Cavness v. Cavness-Engstrand

1

LAURA ANN CAVNESS, Plaintiff/Appellant, v. CAITLIN JOSEPHINE CAVNESS-ENGSTRAND, Defendant/Appellee.

No. 1 CA-CV 22-0659

Court of Appeals of Arizona, First Division

July 6, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2022-008833 The Honorable Timothy J. Thomason, Judge

Laura Ann Cavness, Phoenix Plaintiff/Appellant

Engstrand Law Firm LLC, Phoenix By Carl Engstrand Counsel for Defendant/Appellee Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge David D Weinzweig joined.

MEMORANDUM DECISION

CAMPBELL, JUDGE

¶1 Laura Cavness (Mother) appeals the dismissal of her complaint against Caitlin Cavness-Engstrand, her adult daughter (Daughter). Because Mother's defamation claim was barred by the statute of limitations, we affirm.

BACKGROUND^[1]

¶2 Mother sued Daughter for defamation in July 2022. The lawsuit stemmed from a custody battle over Mother's minor son (Son), Daughter's half-brother. See generally Cavness v. Wilson, 1 CA-CV 19-0460 FC, 2020 WL 1862298, at *1, ¶¶ 2-7 (Ariz. App. Apr. 14, 2020) (mem. decision). The superior court awarded Daughter and her husband temporary custody over Son in January 2017. Id. at *1, ¶¶ 3-4. Later that year, the family court found that Daughter and her husband stood in loco parentis and awarded them sole legal decision-making authority and physical custody. Id. at *1, ¶ 5. The court also ordered Mother to have no contact with the child. See State v. Cavness, 1 CA-CR 19-0044, 2020 WL 1686794, at *1-3, ¶¶ 4-9 (Ariz. App. Apr. 7, 2020) (mem. decision). Mother did not comply and was found guilty of contempt of court in December 2018. Mother served six months in jail for this offense. Id. at *3, ¶ 10.

¶3 Over three years after her release, Mother filed this lawsuit, alleging Daughter "defamed [her] throughout the over five-year [court] proceedings." Mother alleged three instances of defamation:

1. On April 4, 2017, a statement made "by and through her attorney" in a motion filed with the family court, Daughter alleged that drugs were found in Mother's apartment; 2. On December 4, 2018, Daughter testified that Mother was "a danger" to Daughter, Son, and others at her contempt hearing; and

3. On May 29, 2019, Daughter made statements during a justice court hearing that Mother was "dangerous" and a drug addict.

¶4 Daughter filed a motion to dismiss under Arizona Rule of Civil Procedure (Rule) 12(b)(6), arguing Mother's claims were time-barred. In response, Mother argued the defamatory statements were "continuous," citing the motion to dismiss as an example, and raising new evidence: a purportedly defamatory TikTok video from May 8, 2022. Mother went on to discuss having "suffer[ed] from PTSD . . . since 01/11/2017" and being "[un]able to pursue a civil suit against [Daughter] because of the anxiety and debilitating breakdowns .... until recently." As support, she later filed a note from her treating psychiatric nurse practitioner regarding Mother's condition in the "weeks and months" after she was released from jail, as well as her PTSD diagnosis.

¶5 Mother also raised two procedural arguments: (1) that the motion to dismiss was invalid as "not properly signed" because it was typed and lacked the "/s/" symbol; and (2) that Daughter's attorney "[wa]s not authorized to represent" her because the motion to dismiss was filed without a separate notice of appearance.

¶6 After reviewing the parties' briefing, the superior court dismissed Mother's complaint with prejudice. The court reasoned that (1) "the statements at issue clearly were made outside the one-year statute of limitations," and (2) "an absolute privilege applie[d] to the statements in question" because they were made "in connection with judicial proceedings." See Green Acres Tr. v. London, 141 Ariz. 609, 613 (1984). The court also summarily dismissed Mother's notice-of-appearance argument, declining to address the "/s/" signature argument.

¶7 Mother moved for reconsideration. First, she argued the court failed to address either of her procedural arguments. She then argued her allegations were timely because, contrary to her complaint, she "was not diagnosed with [PTSD] until August 2022." Last, Mother objected to the court "t[aking] it upon itself" to address absolute privilege when Daughter had not raised the issue. In any case, she pointed to the TikTok video and raised, for the first time, an additional statement made in March 2022 to Mother's husband. The court summarily denied the motion for reconsideration, and Mother timely appealed.

DISCUSSION

¶8 On appeal, Mother repeats her procedural arguments and contends "[t]he one-year statute of limitation does not apply to [her]" because of her PTSD diagnosis. She also argues the court violated her right to due process and practiced law in violation of the Arizona Code of Judicial Conduct by addressing absolute privilege when Daughter had not raised it as a defense.

¶9 We begin by addressing the applicable standard of review. "[I]f matters outside the pleadings are presented to the court on a motion to dismiss for failure to state a claim and are not excluded, the motion shall be treated as a motion for summary judgment. Belen Loan Invs., LLC v. Bradley, 231 Ariz. 448, 451, ¶ 5 (App. 2012) (internal quotation and citation omitted); see also Ariz. R. Civ. P. 12(d). However, "if extraneous matters neither add to nor subtract from the deficiency of the pleading, the motion need not be converted." Belen Loan Invs., 231 Ariz. at 451, ¶ 5.

¶10 Rather than resting on the allegations in her complaint, Mother raised new facts and attached over 50 pages to her response. However, most of the exhibits were public records (i.e., appellate decisions, hearing transcripts), which "are not outside the pleading." Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012) (quotation omitted). Of the remaining exhibits, only one is relevant to Mother's appeal: the note about Mother's PTSD. See Belen Loan Invs., 231 Ariz. at 451, ¶ 5 (noting that irrelevant, extraneous matters do not convert a motion). But the court did not consider tolling or otherwise address Mother's PTSD in its analysis.

¶11 Because Mother's exhibits are "no[t] necessary to support [the court's] rationale for dismissal," we conclude the motion was addressed as a 12(b)(6) motion to dismiss. See id. at 452, ¶ 7. We therefore review de novo the grant of a dismissal under Rule 12(b)(6) and will affirm "only if as a matter of law plaintiff[] would not be entitled to relief under any interpretation of the facts susceptible of proof." Coleman, 230 Ariz. at 356, ¶ 8 (internal quotation and citation omitted).

¶12 Daughter urges us to affirm on procedural grounds because on appeal Mother "fail[ed] to plead a 'statement of the issues'" and "neglect[ed] to provide the applicable standard of review."^[2] See ARCAP 13(a). Even so, we could ascertain Mother's four arguments, each with supporting legal authority and record citations. We therefore elect to resolve her appeal on its merits. See Field v. Oates, 230 Ariz. 411, 417, ¶ 24 (App. 2012) (noting court should "try to avoid dismissing appeals on hypertechnical grounds" (quotation omitted)).

I. Mother's Procedural Arguments Are Meritless

¶13 First, Mother argues that Daughter's motion to dismiss should have been struck because defense counsel's electronic signature lacked the "/s/" symbol. We find this argument without merit. Under Rule 11(a)(1), written motions "must be signed," and "[t]he court must strike an unsigned document unless the omission is promptly corrected." Ariz. R. Civ. P. 11(a)(1). Using permissive language, Rule 11(a)(2) then provides that "[a] person may sign an electronically filed document by placing the symbol '/s/' on the signature line above the person's name." Ariz. R. Civ. P. 11(a)(2) (emphasis added). Moreover, "[t]he court may treat a document that was filed using a person's electronic filing registration information as a filing that was made or authorized by that person." Id. Such was the case here, as defense counsel used AZTurboCourt to file the motion to dismiss. The court was therefore free to accept the motion to dismiss as properly signed under Rule 11.

¶14 Second, Mother argues defense counsel could not represent Daughter because he did not file "a separate Notice of Appearance simultaneously with" the motion to dismiss. The superior court found this position "groundless," and we agree. Rule 5.3(a)(1)(A) is not so narrow. "An attorney may appear as attorney of record by filing a document- including a notice of appearance, complaint, answer, motion to quash, notice of association of counsel, or notice of substitution of counsel-that identifies the attorney as the attorney of record for a party." Ariz. R. Civ. P. 5.3(a)(1)(A). Nothing suggests the embedded list is exhaustive. Defense counsel "appear[ed] . . . by filing a document"-i.e., the motion to dismiss. To permit appearance via an answer but not a Rule 12(b)(6) motion would be nonsensical, since failure to state a claim upon which relief can be granted must be raised-if at all-before a responsive pleading.

¶15 Therefore, the superior court did not err in rejecting Mother's procedural arguments. We too find both to be meritless.

II. Mother's Defamation Claims Were Time-Barred

¶16 We next consider Mother's argument that the superior court erred in determining that her complaint was time-barred because "[t]he one-year statute of limitation[s] does not apply to [her]."

¶17 To determine whether a claim is barred by the statute of limitations, we examine four factors: "(1) when did the plaintiff's cause of action accrue; (2)...