Hill v. El Mirage

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN DWAYNE HILL, Plaintiff/Appellant,

v.

CITY OF EL MIRAGE, et al., Defendants/Appellees.

No. 1 CA-CV 22-0455
FILED 4-18-2023

Appeal from the Superior Court in Maricopa County
No. CV2021-092353
The Honorable Stephen M. Hopkins, Judge (Retired)

AFFIRMED

COUNSEL

Justin Dwayne Hill, Florence
Plaintiff/Appellant

Titus Brueckner & Levine PLC, Scottsdale
By Elan S. Mizrahi, Larry J. Crown
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Daniel J. Kiley joined.
 HILL v. EL MIRAGE, et al.
Decision of the Court

M O R S E, Judge:

¶1 Justin Hill appeals the superior court's dismissal of his
complaint against the City of El Mirage and four individual police officers
(collectively "El Mirage"). For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 On May 10, 2021, Hill filed a complaint against El Mirage,
alleging various tort claims arising out of his April 2015 arrest and
subsequent incarceration. Hill alleges that the officers made false
statements in a police report, which caused him to be arrested and jailed for
three years until the charges were dropped.

¶3 El Mirage moved to dismiss the complaint under Arizona
Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), arguing that Hill failed
to state a claim upon which relief could be granted, had not served a notice
of claim, and that the statute of limitations barred all his claims. Hill's
response to the motion to dismiss was due on October 11, 2021. Two days
after his response was due, Hill filed a request for an extension to file his
response. The superior court granted the motion, allowing Hill to file his
response no later than December 1, 2021. Seven days after this deadline,
Hill filed a second request for an extension of time to respond. The superior
court granted the motion, setting the new response deadline for January 18,
2022. Hill never filed a response, and on February 4, 2022, the superior
court "independently evaluated the substance of [El Mirage's] motion" and
dismissed the complaint.

¶4 Hill was in prison on unrelated charges, and moved for
reconsideration, arguing that he could not respond because the Arizona
Department of Corrections moved him four times and he could not access
necessary legal documents. The superior court denied Hill's motion. Hill
timely appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶5 Hill argues the superior court erred by dismissing the
complaint without giving him an opportunity to respond to the motion to
dismiss. We review the grant of a motion to dismiss under Rule 12(b)(6) de
novo, Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012), unless the
motion is granted because the nonmoving party failed to respond, in which
case we review the superior court's decision for an abuse of discretion, Ariz.
R. Civ. P. 7.1(b)(2); Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners,
LLC, 224 Ariz. 60, 64-65, ¶¶ 16-17 (App. 2010). "We hold unrepresented

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 HILL v. EL MIRAGE, et al.
Decision of the Court

litigants in Arizona to the same standards as attorneys." Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017). A response to a motion to dismiss must be filed
"within 10 days after the motion and supporting memorandum are
served . . . ." Ariz. R. Civ. P. 7.1(a)(3). The superior court has the discretion
to summarily grant a motion if "the opposing party does not file a
responsive memorandum . . . ." Ariz. R. Civ. P. 7.1(b)(2).

¶6 The superior court accommodated Hill by extending the
deadline to respond to the motion multiple times, including granting
extensions after the response deadline had already passed. In all, the
superior court provided Hill 116 days to respond to El Mirage's motion to
dismiss and did not issue a ruling until an additional 17 days after the
response deadline. After the second extension, Hill failed to request a third
extension and did not notify the court that he had any difficulty accessing
documents related to his claim. And while the court had authority to
summarily grant the motion to dismiss, the superior court, on its own
initiative, "independently evaluated" the motion on its merits before issuing
its ruling. The superior court did not abuse its discretion.

¶7 Hill also argues that his claims did not accrue until the
charges resulting from his April 2015 arrest were dismissed in June 2020
and that he complied with both the notice of claim requirement and statute
of limitations. Hill waived these arguments by failing to raise them until
his reply in support of his motion for reconsideration. See Westin Tucson
Hotel Co. v. Dep’t of Revenue, 188 Ariz. 360, 364 (App. 1997) (rejecting
arguments raised in a reply to a summary judgment motion because "a
claim raised for the first time in a reply is waived"). And we generally do
not consider arguments unless they were properly raised in the superior
court except where "the facts are fully developed, undisputed, and the issue
can be resolved as a matter of law." See State ex rel. Horne v. Campos, 226
Ariz. 424, 428, ¶ 13 n.5 (App. 2011). The record does not contain sufficient
facts about the notice of claim or the probable cause leading to the arrest to
allow us to resolve these disputes as a matter of law. Because Hill did not
properly raise these arguments below, they are waived on appeal. See
Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz.
382, 386, ¶ 12 (App. 2011) ("If the argument is not raised below so as to allow
the trial court . . . an opportunity [to address it], it is waived on appeal.").

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 HILL v. EL MIRAGE, et al.
Decision of the Court

CONCLUSION

¶8 We affirm the superior court's dismissal of Hill's complaint.

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

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