FULLER v. SCOTTSDALE

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHAWN C. FULLER, Plaintiff/Appellee,

v.

CITY OF SCOTTSDALE, et al., Defendants/Appellants.

No. 1 CA-CV 24-0785
FILED 01-15-2026

Appeal from the Superior Court in Maricopa County
No. CV2020-052874
The Honorable Frank W. Moskowitz, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Dickinson Wright PLLC, Phoenix
By Scot L. Claus, Vail C. Cloar, Holly M. Zoe, Alexandra Crandall
Counsel for Defendants/Appellants City of Scottsdale and Sherry Scott

Carden Livesay, LTD., Mesa
By Joshua W. Carden
Counsel for Plaintiff/Appellee

League of Arizona Cities and Towns, Phoenix
By Nancy L. Davidson
Counsel for Amicus Curiae League of Arizona Cities and Towns
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Ballard Spahr LLP, Phoenix
By David J. Bodney, Matthew E. Kelley
Counsel for Amici Curiae Arizona Media Association; KPNX-TV Channel 12,
a Division of Multimedia Holdings Corp.; NW Communications of Phoenix, Inc.
d/b/a KSAZ-TV; Phoenix Newspapers, Inc.; and Scripps Media, Inc. d/b/a
KNXV-TV

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the Court’s decision, in
which Judge Andrew M. Jacobs and Judge Michael S. Catlett joined.

W I L L I A M S, Judge:

¶1 The City of Scottsdale (“the City”) and Sherry Scott
(collectively, “the Defendants”) appeal the superior court’s judgment for
Shawn Fuller on his wrongful termination and defamation claims following
a jury trial. For reasons that follow, we affirm the jury’s wrongful
termination verdict and damages award but vacate its defamation verdict
and damages award.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In September 2019, the City hired Fuller as its City Prosecutor.
A week later, Scott, a long-time City employee, was hired as the City
Attorney. Over the next several weeks, Fuller raised concerns about the
City’s handling of several criminal cases before he was hired—specifically
the City’s resolution of DUI prosecutions through plea agreements without
disclosing blood test results, some of which were exculpatory.

¶3 In December 2019, Scott hired outside counsel, Mary Cronin,
to investigate Fuller. In January 2020, Scott suspended Fuller pending the
results of the investigation. In February, Scott fired Fuller, stating in a letter
of dismissal she had “lost trust and confidence” in his ability to lead the
prosecutor’s office (“the office”).

¶4 At the February termination meeting, Fuller declined Scott’s
invitation to resign and instead requested a written report detailing
Cronin’s investigation and findings. Fuller promptly submitted a notice of
claim to the City. In March 2020, the City released Cronin’s undated,
written report (“the Cronin Report”) to the media in response to a public
records request.
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¶5 Fuller sued the Defendants alleging wrongful termination,
defamation, and tortious interference with a business expectancy. Claiming
“whistleblower” status, he asserted Scott fired him under false pretenses to
protect the City from civil liability for its failure to disclose exculpatory
evidence in criminal cases. Fuller also alleged the Defendants defamed him
through their public dissemination of false statements contained in the
Cronin Report and that the release of the report to the media caused a
potential employer to rescind its conditional job offer to him.

¶6 During the ensuing sixteen-day jury trial, held in April and
May 2024, the parties presented conflicting evidence concerning the events
precipitating Fuller’s firing. At the close of evidence, the Defendants moved
for judgment as a matter of law on all claims under Arizona Rule of Civil
Procedure (“Rule”) 50. The superior court entered judgment in the
Defendants’ favor only on Fuller’s claim for tortious interference with
business expectancy, submitting his remaining claims to the jury. The jury
then returned general verdicts with special interrogatories, finding: (1) the
Defendants wrongfully terminated Fuller; (2) Fuller sustained damages of
$1,400,694 in lost earnings and benefits and decreased earning power or
capacity from his wrongful termination; (3) the Cronin Report contained
two defamatory statements; (4) both Scott and the City acted with
knowledge the two statements were false, or with reckless disregard as to
whether the statements were false; and (5) Fuller sustained damages of
$3,500,000 in pain and suffering (past, present, and future) and $350,000 in
reputational harm from the Defendants’ publication of the defamatory
statements.

¶7 The superior court denied the Defendants’ motion for new
trial and entered a final judgment awarding Fuller damages of $5,250,694
and taxable costs. The Defendants timely appealed. We have jurisdiction
under Article 6, Section 9, of the Arizona Constitution, and A.R.S.
§§ 12-120.21 and -2101(A)(1).

DISCUSSION

I. There Was Sufficient Evidence in the Record to Support the
Jury’s Verdict for Fuller on His Wrongful Termination Claim.

¶8 The Defendants argue Fuller failed to put forward evidence
to support his wrongful termination claim. They contend the superior court
therefore erred in denying their motion for judgment as a matter of law as
to that claim.

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A. Governing Law

¶9 “We review de novo the denial of a motion for judgment as a
matter of law.” Desert Palm Surgical Group, P.L.C. v. Petta, 236 Ariz. 568, 578,
¶ 25 (App. 2015). “Such a motion should be granted if the facts produced in
support of the claim or defense have so little probative value, given the
quantum of evidence required, that reasonable people could not agree with
the conclusion advanced by the proponent of the claim or defense.” Id.
(citation modified). “In making this determination, we view the evidence in
a light most favorable to upholding the jury verdict, and will affirm if any
substantial evidence exists permitting reasonable persons to reach such a
result.” Id. (citation modified).

¶10 Fuller brought his wrongful termination claim under the
Arizona Employment Protection Act (“the Act”), A.R.S. § 23-1501. The Act
authorizes a cause of action if an employer terminates an employee in
retaliation for the employee’s disclosure that the employer or its employees
have violated Arizona’s Constitution or statutes. A.R.S.
§ 23-1501(A)(3)(c)(ii). To withstand a motion for judgment as a matter of
law on a retaliation claim under the Act, a plaintiff must present evidence
establishing three elements: (1) the plaintiff had information or a reasonable
belief the employer violated Arizona law; (2) the plaintiff disclosed, in a
reasonable manner, the alleged violation to the employer or an employee
who was in a position to investigate and/or stop the violation or an
employee of a public body or a political subdivision of the State; and (3) the
employer terminated the plaintiff’s employment because of the disclosure.
See id.

B. The Parties’ Respective Cases

¶11 Fuller’s retaliation case centered around his exposure of the
City’s prior practice of securing DUI guilty pleas without disclosing the
(sometimes exculpatory) results of the defendants’ blood-draw laboratory
tests. To support his wrongful termination claim, Fuller put forward
testimony and exhibits demonstrating that:

(1) under the policies maintained by his predecessor, who
resigned in February 2019, City prosecutors, in multiple cases,
secured guilty pleas from defendants charged with driving
under the influence (“DUI”) before obtaining—and without
subsequently disclosing—the results from those defendants’
blood-draw laboratory tests;

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(2) after the predecessor’s resignation, interim-acting City
Prosecutor Valerie Thomsen implemented a policy
precluding prosecutors from securing guilty pleas in DUI
cases before obtaining and disclosing the defendants’
laboratory test results;

(3) on his first or second day in the office, an assistant City
prosecutor notified Fuller of the office’s potential disclosure
violations under his predecessor;

(4) upon learning of the potential disclosure violations, Fuller
initiated an audit of DUI guilty pleas secured by the office
during the preceding five years – the length of time the office
retains its case files;

(5) the audit, spearheaded by Thomsen, uncovered nine cases
in which defendants pled guilty to DUI despite undisclosed
blood test results reflecting the absence of any intoxicating
substances in their blood;

(6) in one of those cases, the City obtained the exculpatory
blood test results before the defendant pled guilty and in
another the City obtained the results before the defendant
was sentenced;

(7) presented with the results of the audit, Fuller instructed
two assistant prosecutors to file motions with the City Court
disclosing the exculpatory information and asking the Court
to appoint counsel to evaluate the significance of the
laboratory test results;

(8) during the audit (completed on November 5, 2019) and
corresponding motion practice, Fuller provided Scott with
status updates, and she largely deferred to his decision-
making: “I am trusting your judgement on this”;

(9) the City Court’s judges notified the State Bar of the nine
disclosure violations, prompting a State Bar investigation of
Fuller, as the head of the office;

(10) Scott hired outside counsel, Rob Ellman, to advise on the
State Bar inquiry;

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(11) undeterred by the office’s limited case file retention
period, Thomsen told Fuller she discovered that the State
Crime Lab had a longer retention schedule, allowing further
review;

(12) Fuller informed Scott and Ellman of the opportunity for
an expanded audit, telling them he “fe[lt] strongly” the office
needed to review the State Crime Lab’s documents, but Scott
instructed Fuller to “hold off”;

(13) an assistant prosecutor alerted Fuller to a local news story
recounting a Phoenix resident’s struggle to defend against
DUI charges despite laboratory test results reflecting no
intoxicating substances in his blood at the time of his arrest,
highlighting the substantial legal fees incurred by the
defendant before the Phoenix prosecutor’s office dropped the
charges;

(14) despite Scott’s admonition to “hold off,” the news story
convinced Fuller the audit “needed to go back further than
five years”;

(15) Scott suspended and fired Fuller before he could pursue
an expanded audit;

(16) Fuller suffered substantial economic loss from his
termination, quantified by his expert as damages of either
$1,826,297 or $1,400,694 using different valuation methods;
and

(17) on February 28, 2020, the State Bar dismissed the
complaint against Fuller.

¶12 The Defendants, for their part, presented evidence that:

(1) the acting City Attorney before Scott assumed her post,
Joseph Padilla—who remained employed by the City after
Scott was hired as City Attorney—learned, independent of
Fuller, the office “had been withholding exculpatory evidence
from criminal defendants”;

(2) when Scott learned of the potential disclosure violations,
she supported Fuller’s audit of the case files and deferred to
his judgment in addressing the matter;

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(3) Scott conveyed to Fuller and Ellman her willingness to
substitute for Fuller as the named party in the State Bar
investigation, but Ellman elected not to request the
substitution;

(4) Scott became concerned about Fuller’s management of the
office when she attended an office holiday party on December
24, 2019, and noticed that employees seemed nervous and
upset, with some privately reporting Fuller had publicly
chastised assistant prosecutor Natalie La Porte “in an
aggressive fashion” that morning;

(5) when Scott asked Fuller about his reported flare-up with
La Porte, he characterized it as a mere “miscommunication,”
which Scott found wholly incongruent with her observation
of the “mood” of the office;

(6) Scott interviewed several office employees between
December 26, 2019 and January 3, 2020, receiving numerous
reports that Fuller: assigned Thomsen and the office manager
many of his duties and did not carry a caseload, instituted
“sweeping changes” to the office without understanding how
the office operated, focused considerable (often negative)
attention on La Porte, discounted the opinions of assistant
prosecutors, made demeaning comments about the City’s
homeless population, and tasked female employees with
cleaning the office kitchen and a bookcase;

(7) troubled by these reports, Scott hired Cronin to investigate
Fuller, expressing her concerns that he had engaged in
bullying, gender-based harassment, and a dereliction of
duties;

(8) at Scott’s request, Cronin orally presented her
investigative findings at the termination meeting, stating
Fuller: had engaged in gender discrimination and harassment
in violation of the City’s values, would likely engage in
unlawful gender discrimination and harassment if permitted
to remain in his position, had treated subordinates with
disrespect, had spoken in a demeaning manner about the
City’s homeless population, and had created a “toxic work
environment”;

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(9) at the termination meeting, Padilla told Fuller that the
written investigative report concerning his predecessor had
been released to the media via a public records request and
warned that demanding written findings would likely result
in the public dissemination of the Cronin Report;

(10) despite Padilla’s warning, Fuller insisted on receiving a
written report and Scott asked Cronin to reduce her findings
to writing; and

(11) the Cronin Report constituted the City’s official findings.

C. Applying Fuller’s Proofs to the Statutory Elements of
Wrongful Termination

¶13 The Defendants argue that Fuller failed to establish all three
components of a wrongful termination prima facie case under A.R.S.
§ 23-1501(A)(3)(c)(ii). We examine each statutory element in turn.

¶14 First, we consider whether Fuller made a qualifying
“disclosure” under the Act. The parties do not dispute that Fuller told Scott
he believed the office had an obligation to search its retained case files and
the State Crime Lab’s documents to uncover any undisclosed exculpatory
laboratory test results. According to the Defendants, these communications
did not constitute “disclosures” for purposes of the Act because the City
already knew that under Fuller’s predecessor, prosecutors had engaged in
a practice of securing guilty pleas before receiving and disclosing
defendants’ laboratory test results. In fact, independent of Fuller, the office
had taken corrective action to prevent future nondisclosures. While the City
undoubtedly had been apprised of the pattern of nondisclosures in the
office before Fuller broached the issue with Scott, nothing in the record
suggests the City had contemplated, before Fuller’s statements, a legal
obligation to uncover its past—but ongoing—disclosure violations
concealed in office case files or State Crime Lab documents.

¶15 Second, the Defendants dispute that Fuller had information
or a reasonable belief the City violated Arizona law. Specifically, the
Defendants argue that Arizona law did not compel them to scour
government files and documents for potentially exculpatory evidence, and
Fuller failed to sufficiently tether his belief that the office was required to do
so “to any legal or constitutional requirement.”

¶16 On review, we consider only whether Fuller presented
substantial evidence that he reasonably believed the City violated the Arizona

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Constitution or Arizona statutes. State v. Stroud, 209 Ariz. 410, 411, ¶ 6
(2005). “In its ordinary civil context, ‘substantial evidence’ is simply
relevant evidence from which a reasonable mind might draw a conclusion.”
In re Mustonen’s Estate, 130 Ariz. 283, 285 (App. 1981).

¶17 The Arizona Constitution, like its federal counterpart,
guarantees criminal defendants due process of law. Ariz. Const. art. 2, § 4
(“No person shall be deprived of life, liberty, or property without due
process of law.”). This due process provision imposes an affirmative duty
on the State to disclose evidence favorable to the accused. State v. Schreiber, 115 Ariz. 555, 556 (1977) (concluding a “prosecutor’s nondisclosure of
material evidence” denied a defendant “due process of law” under both the
Arizona and federal constitutions).

¶18 Whether willful or inadvertent, the State’s failure to disclose
material, exculpatory evidence violates a defendant’s due process rights.
Milke v. Mroz, 236 Ariz. 276, 280, ¶ 6 (App. 2014). Importantly, the State’s
disclosure obligations do not end with a conviction but “continue until all
challenges to the conviction have been exhausted.” Id. at 283, ¶ 16. Indeed,
the State bears both “an ethical and [a] constitutional obligation to disclose
clearly exculpatory material that comes to its attention after [] sentencing
has occurred.” Canion v. Cole (Canion II), 210 Ariz. 598, 599, ¶ 8 (2005).

¶19 Although Fuller primarily invoked the ethical rules when
discussing the State’s disclosure obligations, the Defendants do not
meaningfully contest that he also maintained the City’s nondisclosures
constituted Brady violations, a shorthand clearly implicating both federal
and State constitutional due process protections. See Brady v. Maryland, 373
U.S. 83, 87 (1963) (construing the federal constitution’s due process
provision as requiring the State to disclose all material, exculpatory
evidence); Schreiber, 115 Ariz. at 556 (applying the Brady standard to find a
prosecutor’s nondisclosure of material evidence deprived the defendant of
his right to due process under the State constitution). Notably, Ellman also
employed this shorthand to describe the disclosure violations in his
communications with the State Bar on the City’s behalf. Thus, contrary to
the Defendants’ contention, Fuller’s disclosures sufficiently notified Scott
that he believed the City had violated Arizona law. See Seballos v. Freeport-
McMoRan,Inc., 1 CA-CV 22-0079, 2023 WL 5624716, at *3, ¶ 14 (Ariz. App.
Aug. 31, 2023) (mem. decision) (“[N]othing in [A.R.S.] § 23-1501(A)(3)(c)(ii)
requires an employee to identify to an employer a specific constitutional
provision or statute at the time of the disclosure. But the information an
employee discloses must convey to the employer conduct that violates a
state constitutional or statutory law in enough detail to alert the employer

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of the perceived statutory or constitutional violation.”). Having found the
record contains relevant evidence that Fuller conveyed a reasonable belief
the City violated the Arizona Constitution, we must affirm the jury’s
verdict.

¶20 Third, the Defendants argue that Fuller failed to present
evidence demonstrating Scott fired him because of his disclosures. They
contend overwhelming evidence established that Scott had legitimate
reasons for firing Fuller, wholly unrelated to the disclosure violations.
Moreover, the Defendants assert that Fuller’s claim of retaliatory discharge
“defies all logic” because “the Brady issue had already been exposed
publicly to the affected defendants, judges, and the State Bar.”

¶21 To establish the causation element, an employee must show
that retaliation was a substantial motivating factor for the dismissal. Czarny
v. Hyatt Residential Mktg. Corp., 1 CA-CV 16-0577, 2018 WL 1190051, at *3,
¶ 17 (Ariz. App. Mar. 8, 2018) (mem. decision). Because retaliation need not
be the sole motivating factor, evidence that the employer considered other
bases for terminating the employee does not defeat a claim of retaliatory
discharge. Id.

¶22 Here, the uncontroverted evidence established that Scott: (1)
largely deferred to Fuller’s judgment in handling the audit of the office’s
case files as well as the corresponding notifications filed in City Court; (2)
hired an ethics attorney to advise and represent Fuller in the State Bar’s
investigation; and (3) offered to substitute for Fuller in the State Bar inquiry.
On this record, none of Scott’s actions with respect to the audit of the office’s
case files supports a claim of retaliatory discharge.

¶23 The record also reflects, however, that: (1) Scott instructed
Fuller to “hold off” when he told her the audit could be expanded by
searching the State Crime Lab’s documents for Brady violations; (2) Scott
suspended Fuller close in time to his stated intent to expand the audit (albeit
given the short duration between Fuller’s start date and suspension date,
all events arguably occurred close in time); (3) Scott conveyed to Ellman her
desire to shield Fuller’s predecessor from any public scrutiny arising out of
the disclosure violations; and (4) after Fuller’s firing, the Defendants did
not pursue an expanded audit. See Czarny, 1 CA-CV 16-0577, at *3, ¶ 18
(holding the timing of a termination decision in relation to the disclosure
may create a genuine issue of fact as to whether a firing was retaliatory).

¶24 In addition, Fuller elicited expert testimony characterizing
Cronin’s investigation as objectively unreasonable—criticizing Cronin for

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using leading questions, “putting words in people’s mouths,” failing to
disclose the scope of the investigation, sharing her own opinions of Fuller
with interviewees, and disclosing among interviewees what others had
reported. Fuller also presented his own conflicting account of the stated
reasons for his suspension and termination.

¶25 For example, Fuller testified he adamantly denied allegations
of gender discrimination and harassment presented by Scott at the
suspension meeting—declaring his belief that Scott manufactured the
claims to retaliate against him for “blow[ing] the whistle” on the City’s
conduct—leading Scott to immediately withdraw the allegations.
According to Fuller, Scott responded: “Well, we will just take that off of the
table.” Scott, on the other hand, testified that Fuller became angry after she
informed him of the gender discrimination and harassment allegations at
the suspension meeting, prompting her to say, “let’s put that aside,” so they
could discuss other complaints.

¶26 Fuller also testified that at the outset of the termination
meeting, he inquired about the allegations of gender discrimination and
harassment Scott had put forward at the suspension meeting and Scott told
him that Cronin had reached no conclusions concerning those allegations
other than finding if Fuller remained in his position, he would likely engage
in discrimination and harassment eventually. By contrast, Scott testified
that the bases for dismissal proffered at the termination meeting were
entirely consistent with those outlined in the Cronin Report, explaining
Fuller simply “wasn’t listening” and “wasn’t willing to accept” that
although he had not committed unlawful gender discrimination or
harassment, he had nonetheless treated employees differently based on
their gender in violation of the City’s values.

¶27 Given the contradictory accounts of the stated reasons for
Fuller’s suspension and termination, a jury could have reasonably
concluded Fuller’s disclosure concerning the State Crime Lab documents
was among the factors motivating his dismissal.

¶28 In sum, Fuller established a prima facie case of wrongful
termination under A.R.S. § 23-1501(A)(3)(c)(ii). Although the Cronin Report
outlined facially valid reasons for his termination, Fuller put forward
substantial evidence to refute those stated reasons as pretextual. Czarny,
1 CA-CV 16-0577, at *3, ¶ 17 (explaining an employee must present
“specific” and “substantial” evidence of pretext but may rely on direct or
circumstantial evidence). Because the conflicting evidence created a
genuine dispute of material fact warranting a jury determination, the

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superior court did not err by denying the Defendants’ motion for judgment
as a matter of law and submitting the wrongful termination claim to the
jury.

II. Fuller’s Failure to Identify Before Trial Specific Statements
That Defamed Him Requires Vacating the Defamation Verdict.

¶29 The Defendants raise several challenges to the defamation
verdict, but one is dispositive. The Defendants assert the superior court
erred in submitting Fuller’s defamation claim to the jury despite his failure
to identify before and during trial the specific statements he contended were
defamatory. We agree.

¶30 Without referencing any particular statement in the Cronin
Report, Fuller broadly alleged in his complaint that the Defendants “wrote,
or republished to third parties statements of fact about [him] that were
false,” “including but not limited to statements that [he] had engaged in
gender discrimination.” While Rule 8(a)(2) simply requires that a complaint
contain, among other things, a “short and plain statement of the claim
showing that the pleader is entitled to relief,” Fuller also had a “continuing
duty” to disclose “the factual basis of each of [his] claims.” Ariz. R. Civ. P.
26.1(a)(1), (f)(2). Indeed, as “litigation progresses, [] a party must timely
disclose the factual basis of a party’s claims or defenses and ‘the legal theory
on which each’ claim or defense is based.” Reyes v. Town of Gilbert, 247 Ariz.
151, 159, ¶ 30 (App. 2019) (quoting Ariz. R. Civ. P. 26.1(a)(1)-(2)).

¶31 During discovery, the Defendants requested Fuller “[i]dentify
each and every statement upon which [he] base[d] [his] defamation claim,”
including “what was said, who said it, [and] when it was said.” Fuller failed
to do so. Instead, he responded by pointing to the Cronin Report and
asserting that “false factual statements about [his] behavior [can be found]
on every one of its 13 executive summary pages and its 21 report pages.”
Fuller’s refusal to identify what specific statements defamed him was
nothing more than a game of hide the ball.

¶32 But “[d]isclosure, like all discovery, is not a game.” Bryan v.
Riddel, 178 Ariz. 472, 477 (1994). “It should have as its goal the preparation
of cases for trial or settlement.” Id. And while the object of disclosure “is to
permit the opponent a reasonable opportunity to prepare for trial
. . . nothing more, nothing less,” id. at 476, n.5, Fuller’s refusal left the
Defendants in the unenviable and unreasonable position of defending
against an unquantified number of unqualified statements contained
somewhere within the Cronin Report. That cannot be.

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¶33 In their reply brief in support of their motion for summary
judgment, the Defendants argued Fuller had failed to establish a requisite
element of his defamation claim by failing to identify any specific statement
he alleged as defamatory, noting he had refused their repeated disclosure
requests, both in their interrogatories and at his deposition. The superior
court denied the Defendants’ motion without addressing this argument.

¶34 But the difficulty was further compounded by Fuller’s failure
to identify specific defamatory statements in the Joint Pretrial Statement,
prompting the Defendants’ Rule 37 motion urging the superior court to
preclude Fuller from asserting any statements at trial not identified during
discovery as defamatory. Ariz. R. Civ. P. 37(c)(1) (“Unless the court
specifically finds that such failure caused no prejudice or orders otherwise
for good cause, a party who fails to timely disclose information . . . may not
use the information . . . as evidence at trial [.]”).

¶35 At the final trial management conference, the superior court
addressed the Defendants’ Rule 37 motion, noting some Cronin Report
statements not “relevant for the defamation claim” were nonetheless
relevant to the wrongful termination claim and instructing defense counsel
simply to object if Fuller “start[ed] talking about all this defamatory stuff
that wasn’t disclosed.” Defense counsel balked, explaining: “[W]hen this is
an element of your claim, what is the defamatory statement, I think the
Court is bound to hold the plaintiff to the strict disclosure of the defamatory
statement and we can’t have an expansion of additional statements that
weren’t previously advised because our defense is truth.” In response, the
court reiterated: “[I]f no one objects, I’m just going to sit here and I’m not
going to do anything about it. . . . [I]f it’s a disclosure issue, stop the case
. . . and object and we’ll deal with the disclosure issue at that time.” At that
point, defense counsel agreed to “table the Rule 37 motion” until “a Rule
50” motion.

¶36 At trial, the Defendants continued to argue Fuller had not
complied with the disclosure requirements by failing to identify any
specific defamatory statements. In response, the superior court repeatedly
asked Fuller’s attorney to clarify precisely which Cronin Report statements
defamed him—but to no avail. Fuller testified during his presentation of
evidence that the Cronin Report falsely stated he engaged in gender
discrimination and harassment. He also testified that these allegedly false
statements impugned his reputation and hurt his family. But in so
testifying, neither Fuller nor his attorney pointed to any specific Cronin
Report statement.

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¶37 Following Fuller’s presentation of evidence, the Defendants
moved for judgment as a matter of law on the defamation claim, referencing
their Rule 37 motion and again asserting Fuller had failed to specify which
statements “underlie the defamation claim”: “[I]f [Fuller] still can’t
articulate [the alleged defamatory statements], then we’re entitled to Rule
50 relief.” The superior court denied the Defendants’ Rule 50 motion, but
later acknowledged that Fuller had not disclosed any specific defamatory
statements when addressing the Defendants’ renewed motion for judgment
as a matter of law, as reflected in the following exchange with counsel:

Defense Counsel: Your Honor, if I may? We are now at the
close of evidence arguing over the defamatory statement. This
is so unfair.

Court: Well, I didn’t have a motion for summary judgment on
it, did I?

Defense Counsel: Oh, absolutely you did. You absolutely - -

Court: Where in the motion for summary judgment did it say
that these specific statements were not defamatory? I don’t
even think you knew the statements to tell me.

Defense Counsel: That’s my point. We had interrogatories.
We had - -

Court: Right. But I was never presented with these are the
alleged defamatory statements. They are not defamatory as a
matter of law.

Defense Counsel: You are absolutely correct, because what
we got was what he said in his deposition, which are not
these…

(Emphasis added). Despite recognizing Fuller’s failure to identify any
specific statements as defamatory, the superior court denied the
Defendants’ renewed Rule 50 motion.

¶38 To defeat a motion for judgment as a matter of law on a
defamation claim, a public figure plaintiff must put forward evidence that:
(1) the defendant made a false statement about the public figure, (2) the
statement is defamatory, (3) the defendant published the statement to a third
party, (4) the defendant acted with actual malice, and (5) the public figure
suffered damages as a result. See Harris v. Warner, 255 Ariz. 29, 32, ¶ 11

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(2023). “[C]onclusory statements are insufficient to state a claim upon
which relief can be granted.” BLK III, LLC v. Skelton, 252 Ariz. 583, 588, ¶ 15
(App. 2022) (quoting Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7
(2008)). “This is especially true in a defamation action because the context
and language of an allegedly defamatory statement is crucial” to determine
whether a plaintiff has established a prima facie case. See id. Without
knowing “the precise language” of an allegedly defamatory statement, “the
court cannot analyze whether the statement is objectively verifiable as true
or false—a critical question in determining whether a defamation action
may lie.” Id.

¶39 Here, Fuller refused to obey Rule 26.1’s requirements—he
refused to disclose which statements defamed him; failed to answer
discovery calculated to obtain the answer; failed to identify the same in the
Joint Pretrial Statement; and failed to identify any alleged defamatory
statement until the court required him to do so at the close of evidence at
trial. Fuller’s actions and inactions deprived the Defendants of any
“reasonable opportunity” to defend themselves against Fuller’s stealthily
amorphous trial on the defamation claim. See Bryan, 178 Ariz. at 476, n.5.

¶40 Given Fuller’s refusal to identify statements for the superior
court’s consideration until after the close of evidence, the Defendants were
entitled to judgment as a matter of law on the defamation claim. See Desert
Palm Surgical Group, 236 Ariz. at 578, ¶ 25. For these reasons, we vacate the
defamation verdict and resulting damages award.

CONCLUSION

¶41 We vacate the defamation verdict, and corresponding portion
of the judgment. We otherwise affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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