Freeman v. Williams

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BENJAMIN FREEMAN, Plaintiff/Appellant,

v.

JAMES WILLIAMS, et al., Defendants/Appellees.

No. 1 CA-CV 20-0470
FILED 6-15-2021

Appeal from the Superior Court in Maricopa County
No. CV2016-015382
The Honorable Kerstin LeMaire, Judge
The Honorable Michael W. Kemp, Judge

AFFIRMED

COUNSEL

Benjamin Freeman, Tucson
Plaintiff/Appellant

James Williams, Goodyear
Defendant/Appellee

MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.
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Decision of the Court

C A T T A N I, Judge:

¶1 Benjamin Freeman appeals the dismissal of his complaint
against James and Kelly Williams. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2013, Freeman was charged with ten identity-theft-related
felony offenses. See generally State v. Freeman, 1 CA-CR 16-0074, 2017 WL
3529105 (Ariz. App. Aug. 17, 2017) (mem. decision). Freeman represented
himself at various times before and after trial, during which time court-
appointed investigator James Williams was assigned to assist him. In early
2016, Freeman was convicted of all ten offenses and sentenced to an
aggregate term of 25.75 years’ imprisonment; this court affirmed his
convictions and sentences on appeal. See id. at *2, 6, ¶¶ 9, 36.

¶3 In late 2016, Freeman filed a complaint styled as a “civil
negligence action” against a variety of people and entities connected in
some way to his criminal conviction, including Williams.1 As relevant here,
Freeman alleged that Williams’s performance as investigator was negligent
or grossly negligent in a variety of ways—for example, failing to timely
locate and subpoena requested witnesses, failing to deliver case files, and
improperly allowing his daughter (Kelly Williams) to work on the case
before she was licensed as an investigator—negatively affecting Freeman’s
ability to represent himself in the criminal case.

¶4 Over the next year and a half, the Williamses both
unsuccessfully moved to dismiss the complaint. Freeman sought to file an
amended complaint and later a supplement (with addendum), which the
court denied as noncompliant, for lack of service, and for failure to cure

1 Freeman also asserted claims against other named defendants
including the State of Arizona and two Maricopa County Superior Court
judges, Maricopa County, three members of the Maricopa County Office of
the Public Defender (the Public Defender, the appellate supervisor, and one
of Freeman’s court-appointed attorneys), another court-appointed attorney
(who represented Freeman at trial), the Maricopa County Office of Public
Defense Services and Office of Contract Counsel, the deputy county
attorney who prosecuted his case, another employee of the Maricopa
County Attorney’s Office, the Maricopa County Board of Supervisors, two
individuals at the Maricopa County Sheriff’s Office, and an investigator
working for Williams. The court ultimately dismissed all claims against
these defendants, and those dismissals are not at issue in this appeal.

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defects with the original complaint—leaving Freeman’s original complaint
as the operative pleading as to the Williamses. Additionally, Freeman filed
multiple motions for partial summary judgment against the Williamses,
and they filed a cross-motion for summary judgment, all of which were
denied.

¶5 Although Freeman had previously certified that no expert
was required to prove his claims, the court’s ruling on the Williamses’
cross-motion directed that at a forthcoming pretrial conference, the parties
should be prepared to address whether investigators are licensed
professionals, thus necessitating expert testimony. See A.R.S. §§ 12-2601,
-2602; see also generally A.R.S. §§ 32-2401 to -2462. At that March 29, 2018
hearing, the court and the parties discussed the licensure/expert issue as
well as whether a court-appointed investigator would be entitled to
qualified immunity.

¶6 Although the resulting March 29, 2018 minute entry does not
definitively reflect the ruling, the parties agree that the court at that time
dismissed Freeman’s claims against the Williamses without prejudice. That
ruling provided Freeman leave to amend to address the issues discussed at
the hearing, including incorporating expert evidence to establish an
investigator’s standard of care, along with allegations taking the complaint
outside the normal realm of negligence. The court warned that, should
Freeman fail to file an amended complaint curing those deficiencies by
April 27, 2018, the case would be dismissed in its entirety.

¶7 Freeman submitted a proposed amended complaint, dated
April 26 but filed in superior court on May 1, 2018. He again alleged that
Williams had been grossly negligent in several aspects of the investigative
services: failing to provide a recording of a jail phone call, failing to obtain
surveillance video, failing to find the date of purchase of an alleged forgery
device, failing to file a written report, failing to timely obtain witness
contact information, and improperly disclosing case-related information to
Kelly while she was not licensed as an investigator. Freeman added
allegations that Williams himself was not licensed as a private investigator
while providing these investigative services. Freeman further alleged that
the Williamses’ failures had denied him his constitutional rights to
compulsory process, to represent himself, and to adequate investigative
assistance, and he sought several million dollars in compensatory and
punitive damages.

¶8 Freeman also submitted a certification that, because Williams
allegedly was not licensed while acting as his investigator, expert testimony

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was not required to prove his claims. Freeman attached images from the
Department of Public Safety Licensing Unit’s public-access website
showing Williams Investigations with a valid private investigation license
due to expire October 7, 2018, as well as a letter from a different court-
appointed investigator discussing the public-access listing and noting how
to obtain surveillance video.

¶9 The superior court did not immediately rule on whether to
allow Freeman’s request to file the proposed amended complaint (or his
subsequent request to substitute a “new, improved and updated” version
that abandoned the contention that Williams was not licensed as a private
investigator), and the Williamses moved to dismiss the case with prejudice.
A newly assigned judge denied the motion to dismiss, noting the previous
denial of the Williamses’ cross-motion for summary judgment on related
issues but not referencing the March 29, 2018 dismissal.

¶10 The Williamses moved for reconsideration of that ruling, this
time attaching a transcript of the March 29, 2018 hearing. Freeman opposed
the motion and also filed a new request for leave to amend along with a
new version of a proposed amended complaint.

¶11 In August 2019, a different judge granted reconsideration and
dismissed the case with prejudice. The court noted that Freeman’s
proposed amended complaints did not comply with the rules governing
amending pleadings and were not timely filed. Additionally, recognizing
that the case had been dismissed effective March 29, 2018 and had never
been reinstated, the court reasoned that Freeman’s “untimely and legally
insufficient” amendments did not reinstate the case, specifically noting that
Freeman had “never addressed the case law and issues discussed at the
March 29, 2018 hearing.”

¶12 The court denied Freeman’s subsequent motion for
reconsideration, and Freeman appealed. The court later certified the
judgment as final under Arizona Rule of Civil Procedure 54(c), and we have
jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶13 Freeman argues the superior court erred by dismissing the
case with prejudice rather than accepting his amended complaints,
asserting in particular that his proposed amended complaint was timely
filed under the prison mailbox rule and properly addressed the issues
leading to the March 29, 2018 dismissal—including professional licensure
and the related standard of care issue. See Houston v. Lack, 487 U.S. 266, 270

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(1988) (holding that a pro se prisoner’s notice of appeal is deemed filed
when given to prison authorities for filing). Even assuming Freeman’s
proposed amendment was timely, dismissal was nevertheless proper.

¶14 A plaintiff pursuing a civil claim against a licensed
professional based on “alleged breach of contract, negligence, misconduct,
errors or omissions in rendering professional services” generally must
present expert testimony to prove the professional’s standard of care or
liability. A.R.S. §§ 12-2601(1)–(2), -2602(B). Procedurally, the plaintiff must
provide a preliminary expert opinion affidavit with their initial disclosures
including the expert’s qualifications, a description of the facts underlying
the plaintiff’s claims, and an explanation of how the professional’s conduct
violated the relevant standard of care and caused the plaintiff’s damages.
A.R.S. § 12-2602(B). Failure to provide this affidavit and evidence when
required is grounds for dismissal. A.R.S. § 12-2602(F). Private investigators
are licensed professionals for these purposes. See A.R.S. § 12-2601(3); see
generally A.R.S. tit. 32, ch. 24 (setting the framework governing licensure of
private investigators).

¶15 Although Freeman framed his claims as constitutional
violations, the asserted violations were all premised on Williams’s alleged
gross negligence in providing professional investigative services. See A.R.S.
§ 12-2601(1)(b). And by March 2018, Williams’s licensure as a private
investigator and the resulting need for expert testimony to support
Freeman’s claims were squarely at issue. Freeman’s failure to provide
competent expert opinion evidence on the standard of care was one basis
for the March 29, 2018 dismissal, with the court expressly allowing leave to
amend to provide the missing expert evidence. See A.R.S. § 12-2602(F).
Freeman’s next proposed amended complaint and accompanying expert
certification did not cure the issue, instead asserting that Williams was not
licensed at the time and thus that no expert was necessary.

¶16 Freeman later abandoned that contention, acknowledging
instead that Williams was indeed licensed as a private investigator.
Freeman’s later proposed amended complaints cited some terms from
Williams’s contract with Maricopa County and some regulatory statutes as
bearing on the standard of care, but he never provided the requisite
preliminary expert opinion affidavit or any other expert evidence meeting
the substantive statutory requirements for proving a licensed professional’s
standard of care, breach, or causation. The only expert evidence Freeman
submitted was a letter from a different court-appointed investigator
primarily addressing whether Williams was licensed; the three paragraphs
directed to Freeman’s claims do not describe Williams’s acts, whether or

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how they violate the standard of care (or even describe the standard of
care), or link Williams’s acts to any asserted damages. See A.R.S. § 12-
2602(B).

¶17 Because Freeman failed to cure the expert issue precipitating
the March 29, 2018 dismissal, the superior court did not err by declining to
reinstate Freeman’s case. And while the court properly dismissed the case
without prejudice initially, see A.R.S. § 12-2602(F), Freeman’s failure to cure
by the time of the August 2019 ruling—almost three years after he filed the
complaint and almost one and a half years after the initial dismissal—
effectively meant that the dismissal was with prejudice based on the
passage of time. Cf. Passmore v. McCarver, 242 Ariz. 288, 290, 291–92, ¶¶ 1,
8 (App. 2017) (characterizing dismissal on this basis as dismissal for lack of
prosecution, preventing automatic application of savings statute and
rendering dismissal, in effect, one with prejudice).

¶18 Freeman’s other arguments are similarly unavailing. He
asserts that the Williamses’ motion to dismiss with prejudice and motion
for reconsideration were untimely filed (after the deadline for dispositive
motions under the joint scheduling order), but fails to recognize that the
case had been dismissed (albeit without prejudice) in the interim. He faults
the superior court for failing to rule on a motion for partial summary
judgment after the Williamses did not file a response, but the case was
dismissed before he filed the motion, had not been reinstated, and
ultimately never was reinstated. Freeman claims that adverse rulings by
two of the judges involved (the March 27, 2018 dismissal without prejudice
and the August 2019 dismissal with prejudice) prove judicial bias against
him, but judicial rulings by themselves do not establish bias. See State v.
Ellison, 213 Ariz. 116, 129, ¶ 40 (2006). And because dismissal was proper
due to lack of required expert opinion testimony, we need not address
Freeman’s contentions regarding the applicability of qualified immunity.

CONCLUSION

¶19 We affirm.

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

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