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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


      BRYAN ZEMAN and PATRICIA ZEMAN, husband and wife,
                     Plaintiffs/Appellants,

                                         v.

 BRIAN H. BAUMKIRCHNER; BHB CAPITAL, LLC, an Arizona limited
  liability company; CHRISTOPHER COMBS and JANE DOE COMBS,
 husband and wife; COMBS LAW GROUP, PC; ADAM MARTINEZ and
     JANE DOE MARTINEZ, husband and wife, Defendants/Appellees.

                              No. 1 CA-CV 15-0228
                                FILED 6-7-2016


            Appeal from the Superior Court in Mohave County
                         No. L8015CV201407288
              The Honorable Charles W. Gurtler, Jr., Judge

   AFFIRMED IN PART; REVERSED IN PART; AND REMANDED


                                    COUNSEL

Laird Law Firm, P.L.L.C., Tucson
By Brian A. Laird
Counsel for Plaintiffs/Appellants

Manning & Kass, Ellrod, Ramirez, Trester, L.L.P., Scottsdale
By Anthony S. Vitagliano, Robert B. Zelms,
Counsel for Defendants/Appellees Christopher Combs and Jane Doe Combs;
Combs Law Group, P.C.; and Adam Martinez and Jane Doe Martinez
                      ZEMAN v. BAUMKIRCHNER
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.


W I N T H R O P, Judge:

¶1            Bryan and Patricia Zeman (the “Zemans”) appeal the trial
court’s judgment dismissing their complaint for failure to state a claim upon
which relief can be granted pursuant to Arizona Rule of Civil Procedure
(“Rule”) 12(b)(6). For the following reasons, we affirm in part, reverse in
part, and remand the case for further proceedings.

                FACTS AND PROCEDURAL HISTORY

¶2            PlumCrazy Firearms (“PlumCrazy”) and Simpex Enterprises
(“Simpex”) entered a contract, under which PlumCrazy would purchase
from Simpex a refurbished machine for manufacturing firearm parts.
Because Simpex was not in the business of fabricating machine molds,
PlumCrazy contracted with Bryan Zeman to fabricate a set of molds for the
machine. PlumCrazy paid Simpex for the machine, including the molds;
Simpex in turn paid Zeman for the molds. After Brian Baumkirchner and
his company, BHB Capital, LLC (“BHB”), became PlumCrazy’s successor
in interest, BHB filed a complaint (the “underlying case”) against the
Zemans, alleging breach of contract for failing to deliver the molds, unjust
enrichment, and other related claims.

¶3           Approximately two months before BHB filed its complaint,
Adam Martinez, counsel for BHB in the underlying case, contacted Simpex
about the molds. In response, Simpex sent Martinez a letter, stating the
parties—Zeman and PlumCrazy—had informed Simpex that the molds
had been timely delivered, tested, and accepted. After the complaint was
filed, Simpex told Martinez the same during a phone conversation, and
rejected BHB’s request that Simpex assign its claims against Zeman to BHB,
stating Zeman had performed under the contract and Simpex had no claims
against him. During the phone conversation, Simpex also informed
Martinez that Baumkirchner had taken pictures of the molds and emailed
the pictures to Simpex because Baumkirchner had approached Simpex
about buying back the machine shortly after Baumkirchner took over
PlumCrazy. After the phone conversation, Martinez resent BHB’s


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                       ZEMAN v. BAUMKIRCHNER
                          Decision of the Court

assignment request. Simpex again rejected the request in a letter, attaching
the same pictures and marking and otherwise identifying the subject
molds.1

¶4            Approximately one month after Simpex sent its rejection
letter, BHB moved for partial summary judgment against the Zemans on its
claims for breach of contract and unjust enrichment, alleging there was no
dispute of fact that Zeman did not deliver the molds to PlumCrazy. In its
reply brief for the motion and during a hearing on the motion, Martinez
stated “there is no evidence” showing Zeman had performed under the
contract. The trial court granted the motion, and the Zemans appealed.
This court reversed, holding summary judgment was improper because a
genuine issue of fact existed regarding whether Zeman had performed.

¶5             While the underlying case was on remand, the Zemans filed
the present complaint against multiple defendants: Baumkirchner and his
wife; BHB; Martinez and his wife; Martinez’s law firm at the time, Combs
Law Group, P.C.; and Martinez’s then-supervising attorney and employer
Christopher Combs and his wife.2 The Zemans alleged the defendants were
liable for abuse of process, and the Combs defendants were liable for aiding
and abetting the BHBs in the BHBs’ abuse of process. The Combs
defendants moved to dismiss the complaint under Rule 12(b)(6), alleging
the Zemans’ claims were time-barred by the one-year statute of limitations
for malicious prosecution, see Ariz. Rev. Stat. (“A.R.S.”) § 12-541(1),3 and, in
the alternative, that the Zemans had failed to state a claim, and could not
prove damages as their damages were contingent upon the outcome of the
underlying case. The BHBs joined the motion. The court granted the
motion, finding the two-year statute of limitations under A.R.S. § 12-542
governed the present case, but the causes of action for abuse of process had




1     After the rejection letter was sent, BHB amended its complaint to
include Simpex, Simpex’s owner, and his wife as co-defendants.

2    The Baumkirchners and BHB are collectively referred to as the
“BHBs”; defendants other than the BHBs are collectively referred to as the
“Combs defendants.”

3      Absent material revisions after the relevant events, we cite to a
statute’s current version.




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                       ZEMAN v. BAUMKIRCHNER
                          Decision of the Court

not accrued as the underlying case had not yet concluded.4            A final
judgment to this effect was entered.

¶6            The Zemans timely appealed; we have jurisdiction pursuant
to A.R.S. § 12-2101(A)(1).5

                                 ANALYSIS

¶7             A Rule 12(b)(6) motion to dismiss should be granted if the
complaint fails to state a claim upon which relief can be granted. Ariz. R.
Civ. P. 12(b)(6). We review the trial court’s ruling on a Rule 12(b)(6) motion
de novo. Coleman v. Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284 P.3d 863, 866-67
(2012).

¶8            The Zemans agree with the trial court’s conclusion that the
general two-year statute of limitations found in A.R.S. § 12-542 applies, but
argue the trial court erred in granting the Combs defendants’ motion to
dismiss. They contend the court erred in not finding the cause of action for
abuse of process accrued when Martinez misrepresented the lack of
evidence in the motion papers for summary judgment and during the
hearing on the motion in the underlying case. The Zemans maintain they
have stated a claim upon which relief can be granted, and that damages are
a question of fact for the jury to decide. In the alternative, they seek leave
to amend their complaint if we conclude they have failed to state a claim.

       I.     Statutes of Limitations

¶9            The Combs defendants contend that the two causes of action,
malicious prosecution and abuse of process, are very similar to each other,
and that A.R.S. § 12-541 should apply because it specifies the statute of
limitations for malicious prosecution. We disagree. These two tort causes
of action are separate and distinct. Further, § 12-541 expressly covers

4      The dismissal appeared to be without prejudice as the trial court
denied the Combs defendants’ request to dismiss with prejudice. Such
dismissal is, however, effectively with prejudice, because, as we explain
below, the statute of limitations for abuse of process has run. See infra ¶ 13
(concluding the cause of action for abuse of process accrued on December
6, 2012 or February 6, 2013).

5      Shortly after the Zemans appealed, the Zemans and the BHBs settled
the underlying case and the present case as applied to the BHBs. The BHBs
are therefore not parties to this appeal.



                                        4
                        ZEMAN v. BAUMKIRCHNER
                           Decision of the Court

malicious prosecution. It does not mention abuse of process, nor has an
Arizona appellate decision applied § 12-541 to a claim for abuse of process.
Under well-established principles of statutory construction, the
“expression of one or more items of a class and the exclusion of other items
of the same class implies the legislative intent to exclude those items not so
included.” Sw. Iron & Steel Indus., Inc. v. State, 123 Ariz. 78, 79, 597 P.2d 981,
982 (1979). Section 12-541 thus does not apply to an action for abuse of
process, regardless of how similar the Combs defendants believe it is to one
for malicious prosecution. Instead, § 12-542, which governs general tort
actions, applies here; accordingly, the statute of limitations for abuse of
process is two years. See Kenyon v. Hammer, 142 Ariz. 69, 76 n.6, 688 P.2d
961, 968 n.6 (1984) (stating § 12-542 governs general tort actions); Hatch v.
Reliance Ins. Co., 758 F.2d 409, 414-15 (9th Cir. 1985) (applying the two-year
statute of limitations under § 12-542 to a claim for abuse of process).6

       II.    Accrual of Causes of Action and Applications of the Statutes of
              Limitations

              A.      Abuse of Process

¶10         The trial court found the Zemans’ cause of action for abuse of
process had not yet accrued because the underlying case had not
concluded. We disagree.

¶11            Unlike an action for malicious prosecution, where the plaintiff
is injured only if the underlying prosecution has terminated in favor of the
plaintiff, such a condition is not a prerequisite to actions for abuse of
process. Compare J.A. Bock, Annotation, When Statute of Limitations Begins
to Run Against Action for Abuse of Process, 1 A.L.R.3d 953 (2016), with Hansen
v. Stoll, 130 Ariz. 454, 460, 636 P.2d 1236, 1242 (App. 1981) (stating a cause
of action for malicious prosecution has not accrued unless the underlying
prosecution has terminated in favor of the complaining party). The trial
court was therefore incorrect in concluding that the accrual of the cause of
action for abuse of process was dependent on the outcome of the
underlying case.


6      The statute of limitations for the other claim, aiding and abetting, is
also two years—the same as the underlying actions of this claim. See, e.g.,
Am. Master Lease LLC v. Idanta Partners, Ltd., 171 Cal. Rptr. 3d 548, 570 (Cal.
Ct. App. 2014) (stating the statute of limitations for aiding and abetting is
generally the same as those for the underlying actions).




                                         5
                       ZEMAN v. BAUMKIRCHNER
                          Decision of the Court

¶12            “The limitations period under § 12-542 ‘begins to run upon
accrual,’ which requires not only an alleged ‘wrong’ but also injury.”
Manterola v. Farmers Ins. Exch., 200 Ariz. 572, 576, ¶ 10, 30 P.3d 639, 643
(App. 2001) (citation omitted). In other words, the limitations period does
not commence until the tort results in appreciable, non-speculative harm to
the plaintiff. Id. In actions for abuse of process, recoverable damages may
include emotional distress, humiliation, inconvenience, or anxiety caused
by the abuse of process. Crackel v. Allstate Ins. Co., 208 Ariz. 252, 264, ¶ 42,
92 P.3d 882, 894 (App. 2004). Here, the Zemans alleged the Combs
defendants had abused the litigation process by wrongfully avowing to the
court in writing and at oral argument that the Zemans had no evidence to
support their contention that the molds had been timely delivered, tested,
and accepted. They also contended they suffered compensable injuries
from the act, including distress caused by the alleged abuse of process, not
to mention the delay and expense incurred in having to appeal the trial
court’s order. Accordingly, the Zemans’ cause of action for abuse of process
has accrued.

¶13            Further, the statute of limitations for abuse of process begins
to run from the termination of the acts that constitute the complained-of
abuse. Bock, 1 A.L.R.3d at 953. We need not determine the exact date of
the accrual because both of the alleged acts of abuse of process—filing the
motion for summary judgment on December 6, 2012 and arguing during
the hearing on the motion on February 6, 2013—occurred within two years
of the filing of the present complaint on August 28, 2014. As a result, the
Zemans’ claim for abuse of process is not time-barred.

              B.     Aiding and Abetting

¶14           As for the claim for aiding and abetting, under the common
law discovery rule, a cause of action does not accrue until “the plaintiff
knows or with reasonable diligence should know the facts underlying the
cause.” Manterola, 200 Ariz. at 576, ¶ 10, 30 P.3d at 643. On this record, the
Zemans’ cause of action for aiding and abetting also accrued on the dates
of those two alleged acts—stating in the motion papers and arguing during
the hearing that there was no evidence demonstrating the molds had been
timely delivered, tested, and accepted—when the Zemans knew or should
have realized the Combs defendants might have been aiding the BHBs with
the alleged abuse of process. See Chalpin v. Snyder, 220 Ariz. 413, 424, ¶ 45,
207 P.3d 666, 677 (App. 2008) (holding that an attorney is not immune from
an action for aiding and abetting the client’s torts when that attorney
advises or assists the client in tortious acts). Under this analysis, the claim



                                       6
                        ZEMAN v. BAUMKIRCHNER
                           Decision of the Court

for aiding and abetting has accrued and is not barred by the statute of
limitations, either.

       III.   Whether the Zemans Have Stated a Claim

¶15            In considering a Rule 12(b)(6) motion to dismiss a complaint
for failure to state a claim, “the court must assume the truth of all of the
complaint’s material allegations, accord the plaintiffs the benefit of all
inferences [that] the complaint can reasonably support, and deny the
motion unless certain that plaintiffs can prove no set of facts [that] will
entitle them to relief upon their stated claims.” Gatecliff v. Great Republic Life
Ins. Co., 154 Ariz. 502, 508, 744 P.2d 29, 35 (App. 1987). The court, however,
does 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.” Jeter v. Mayo Clinic Ariz., 211 Ariz.
386, 389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005).

              A.      Abuse of Process

¶16           To state a claim for abuse of process, the plaintiff must allege
the defendant committed “(1) a willful act in the use of judicial process; (2)
for an ulterior purpose not proper in the regular conduct of the
proceedings.” Crackel, 208 Ariz. at 257, ¶ 11, 92 P.3d at 887. The plaintiff
can demonstrate the second element by “showing that the process has been
used primarily to accomplish a purpose for which the process was not
designed.” Id. On this record, Martinez’s wrongful use of judicial process
in filing, and arguing for, the motion for summary judgment could be
construed as willful because he knew about the existence of the pictures
and Simpex’s statements and letters, and knew or should have appreciated
their evidentiary value in showing Zeman’s performance under the
contract with PlumCrazy. In their complaint, the Zemans alleged
Martinez’s acts were for the ulterior purpose of obtaining a summary
judgment to which the BHBs were not entitled. Although obtaining
summary judgment under Rule 56 is a legitimate litigation goal, attaining
that goal by misleading the court is not a purpose for which the judicial
process has been designed. Accordingly, we hold that, on the record, the
Zemans have stated a claim against the Combs defendants for abuse of
process.

              B.      Aiding and Abetting

¶17         The Zemans also alleged the Combs defendants had aided
and abetted the BHBs in their tortious abuse of process. The Zemans


                                         7
                       ZEMAN v. BAUMKIRCHNER
                          Decision of the Court

alleged the BHBs intended to use the process to “destroy” them with the
cost of litigation. The BHBs’ acts could be construed as willful, as shown
by Baumkirchner’s purported statements and email to that effect, the
pictures of the molds taken by Baumkirchner, and the statements and
letters authored by Simpex. A purpose of “destroying” an opposing party
and making it financially impossible to have a legal issue resolved on the
merits is inconsistent with legitimate litigation goals. On this record, the
Zemans stated a claim against the BHBs for abuse of process.

¶18            To state a claim for aiding and abetting a tort, a plaintiff must
plead that “(1) the primary tortfeasor [committed] a tort that cause[d] injury
to the plaintiff; (2) the defendant [knew] the primary tortfeasor’s conduct
constitute[d] a breach of duty; and (3) the defendant [had] substantially
assist[ed] or encourage[d] the primary tortfeasor in the achievement of the
breach.” Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local
No. 395 Pension Trust Fund, 201 Ariz. 474, 485, ¶ 34, 38 P.3d 12, 23 (2002).

¶19           At oral argument, counsel for the Zemans conceded they had
no information, and thus no evidence, that the Combs defendants were
aware of BHBs’ plan to use the litigation process to “destroy” the Zemans,
and clarified that the aiding and abetting claim against the Combs
defendants was based on the same conduct supporting the abuse of process
claim against the Combs defendants: that Martinez knowingly misled the
court during the summary judgment process by affirmatively advising the
court that there was no evidence demonstrating Zeman had timely and
completely performed under its contract with Simpex. With this concession
and clarification, we agree with the trial court that the Zemans have not
stated a claim for aiding and abetting against the Combs defendants, and
that claim was properly dismissed. Further, because of the acknowledged
lack of evidence to support the aiding and abetting allegations against the
Combs defendants, we decline to remand this issue to allow the Zemans to
amend their complaint in that regard. See Elm Ret. Ctr., LP v. Callaway, 226
Ariz. 287, 292, ¶ 26, 246 P.3d 938, 943 (App. 2010) (stating a court does not
err in denying a motion to amend if the amendment would be futile).




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                      ZEMAN v. BAUMKIRCHNER
                         Decision of the Court

                             CONCLUSION

¶20           The trial court’s judgment is affirmed in part and reversed in
part. The Zemans’ claim for aiding and abetting was properly dismissed,
but their claim for abuse of process should not have been dismissed. The
case is remanded for further proceedings consistent with this decision.




                                  :AA




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