Bey v. Johnson

1

Mayloemrojo El Bey, Plaintiff/Appellant, v. Britney Johnson, Ruby Hassell, and Phelisha Johnson, Defendants/Appellees.

No. 2 CA-CV 2024-0076

Court of Appeals of Arizona, Second Division

August 6, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pinal County No. S1100CV202301621 The Honorable Joseph R. Georgini, Judge

Mayloemrojo El Bey, Yuma In Propria Persona

Fowler St. Clair PLLC, Scottsdale By Nick Strom Counsel for Defendants/Appellees Presiding Judge Sklar authored the decision of the Court, in which Vice Chief Judge Eppich and Judge Brearcliffe concurred.

MEMORANDUM DECISION

SKLAR PRESIDING JUDGE

¶1 Mayloemrojo El Bey appeals the superior court's dismissal of her claims against Britney Johnson, Ruby Hassell, and Phelisha Johnson. She also appeals the court's refusal to enter a default judgment against Phelisha Johnson. We reject her arguments and affirm the court's dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to affirming the superior court's ruling. See Tucson Ests. Prop Owners Ass'n v. Jenkins, 247 Ariz. 475, ¶ 2 (App. 2019) (quoting Hammoudeh v. Jada, 222 Ariz. 570, ¶ 2 (App. 2009)). El Bey's mother, Mablelean, died in August 2020. El Bey's causes of action concern the care that Mablelean received at the end of her life, as well as the disposition of Mablelean's estate.

¶3 El Bey initiated this action in August 2023. The defendants moved to dismiss under Rule 12(b)(6) of the Arizona Rules of Civil Procedure. The superior court granted that motion and entered a final judgment in favor of the defendants. This appeal followed.

DISMISSAL OF COMPLAINT

¶4 El Bey argues that the superior court erred in granting the defendants' motion to dismiss. We review the grant of a motion to dismiss de novo. The Spaulding LLC v. Miller, 250 Ariz. 383, ¶ 9 (App. 2020). The dismissal of a complaint under Rule 12(b)(6) is appropriate only if "as a matter of law the plaintiff[] would not be entitled to relief under any interpretation of the facts susceptible of proof." Coleman v. City of Mesa, 230 Ariz. 352, ¶ 8 (2012) (quoting Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191 Ariz. 222, ¶ 4 (1998)). When making this determination, we look only to the pleading itself and "must assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient." Id. ¶ 9. ¶5 El Bey's first cause of action alleges "fraudulent assumption of power of attorney." In substance, she alleges that the defendants "fraudulently took sole control" over Mablelean's hospital and medical care. To state a claim for fraud, a plaintiff must allege: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of falsity or ignorance of its truth; (5) the speaker's intent that the hearer act upon it in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely; and (9) the hearer's consequent and proximate injury. Enyart v. Transamerica Ins. Co., 195 Ariz. 71, 77 (App. 1998) (quoting Echols v. Beauty Built Homes, Inc., 132 Ariz. 498, 500 (1982)).

¶6 El Bey's complaint does not allege that any of the defendants ever made any factual misrepresentations upon which El Bey relied to her detriment. At best, El Bey alleges that the defendants lacked authority to make healthcare decisions for Mablelean. But even assuming this is true, El Bey has pointed to no authority that a defendant commits fraud merely by acting beyond that person's authority. Thus, the superior court properly dismissed the cause of action.

¶7 El Bey's second cause of action relates to the administration of morphine to Mablelean. El Bey alleges that, but for the morphine, "it is a strong possibility that [her] mother would have recovered." We agree with the superior court that this is best understood as a wrongful-death claim. We also agree with the court that the claim is barred by the two-year limitations period for wrongful-death actions. A.R.S. § 12-542. Mablelean died in August 2020, and El Bey did not file the complaint until August 2023.

¶8 El Bey's third cause of action alleges "unlawful possession of tribal member's inheritance, property and land." In substance, El Bey alleges that Mablelean lacked capacity to modify her will to name Britney as executor and beneficiary. The superior court properly understood this claim as a will contest. Such contests must be raised within two years of the decedent's death. A.R.S. § 14-3108(3). Thus, the court correctly concluded that El Bey's cause of action was untimely.

¶9 In connection with her third cause of action, El Bey alleges that as indigenous persons, she and her mother are not subject to the "corporate color of law," and, according to their tribal customs and traditions, she is the heir to the estate as her mother's eldest child. However, El Bey has not explained how Arizona courts have jurisdiction to enforce these customs and traditions or how they would allow her to maintain a claim that is outside the statute of limitations.

¶10 El Bey also appears to argue that the superior court erred by granting the motion to dismiss without allowing her leave to amend her complaint. However, a court has discretion to deny leave when the amendment would be futile. See Worldwide Jet Charter, Inc. v. Toulatos, 254 Ariz. 331, ¶¶ 22, 24 (App. 2022). We conclude that the court did not abuse that discretion here. The first cause of action alleges no facts to suggest fraud, and El Bey has not explained how she could allege such facts. See Ariz. R. Civ. P. 9(b) (requiring facts constituting fraud to be pled with particularity). Nor could amendment correct the failure to comply with the statutes of limitations applicable to the second and third causes of action.

DEFAULT JUDGMENT

¶11 El Bey further argues that the superior court improperly declined to enter a default judgment against Phelisha Johnson. El Bey filed an application and affidavit for default against Phelisha in November 2023 after Phelisha failed to file a timely answer. El Bey's application was timely under Rule 55 of the Arizona Rules of Civil Procedure. Under that rule, the default took effect ten court days after the application. Ariz. R. Civ. P. 55(a)(4).

¶12 However, El Bey did not subsequently move for a default judgment under Rule 55(b). The superior court cannot grant a default judgment without such a motion. See Schooley v Pena, 253 Ariz. 185, ¶ 11 (App. 2022). Likewise, El Bey cannot claim the court erred by failing to grant relief she did not ask for. Nor did the court err in allowing Johnson's counsel to appear on her behalf at the oral argument on the motion to dismiss. A defaulted party still has the right to appear. See BYS...