Jones-Esposito v. Bishop

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JENNIFER MARIE JONES-ESPOSITO, Plaintiff/Appellant,

v.

WILMA JEAN BISHOP, et al., Defendants/Appellees.

No. 1 CA-CV 20-0434
FILED 6-17-2021

Appeal from the Superior Court in Mohave County
No. S8015CV201900450
The Honorable Lee Frank Jantzen, Judge

AFFIRMED

COUNSEL

Jennifer Marie Jones-Esposito, Kingman
Plaintiff/Appellant

Jones Skelton & Hochuli PLC, Phoenix
By Michele Molinario, Derek R. Graffious, Justin M. Ackerman
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.

JONES-ESPOSITO v. BISHOP, et al.
Decision of the Court

B A I L E Y, Judge:

¶1 Jennifer Marie Jones-Esposito appeals the superior court’s
dismissal with prejudice of her complaint against Wilma Jean Bishop. 1 We
affirm because Jones-Esposito’s claim against Bishop is governed by A.R.S.
§ 12-821.01(A) and statutorily barred.

FACTS AND PROCEDURAL HISTORY

¶2 A Mohave County animal control employee, Monique
Cunnius, issued two criminal misdemeanor citations to Jones-Esposito for
which associated criminal charges were filed and eventually dismissed.
Jones-Esposito filed a complaint alleging Cunnius trespassed and issued
the citations as part of a coordinated effort with Bishop, an elected member
of the Mohave County Board of Supervisors, to harass and intimidate her.

¶3 Jones-Esposito attempted to serve a notice of claim on
Cunnius, Mohave County, and Bishop. See A.R.S. § 12-821.01(A); Ariz. R.
Civ. P. 4.1. Jones-Esposito addressed the notice to “Mohave County, and
Supervisor Wilma ‘Jean’ Bishop, via Clerk of the Board,” and at the top of
the notice stated the method of delivery was “via third party & email.”

¶4 The notice alleged that because Jones-Esposito initiated recall
proceedings against Bishop, she encouraged Cunnius to trespass on Jones-
Esposito’s property by posting a comment to a social media account she
used to communicate county business to her constituents. The notice
summarized that “the actions of the above[-]named County officials were
retaliatory” and “use[d] County resources to influence the outcome of an
election.”

¶5 Jones-Esposito’s complaint expressly incorporated the notice
of claim and alleged that Bishop aided and abetted Cunnius in trespassing
on Jones-Esposito’s property and issuing the criminal citations.

¶6 The court dismissed with prejudice the claims against
Cunnius because Jones-Esposito did not properly serve the notice of claim
as required by § 12-821.01(A) and Rule 4.1. Jones-Esposito did not appeal
that judgment. See Ariz. R. Civ. P. 54(b).

1The complaint alleges Dan Cofer Bishop is liable as Bishop’s husband. We
refer to the Bishops as “Bishop” and “she/her.”

2

JONES-ESPOSITO v. BISHOP, et al.
Decision of the Court

¶7 The court also granted Bishop’s Rule 12(b)(6) motion to
dismiss based on the same defect in service. The court determined the
allegations against Bishop related to her conduct as a public employee, and
thus, A.R.S. § 12-821.01(A) applied. See A.R.S. §§ 12-820(1), (6) (defining
“employee” and “public employee”); -821.01(A) (requiring notice of claim
is filed); 11-401 (officers); Ariz. R. Civ. P. 4.1(d) (listing three methods to
effectuate service on an individual).

¶8 The court then granted Mohave County’s motion for a
judgment on the pleadings because Jones-Esposito alleged it was liable
based only on respondeat superior for the acts of its employees, Cunnius
and Bishop. The court entered a final Rule 54(b) judgment on July 16, 2020.

¶9 The next day, the court signed a final Rule 54(b) judgment
dismissing with prejudice Jones-Esposito’s claim against Bishop. Jones-
Esposito timely filed a notice of appeal only from this judgment.

¶10 We have jurisdiction over Jones-Esposito’s timely appeal
from the final judgment filed July 21, 2020, pursuant to Article 6, Section 9,
of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶11 Jones-Esposito argues that the court erred by finding the
claim against Bishop related to her acts as a public official and dismissing
based on Jones-Esposito’s failure to properly serve the notice of claim. She
contends that a notice of claim was not required because Bishop “was sued
only in her individual capacity.”

¶12 We review the dismissal of a complaint under Rule 12(b)(6)
de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7 (2012). “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.” Id. at 356, ¶ 8 (alteration in original) (internal
quotation marks and citation omitted); id. at ¶ 9 (“assume the truth of all
well-pleaded factual allegations and indulge all reasonable inferences . . .
but mere conclusory statements are insufficient”).

¶13 Section 12-821.01(A) requires a plaintiff to serve a public
employee with a notice of claim as provided in Rule 4.1 within 180 days of
the claim accruing. Otherwise, the claim “is barred and no action may be
maintained.” A.R.S. § 12-821.01(A).

3

JONES-ESPOSITO v. BISHOP, et al.
Decision of the Court

¶14 Here, the record belies Jones-Esposito’s contentions that her
notice of claim referenced Bishop’s official title only out of “respect,” and
that her attempt to serve the notice on Bishop was mere courtesy. The
notice of claim alleged Bishop intentionally damaged Jones-Esposito’s
reputation when she encouraged Cunnius’ trespass by posting to social
media as “District 4 Supervisor Wilma ‘Jean’ Bishop” on an account used to
communicate county business to constituents. Jones-Esposito addressed
the notice to “Supervisor Wilma ‘Jean’ Bishop,” and delivered it “via third
party & email” to the Clerk of the Mohave County Board of Supervisors.
But this does not comply with § 12-821.01(A) and Rule 4.1, and Jones-
Esposito does not dispute that service on Bishop was defective. See Ariz. R.
Civ. P. 4.1(d) (providing that service on an individual may be made by
either serving the individual personally, or serving the individual’s agent,
or serving someone of suitable age at the individual’s home address).
Further, Jones-Esposito expressly incorporated the notice of claim into her
complaint and the complaint did not otherwise allege that Bishop acted
solely in her personal capacity. Instead, the complaint alleged Cunnius, a
county employee, acted at the “instigation and encouragement of Bishop,”
which resulted in trespass, criminal citations, and damage to Jones-
Esposito’s reputation.

¶15 We agree with the superior court that Jones-Esposito’s
allegations against Bishop related only to Bishop’s conduct as a public
employee or officer. Therefore, A.R.S. § 12-821.01 governs and requires a
notice of claim. See A.R.S. §§ 12-820(1), (6) (defining “employee” and
“public employee”); 11-401 (officers). Because Jones-Esposito’s claim
against Bishop is statutorily barred under § 12-821.01(A), the court properly
dismissed the allegations against her with prejudice. See Ariz. R. Civ. P.
12(b)(6).

CONCLUSION

¶16 For the reasons stated, we affirm.

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

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