Coe v. Maricopa Meadows

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL COE, Plaintiff/Appellant,

v.

MARICOPA MEADOWS HOMEOWNERS ASSOCIATION,
Defendant/Appellee.

No. 1 CA-CV 21-0641
FILED 12-13-2022

Appeal from the Superior Court in Maricopa County
No. CV2021-005014
The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL

Dessaules Law Group, Phoenix
By Jonathan A. Dessaules, F. Robert Connelly, David E. Wood
Counsel for Plaintiff/Appellant

Childers Hanlon & Hudson, PLC, Phoenix
By Christopher J. Bork
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann1 delivered the decision of the court, in which
Presiding Judge Maria Elena Cruz and Judge Angela K. Paton joined.

S W A N N, Judge:

¶1 Daniel Coe appeals from the superior court’s dismissal of his
defamation claim under Ariz. R. Civ. P. (“Rule”) 12(b)(6). We affirm
because the claim was premised on privileged statements made in
furtherance of a putative military prosecution.

FACTS AND PROCEDURAL HISTORY

¶2 Coe, who is employed by the national guard, owns a home in
the Maricopa Meadows community and is a member of the Maricopa
Meadows Homeowners Association (“Association”). In August 2019, Coe
received a letter from the Association’s attorney alleging that he had
disparaged, defamed, and harassed the board of directors and their spouses
to incite animosity in the community. The Association accused Coe of
engaging in actions unbecoming of a military member in violation of
military code and threatened to inform the Investigations Division of the
United States Military (“Division”) if he did not immediately stop engaging
in these activities. Coe complied with the Association’s request only
temporarily.

¶3 In October 2020, the Association’s attorney sent a letter to the
Division asking it to investigate Coe’s actions to determine whether he
violated military code. The Association alleged that while Coe was running
for the Association’s board of directors, he placed mailers on every door in
the community directing the owners to a website that contained false and

1 Judge Peter B. Swann was a sitting member of this court when the
matter was assigned to this panel of the court. He retired effective
November 28, 2022. In accordance with the authority granted by Article 6,
Section 3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the
Chief Justice of the Arizona Supreme Court has designated Judge Swann as
a judge pro tempore in the Court of Appeals for the purpose of participating
in the resolution of cases assigned to this panel during his term in office and
for the duration of Administrative Order 2022-162.

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misleading statements about the current board. The Association offered to
provide the Division with any documents or witnesses it needed to conduct
its investigation.

¶4 The Division did not take any action regarding the
Association’s complaint. In March 2021, Coe filed a defamation action in
the superior court against the Association. The Association moved to
dismiss the complaint under Rule 12(b)(6), arguing that Coe failed to state
a claim upon which relief can be granted because the Association’s
statements were absolutely privileged under the Restatement (Second) of
Torts § 586. The court granted the Association’s motion, dismissing Coe’s
complaint with prejudice.

¶5 Coe appeals.

DISCUSSION

¶6 Coe contends that the superior court erred by dismissing his
defamation claim because the Association’s statements are not absolutely
privileged. We review Rule 12(b)(6) dismissals de novo, assuming the truth
of all well-pled factual allegations in the complaint. Coleman v. City of Mesa,
230 Ariz. 352, 356, ¶¶ 8–9 (2012). We will affirm 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 ¶ 8 (citation omitted). “Whether a
communication is privileged is a question of law for the court; we are not
bound by the trial court’s conclusions of law, which we review de novo.”
Johnson v. McDonald, 197 Ariz. 155, 157, ¶ 2 (App. 1999).

¶7 Statements made in furtherance of proposed judicial
proceedings are absolutely privileged. Green Acres Tr. v. London, 141 Ariz.
609, 621–22 (1984). When statements are absolutely privileged, the
declarant is immune from a defamation claim, and “courts do not inquire
into the declarant’s motives or whether the statements were made in good
faith.” Ledvina v. Cerasani, 213 Ariz. 569, 571, ¶ 4 (App. 2006) (citation
omitted). To be sure, such absolute privilege “may on occasion work to
protect those who make intentionally false and malicious defamatory
statements.” Id. at 574, ¶ 15. But in that situation, an aggrieved individual
is not without remedy—he may have a claim for abuse of process or
malicious prosecution. Id. at 575, ¶ 15. The declarant also may find himself
subject to criminal prosecution for perjury or false statements. Id.

¶8 Relying on Ledvina, the Association argues that the court did
not err in dismissing Coe’s defamation claim because statements to military
law enforcement are absolutely privileged. In Ledvina, the plaintiff sued the

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defendant for defamation based on his report to law enforcement that the
plaintiff had slashed the tires of his car. Id. at 570, ¶ 2. Relying on the
Restatement (Second) of Torts §§ 587–88 and 598 comment (e), we held that
the defendant’s report was absolutely privileged, noting that “both formal
and informal complaints and statements to a prosecuting authority [are]
part of the initial steps in a judicial proceeding, and as such [are] entitled to
absolute immunity from an action for defamation.” Id. at 572–73, 575,
¶¶ 10–11, 16 (citation omitted).

¶9 As a member of the national guard, Coe is subject to the
Arizona Code of Military Justice (“Code”) and the jurisdiction of the
national guard’s courts-martial. See A.R.S. §§ 26-1002(A), -1017. General,
special, and summary courts-martial may try and sentence “any offense
made punishable” by the Code. A.R.S. §§ 26-1018, -1019, -1020. Punishable
offenses include “all disorders and neglects to the prejudice of good order
and discipline in the armed forces, [and] all conduct of a nature to bring
discredit on the national guard and crimes and offenses not capital.” A.R.S.
§ 26-1134.

¶10 In view of the national guard’s broad authority to try and
sentence Coe for all conduct that could discredit the organization, the
Association’s report to the Division was absolutely privileged. We are
unpersuaded by Coe’s contention that the privilege did not apply because
his dispute with the Association was “not a matter of vital public interest,
nor National Guard interest.” The Code indisputably establishes that the
national guard has authority to try and sentence any member behavior that
may discredit it. Coe’s alleged behavior qualifies under that standard. And
because the privilege is absolute, Coe’s contention that the Association
reported him in bad faith is of no moment in this appeal.

¶11 We are unpersuaded by Coe’s reliance on Lewis v. Oliver, 178
Ariz. 330 (App. 1993). In Lewis, we held that a defendant’s report to a
government hotline was conditionally privileged because it related to a
potential administrative proceeding, not a judicial or quasi-judicial one. Id.
at 332, 334–35. Here, by contrast, the national guard was authorized to use
the Association’s report to initiate a court-martial. We reject Coe’s
contention that the absolute privilege did not apply because the Division
could (and apparently did) elect not to pursue a court-martial. Whether an
absolute privilege applies cannot depend on how a law enforcement agency
empowered to initiate judicial or quasi-judicial proceedings decides to
proceed after the statements are made.

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CONCLUSION

¶12 The superior court properly dismissed the defamation action
because it was premised on privileged statements. We affirm.

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

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