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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


         YUNIER ALMAGUER BETANCOURT, Plaintiff/Appellant,

                                         v.

                   CITY OF PHOENIX, Defendant/Appellee.

                              No. 1 CA-CV 16-0361
                                FILED 11-21-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-007902
                The Honorable Randall H. Warner, Judge

                                   AFFIRMED


                                    COUNSEL

Jimmy Borunda, Attorney at Law, Phoenix
By Jimmy Borunda
Counsel for Plaintiff/Appellant

Berke Law Firm, PLLC, Phoenix
By Lori V. Berke, Jody C. Corbett
Co-Counsel for Defendant/Appellee
                       BETANCOURT v. PHOENIX
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Kent E. Cattani joined.


B E E N E, Judge:

¶1            Plaintiff Yunier Almaguer Betancourt (“Betancourt”) appeals
the superior court’s judgment in favor of Defendant City of Phoenix
(“City”). For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            On July 14, 2012 at approximately 11:00 p.m., Phoenix police
officers observed a car driven by Betancourt commit a traffic violation. A
check of the car’s license plate revealed that it was stolen. When officers
attempted to make a traffic stop, Betancourt failed to comply. Instead, he
drove off, leading police on a 60-mile pursuit that involved several officers.
Eventually, officers disabled Betancourt’s car. Once stopped, Betancourt
climbed out of his car and onto the hood of an adjacent patrol car. At this
point, Officer Nicholas Thompson pointed his weapon at Betancourt and
ordered him to get on the ground.

¶3             According to officers, Betancourt refused to comply with their
orders, and instead raised his clenched fists and yelled obscenities at them.
Officer Thompson testified that, while holding his weapon, he attempted to
arrest Betancourt. Betancourt then made a motion that caused Thompson
to believe he was grabbing for a gun. In response, Thompson struck
Betancourt in the face with his weapon. In contrast, Betancourt testified
that when he exited his car, he knelt down and held up his hands in an
attempt to surrender, saying “I give up. I give up.” He denied being hit in
the face with the officer’s weapon. Rather, Betancourt said that he saw an
officer standing approximately 10 to 15 feet away fire a rifle at him and
something struck him near his left eye. Officers testified that once out of
his car, Betancourt was uncooperative and resisted arrest, prompting them
to use force to place him in handcuffs. Conversely, Betancourt testified that
after he was shot and fell to the ground, officers kicked and choked him in
an attempt to arrest him. He claims he told officers, “this hurts” and “I’m
not resisting,” but they told him to “shut up” and continued to kick and hit
him.


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                           Decision of the Court

¶4            After his arrest, Betancourt was taken to the hospital. He
tested positive for amphetamines, methamphetamines, and cannabinoids.
He suffered a left orbital floor fracture, small sinus fractures, and soft issue
injuries to parts of his face. He claims his injuries were from being shot in
the face, resulting in permanent vision loss, headaches, pain, and inability
to sleep.

¶5            Betancourt was subsequently convicted of several felony
offenses related to this incident and sentenced to 18 years in prison.

¶6             In June 2013, Betancourt filed an action against the City
alleging that officers used “unreasonable, unnecessary and excessive force”
in arresting him. He alleged counts of assault and battery, negligence per
se, and negligence. The City moved to dismiss Betancourt’s claims, arguing
that (1) the claims were barred under Arizona Revised Statutes (“A.R.S.”)
section 12-820.05(B); (2) the claims were barred by Heck v. Humphrey, 512
U.S. 477 (1994); (3) the amended complaint failed to state a claim upon
which relief could be granted; and (4) Betancourt was precluded from
seeking punitive damages under A.R.S. § 12-820.04. The superior court
granted the City’s motion in part and denied it in part. The court granted
dismissal of Betancourt’s claims for negligence per se, joint and several
liability, and punitive damages.

¶7            Over the next two years, the parties conducted discovery on
Betancourt’s remaining claims for assault and battery and negligence. The
City moved for summary judgment, again arguing that A.R.S. § 12-
820.05(B) and Heck barred Betancourt’s claims. The superior court granted
summary judgment on Betancourt’s remaining claims, finding the City
immune from liability under A.R.S. § 12-820.05(B).

¶8           Betancourt timely appealed and we have jurisdiction
pursuant to A.R.S. § 12-2101(A).

                               DISCUSSION

¶9            Entry of summary judgment is proper “if the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.
56(a). We determine de novo whether any genuine issue of material fact
exists and whether the trial court erred in applying the law, and will uphold
the court’s ruling if correct for any reason. Logerquist v. Danforth, 188 Ariz.
16, 18 (App. 1996). We construe the evidence and reasonable inferences in
the light most favorable to the non-moving party. Wells Fargo Bank v. Ariz.



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                        BETANCOURT v. PHOENIX
                           Decision of the Court

Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz.
474, 482, ¶ 13 (2002).

¶10           We review issues of statutory interpretation de novo. Baker v.
Univ. Physicians Healthcare, 231 Ariz. 379, 387, ¶ 30 (2013). “Our primary
goal in interpreting a statute is to give effect to the legislature’s intent, and
the language of a statute is the most reliable evidence of that intent.”
MacKinney v. City of Tucson, 231 Ariz. 584, 587, ¶ 7 (App. 2013).
Accordingly, if the language is clear and unambiguous, we apply it as
written. Zamora v. Reinstein, 185 Ariz. 272, 275 (1996). Under A.R.S. § 12-
820.05(B),

       A public entity is not liable for losses that arise out of and are
       directly attributable to an act or omission determined by a
       court to be a criminal felony by a public employee unless the
       public entity knew of the public employee’s propensity for
       that action. This subsection does not apply to acts or
       omissions arising out of the operation or use of a motor
       vehicle.

“By its clear and unambiguous language, § 12–820.05(B) insulates a public
entity from liability for loss caused by an employee’s felony criminal acts.”
Gallagher v. Tucson Unified Sch. Dist., 237 Ariz. 254, 257, ¶ 10 (App. 2015).

  I.   Law-of-the-Case Doctrine

¶11           Betancourt argues the superior court previously found that
A.R.S. § 12-820.05 does not apply when it denied the City’s motion to
dismiss. Thus, Betancourt maintains that this prior ruling is “law of the
case,” preventing the court from granting summary judgment on the same
grounds. He also argues the court failed to explain the “changed
circumstances or new facts” that occurred from the denial of the motion to
dismiss to the granting of summary judgment.

¶12           “The doctrine referred to as ‘law of the case’ describes the
judicial policy of refusing to reopen questions previously decided in the
same case by the same court or a higher appellate court.” Powell-Cerkoney
v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278 (App. 1993).
“When, as in this case, we apply the doctrine to decisions of the same court,
we treat law of the case as a procedural doctrine rather than as a substantive
limitation on the court’s power.” Id. Law of the case applies when “the
facts and issues are substantially the same as those on which the first
decision rested.” Ctr. Bay Gardens, L.L.C. v. City of Tempe City Council, 214
Ariz. 353, 356, ¶ 17 (App. 2007). “A court does not lack the power to change


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                       BETANCOURT v. PHOENIX
                          Decision of the Court

a ruling simply because it ruled on the question at an earlier stage,” Love v.
Farmers Ins. Grp., 121 Ariz. 71, 73 (App. 1978), nor is it “precluded from
reconsidering an earlier decision when a substantial change occurs in . . .
evidence,” Hall v. Smith, 214 Ariz. 309, 317, ¶ 29 (App. 2007) (internal
quotations and citation omitted).

¶13           When the superior court denied the City’s motion to dismiss
in October 2013, the only evidence before the court was Betancourt’s
allegations in his amended complaint. With that limited information, the
superior court found

       The City argues that if the officers used excessive force as
       Betancourt alleges, they necessarily would have committed
       felonies and therefore the City cannot be liable. This
       argument fails because the officers could have used excessive
       force without committing a criminal felony. Under A.R.S. §
       13-409, their use of force could have been justified, thus
       negating a felony, and yet the extent of the force could still be
       constitutionally excessive.

¶14          More than two years later and after extensive discovery, the
court granted the City’s motion for summary judgment on the basis that the
City was immune from liability under A.R.S. § 12-820.05(B). The court
noted it had previously denied the City’s motion to dismiss on the same
grounds, but now found

       If the trier of fact believes Betancourt, then the officer who
       shot him was without legal justification and, therefore,
       committed aggravated assault. Because the officer would
       have committed a felony, and there is no evidence that the
       officer had a propensity for such action, the City is immune
       as a matter of law.

       Betancourt argues that the jury could find the officer
       negligently discharged his weapon, or negligently misaimed
       or misfired, in which case the use of excessive force would not
       be a felony. There is no evidence in the record, however, to
       support these facts. The trier of fact is not permitted to
       speculate that, just because Plaintiff was shot, someone could
       have been negligent in shooting him.

¶15          Between the time of the City’s motion to dismiss and its
motion for summary judgment, the superior court received a substantial
amount of evidence, including (1) Betancourt’s sworn deposition testimony


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                            Decision of the Court

taken in February 2015; (2) sworn testimony of several police officers given
during Betancourt’s June 2013 criminal trial; and (3) our decision affirming
Betancourt’s criminal convictions and sentences, see State v. Almaguer, 1 CA-
CR 13-0723, 2015 WL 7304461, at * 1, ¶¶ 1-2 (Ariz. App. Nov. 19, 2015)
(mem. decision).

¶16           Clearly, there had been a “substantial change” in the case and
a quantum of evidence before the court. The court’s preliminary ruling at
the motion-to-dismiss stage merely found that given Betancourt’s
allegations, officers could have used excessive force without committing a
criminal felony. Meaning, pending development of evidence as the case
progressed, the City might not be immune from liability under A.R.S. § 12-
820.05(B). When the court granted summary judgment after extensive
discovery had occurred, the facts and issues were not substantially the same
as those on which the court’s denial of the motion to dismiss rested. And
in light of the substantial change in the evidence, the court simply
reconsidered its earlier decision. Thus, the court did not err in relying on
this change when it granted the City’s summary judgment motion.

    II.   City’s Immunity from Liability under A.R.S. § 12-820.05(B)

¶17            Betancourt argues that A.R.S. § 12-820.05(B) does not apply
because the officer’s “acts or omissions” were not felonious because officers
are justified in using force to apprehend a fleeing suspect.1 He contends
that excessive force in making an arrest “does not necessarily involve
intentional criminal conduct on the officer’s part” and here, the officer’s
shooting of Betancourt “could have been accidental or negligent.” We
disagree.




1      Betancourt also argues that Arizona Revised Statutes section 12-
820.05(B): (1) does not apply because the events here arose “out of the
operation or use of a motor vehicle”; and (2) violates the “anti-abrogation
clause” of the Arizona Constitution. Because Betancourt failed to raise
these arguments before the superior court, however, we deem them waived
and do not address them. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994)
(“Because a trial court and opposing counsel should be afforded the
opportunity to correct any asserted defects before error may be raised on
appeal, absent extraordinary circumstances, errors not raised in the trial
court cannot be raised on appeal.”); Englert v. Carondelet Health Network, 199
Ariz. 21, 26, ¶ 13 (App. 2000) (“we generally do not consider issues, even
constitutional issues, raised for the first time on appeal”).


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                       BETANCOURT v. PHOENIX
                          Decision of the Court

¶18           Under A.R.S. § 13-409, a law enforcement officer is justified in
using physical force in making an arrest if (1) a reasonable person would
believe that such force was immediately necessary to effect the arrest, (2)
officers made known to Betancourt the purpose of the arrest or believed
Betancourt knew the reason he was being arrested, and (3) a reasonable
person would believe the arrest was lawful.

¶19            Here, Betancourt claims officers used excessive force after he
attempted to passively surrender to police. He claims that after fleeing and
leading officers on a 60-mile pursuit, he peacefully submitted to the officers’
request to surrender. Betancourt testified that in response to his actions, an
officer, standing approximately 10 to 15 feet away, fired a weapon at him,
striking him in the face. He claims that after being shot, officers began to
assault him before placing him under arrest. Accepting this version of
events, no reasonable person would believe the officers’ use of force was
immediately necessary to arrest Betancourt because he was peacefully
surrendering to police authority, and the officers’ conduct was necessarily
felonious. Thus, under A.R.S. § 12-820.05(B), the City would be immune
from liability.

¶20           Betancourt’s remaining claims against the City are for assault
and battery and negligence. To establish the tort of assault and battery,
Betancourt must prove that officers intentionally caused harmful or
offensive contact with him. Johnson v. Pankratz, 196 Ariz. 621, 623, ¶ 6 (App.
2000). To establish a claim for negligence, Betancourt must prove that (1)
officers owed him a duty requiring them to conform to a certain standard
of care, (2) officers breached that standard of care, (3) officers’ conduct
caused his injuries, and (4) actual damages. Gipson v. Kasey, 214 Ariz. 141,
143, ¶ 9 (2007).

¶21            The City would similarly be immune from liability for assault
and battery, however, if Officer Thompson’s shooting (which Betancourt
claims was the cause of his injuries) was determined to be a criminal felony,
rather than a tort. As relevant here, a person commits aggravated assault if
the person “[i]ntentionally, knowingly or recklessly” (1) causes serious
physical injury to another; (2) uses a deadly weapon or dangerous
instrument; or (3) causes temporary but substantial disfigurement,
temporary but substantial loss or impairment of any body organ or part or
a fracture of any body part. A.R.S. § 13-1203(A), -1204(A). While Betancourt
contends that Officer Thompson’s shooting was not intentional and could
have been accidental or negligent, no evidence in the record supports such
an argument. There are only two versions of that night’s events. First,
Officer Thompson stated that he struck Betancourt in the face with his


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                        BETANCOURT v. PHOENIX
                           Decision of the Court

weapon when he believed Bentancourt was reaching for his gun. This act
would constitute an intentional act. Second, Betancourt stated that while
trying to comply with the officers’ commands to surrender, he saw an
officer aim a weapon at him and shoot, also, an intentional act, or at the
very least, a reckless act by pointing a loaded weapon at an individual.
Under either scenario, Betancourt cannot establish a claim for negligence.

¶22            The record reflects that Officer Thompson was either justified
in using force (under the State’s version of events) or that he intentionally
or recklessly used a deadly weapon and caused Betancourt serious physical
injury, which would be a felony because Betancourt suffered temporary but
substantial disfigurement; a left orbital floor fracture, small sinus fractures,
and soft tissue injuries to parts of his face.

¶23           The superior court correctly found that if the trier of fact
believed Betancourt, then Officer Thompson was without legal justification
and, thus, committed aggravated assault, a felony. And, because no
evidence showed that Officer Thompson had a propensity for such action,
the City was immune as a matter of law. The court further found that no
evidence supported Betancourt’s claim that Officer Thompson could have
negligently discharged his weapon and that the trier of fact was not
permitted to speculate as to the existence of some other type of evidence
that would support that claim. We agree. Given this record and taking the
evidence as Betancourt posits, no genuine dispute as to any material fact
exists and the court did not err in granting summary judgment.2




2       The City argues that even if we do not affirm summary judgment on
the basis that Arizona Revised Statutes section 12-820.05(B) bars
Betancourt’s claims, we should affirm because Heck v. Humphrey, 512 U.S.
477 (1994), bars them. Because we find, as the superior court did, that the
City is immune from liability based on § 12-820.05(B), we need not address
this argument.



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                      BETANCOURT v. PHOENIX
                         Decision of the Court

                             CONCLUSION

¶24         For the foregoing reasons, we affirm the superior court’s grant
of summary judgment.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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