                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                   NINA TERTEROVA, Plaintiff/Appellant,

                                        v.

NICHOLAS ALAN BYOUS and SHARI L. NESTOR, Defendants/Appellees.

                             No. 1 CA-CV 13-0286
                              FILED 4-3-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-090277
                The Honorable Douglas L. Rayes, Judge

                                  AFFIRMED


                                   COUNSEL

Nina Terterova, Phoenix
Plaintiff/Appellant

Nicholas Alan Byous; Shari L. Nestor, Scottsdale
Defendants/Appellees
                    TERTEROVA v. BYOUS/NESTOR
                         Decision of the Court


                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.


S W A N N, Judge:

¶1              Nina Terterova appeals from the trial court’s dismissal of her
claim for damages against Nicholas Alan Byous and Shari L. Nestor
(collectively, “Defendants”). We affirm because Terterova’s complaint
fails to state a claim as a matter of law.

                 FACTS AND PROCEDURAL HISTORY

¶2             Terterova filed a complaint against Defendants alleging the
following facts. On the evening of August 23, 2012, Terterova picked up
Byous in her car and drove them to a bar. Byous told Terterova that they
could receive free drinks at the bar because he knew the bartender. They
“began drinking heavily” upon arriving, and Terterova, by her own
estimate, “consumed approximately 12 or more shots of [v]odka” over the
next three-and-a-half hours. In the early morning of August 24, Byous
insisted that they return to “his place” and invited Terterova to “spend the
night.” He drove them back to his residence in Terterova’s car, where
they both smoked marijuana that he provided. Byous thereafter initiated
sexual relations with Terterova, but his mother, Nestor, soon interrupted
and screamed at him to make Terterova leave. Byous and Terterova left
what was in fact Nestor’s home, and drove away in Terterova’s car with
Terterova behind the wheel. Police stopped the car nearby and charged
Terterova with “super extreme DUI,” at which point her blood alcohol
level measured more than three times the legal limit. Byous was released
from the scene without charges.

¶3            On these facts, Terterova sued Defendants for negligence
and intentional infliction of emotional distress. She alleged that (1) Byous
owed a duty to protect her because they had established a relationship by
seeing each other on numerous earlier occasions; and (2) Byous had
breached that duty by “placing her in a precarious situation” when he
“lied to her about [Nestor’s home] being his Residence and . . . claim[ed]
she ‘could spend the night’ when he knew or, at the very least should
have known that . . . Nestor in fact owned the residence and was the
ultimate decision maker.” Terterova further alleged that Nestor, whom


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                     TERTEROVA v. BYOUS/NESTOR
                          Decision of the Court

she had never met before, had acted with reckless and wanton disregard
for Terterova’s safety by demanding that Terterova leave her home when
Nestor knew or should have known that it would cause either Terterova
or Byous to drive while intoxicated. According to Terterova, Defendants
were at fault for causing her to “suffer numerous damages, including
Fines, Felony Convictions, Community Service, [and] Probation.” In
addition, Terterova asserted that Defendants’ actions were “considered
outrageous in a civilized society” and caused her severe emotional
distress for which she required anxiety and depression medication.

¶4             Defendants moved to dismiss Terterova’s complaint for
failure to state a claim. They argued, inter alia, that neither of them owed a
duty to Terterova under the alleged facts, that she was entirely responsible
for causing the asserted damages and that her alleged emotional distress
was neither “severe” nor “extreme and outrageous.” The court granted
Defendants’ motion to dismiss, reasoning that Defendants owed no duty
to Terterova because she had become intoxicated voluntarily. Terterova
timely appeals.

                               DISCUSSION

¶5           Terterova contends that the trial court erred by dismissing
her complaint because the alleged facts supported her claims for
negligence and intentional infliction of emotional distress.1 We disagree.

¶6            A complaint must set forth a short, plain statement
“showing that the pleader is entitled to relief.” Ariz. R. Civ. P. 8(a)(2).
This requires the plaintiff to plead facts sufficient to support the claim.
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346
(2008). In reviewing the dismissal of a complaint for failure to state a
claim, we accept as true the facts alleged in the complaint and will affirm
the dismissal only if the plaintiff would not be entitled to relief under any
interpretation of the facts susceptible of proof. Fidelity Sec. Life Ins. Co. v.
State, 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998). We resolve all
reasonable inferences from those facts in favor of the plaintiff, McDonald v.
City of Prescott, 197 Ariz. 566, 567, ¶ 5, 5 P.3d 900, 901 (App. 2000), but


1      Terterova raises several additional theories of liability on appeal.
Because she did not mention them in her complaint, we decline to address
them. Dillig v. Fisher, 142 Ariz. 47, 51, 688 P.2d 693, 697 (App. 1984)
(“[A]ppellants did not raise [an] argument before the trial court and
therefore cannot raise it for the first time on appeal.”).



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                    TERTEROVA v. BYOUS/NESTOR
                         Decision of the Court

consider only the facts alleged, Don Kelland Materials, Inc. v. Langel, 114
Ariz. 374, 375, 560 P.2d 1281, 1282 (App. 1977), and do not accept legal
conclusions presented without supporting factual allegations as sufficient
to establish a claim upon which relief can be granted, Cullen, 218 Ariz. at
419, ¶ 7, 189 P.3d at 346.

¶7              To state a claim for negligence, a plaintiff must show, among
other elements, that the defendant owed the plaintiff “a duty requiring the
defendant to conform to a certain standard of care” in order to “protect
[the plaintiff] against unreasonable risks of harm.” Gipson v. Kasey, 214
Ariz. 141, 143, ¶¶ 9-10, 150 P.3d 228, 230 (2007) (citation omitted). The
issue of duty is a matter of law, id. at ¶ 9, and the plaintiff must allege
facts sufficient to give rise to a duty before a negligence claim can proceed,
see id. at ¶ 11 (“Whether the defendant owes the plaintiff a duty of care is a
threshold issue; absent some duty, an action for negligence cannot be
maintained.”).

¶8             In its order dismissing Terterova’s complaint, the trial court
focused on the voluntariness of Terterova’s intoxication. But voluntary
intoxication alone does not negate the existence of a duty. Id. at 147, ¶ 31,
150 P.3d at 234. In Gipson, the defendant argued for the adoption of “a no-
duty rule precluding recovery on the grounds that a person who
voluntarily becomes intoxicated and thereby sustains an injury should not
be able to recover from the person supplying the intoxicants.” Id. Our
supreme court specifically “reject[ed] this reasoning,” explaining that
“[plaintiff’s] own actions may reduce recovery under comparative fault
principles or preclude recovery if deemed a superseding cause of the
harm, but those are determinations to be made by the factfinder.” Id. The
proper focus was therefore not on whether Terterova voluntarily became
intoxicated, but rather on whether she voluntarily violated a criminal law.
However, because “[w]e may affirm on any basis supported by the
record,” State v. Robinson, 153 Ariz. 191, 199, 735 Ariz. 801, 809 (1987), we
conclude that the court correctly dismissed Terterova’s negligence claim
because Defendants did not owe her a duty to save her from her own
criminal conduct.

¶9            Whether a duty exists depends on the relationship between
the parties and public policy considerations. A duty is not created by the
mere foreseeability that the defendant’s actions could cause the plaintiff
harm. Koss Corp. v. Am. Express Co., 233 Ariz. 74, 92, ¶ 62, 309 P.3d 898,
916 (App. 2013). “While no special or direct relationship is required,
duties of care based on relationship can be based on contract, family
relationships or conduct undertaken by the defendant.” Id. “Public policy


                                      4
                     TERTEROVA v. BYOUS/NESTOR
                          Decision of the Court

creating a duty can arise from a statute prohibiting conduct if the statute is
designed to protect the class of persons in which the plaintiff is included
against the risk of the type of harm which in fact occurs as a result of the
violation.” Id.

¶10            Here, Terterova did not have a familial or contractual
relationship with Defendants that could create a duty. As a matter of law,
we decline to hold that the casual dating relationship she alleges is
sufficient to create a legal duty. And Defendants’ mere knowledge of
Terterova’s intoxication did not create a relationship that could give rise to
a duty. See Restatement (Second) of Torts § 314 (1965) (“The fact that the
actor realizes or should realize that action on his part is necessary for
another’s aid or protection does not of itself impose upon him a duty to
take such action.”); see also Danos v. St. Pierre, 383 So. 2d 1019, 1022 (La. Ct.
App. 1980) (“Mere knowledge or awareness of the intoxicated condition of
the driver, alone, does not create a relationship which imposes a duty
upon a guest passenger . . . .”), aff’d, 402 So. 2d 633 (La. 1981); Olson v.
Ische, 343 N.W.2d 284, 287 (Minn. 1984) (“[T]o impose a legal duty on the
passenger, which makes him liable to others on the highway for what the
driver himself chooses to do, seems to us, as a general proposition,
inappropriate. Such a rule assumes, incorrectly, that a passenger
somehow shares in the management of the motor vehicle, and it further
assumes the driver is amenable to the passenger’s influence.”); Cole v. City
of Spring Lake Park, 314 N.W.2d 836, 840 (Minn. 1982) (holding that
refusing an intoxicated guest’s request to remain in one’s home was
insufficient to support negligence action).

¶11            Moreover, we can conceive of no public policy consideration
that would create a duty under these circumstances. To the contrary, we
hold that Terterova’s voluntary decision to drive her own car while
intoxicated bars her from asserting that Defendants had a duty to shield
her from the resulting criminal penalties. See Holt v. Navarro, 932 A.2d
915, 920, ¶ 14 (Pa. Super. Ct. 2007) (“The common law principle that a
person should not be permitted to benefit by his own wrongdoing,
particularly his own crimes, prevents a plaintiff from recovering losses
which flowed from those criminal acts.”); Francis Bowes Sayre, Criminal
Responsibility for the Acts of Another, 43 Harv. L. Rev. 689, 717 (1930) (“[I]t is
of the very essence of our deep-rooted notions of criminal liability that
guilt be personal and individual . . . .”). It would be a gross distortion of
the purposes of the criminal law to allow a convicted defendant to enlist
the assistance of the courts to shift her responsibility for criminal penalties
to others. The penalties Terterova endured were imposed upon her by the



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                     TERTEROVA v. BYOUS/NESTOR
                          Decision of the Court

state as a punishment for her own voluntary criminal conduct -- she was
forced neither to drink nor to drive.

¶12            The court also properly dismissed Terterova’s complaint for
intentional infliction of emotional distress. To recover on a claim for
intentional infliction of emotional distress, a plaintiff must prove, among
other elements, that the defendant’s conduct was “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly intolerable in a
civilized community.” Cluff v. Farmers Ins. Exch., 10 Ariz. App. 560, 562,
460 P.2d 666, 668 (1969) (quoting Restatement (Second) of Torts § 46 cmt.
d), overruled on other grounds by Godbehere v. Phx. Newspapers, Inc., 162 Ariz.
335, 783 P.2d 781 (1989). Whether an act is sufficiently extreme and
outrageous for this purpose is a matter of law to be determined initially by
the court. Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76, 79, 716
P.2d 1013, 1016 (1986) (quoting Restatement (Second) of Torts § 46 cmt. h);
see also Patton v. First Fed. Sav. & Loan Ass’n of Phx., 118 Ariz. 473, 476, 578
P.2d 152, 155 (1978) (“It is the duty of the court as society’s conscience to
determine whether the acts complained of can be considered sufficiently
extreme and outrageous to state a claim for relief.”). In this case, viewing
the facts in the light most favorable to Terterova, Byous employed less
than honest methods in an attempt to seduce her, and Nestor was
inhospitable when she ejected a stranger from her home. In a perfect
world, such conduct might not occur. But we cannot say that the alleged
conduct of either defendant can be “regarded as atrocious and utterly
intolerable in a civilized community.” See Cluff, 10 Ariz. App. at 562, 460
P.2d at 668. Any other holding would amount to a dramatic expansion of
a tort that has historically been reserved for only the most extreme forms
of malice.

¶13             Finally, Terterova contends that the court abused its
discretion by dismissing her complaint without allowing her an
opportunity to present evidence. This argument misconceives the
procedure governing motions to dismiss. See Coleman v. City of Mesa, 230
Ariz. 352, 363, ¶ 46, 284 P.3d 863, 874 (2012) (“In adjudicating a Rule
12(b)(6) motion to dismiss, however, a court does not resolve factual
disputes between the parties on an undeveloped record. Instead, the issue
is whether the pleading states a sufficient claim to warrant allowing the
[plaintiffs] to attempt to prove [their] case.”); Cullen, 218 Ariz. at 419, ¶ 7,
189 P.3d at 346 (“When adjudicating a Rule 12(b)(6) motion to dismiss,
Arizona courts look only to the pleading itself . . . .”).




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                    TERTEROVA v. BYOUS/NESTOR
                         Decision of the Court

                              CONCLUSION

¶14          For the foregoing reasons, we affirm.

¶15           Defendants request that we “enter an order awarding
sanctions against [Terterova] and require her to pay the reasonable
attorneys fees and costs incurred by [Defendants] in connection with this
baseless and frivolous lawsuit.” Under ARCAP 25, we may award
attorney’s fees and other “reasonable penalties or damages” when the
appeal is “frivolous.” The determination to award or decline sanctions
under ARCAP 25 is within this court’s discretion, Ariz. Dep’t of Revenue v.
Gen. Motors Acceptance Corp., 188 Ariz. 441, 446, 937 P.2d 363, 368 (App.
1996), and we impose ARCAP 25 sanctions with “great reservation,” Ariz.
Tax Research Ass’n v. Dep’t of Revenue, 163 Ariz. 255, 258, 787 P.2d 1051,
1054 (1989). Although we conclude that Terterova’s arguments were
meritless, the record does not establish frivolousness, intentional delay, or
an improper motive. See Hoffman v. Greenberg, 159 Ariz. 377, 380, 767 P.2d
725, 728 (App. 1988) (“The line between an appeal which has no merit and
one which is frivolous is very fine, and we exercise our power to punish
sparingly.”). We therefore decline to award sanctions. As the prevailing
parties, Defendants are entitled to an award of costs under A.R.S. § 12-341
upon their compliance with ARCAP 21.




                                    :MJT




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