Strojnik v. State ex rel. Brnovich

PETER STROJNIK, Plaintiff/Appellant, v. STATE OF ARIZONA, ex rel. MARK BRNOVICH, and JANE DOE BRNOVICH, Defendants/Appellees.

No. 1 CA-CV 20-0423

Court of Appeals of Arizona, First Division

July 20, 2021

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2019-054266 The Honorable Sally Schneider Duncan, Judge

Peter Strojnik, Phoenix

Plaintiff/Appellant

Gallagher &Kennedy, P.A., Phoenix

By Mark C. Dangerfield, Kevin E. O'Malley

Counsel for Defendants/Appellees

Judge Brian Y. Furuya delivered the decision of the Court, in which Chief Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

MEMORANDUM DECISION

FURUYA, JUDGE

¶1 Plaintiff Peter Strojnik appeals the superior court's order granting an amended Arizona Rule of Civil Procedure ("Rule") 12(b)(6) motion to dismiss regarding his verified complaint, based on (1) his failure to timely serve a notice of claim as to claims brought against Arizona Attorney General Mark Brnovich ("AG Brnovich") and (2) his lack of standing to pursue a mandamus action against AG Brnovich. Strojnik further appeals the court's imposition of sanctions against him. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Strojnik is an attorney who, until he was disbarred in May 2019, was a member of the State Bar of Arizona ("SBA"). In the time preceding his disbarment, Strojnik filed, as counsel, more than 1, 700 cases in Arizona state court and more than 160 cases in Arizona district court, which he asserted was on behalf of the "disabled community in Arizona." Strojnik v. SBA, 446 F.Supp.3d 566, 571 (D. Ariz. 2020). These cases alleged various violations of the Americans with Disabilities Act ("ADA") and Arizona's version of the ADA ("AzDA")-Ariz. Rev. Stat. ("A.R.S.") § 411492 et. seq. Id. The lawsuits alleged "minor, even trivial" violations of the ADA and AzDA. See, e.g., Advocs. for Individuals With Disabilities LLC v. MidFirst Bank, 279 F.Supp.3d 891, 892-93 (D. Ariz. 2017). And after filing what were essentially cookie-cutter complaints, Strojnik would generally refuse to dismiss a case-even if the defendants immediately corrected the alleged problems-unless the defendants paid him thousands of dollars in attorneys' fees, which appeared unsupported by the amount of work necessary to prepare or pursue these complaints. See e.g., id. (noting Strojnik sought "no less than $5, 000" under such circumstances). A federal judge addressing Strojnik's practices referred to them as an "unethical extortion of unreasonable attorney's fees from defendants." Id. at 898.

¶3 In 2016 and 2017, AG Brnovich (on behalf of the State of Arizona) successfully moved to intervene in, consolidate, and dismiss a large number of the state-court cases. In December 2017, Strojnik submitted an opinion editorial article to the Arizona Republic criticizing AG Brnovich for this intervention.^[1] In March 2018, the SBA filed a motion with Arizona's presiding disciplinary judge requesting Strojnik's interim suspension from the practice of law, and in November 2018, the SBA filed a formal complaint against Strojnik, which resulted in his consent to disbarment.

¶4 On June 10, 2019, Strojnik served AG Brnovich with a notice of claim, followed by the filing of the verified complaint in this case on September 3, 2019. Strojnik alleged that AG Brnovich and the SBA-which was not joined as a party-conspired to halt ADA-related litigation in Arizona by stripping Strojnik of his right to practice law. He sought damages against AG Brnovich for (1) conspiring with others, including the SBA, (2) aiding and abetting the SBA and others who were pursuing his disbarment, (3) tortiously interfering with Strojnik's contractual relationships with his clients, (4) abuse of the judicial process, and (5) intentional infliction of emotional distress. Strojnik additionally sought mandamus relief against AG Brnovich, to compel him to conduct periodic AzDA compliance reviews of covered entities.

¶5 AG Brnovich successfully moved to dismiss for failure to state a claim under Rule 12(b)(6). The superior court dismissed Strojnik's damages claims with prejudice, citing his failure to timely comply with the notice of claim statute. See A.R.S. § 12-821.01(A). The court further dismissed Strojnik's mandamus claim for lack of standing. The court also denied Strojnik's motion for leave to amend his damages claims based on futility and his mandamus claim based on his failure to allege a factual basis for standing. Finally, the court required Strojnik to pay AG Brnovich's reasonable attorneys' fees as a sanction pursuant to A.R.S. § 12-349.

¶6 Strojnik timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

STANDARD OF REVIEW

¶7 We review de novo the dismissal of claims under Rule 12(b)(6). Brittner v. Lanzilotta, 246 Ariz. 294, 295, ¶ 4 (App. 2019) (citing Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012)). We further review de novo issues of law and statutory interpretation. McNamara v. Citizens Protecting Tax Payers, 236 Ariz. 192, 194, ¶ 5 (App. 2014).

¶8 In adjudicating a Rule 12(b)(6) motion, Arizona courts generally "look only to the pleading itself," assuming the truth of the well-pled factual allegations and indulging all reasonable inferences therefrom. Brittner, 246 Ariz. at 295-96, ¶ 4 (quoting Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008)). However, courts do not "accept as true allegations consisting of conclusions of law, inferences or deductions that are not necessarily implied by well-pleaded facts, unreasonable inferences or unsupported conclusions from such facts, or legal conclusions alleged as facts." Stauffer v. Premier Serv. Mortg., LLC, 240 Ariz. 575, 578, ¶ 9 (App. 2016). We will affirm the superior court's dismissal if, as a matter of law, Strojnik was "not entitled to relief under any interpretation of the facts susceptible of proof." Brittner, 246 Ariz. at 296, ¶ 4.

DISCUSSION

¶9 Strojnik argues the superior court erred by failing to convert the amended motion to dismiss to a motion for summary judgment because of AG Brnovich's presentation of matters outside of his verified complaint. He also argues the court erred because it "refused to accept as true" the assertion in Strojnik's complaint that he first discovered AG Brnovich's involvement in the loss of his permission to practice law on or about March 13, 2019-when disclosure of certain emails allegedly prompted him to realize AG Brnovich and the SBA were conspiring to halt his ADA and AzDA litigations. Thus, he argues his notice of claim was timely. Further, Strojnik argues the court erred by dismissing his claim for mandamus relief. Finally, Strojnik argues the court erred by imposing sanctions against him. We address each argument in turn.

I. The Attachments to the Rule 12(b)(6) Motion to Dismiss did not Convert the Motion into a Rule 56 Motion for Summary Judgment

¶10 Strojnik argues the superior court improperly considered material outside his September 2019 verified complaint without converting AG Brnovich's amended Rule 12(b)(6) motion to a motion for summary judgment. AG Brnovich's amended motion to dismiss included 16 exhibits, all of which were filings or orders in either (1) Strojnik's attorney discipline proceedings, which he referenced in his complaint, or (2) filings in cases where he appeared as counsel of record. In his response to the amended motion to dismiss, Strojnik claimed that "the truth of any statements" in "Exhibits 3, 4, 5, 6 cannot be considered to alter, diminish or dispute any of the factual allegations in" his complaint. Accordingly, Strojnik waived any objection he may have had to the other 12 exhibits attached to the amended motion to dismiss.

¶11 Exhibit 3 was an order of interim suspension in his attorney discipline proceedings, which were referenced in the complaint. And Exhibits 4, 5 and 6 were a judgment, minute entry, and motion for sanctions from a superior court case that also was referenced in the complaint. Accordingly, the filing of these exhibits did not convert the motion to dismiss into a motion for summary judgment. See Coleman, 230 Ariz. at 356, ¶ 9 ("public records regarding matters referenced in a complaint" are not considered matters outside the pleading).

¶12 Therefore, the superior court did not err by considering the attachments to AG Brnovich's amended 12(b)(6) motion.

II. Accrual &Notice of Claim Statute, A.R.S. § 12-821.01

¶13 Strojnik argues the superior court erred by finding his damages claims accrued at a time such that service of his notice of claim upon AG Brnovich was untimely pursuant to A.R.S. § 12-821.01. On this record, the court did not err.

¶14 Under A.R.S. § 12-821.01(A), a notice of claim must be filed within 180 days after the cause of action "accrues." A cause of action accrues when the damaged party (1) "realizes he or she has been damaged" and (2) "knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage." A.R.S. § 12-821.01(B).

¶15 Here, Strojnik served his notice of claim on AG Brnovich on June 10, 2019. Therefore, if his causes of action accrued before December 12, 2018, his claims were statutorily time-barred. See A.R.S. § 12-821.01(A); Thompson v. Pima Cnty., 226 Ariz. 42, 45, ¶ 10 (App. 2010). The record here shows that Strojnik's notice of claim was untimely.

¶16 For a cause of action to accrue, a plaintiff must possess "a minimum requisite knowledge sufficient to identify that a wrong occurred and caused injury," but "need not know all the facts underlying a cause of action to trigger accrual." Cruz v. City of Tucson, ...