Marks v. Holm

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROY JUNIOR MARKS, Plaintiff/Appellant,

v.

BRAD HOLM, et al., Defendants/Appellees.

No. 1 CA-CV 21-0299
FILED 2-3-2022

Appeal from the Superior Court in Maricopa County
No. CV2018-012676
The Honorable Judge Pro Tempore Susan G. White, Retired
The Honorable Randall H. Warner, Judge
The Honorable Rosa Mroz, Judge

AFFIRMED

COUNSEL

Roy Junior Marks, Phoenix
Plaintiff/Appellant

Office of the City Attorney, Phoenix
By Karen Stillwell
Counsel for Defendants/Appellees
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MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.

T H U M M A, Judge:

¶1 Plaintiff Roy Junior Marks appeals from the dismissal of his
complaint on various grounds. Because Marks has shown no error, the
judgment reflecting the dismissal is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Marks claims defendants have been using chemicals in and
around the apartments where he is living, and where he has lived, causing
serious medical problems affecting his health. In January 2018, Marks
served a notice of claim on the City of Phoenix Clerk, and 25 notices of claim
on the City Risk Management Office for individual City employees. In
October 2018, Marks filed this case alleging various statutory, common law
and constitutional violations and seeking $10 million in compensatory and
$15 million in punitive damages and other relief, including that criminal
charges be brought against defendants. Marks named more than 60
defendants in his complaint, including (1) the City of Phoenix and City
employees (including police officers and public housing and maintenance
employees); (2) the property management company Dunlap & Magee and
its employees and (3) apartment residents.

¶3 In resulting motion practice, various defendants sought
dismissal on different grounds, including that Marks (1) failed to comply
with the notice of claim statute, Ariz. Rev. Stat. (A.R.S.) § 12-821.01 (2022);1
(2) did not properly serve them, Ariz. R. Civ. P. 4.1 and (3) failed to state a
claim upon which relief could be granted, Ariz. R. Civ. P. 12. Those motions
resulted in a series of rulings that, among other things, dismissed various
defendants, denied Marks’ motions for leave to amend and for entry of
default judgment, and denied his motions for reconsideration. The court
entered a final judgment in April 2021 dismissing all claims against all

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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defendants. See Ariz. R. Civ. P. 54(c). This court has jurisdiction over Marks’
timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution
and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶4 Marks’ arguments on appeal turn on whether the superior
court (1) properly dismissed his claims against all defendants; and (2)
properly denied or dismissed Marks’ motions. The court addresses these
arguments in turn.

I. The Superior Court Properly Dismissed All Defendants.

¶5 Marks’ complaint names more than 60 defendants, referring
to several only as “John Doe” or “Jane Doe” and identifying others as
residents of a numbered apartment. The record presented shows that the
superior court properly dismissed all claims against all defendants for
failing to comply with the notice of claim statute, failing to state a claim
upon which relief could be granted, failing to effectuate proper service of
process, the passage of time and/or incorrect requests for entry of default
judgments.

A. The City and the City Employees.

¶6 An individual wishing to sue a public entity and its
employees must first file a notice of claim “with the person or persons
authorized to accept service for the public entity . . . or public employee as
set forth in the Arizona rules of civil procedure within one hundred eighty
days after the cause of action accrues.” A.R.S. § 12-821.01(A). In January
2018, Marks served notices of claim on the City of Phoenix Clerk and the
Risk Management Office. He did not, however, individually serve the
notice of claims on the City employees. Thus, the superior court did not err
in dismissing the City employee defendants given Marks’ failure to comply
with A.R.S. § 12-821.01 and Ariz. R. Civ. P. 4.1(d) (providing the proper
methods for serving an individual).

¶7 Marks cites Lee v. State, 225 Ariz. 576 (App. 2010), for the
proposition that whether a defendant received a notice of claim must be
decided by a jury determination. But in this case, Marks provided no “proof
that a notice of claim was properly mailed to the proper authorities.” Id. at
578 ¶ 4. Although Marks needed to comply with Ariz. R. Civ. P. 4.1(d) for
serving individuals with the notice of claim, he failed to do so because he
served the Risk Management Office rather than the individual employees.
Thus, unlike Lee, there is no disputed issue of fact for a jury to decide.

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¶8 Marks cites Young v. City of Scottsdale, 193 Ariz. 110 (App.
1998), claiming the City employees waived their notice of claim defense
because the City claim adjuster investigated the claim. But here, the City
timely objected to the lack of proper service of the notice of claim,
distinguishing Young. Id. at 114 ¶ 15 (“the City waived any complaint about
service of process when it referred the matter to a claims adjuster, who
considered and denied the claim without objecting to the service of
process”). Nor does Young (finding waiver where the City of Scottsdale was
the sole defendant) support Marks’ argument that the City would, or could,
waive any defense the City employees have based on Marks’ failure to
properly serve them with the notice of claim. The superior court correctly
found that Marks did not properly comply with the notice of claim statute,
which was a prerequisite to his asserting claims against the City employees.

¶9 Marks next argues the court improperly dismissed two police
officers (Officers Batway and Warrior) because their motion to dismiss was
filed more than 20 days after Marks filed his complaint. Because these two
officers were never served with the summons and complaint, their motion
to dismiss filed in February 2020 was timely. See Ariz. R. Civ. P.
12(a)(1)(A)(i) (responsive pleading, or motion to dismiss under Rule 12(b),
is timely if filed “within 20 days after being served with the summons and
complaint”).

¶10 Marks next argues City employee Nicole Perez waived her
defense because she did not respond to the substance of the complaint and
notice of claim. From the record, however, Marks did not serve Perez until
April 2020, long after the deadline to serve his October 2018 complaint. See
Ariz. R. Civ. P. 4(i). Moreover, although claiming he listed her as a Jane Doe
defendant, Marks never properly joined Perez as a defendant. See Ariz. R.
Civ. P. 10(d).2 Accordingly, Marks has shown no reversible error in the
court dismissing the City or the City employees.

2 Marks argues that his claim against the City should not have been
dismissed because his claims against the City employees were dismissed
(at least in part) without prejudice. The superior court, however, dismissed
the claims against the City and the City employees “with prejudice.”
Accordingly, the factual predicate for Marks’ argument is not supported by
the record on appeal.

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B. Dunlap & Magee and its Employees.

¶11 Dunlap & Magee and its employees filed motions to dismiss,
arguing Marks “(1) failed to properly name or serve a real party in interest;
(2) failed to serve the individual employees named as ‘Dunlap&Magee’s
Employee’s’; and (3) failed to state a claim upon which relief can be
granted.” The superior court dismissed Dunlap & Magee, and later its
employees without prejudice. Marks argues the court erred in doing so.

¶12 Marks has not shown how dismissing Dunlap & Magee was
in error. The superior court properly concluded that “Dunlap&Magee” was
not a real party, and that naming “Dunlap&Magee” did not properly join
Dunlap & Magee Property Management, Inc. Contrary to Marks’ argument
on appeal, the court continued its analysis by concluding that “even if the
Court finds that naming ‘Dunlap&Magee’ is sufficient in suing Dunlap &
Magee Property Management, Plaintiff has failed to properly serve Dunlap
& Magee Property Management as required by Civil Rule 4.1(i).” Nor has
Marks argued on appeal that the court erred in concluding that his
complaint failed to state a claim upon which relief could be granted against
Dunlap & Magee Property Management, Inc. Accordingly, Marks has not
shown that the superior court erred in granting the motion to dismiss
Dunlap & Magee.3

¶13 Marks next argues that Dunlap & Magee employees Julian
Pena, Mari Avila and “Dino” defaulted and waived their right to jointly
move to dismiss. Avila and “Dino,” however, had not been served before
the joint motion to dismiss was filed, meaning the motion was timely. See
Ariz. R. Civ. P. 12(a)(1)(A)(i). Although Pena had been served, the joint
motion to dismiss was filed before Marks filed his application for entry of
default against him. Moreover, to the extent the motion was untimely as to
Pena under Rule 12(b), the superior court properly could have considered
it timely under Rule 12(c). Nor has Marks argued on appeal that the court
erred in concluding that his complaint failed to state a claim upon which
relief could be granted against Julian Pena, Mari Avila and “Dino.”

3Although Marks argues Dunlap & Magee should not have been dismissed
based on respondeat superior, Dunlap & Magee was not properly joined or
served, and the complaint does not allege such a theory of liability against
Dunlap & Magee.

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¶14 Marks argues that PERCII Frank Luke Addition, LLC waived
its defenses because it never moved to dismiss. PERCII, however, was not
named as a defendant. Accordingly, it was not required to seek dismissal.

¶15 Marks argues that his requests for default against Dunlap &
Magee employees Sophia Puente, Fabiola Garcia and Johnathan Shearer
should have been granted. However, none of those individuals was named
as a defendant in the complaint. Moreover, they were served long after the
deadline to do so. Ariz. R. Civ. P. 4(i). Accordingly, there is no showing that
default should have been entered against these individuals.

C. Apartment Residents.

¶16 Marks sought to name a variety of defendants from two
apartment complexes. Some of the residents never received proper service
in the 90-day time frame after Marks filed the October 2018 complaint. Ariz.
R. Civ. P. 4(i). Thus, those resident defendants were properly dismissed.

¶17 Marks claims that Daniel Martin’s motion to dismiss was
improper because it was untimely, claiming Martin evaded service by
certified mail. Service by certified mail, however, would only be authorized
by court order, and the record reflects no such authorization. See Ariz. R.
Civ. P. 4.1(k)(2) (“Alternative Means of Service”). Moreover, Martin was
never served. As the superior court noted in a January 2019 ruling, Daniel
Martinez was served, not Daniel Martin. The record also supports the court’s
grant of Martin’s motion to dismiss for lack of personal jurisdiction,
insufficient service of process and failure to state a claim upon which relief
can be granted.

¶18 Marks next argues that various residents listed as defendants
should have been defaulted. Only some of these named defendants,
however, were properly and timely served. If they were not properly
served, they could not be subject to the entry of default. See Ariz. R. Civ. P.
55(a)(1) & (2). The defendants who were not properly and timely served
include Nicole Perez, Ron Davis, Francisca Carman, Daniel Martin, Dottie
Chapman, Teresa Hamper, Debra Brown, Frances Bellard, E. Hernandez,
Telemonta Astorga, as well as the John and Jane Does and the purported
defendants designated only by apartment number but not specifically
named.

¶19 From the record provided, it appears that some of the named
defendants who were residents received proper and timely service:
Herman Works, Nina Parra, Joseph Hernandez, Lara Carillo, Julie Smith,
Sherry Kim, Tena Bosch, Linda Brown, Leann Houston, Greg Varela, Iris

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Quinones and Rebecca Robles. However, as to these defendants, Marks’
claim of improper denial of his requests for entry of default and default
judgment fails.

¶20 Marks argues the superior court “erred by denying every
application, motion, pleading that the plaintiff filed and by not entering
default.” Marks made nine variously-titled filings seeking entry of default
or default judgment. However, the superior court properly could conclude
that many of those filings were inadequate to result in the entry of default
(a prerequisite for entry of default judgment). Indeed, Marks repeatedly
filed numerous similar, but not identical, requests for entry of default,
sufficient for the court to conclude that the prior filings were inadequate,
and the subsequent filings were intended to displace and cure defects in the
prior filings, including filing them with the appropriate judicial officer.

¶21 The last of these various requests regarding default, filed in
May 2020, was titled “Amended Application/Motion/Affidavit for Entry
of Default Judgment on Remaining Defendants” and was properly filed
with a Commissioner. Even then, the motion sought entry of default
judgment, which would only be warranted if default had been properly
entered after the filing of a proper application for entry of default. See Ariz.
R. Civ. P. 55(b) & 55(a)(4). Moreover, the May 2020 Amended Application
states it sought entry of default judgment but was filed pursuant to Rule
55(a), which applies to an entry of default rather than default judgment. The
filing does not reference any defaults being entered under Rule 55(a), a
prerequisite to entry of a default judgment, and also seeks relief against
individuals who were not properly named as defendants or properly
served. On this record, Marks has not shown that the court erred in denying
his May 2020 Amended Application or otherwise addressing his prior
filings regarding entry of default or default judgment.

II. Marks Has Not Shown that the Superior Court Erred in Denying
Various Motions He Filed.

A. Motion for Names of Defendants.

¶22 Marks filed several motions for names of the defendants,
seeking the names of individuals who leased the apartments listed in his
complaint. Marks cited no authority supporting such requests. In denying
the requests, the superior court noted that it “knows of no legal authority
that requires defense attorneys or the actual defendants to provide Plaintiff
with information so that he can add other, unnamed parties to his
Complaint.” On this record, Marks has shown no error in that ruling.

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B. Motion for Leave to Amend.

¶23 In January 2019, Marks filed a motion for leave to file an
amended complaint, seeking to add as a defendant PERCII Frank Luke
Additions, LLC, alleged to own one of the apartment complexes, and to add
the name of additional defendants at some specified time in the future
“once available.” The superior court denied that motion as futile, noting it
sought to reassert claims that were dismissed with prejudice; that the
proposed amended complaint was “filled [with] legal conclusions, without
supporting factual allegations, and does not comply with Civil Rule 8’s
notice pleading standard.” Although noting “amendments to complaints
are liberally granted, the Court does not have to do so if the amendment
will be futile.” Marks has cited no authority to the contrary and does not
support his claim of error with any legal authority. Valley Vendors Corp. v.
City of Phoenix, 126 Ariz. 491, 494 (App. 1980) (a legal argument is
abandoned if unsupported by argument or citation of legal authority).
Apart from waiver, Marks has shown no abuse of discretion in the court’s
denial of his motion for leave to amend. See Alosi v. Hewitt, 229 Ariz. 449,
452 ¶ 13 (App. 2012) (finding a superior court does not abuse its discretion
in its denial of a motion to amend if it would be futile).

C. Dismissal for Failure to State a Claim Upon Which Relief
Can Be Granted.

¶24 Marks argues that his complaint properly stated cognizable
claims for relief, meaning the superior court erred in dismissing his
complaint for failure to state a claim. As noted above, most of the
defendants were dismissed for reasons unrelated to the adequacy of the
complaint. For those that were dismissed solely based on a failure to state
a claim upon which relief can be granted, the complaint does not link the
alleged facts to any relevant legal theory. Nor does it provide the required
short and plain statement of the claim showing that the pleader is entitled
to relief. Ariz. R. Civ. P. 8(a). The complaint, instead, sought remedies
without any reference to the basis for such relief, including appointing
Marks an independent investigator, polygraph examiner and attorney. No
authority is offered for the court to provide such relief. Nor did his motion
for leave to amend, filed after various motions to dismiss had been filed,
seek to cure these defects. On this record, Marks has shown no error in the
conclusion that his complaint failed to state a claim upon which relief can

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be granted against the defendants who were not dismissed on other
grounds.4

D. Motions to Vacate/for Reconsideration.

¶25 Marks argues the superior court erred in denying his motion
to vacate various pre-judgment rulings and his motions for reconsideration.
For the reasons set forth above, however, Marks has shown no error in the
court’s underlying rulings, meaning he can show no error in denying his
motions to vacate for reconsideration.

CONCLUSION

¶26 Because Marks has shown no error, the judgment is affirmed.
Appellees are awarded their taxable costs incurred on appeal, contingent
upon their compliance with ARCAP 21.

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

4 Marks also claims he had a right to a surveillance camera video pursuant
to Ariz. R. Civ. P. 26(b)(1). But the references to his requests for such a video
pre-date the filing of his complaint. Moreover, to the extent that he claims
disclosure or discovery obligations meant he should have secured a copy of
such a video, he has not shown how he invoked any discovery mechanism,
or that disclosure statements were required but not provided. See Ariz. R.
Civ. P. 26 & 26.1(f)(1) (noting disclosure obligations are triggered by the
filing of a responsive pleading); Ariz. R. Civ. P. 7 (defining allowed
pleadings).

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