Sarkis v. Maricopa

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANTHONY SARKIS, Plaintiff/Appellant,

v.

MARICOPA COUNTY, et al., Defendants/Appellees.

No. 1 CA-CV 20-0271
FILED 5-18-2021

Appeal from the Superior Court in Maricopa County
No. CV 2018-002136
The Honorable Rosa Mroz, Judge

AFFIRMED

COUNSEL

Cameron A. Morgan Attorney at Law, Scottsdale
By Cameron A. Morgan
Counsel for Plaintiff/Appellant

Maricopa County Attorney’s Office, Civil Services Div., Phoenix
By Joseph Branco
Counsel for Defendants/Appellees
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 Anthony Sarkis appeals the superior court’s order granting
Maricopa County’s (“County”) motion for summary judgment on his claim
that the County negligently damaged his personal property. For the
following reasons, we affirm.

BACKGROUND

¶2 Sarkis was involved with the manufacturing and distribution
of synthetic cannabinoids, more commonly known as “spice.” In October
2013, the Maricopa County Sheriff’s Office (“MCSO”) seized Sarkis’s
property connected with his spice business, including a Ford truck, a
Kachina boat and trailer, a Yamaha all-terrain vehicle, a flatbed trailer, and
a McKenzie Dune Chaser (“Seized Property”).

¶3 Sarkis was later indicted in federal district court for multiple
drug offenses. As part of a plea agreement entered in January 2016, Sarkis
agreed to forfeit all interest in the Seized Property but retained the right to
pay a specified sum in lieu of forfeiture. In November, Sarkis paid
$507,507.82 to the U.S. Government. After federal prosecutors informed the
district court of the accepted payment, the court ordered that the Seized
Property be returned to Sarkis.

¶4 Sarkis sued the County and MCSO in superior court, alleging
the Seized Property was stored “without sufficient provision to protect it
from the elements,” resulting in severe damage caused by the “negligence
of the Maricopa County officials and employees.” The County moved for
summary judgment, arguing (1) Sarkis did not have an interest in the Seized
Property at the time of the alleged damage because of the forfeiture action,
and (2) the County could not be held vicariously liable for MCSO’s actions.

¶5 The superior court granted the County’s motion, finding
Sarkis did not own the Seized Property when it “was damaged because he
lost his right, title and interest in the property when the property was
forfeited,” citing 21 USCA § 853(c). The court did not address the vicarious

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Decision of the Court

liability issue but noted Sarkis agreed that MCSO should be dismissed as a
non-jural entity. Sarkis timely appealed.

DISCUSSION

¶6 Summary judgment is appropriate if “there is no genuine
dispute as to any material fact and the moving party is entitled to judgment
as a matter of law.” Ariz. R. Civ. P. 56(a). We review the superior court’s
grant of summary judgment de novo, viewing the evidence and reasonable
inferences in the light most favorable to the non-moving party. Ochser v.
Funk, 228 Ariz. 365, 369, ¶ 11 (2011).

¶7 Sarkis argues the superior court erred by granting summary
judgment based on its finding that Sarkis did not own the Seized Property
at the time it was allegedly damaged while in MCSO’s care. Because we
affirm the court’s ruling on the grounds that the County was not vicariously
liable, we need not address this ownership issue. See KB Home Tucson, Inc.
v. Charter Oak Fire Ins. Co., 236 Ariz. 326, 329, ¶ 14 (App. 2014) (explaining
that an appellate court “will affirm summary judgment if it is correct for
any reason supported by the record, even if not explicitly considered by the
superior court”).

¶8 “For an employer to be held vicariously liable for an
employee’s negligent acts, the employee must be (1) subject to the
employer’s control or right of control, and (2) acting in furtherance of the
employer’s business.” Engler v. Gulf Interstate Eng’g, Inc., 227 Ariz. 486, 491,
¶ 17 (App. 2011), aff’d, 230 Ariz. 55, 60, ¶ 21 (2012). A county is generally
not vicariously liable for the conduct of an elected official whose duties are
imposed by state statutes and constitutional provisions. Hernandez v.
Maricopa County, 138 Ariz. 143, 146 (App. 1983). As an extension of that
principle, we have previously held that a county is not liable for torts
committed by its sheriff’s office because it lacks control over how the sheriff
conducts its official duties. Fridena v. Maricopa County, 18 Ariz. App. 527,
530 (1972).

¶9 Nonetheless, Sarkis contends it is appropriate to hold the
County vicariously liable for MCSO’s alleged torts here. Given that MCSO
is a non-jural entity and lacks the capacity to be sued, Braillard v. Maricopa
County, 224 Ariz. 481, 487, ¶ 13 (App. 2010), Sarkis argues that denying him
recovery against the County under vicarious liability would make it
impossible to hold anyone accountable for alleged damages to the Seized
Property. This result, he argues, is tantamount to granting the County
governmental immunity.

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¶10 To support his argument, Sarkis notes that our supreme court
generally rejected “the rule of governmental immunity from tort liability.”
Stone v. Ariz. Highway Comm’n, 93 Ariz. 384, 387 (1963); see also Ryan v. State, 134 Ariz. 308, 311 (1982) (“Employing the spirit of the Stone decision, we
propose to endorse the use of governmental immunity as a defense only
when its application is necessary to avoid a severe hampering of a
governmental function or thwarting of established public policy.”).
Thereafter, the Arizona legislature enacted “Actions Against Public Entities
or Public Employees,” which defined the boundaries of absolute and
qualified immunity. A.R.S. §§ 12-820 to 12-826. In enacting this law, the
legislature declared it “to be the public policy of this state that public
entities are liable for acts and omissions of employees in accordance with
the statutes and common law of this state.” 1984 Ariz. Sess. Laws ch. 285,
§ 1. Given this judicial and legislative history, Sarkis argues we should
allow the County to be held vicariously liable for the acts of MCSO to
advance Arizona’s public policy of governmental accountability.

¶11 We recognize that policy, but it cannot be applied to abrogate
fundamental principles of tort law requiring that an employer exercise
control over its employee to be held vicariously liable. See Engler, 227 Ariz.
at 491, ¶ 17. Although the County has fiscal authority over the MCSO under
A.R.S. § 11-251 because a sheriff is a county officer under A.R.S. § 11-
401(A)(1), the power and responsibilities of the sheriff are established by
the legislature, not the County. See A.R.S. § 11-441; see also Fridena, 18 Ariz.
App. at 530. Thus, the County cannot be held vicariously liable for the
actions MCSO carries out in furtherance of its statutory duties. See Fridena,
18 Ariz. App. at 530 (holding that “the County, having no right of control
over the Sheriff or his deputies in service of the writ of restitution, is not
liable under the doctrine of [r]espondeat superior for the Sheriff’s torts”).

¶12 Sarkis further notes that preservation of property seized
under forfeiture laws is not one of MCSO’s enumerated duties under § 11-
441 and contends the County could have exercised control over how MCSO
stored the Seized Property. He argues this is enough to hold the County
vicariously liable. We disagree.

¶13 Although storage of seized property is not specifically
enumerated under § 11-441, it is a natural consequence of the Sheriff’s law
enforcement duties, and Sakris does not identify any other department in
the County with authority to store such property. See Norton v. Arpaio, No.
CV-15-00087-PHX-SPL, 2015 WL 13759956, at *6 (D. Ariz. Nov. 20, 2015)
(explaining that “Fridena and Braillard, read together, appear to bar all state-
law claims against a county for the acts of a sheriff’s department”). Indeed,

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the legislature has delegated the authority to store property seized under a
warrant exclusively to law enforcement officials. See A.R.S. § 13-3920 (“All
property or things taken on a warrant shall be retained in the custody of the
seizing officer or agency which he represents, subject to the order of the
court in which the warrant was issued, or any other court in which such
property or things is sought to be used as evidence.”). Moreover, a county
does not generally have the authority to supervise and discipline the
employees of a county officer. See Hounshell v. White, 220 Ariz. 1, 6, ¶ 22
(App. 2008).

¶14 Sarkis also relies on Span v. Maricopa County Treasurer, 246
Ariz. 222 (App. 2019) and Flanders v. Maricopa County, 203 Ariz. 368 (App.
2002). His reliance is misplaced. First, the claim in Span involved direct
liability. See Span, 246 Ariz. at 225, ¶ 10 (“Because Span’s claim includes
allegations that are not based solely on vicarious liability or respondeat
superior, Fridena does not dispose of the claim.”). Second, Flanders did not
involve vicarious liability for a common law tort, but rather constitutional
claims brought under 42 U.S.C. § 1983. 203 Ariz. at 378, ¶ 61 (“Liability is
imposed, not on the grounds of respondeat superior, but because the agent’s
status cloaks him with the governmental body’s authority.”). Thus, the
County cannot be held vicariously liable for the alleged torts committed by
the MCSO.

CONCLUSION

¶15 We affirm the superior court’s entry of summary judgment
in favor of the County.

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

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