                                    IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                   ANDREA FAPPANI, a married man,
                         Plaintiff/Appellant,

                                      v.

   JUSTIN BRATTON and COURTNEY BRATTON, husband and wife,
                      Defendants/Appellees.

                           No. 1 CA-CV 15-0527
                             FILED 11-16-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2015-003749
                 The Honorable James T. Blomo, Judge

                                   AFFIRMED


                                   COUNSEL

Tiffany & Bosco, P.A., Phoenix
By William M. Fischbach, Timothy C. Bode
Counsel for Plaintiff/Appellant

Quinn Law, PLLC, Phoenix
By Ian D. Quinn
Counsel for Defendants/Appellees



                                   OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.
                          FAPPANI v. BRATTON
                           Opinion of the Court

B R O W N, Judge:

¶1            In this dispute between neighboring property owners,
Andrea Fappani appeals the superior court's dismissal of his claim against
Courtney Bratton for abuse of process arising out of Bratton's complaints to
law enforcement about excessive noise on Fappani's property.1 Because
Fappani failed to allege facts showing that Bratton used or misused a judicial
process for an improper purpose, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The following facts are taken from Fappani's amended
complaint, which alleged that he purchased 20 acres of undeveloped land
adjacent to Bratton's property in Rio Verde, an unincorporated area of
Maricopa County. Fappani, a "world-renowned horse trainer," acquired
the property intending to build a home for his family, complemented by
private recreational facilities. About one year later, Fappani built a private
dirt motorbike track for use by his two children, ages seven and nine.
Bratton developed an "intense dislike" for the "unsightly" track, in part
because she believed it disturbed the desert landscape and devalued her
property.

¶3           According to Fappani, Bratton has a "long history of hostility
and animosity" toward him and his family, evidenced in part by her
profanity and "obscene hand gestures" directed at the Fappanis, including
the children. Bratton shared links with neighbors to internet posts that
accused Fappani of being a "tax cheat," and encouraged a boycott of his
horse-training business.     Bratton also unsuccessfully pursued an
administrative claim with the Maricopa County Planning and
Development Department, asserting that Fappani's track violated the
county's zoning code. In doing so, she incorrectly asserted that Fappani's
property was zoned residential, when in fact it has a rural-zoning
designation. She also falsely asserted that Fappani intended the track for
commercial use.

¶4           Bratton contacted the Maricopa County Sheriff at least eight
times, complaining that noise from the motorbikes on Fappani's track
violated Maricopa County Noise Ordinance P-23, and she encouraged her


1      Courtney is the relevant actor in these proceedings. Her husband,
Justin, was also named as a defendant based on the allegation that her
actions were conducted on behalf of the marital community.



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                          FAPPANI v. BRATTON
                           Opinion of the Court

neighbors to make similar complaints.2 Sheriff's deputies initially declined
to cite Fappani, but ultimately issued two citations to him on different
occasions for violating the noise ordinance, using an Arizona Traffic Ticket
and Complaint form in each instance. Bratton was given a form advising
her of her right, as a crime victim, to receive additional information about
the case.

¶5            Bratton subsequently "demanded" that the Maricopa County
Attorney prosecute the alleged noise violations, and the assigned
prosecutor "acquiesced to Bratton's demands." The citations were
consolidated and heard at a bench trial in justice court. Fappani was found
not guilty on both citations.

¶6             The day the justice court rendered its judgment, Fappani filed
this action in superior court, alleging Bratton committed the intentional tort
of abuse of process by causing the sheriff to issue the noise citations and the
county attorney to prosecute them. Fappani further alleged that Bratton's
actions were motivated primarily by her desire to force the removal of the
track because she disliked it and believed it diminished the value of her
property. Thus, according to Fappani, Bratton "misused and perverted" the
criminal justice system, causing him extreme emotional distress. Fappani
also asserted that Bratton's conduct was "motivated almost entirely by spite
and ill will" and was carried out "willfully, maliciously, and with an evil
mind," justifying imposition of punitive damages.

¶7            Bratton sought dismissal under Arizona Rule of Civil
Procedure 12(b)(6), arguing that the amended complaint included no
allegation that in making noise complaints against Fappani, she "used any
instrumentality of the litigation process, improperly or otherwise, against
him." The superior court granted the motion, denied Fappani's motion for
new trial, and this timely appeal followed.




2       As stated in the record before us, Ordinance P-23 makes it unlawful
for a person to allow or cause noise that "disturbs the peace or quiet of any
neighborhood if such noise can be heard from within closed residential
structures located within 500 feet of the boundary of the property from
which such noise emanates." A person convicted of violating the ordinance
is "guilty of a misdemeanor," and may be subjected to a fine not to exceed
$300 for the first offense, $500 for the second offense, and $750 for any
subsequent offenses.


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                           FAPPANI v. BRATTON
                            Opinion of the Court

                               DISCUSSION

¶8            We review de novo the court's dismissal of a complaint under
Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012).
Dismissal is appropriate under this rule only where the plaintiff, as a matter
of law, would not be entitled to relief under any interpretation of the facts
susceptible of proof. Id. at 356, ¶ 8. "We assume the truth of all well-
pleaded factual allegations and indulge all reasonable inferences from those
facts, but mere conclusory statements are insufficient." Id. at ¶ 9. Further,
we will affirm the court's order dismissing a complaint if it is correct for any
reason. See Chandler Med. Bldg. Partners v. Chandler Dental Grp., 175 Ariz.
273, 278 (App. 1993).

¶9            The law is well-established that "[o]ne who uses a legal
process, whether criminal or civil, against another primarily to accomplish
a purpose for which it is not designed, is subject to liability to the other for
harm caused by the abuse of process." Nienstedt v. Wetzel, 133 Ariz. 348, 353
(App. 1982) (quoting Restatement (Second) of Torts § 682 (1977)
("Restatement")). The specific elements of abuse of process are: "(1) a willful
act in the use of judicial process; (2) for an ulterior purpose not proper in
the regular conduct of the proceedings." Nienstedt, 133 Ariz. at 353. We
therefore address, initially, whether Bratton used a judicial process by
complaining to the sheriff about excessive noise, causing issuance of the
citations, or demanding prosecution of the alleged noise ordinance
violations.

A.     Use of Judicial Process

¶10              Abuse of process has been described by this court as "an act
done under the authority of the court for the purpose of perpetrating an
injustice, i.e., a perversion of the judicial process to the accomplishment of
an improper purpose." Rondelli v. Pima County, 120 Ariz. 483, 489 (App.
1978) (citation omitted). Thus, a valid claim for abuse of process requires
well-pleaded facts alleging that the defendant used a judicial process during
civil litigation or criminal prosecution. See Crackel v. Allstate Ins. Co., 208
Ariz. 252, 257, ¶ 14 (App. 2004) ("[A] plaintiff must prove that one or more
specific judicially sanctioned processes have been abused to establish an
abuse-of-process claim."); see also 3 Dan B. Dobbs et al., The Law of Torts
§ 594 (2d ed. 2011) (noting that "process" includes a summons, subpoena,
garnishment, writ of replevin, arrest warrant, or "other orders directly
affecting obligations of persons or rights in property").




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                           FAPPANI v. BRATTON
                            Opinion of the Court

¶11            Fappani did not allege that Bratton engaged in any specific
court process or procedure, or that she otherwise acted with "authority of
the court." Instead, he alleged that Bratton caused the sheriff to issue the
noise citations and demanded that the county attorney prosecute the
alleged noise ordinance violations. The complaint alleged that Bratton
complained numerous times to the sheriff, resulting in the issuance of two
citations relating to separate incidents. Each of the citations, however,
included the following acknowledgment signed by a deputy sheriff: "I
certify upon reasonable grounds, I believe the person named above
committed the acts described and I have served a copy of this complaint
upon the defendant." Thus, the deputies themselves, not Bratton, exercised
their discretion and authority in issuing the citations.

¶12             Fappani directs us to Ledvina v. Cerasani, 213 Ariz. 569 (App.
2006), in support of his argument that Bratton's complaints to a law
enforcement officer implicated judicial process. In that case, this court held
that a person making a false report to a police officer was absolutely
immune from a defamation claim. Ledvina, 213 Ariz. at 574, ¶¶ 14-15. In
analyzing the scope of the immunity afforded to those who make
statements to police, the Ledvina court noted that several jurisdictions and
commentators consider "a complaint to police" as being "the first step in a
judicial proceeding," leading the court to conclude that pre-prosecution
statements made to police are entitled to absolute immunity from
defamation. Id. at 573-74, ¶¶ 11, 14. Although pre-prosecution statements
to law enforcement are protected by the immunity that applies to
statements made during a judicial proceeding, that does not mean pre-
prosecution statements constitute judicial process for purposes of an abuse
of process claim. Stated differently, contacting law enforcement to
complain about a neighbor's conduct is not use of a judicial process. It may
be the first step to initiate a judicial proceeding for purposes of defamation
law, but for abuse of process, a plaintiff must show that a defendant used
an instrument of court process, and that did not happen here.

¶13             Nor are we persuaded by the Ledvina court's observation that
someone immune from defamation for falsely reporting a crime still might
face liability for abuse of process. See id. at 575, ¶ 15. That statement, clearly
dicta, is not supported by any authority holding that merely reporting a
crime constitutes use of a judicial process as required for an abuse of process
claim. Moreover, as recognized in Ledvina, the purpose of granting
immunity to complainants in defamation actions is to avoid chilling
complaints to law enforcement—a rationale equally applicable here. See id.
at 573, ¶ 12 ("The mere possibility of retaliatory defamation claims would
also tend to discourage free and unfettered reporting to law enforcement


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                           FAPPANI v. BRATTON
                            Opinion of the Court

authorities to assist the detection and prosecution of criminal activity."); see
also Ariz. Const. art. II, § 2.1(A)(1) (providing that victims of all crimes are
to "be free from intimidation, harassment, or abuse, throughout the criminal
justice process").

¶14             Analysis of the Iowa Supreme Court's decision in Fuller v.
Local Union No. 106 of the United Bhd. of Carpenters & Joiners of Am., 567
N.W.2d 419 (Iowa 1997), is instructive. In that case, two carpentry union
members, Fuller and Schafer, were competing for the position of union
business agent. Id. at 421. Following a social event where Fuller was seen
drinking a beer, Schafer called the police to report that Fuller was driving
while intoxicated. Id. Police stopped Fuller, but then released him after
determining he was not impaired. Id. Among other claims, Fuller sued
Schafer for abuse of process, but the trial court dismissed the claim, finding
Schafer's call to police was not a "use of process." Id. at 421-22. The supreme
court affirmed, concluding that "the mere report to police of possible
criminal activity does not constitute legal process." Id. at 422. The court
reasoned: "One might criticize selfish or improper motives prompting a
false or reckless report. Extreme cases can be imagined in which such a
report might become actionable on another basis. But a report to the police
is not sufficient to constitute 'legal process' required for an abuse-of-process
claim."3 Id. We likewise hold that reporting an alleged crime to law


3       Some jurisdictions recognize private criminal complaints, in which a
complainant initiates a criminal proceeding by alleging under oath that a
criminal offense has been committed. See, e.g., Harmon v. Carco Carriage
Corp., 895 S.W.2d 938, 939 (Ark. 1995) (noting that an auto lessor "completed
an affidavit" for an arrest warrant, from which a judge found probable
cause for arrest); Garcia v. Whitaker, 400 S.W.3d 270, 275 (Ky. 2013)
(recognizing procedure where "the complainant files a criminal complaint
and swears to the facts alleged, after which the prosecuting attorney and
judge make a determination as to whether probable cause exists"); Wozniak
v. Pennella, 862 A.2d 539, 542 (N.J. Super. Ct. App. Div. 2004) (noting that a
landlord "filed a criminal complaint" against a tenant).              In such
circumstances, the private complaint initiates the court proceeding and
thus may implicate judicial process. Unlike those situations, Fappani did
not allege that Bratton herself filed any court document. Instead, after
receiving Bratton's complaints, the sheriff's deputies signed and issued the
citations to Fappani; from that point, it was within the county attorney's
discretion to decide whether the charges would be prosecuted.




                                       6
                          FAPPANI v. BRATTON
                           Opinion of the Court

enforcement does not constitute judicial process for purposes of
establishing an abuse of process claim.

¶15           Nor do we find persuasive Fappani's broad assertion, without
citation to authority, that a victim's demands to a prosecutor implicate
judicial process.4 A prosecutor has discretion to prosecute such cases as he
or she deems appropriate; thus, whether a case is prosecuted is not
controlled by the victim or anyone else. See State v. Murphy, 113 Ariz. 416,
418 (1976) (recognizing that the "duty and discretion to conduct
prosecutions for public offenses rests with the county attorney"); see also
Arizona Revised Statutes section 11-532(A) (duties of county attorney); cf.
McCleaf v. State, 190 Ariz. 167, 170, 172 (App. 1997) (finding that judge's
decision not to issue arrest warrant for probationer accused of violating
probation effectually superseded the probation officer's recommendation
to do so). Here, at most, Fappani alleged that Bratton demanded he be
prosecuted for the noise ordinance violations. Demanding that the county
attorney prosecute a criminal violation of law, without more, does not
implicate judicial process. Cf. Crackel, 208 Ariz. at 258, ¶ 15 (noting that an
abuse of process claim "must be based on something more than the
opposing party's mere persistence in the litigation").

B.     Improper Purpose

¶16          Even assuming Bratton used one or more judicial processes
by repeatedly contacting the sheriff's office with noise complaints or
demanding that the county attorney prosecute the citations, Fappani's
amended complaint failed to properly allege the second element of abuse
of process—a willful act carried out for an ulterior purpose that was not
proper in the regular conduct of the proceedings. "[T]he gist of the tort is
the misuse of process, justified in itself, for an end other than that which it
was designed to accomplish." Nienstedt, 133 Ariz. at 353; see also
Restatement § 682 cmt. b ("For abuse of process to occur there must be use
of the process for an immediate purpose other than that for which it was
designed and intended."). Abuse of process exists only when the use of

4      The complaint's allegation that Bratton "caused" or "demanded" the
county attorney to prosecute Fappani is not based on well-pleaded facts.
See Coleman, 230 Ariz. at 356, ¶ 9 (explaining that "conclusory statements
are insufficient"). Fappani's complaint does not allege what Bratton did or
said, when it was done, or to whom or how she communicated.
Nonetheless, for purposes of our analysis, we presume that Bratton
contacted the county attorney's office and "demanded" that it prosecute the
noise violations.


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                           FAPPANI v. BRATTON
                            Opinion of the Court

judicial process "for which it was designed becomes so lacking in
justification as to lose its legitimate function as a reasonably justifiable
litigation procedure." Nienstedt, 133 Ariz. at 354.

¶17            The requisite improper purpose may be found when, for
example, one uses the litigation process as a "form of coercion to obtain a
collateral advantage, not properly involved in the proceeding itself, such as
the surrender of property or the payment of money, by the use of the
process as a threat or a club. There is, in other words, a form of extortion
. . . ." Morn v. City of Phoenix, 152 Ariz. 164, 168 (App. 1986); cf. Nienstedt,
133 Ariz. at 354 (citing cases finding liability for abuse of process based,
respectively, on repeated use of subpoena processes to exhaust opponent's
resources, use of witness subpoena power to compel testimony by many
teachers in order to impose financial hardship on the school district, and
assigning collection claims to a distant part of the state to purposely require
debtors to attend a distant court).

¶18           Fappani alleged that Bratton complained to the sheriff about
noise from the track and demanded the county attorney prosecute the
resulting citations because she did not like the track's noise, thought the
track devalued her property, and wanted to force Fappani to move out of
the area and/or remove the dirt track. Based on these allegations, Fappani
alleged that Bratton "misused and perverted the criminal justice system to
obtain an unjustifiable collateral advantage and/or form of extortion
calculated to serve Bratton's own personal and pecuniary interests and to
cause Fappani to incur excessive litigation expenses defending" the two
citations. Although Fappani alleged generally that Bratton sought to obtain
a collateral advantage and used a form of extortion, he cites no authority
suggesting it would be improper for a property owner to want to preserve
his or her property value by trying to prevent unlawful practices on
adjacent property. Nor do mere unsupported references to "extortion" or
"collateral advantage" salvage the claim. Fappani failed to allege acts
constituting coercion or extortion, in any form, and whatever expenses
Fappani incurred in defending the noise prosecution were not rendered
excessive by anything Bratton did in causing the prosecution to occur.

¶19           Our review of pertinent authorities supports the conclusion
that, even assuming Fappani properly pleaded that Bratton used a "judicial
process," he did not properly allege that Bratton used the court system for
a purpose other than that for which it is designed, or that she did more than
seek to "carry out the process to its authorized conclusion," even if she was
motivated by spite, ill will, and malicious intentions. See Morn, 152 Ariz. at
168 ("[E]ven a pure spite motive is not sufficient where process is used only


                                       8
                           FAPPANI v. BRATTON
                            Opinion of the Court

to accomplish the result for which it was created.") (citation omitted);
Restatement § 682 cmt. b ("[T]he entirely justified prosecution of another on
a criminal charge, does not become abuse of process merely because the
instigator dislikes the accused and enjoys doing him harm."); cf. Nienstedt,
133 Ariz. at 354 (affirming judgment for abuse of process based on
appellant's use of legal process in various ways that were not tied to
legitimate purposes of advancing interests in the ongoing litigation and
were intended to subject the opposing party to excessive expenses); Donahoe
v. Arpaio, 869 F. Supp. 2d 1020, 1060-61 (D. Ariz. 2012) (finding that plaintiff,
a superior court judge, stated a valid claim for abuse of process based on
defendants having served plaintiff with a federal RICO suit by hiring a
process server "whom they knew or should have known had been
previously prosecuted for threatening to kill" the plaintiff, and noting that
"this is quintessentially the type of allegation that supports a claim for abuse
of process").

¶20            As alleged, Bratton sought enforcement of the county's noise
ordinance and wanted the court to find Fappani guilty of the alleged
violations because she disliked the track's noise and thought it devalued
her property. Arizona's judicial system, particularly in municipal and
justice courts, is designed to resolve the types of misdemeanor violations
that Bratton reported, and she did no more than use the system for this
purpose. Therefore, assuming the truth of Fappani's well-pleaded
allegations against Bratton, we conclude he has failed to state a claim upon
which relief could be granted.

                               CONCLUSION

¶21           For the foregoing reasons, we affirm the superior court's
dismissal of Fappani's claim for abuse of process.




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




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