution lien against interests in titled motor vehicles is perfected by
filing the lien “with the department of transportation motor vehicle
division.” A.R.S. § 13-806(D).

¶9 Although Novak challenges the County’s $899 collection fee,
the CRO specifically provided that “[a]ny collection fees incurred by the
Court in connection with enforcement of this Order are the responsibility
of the defendant and will be added to the original restitution amount.” In
this civil proceeding, Novak may not collaterally attack the validity of the
CRO issued in his criminal case.

¶10 Finally, Novak’s contention that the superior court acted
“corruptly” is not supported by the record. “A trial judge is presumed to
be free of bias and prejudice, and a [complainant] must show by a
preponderance of the evidence that the trial judge was, in fact, biased.”
State v. Ramsey, 211 Ariz. 529, 541, ¶ 38 (App. 2005). No such bias is

1 Novak relies on A.R.S. § 13-805(C), which requires the court to enter
a CRO if restitution remains owing after a defendant completes his
probation or absconds. That provision does not conflict with the
permissive authority prescribed by § 13-805(B) or negate the court’s ability
to issue a CRO when ordering a defendant to pay restitution.

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Decision of the Court

apparent and, for reasons discussed supra, the superior court properly
granted the County’s motion to dismiss.

CONCLUSION

¶11 For the foregoing reasons, we affirm the judgment of the
superior court.

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

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