                    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       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


          JAMES MINOTTO, an individual, Plaintiff/Appellant,

                                       v.

   CHARLES VAN COTT, an individual, and JANE DOE MINOTTO,
    husband and wife; STEVENS & VAN COTT, PLLC, an Arizona
     professional limited liability company, Defendants/Appellees.

                            No. 1 CA-CV 15-0159
                             FILED 5-26-2016


          Appeal from the Superior Court in Maricopa County
                         No. CV2014-052152
              The Honorable John R. Hannah, Jr., Judge

   AFFIRMED IN PART, VACATED IN PART, AND REMANDED


                                  COUNSEL

Gillespie, Shields, Durrant & Goldfarb, Phoenix
By DeeAn Gillespie Strub
Counsel for Plaintiff/Appellant

Manning & Kass, Ellrod, Ramirez, Trester, LLP, Scottsdale
By Anthony S. Vitagliano, Robert B. Zelms,
Counsel for Defendants/Appellees
                         MINOTTO v. VAN COTT
                          Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which Chief
Judge Michael J. Brown and Judge Maurice Portley joined.


GEMMILL, Judge:

¶1           James Minotto (“Father”) appeals the superior court’s
judgment dismissing his claims against Charles Van Cott, Jane Doe Van
Cott,1 and Stevens & Van Cott, PLLC (collectively “Van Cott”). For the
following reasons, we affirm in part, vacate in part, and remand.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2           Van Cott represented Father’s former spouse (“Mother”)
during divorce proceedings between the parties. In the course of the
divorce proceedings, Father sought modification of the custody and
parenting time orders regarding the couple’s minor children, and the court
scheduled an evidentiary hearing.

¶3            The day before the hearing, Mother sent an email to Van Cott.
In the email’s “RE:” line, Mother prefaced the email with the title “dramatic
letter LOL” (the “LOL Email”). Attached to the LOL Email was a letter from
the girlfriend of Mother’s adult son, in which the girlfriend accused Father
of improper sexual conduct with children, including sexually abusing the
adult son during his childhood.

¶4            Based on these allegations, Van Cott filed, on Mother’s behalf,
a motion to continue the evidentiary hearing and requesting a limited scope
custody evaluation.2 The superior court granted the motion, continued the
evidentiary hearing, and appointed a physician to conduct a custody
evaluation.



1 The superior court caption mistakenly named Charles Van Cott’s spouse
as “Jane Doe Minotto.”

2 Arizona law requires the superior court to determine parenting time in
the best interests of the child, which includes considering whether there has
been child abuse. A.R.S. § 25-403(A)(8).


                                     2
                          MINOTTO v. VAN COTT
                           Decision of the Court

¶5            After the evaluation, polygraph testing of Father, and an
eventual trial, the superior court determined that Mother knew the
allegation of sexual abuse against Father was unequivocally untrue. In its
ruling, the court explained that Mother was “all too happy to perpetrate a
fraud on this Court.”

¶6              Based on the litigation resulting from the LOL Email, Father
filed a civil lawsuit against Mother, Van Cott, and others. In his complaint,
Father alleged the following as the basis of his claims against Van Cott:

       ¶ 25. Mother’s flippant description of her own allegation of
       sexual abuse against one of her children — conveniently
       made on the day before an evidentiary hearing on Father’s
       petition — should have alerted Defendant Van Cott that the
       allegation was bogus. Nonetheless, to deprive Father of his
       day in court – for which he had already waited nearly a year
       – Defendant Van Cott filed, on Mother’s behalf — a Motion
       [to] Continue & For Limited Scope Custody Evaluation based
       upon these false allegations.

       ...

       ¶ 32. Moreover, during this period, Defendant Van Cott
       engaged in numerous ex parte contacts with, Dr. Pecaut, the
       counselor of the minor children at issue in the Family Court
       Matter, in an apparent attempt to sway the counselor in a
       manner favorable to Mother.

Van Cott moved to dismiss Father’s complaint for failure to state a claim
pursuant to Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). The superior
court granted the motion and dismissed with prejudice all claims against
Van Cott.

¶7          Father timely appeals. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

                                DISCUSSION

¶8              Father argues the superior court erred by dismissing his
complaint against Van Cott for failure to state a claim. We review de novo
the dismissal of claims pursuant to Rule 12(b)(6). Orca Communications
Unlimited, LLC v. Noder, 236 Ariz. 180, 181, ¶ 6 (2014); Coleman v. City of Mesa,
230 Ariz. 352, 355, ¶ 7 (2012). We will uphold a court’s dismissal for failure
to state a claim only if, as a matter of law, the plaintiff “would not be entitled


                                        3
                           MINOTTO v. VAN COTT
                            Decision of the Court

to relief under any interpretation of the facts susceptible of proof.” Fid. Sec.
Life Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998); Orca, 236 Ariz.
at 181, ¶ 6.

¶9            When assessing the sufficiency of a complaint, Arizona courts
follow a notice-pleading standard. Coleman, 230 Ariz. at 356, ¶ 9. We will
“assume the truth of all well-pleaded factual allegations and indulge all
reasonable inferences from those facts.” Id.; Cullen v. Auto-Owners Ins. Co.,
218 Ariz. 417, 419, ¶ 7 (2008). We do not, however, “speculate about
hypothetical facts that might entitle the plaintiff to relief.” Cullen, 218 Ariz.
at 420, ¶ 14.

¶10            Father alleges four claims against Van Cott: abuse of process,
wrongful use of civil proceedings,3 intentional infliction of emotional
distress, and aiding and abetting tortious conduct. We address the superior
court’s dismissal of each claim in turn.

       A.      Abuse of Process

¶11             A claim for abuse of process requires a defendant (1)
undertake “a willful act in the use of judicial process,” (2) with “an ulterior
purpose not proper in the regular conduct of the proceedings,” and (3) the
plaintiff suffers harm as a result. Nienstedt v. Wetzel, 133 Ariz. 348, 353 (App.
1982); see also Crackel v. Allstate Ins. Co., 208 Ariz. 252, 264, ¶ 40 (App. 2004).
Abuse of process “encompasses the entire range of procedures incident to
the litigation process,” including filing motions for continuances. Nienstedt,
133 Ariz. at 352–53.

¶12           Father argues that Mother’s “flippant description” of the
sexual abuse allegations should have been sufficient to alert Van Cott that
the accusations were false. Father therefore asserts Van Cott’s filing a
motion to continue based on those allegations was motivated by a desire to
“deprive Father of his day in court.” Father also asserts Van Cott engaged
in ex parte contact with the minor children’s counselor in order to sway the
counselor in favor of Mother.

¶13           An abuse of process claim is appropriate when a party
misuses the legal process “for an end other than that which it was designed
to accomplish.” Nienstedt, 133 Ariz. at 353. But there is no liability for a
party who, “even though with bad intentions,” utilizes legal process in a

3 The parties refer to this tort as “wrongful institution or continuation of
civil proceedings.” In this decision we choose the title “wrongful use of
civil proceedings.” See Restatement (Second) of Torts § 674 (1977).


                                         4
                          MINOTTO v. VAN COTT
                           Decision of the Court

manner consistent with legitimate goals of litigation. Id.; see also Crackel, 208
Ariz. at 259, ¶ 19. A party is liable for abuse of process only when the
procedure becomes “so lacking in justification as to lose its legitimate
function as a reasonably justifiable litigation procedure.” See Nienstedt, 133
Ariz. at 354.

¶14            We agree that filing a motion to continue is a willful act in the
use of judicial process. See id. at 352–53. But even if we assume the motion
to continue caused Father harm through delay in trial and additional
expenses, a defendant’s knowledge and awareness that the use of the
judicial process will “necessarily subject the opposing party to additional
legal expenses” is insufficient to show ulterior motive. Id. at 354. The crux
of the abuse of process tort is that the ulterior purpose is the primary
motivation for the use of the judicial process. Crackel, 208 Ariz. at 259, ¶ 18.
Van Cott’s motion to continue can “logically be explained without reference
to the defendant’s improper motives.” Id. We therefore agree with the
superior court’s determination that Father did not sufficiently allege Van
Cott abused legal process for the primary purpose of depriving Father of
his rights.

¶15           Further, Father’s allegation regarding ex parte contact with
the counselor did not satisfy the “willful act” prong of an abuse of process
claim. See Nienstedt, 133 Ariz. at 353. It is entirely unclear from the face of
the complaint what role the counselor played in the judicial process and
what limitations, if any, there were on ex parte contact with the counselor.
In the absence of more definite allegations, contacting a counselor ex parte
is not a procedure incident to the litigation process such that an abuse of
process claim would arise therefrom, even if Van Cott’s ulterior purpose
was to sway the counselor in Mother’s favor. Moreover, Father has shown
no specific harm resulting from this alleged conduct. See id. Father did not
allege the superior court ruled against him on parenting time in the
dissolution proceedings because Mother’s ex parte contact influenced the
counselor’s input. Thus, we discern no error in the superior court’s
dismissal of Father’s abuse of process claim.

       B.     Wrongful Use of Civil Proceedings

¶16             The elements of a wrongful use of civil proceedings claim are
that the defendant (1) instituted or continued a civil action which was (2)
motivated by malice, (3) maintained without probable cause, (4) resolved
in plaintiff’s favor, and (5) damaged plaintiff. Bradshaw v. State Farm Mut.
Auto. Ins. Co., 157 Ariz. 411, 416–17 (1988); Wolfinger v. Cheche, 206 Ariz. 504,
508–09, ¶ 23 (App. 2003).


                                       5
                         MINOTTO v. VAN COTT
                          Decision of the Court

¶17           Unlike abuse of process, a wrongful use claim encompasses
not only the initiation of legal proceedings, but also the continuation
thereof. See Restatement (Second) of Torts § 674 (1977). Father’s complaint
alleges Van Cott continued to pursue a course of legal action based on the
LOL Email, even after it became clear that Mother’s allegations were
baseless. Because it points to the continuation of legal proceedings based
on Mother’s email, the complaint contains sufficient factual allegations to
support a claim that Van Cott lacked probable cause to continue the action
against Father. See Wolfinger, 206 Ariz. at 508–09, ¶ 23. Accordingly, it
sufficiently pleads a claim for wrongful use. The superior court erred by
dismissing Father’s claims against Van Cott.

      C.     Aiding and Abetting Tortious Conduct

¶18           Arizona recognizes the tort of aiding and abetting tortious
conduct as set forth in Restatement (Second) of Torts § 876(b) (1979). Wells
Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395
Pension Trust Fund, 201 Ariz. 474, 485, ¶ 31 (2002); Gomez v. Hensley, 145
Ariz. 176, 178 (App. 1984). The Restatement provides that a party may be
liable for “harm resulting to a third person from the tortious conduct of
another” if the third party “knows that the other’s conduct constitutes a
breach of duty and gives substantial assistance or encouragement to the
other so to conduct himself.” Restatement (Second) of Torts § 876(b) (1979).
Aiding and abetting therefore requires proof of scienter: “the defendants
must know that the conduct they are aiding and abetting is a tort.” Wells
Fargo, 201 Ariz. at 485, ¶ 33 (quoting Witzman v. Lehrman, Lehrman & Flom,
601 N.W.2d 179, 186 (Minn. 1999)). Although this court may infer
knowledge from the circumstances alleged, “an inference of knowledge
will not be made lightly.” See Federico v. Maric, 224 Ariz. 34, 36, ¶ 9 (App.
2010).

¶19            In the complaint, Father did not affirmatively plead that Van
Cott knew Mother’s allegations were false, but only that Father should have
known Mother’s email was “bogus.” On appeal, Father continues to argue
only that Van Cott should have known that Mother’s email regarding
Father’s alleged behavior was false. Accordingly, we agree with the
superior court that Father has not alleged a level of knowledge sufficient to
satisfy the elements of aiding and abetting tortious conduct. We discern no
error in the superior court’s dismissal of Father’s claim.




                                     6
                         MINOTTO v. VAN COTT
                          Decision of the Court

       D.     Intentional Infliction of Emotional Distress

¶20            The elements of a claim for intentional infliction of emotional
distress are (1) the defendant’s conduct must be “‘extreme’ and
‘outrageous,’” (2) the defendant must have either intended “to cause
emotional distress or [have] recklessly disregard[ed] the near certainty that
such distress [would] result from his conduct,” and (3) “severe emotional
distress must indeed occur as a result of defendant’s conduct.” Ford v.
Revlon, Inc., 153 Ariz. 38, 43 (1987).

¶21           The superior court determines whether the pleaded acts are
“sufficiently outrageous to state a claim for relief.” Johnson v. McDonald,
197 Ariz. 155, 160, ¶ 23 (App. 1999). Recovery for this claim requires 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.” Id. (quoting
Cluff v. Farmers Ins. Exchange, 10 Ariz. App. 560, 562 (1969)).

¶22            Father claims the sexual abuse allegation was objectively false
and thus Van Cott’s conduct in filing the motion to continue based on the
false allegations was outrageous. But we agree with Van Cott that in order
for Father’s conduct here to be classified as extreme or outrageous, Father
must have had actual knowledge that Mother’s email was false. And as
explained above, the complaint’s allegations do not give rise to allegations
of actual knowledge. See supra ¶ 19. Father similarly failed to allege facts
supporting a conclusion that any ex parte contact with the counselor was
extreme and outrageous. Thus, we discern no error in the superior court
dismissing Father’s intentional infliction of emotional distress claim against
Van Cott.

II.    Leave to Amend Complaint

¶23            Father also argues, for the first time on appeal, that the
superior court erred by not sua sponte granting leave to amend the
complaint pursuant to Arizona Rule of Civil Procedure 15(a). Father argues
that the 2007 amendments to Rule 15(a) were intended to bring the rule in
conformity with the local federal rule. Accordingly, he asks that we
interpret Rule 15(a) to mean – as the Ninth Circuit Court of Appeals has
held – that a court abuses its discretion when it dismisses a complaint under
Rule 12(b)(6) without automatically granting leave to amend.

¶24            Generally, we “do not consider arguments . . . raised for the
first time on appeal.” K.B. v. State Farm Fire and Cas. Co., 189 Ariz. 263, 268
(App. 1997). But even if we were to consider Father’s arguments, we


                                      7
                         MINOTTO v. VAN COTT
                          Decision of the Court

decline to read Rule 15(a) as requiring a superior court to sua sponte grant
leave to amend. Although the rule requires that “[l]eave to amend shall be
freely given when justice requires,” nothing in the rule gives a party an
automatic right to amend a pleading. To the contrary, long-standing
Arizona case law explains the right to amend a pleading is not automatic.
See Matter of Torstenson’s Estate, 125 Ariz. 373, 376 (App. 1980); Blumenthal
v. Teets, 155 Ariz. 123, 131 (App. 1987) (finding it was not error for a trial
court to fail to allow the plaintiff leave to amend the complaint when the
plaintiff made no motion for leave to amend). Father did not move for leave
to amend his complaint, and the superior court did not err by not sua sponte
granting Father leave to amend.

                              CONCLUSION

¶25           We affirm the court’s dismissal of Father’s claims for abuse of
process, intentional infliction of emotional distress, and aiding and abetting
tortious conduct. We vacate the superior court’s dismissal of Father’s claim
for wrongful use of civil proceedings and remand for further proceedings.




                                 :ama




                                        8
