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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                GLENN M. LOCKERBY, Plaintiff/Appellant,

                                        v.

                PIMA COUNTY, et al., Defendants/Appellees.

                             No. 1 CA-CV 15-0277
                              FILED 03-24-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-090967
              The Honorable Mark Aceto, Judge (Retired)

                                  AFFIRMED


                               APPEARANCES

Glenn M. Lockerby, Tucson
Plaintiff/Appellant

Pima County Attorney’s Office, Tucson
By Dennis C. Bastron
Counsel for Defendants/Appellees



                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined.
                   LOCKERBY v. PIMA COUNTY, et al.
                        Decision of the Court

G E M M I L L, Judge:

¶1            Glenn Lockerby appeals the Maricopa County Superior
Court’s judgment dismissing tort claims against multiple defendants and
awarding Lockerby reimbursement of overbilled taxes for tax year 2014.
For the following reasons, we affirm.

                              BACKGROUND

¶2             Lockerby owns a single-family residence located in Pima
County (“the Property”). In October 2013, Lockerby filed suit against Pima
County, Pima County Assessor Bill Staples, Pima County Chief Deputy
Assessor Lon Berg, and two fictitious defendants (collectively “the
County”). Lockerby alleged that between 2008 and 2014, the County
intentionally overvalued the Property in its annual tax assessments.
Lockerby asserts the assessments reflected additions to the Property that
never actually existed, including a covered porch and other amenities. In
his complaint, Lockerby alleged that by over-valuing the property for
several years, the County committed several torts and caused Lockerby
“ongoing emotional and financial injury.” Lockerby sought “permanent
injunctive relief” against the County, as well as damages exceeding $80,000.

¶3             The County filed a motion to dismiss Lockerby’s complaint
under Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). The County
argued that to the extent Lockerby’s complaint asserted tort claims, he
failed to state any viable claim for relief. The superior court agreed and
explained that it was “unclear what claims [Lockerby] intend[ed] to assert
through his Complaint.” The court granted the motion to dismiss
Lockerby’s tort-related claims for failure to state a claim, but did not dismiss
the remaining non-tort claims.

¶4           At a bench trial, the court considered the evidence and
arguments presented to determine whether Lockerby had established a
viable claim under “any potentially applicable theory.” Ultimately, the
superior court construed Lockerby’s complaint as a tax assessment appeal
under Arizona Revised Statutes (“A.R.S.”) section 42-16201 and held that
the County’s valuation of the Property was in fact excessive. Based on the
evidence presented, the court determined the true value of the property to
be $81,357 and held that Lockerby was entitled to $111.19 in overbilled taxes




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                   LOCKERBY v. PIMA COUNTY, et al.
                        Decision of the Court

for tax year 2014.1 The court dismissed any remaining claims in Lockerby’s
complaint. Lockerby timely appeals, and this court has jurisdiction under
A.R.S. § 12-2101(A)(1).

I.     Dismissal of Lockerby’s Tort Claims and Construing of His
       Complaint as a Tax Appeal

¶5             The superior court found Lockerby’s complaint attempted to
assert four tort claims: (1) tortious interference with a business expectancy,
(2) gross negligence, (3) intentional infliction of emotional distress, and (4)
negligent infliction of emotional distress. Lockerby argues the trial court
incorrectly dismissed these tort claims and that he is entitled to financial
and injunctive relief. Lockerby also argues the trial court incorrectly treated
his complaint as a tax appeal. We review de novo the superior court’s order
granting a motion to dismiss under Rule 12(b)(6). Coleman v. City of Mesa,
230 Ariz. 352, 355–56, ¶ 7 (2012).

¶6             Dismissal under Rule 12(b)(6) is proper if there is no
reasonable interpretation of the facts under which the plaintiff would be
entitled to relief. Id. at 356, ¶ 8. In evaluating the sufficiency of the
complaint under Rule 12(b)(6), the court assumes the truth of the well-pled
facts, Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008), but not
mere conclusory assertions or legal opinions, Belen Loan Investors, LLC v.
Bradley, 231 Ariz. 448, 455, ¶ 18 (App. 2012).

       A.     Tortious Interference with a Business Expectancy

¶7             Lockerby argued that the County’s over-valuation of the
Property tortiously interfered with his right to “peaceful use” of his home.
The court construed this argument as a claim for tortious interference with
a business expectancy. A plaintiff asserting this claim must allege that a
valid business expectancy existed, that the interferer had knowledge of this
expectancy and intentionally caused its termination, and that damage
resulted. Dube v. Likins, 216 Ariz. 406, 412, ¶ 14 (App. 2007). Here,
Lockerby’s complaint fails to allege that a valid business expectancy
existed. Although he claims that the over-valuation made it difficult to sell
the Property, he did not assert that he had a valid expectancy in such a sale.
See id. (explaining that a business expectancy must be “more than a mere

1 Lockerby had already over-paid his 2014 property taxes by $55.60. The
court ordered that this amount be reimbursed to Lockerby and further that
the bill for his second installment of property taxes be reduced by $55.59.



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                   LOCKERBY v. PIMA COUNTY, et al.
                        Decision of the Court

‘hope’” (internal citation omitted)). The court’s dismissal of this claim was
therefore proper.

       B.     Gross Negligence

¶8            Lockerby also argued the County’s actions rose to the level of
“gross negligence” and caused him emotional and financial injury. A
defendant is grossly negligent when he acts in a way that “not only creates
an unreasonable risk of bodily harm to others but also involves a high
probability that substantial harm will result.” Walls v. Ariz. Dep’t of Pub.
Safety, 170 Ariz. 591, 595 (App. 1991). Here, Lockerby has not alleged facts
sufficient to find a “high probability” of an “unreasonable risk” of
“substantial harm.” In addition, a claim for gross negligence requires
allegations that a defendant’s conduct was “flagrant and evince[d] a lawless
and destructive spirit.” Kemp v. Pinal County, 13 Ariz. App. 121, 124 (1970)
(quoting Scott v. Scott, 75 Ariz. 116 (1953)). We agree with the superior court
that Lockerby’s complaint did not allege facts that rose to the level of gross
negligence on the part of the County. Therefore, this claim was properly
dismissed.

       C.     Negligent Infliction of Emotional Distress

¶9             Similarly, the superior court correctly dismissed any claim for
negligent infliction of emotional distress. That tort requires that the
plaintiff, having been in the “zone of danger” himself or having witnessed
a loved one sustain injury or death, experience actual physical injury or
bodily harm as a result of an unreasonable risk of harm created by the
defendant. Keck v. Jackson, 122 Ariz. 114, 116 (1979); Rodriguez v. Fox News
Network, LLC, 238 Ariz. 36, 39, ¶ 7 (App. 2015). A mere allegation of
emotional injury is insufficient; the plaintiff must also allege that, because
of the emotional injury, he or she suffered physical harm. Gau v. Smitty’s
Super Valu, Inc., 183 Ariz. 107, 109 (App. 1995). Lockerby did not allege that
he has experienced any physical injury, was in a zone of danger, or
witnessed injury to a loved one. Therefore, the court properly dismissed
this claim as well.

       D.     Intentional Infliction of Emotional Distress

¶10            Lockerby also argues that the County, “by gross, willful
indifference,” inflicted emotional stress upon him. The tort of intentional
infliction of emotional distress requires extreme and outrageous conduct by
the defendant, with the intent of causing emotional harm, and the actual
manifestation of severe emotional distress. Ford v. Revlon, Inc., 153 Ariz. 38,


                                      4
                   LOCKERBY v. PIMA COUNTY, et al.
                        Decision of the Court

43 (1987). Extreme and outrageous conduct is conduct that exceeds the
bounds of social decency or expectation. Rowland v. Union Hills Country
Club, 157 Ariz. 301, 304 (App. 1988). Here, although Lockerby’s claims
allege that the County engaged in wrongful conduct, he does not plead facts
sufficient to show that the County’s actions were outrageous or extreme.
Furthermore, Lockerby does not allege that he has experienced any actual
manifestation of severe emotional distress. See Ford, 153 Ariz. at 43.
Therefore, the court properly dismissed any claims for intentional infliction
of emotional distress.

       E.     Treatment of Lockerby’s Case as a Tax Appeal

¶11           Although it found that Lockerby did not plead any legally
sufficient claims for relief under tort law, the superior court allowed
Lockerby to seek relief under Arizona’s tax statutes. Rather than dismissing
his claims in their entirety, the superior court construed Lockerby’s
arguments as a tax appeal under A.R.S. § 42-16201, which allows a
“property owner who is dissatisfied with the valuation or classification of
[his property] as determined by the county assessor” to seek legal
intervention. We review de novo the superior court’s ruling regarding
whether a complaint adequately stated a claim for relief under Rule
12(b)(6). See Coleman, 230 Ariz. at 355–56, ¶ 7.

¶12           The court’s treatment of Lockerby’s complaint was proper.
The court ruled in favor of Lockerby on his tax appeal, then dismissed any
other claims to the extent that Lockerby attempted to plead them. By so
interpreting Lockerby’s complaint, the court followed the admonition in
our Rules and case law to construe pleadings to achieve “substantial
justice.” See Ariz. R. Civ. P. 8(f); see also Hammontree v. Kentworthy, 1 Ariz.
App. 472, 481 (1965) (“Pleadings should be construed so as to do substantial
justice.”). We therefore affirm the superior court’s grant of the County’s
motion to dismiss and discern no error its subsequent treatment of
Lockerby’s claims.2




2 Because we hold that the superior court properly dismissed Lockerby’s
tort claims and any claims remaining after the decision on his tax appeal,
we also reject Lockerby’s argument that the court should not have
dismissed his claims against Bill Staples.

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                   LOCKERBY v. PIMA COUNTY, et al.
                        Decision of the Court

II.    Dismissal of Claims against Lon Berg

¶13          Lockerby also contends the superior court improperly
dismissed his claims against Pima County official Lon Berg. Berg was
dismissed from the suit after the superior court granted summary judgment
in his favor. We review de novo a superior court’s grant of summary
judgment. Wickham v. Hopkins, 226 Ariz. 468, 470, ¶ 7 (App. 2011).

¶14            The superior court held Lockerby had not satisfied the notice
of claim requirements under A.R.S. § 12-821.01(A) for an action against a
public official:

       Persons who have claims against a public entity, public school
       or a public employee shall file claims with the person or
       persons authorized to accept service for the public entity,
       public school or public employee as set forth in the Arizona
       rules of civil procedure within one hundred eighty days after
       the cause of action accrues. The claim shall contain facts
       sufficient to permit the public entity, public school or public
       employee to understand the basis on which liability is
       claimed. The claim shall also contain a specific amount for
       which the claim can be settled and the facts supporting that
       amount. Any claim that is not filed within one hundred eighty
       days after the cause of action accrues is barred and no action
       may be maintained thereon.

Berg’s affidavit in support of the County’s motion for summary judgment
stated that Lockerby never served him with a notice of claim. See Johnson v.
Superior Court in & for Pima Cty., 158 Ariz. 507, 509 (App. 1988) (explaining
that an earlier, similar version of A.R.S. § 12-821.01(A) required “that notice
be given to the public employee, as well as the public entity,” in order to
hold the public employee liable for his or her conduct). Lockerby presented
no evidence to the contrary. Accordingly, the superior court did not err as
a matter of law by dismissing Lockerby’s claims against Berg.

III.   Effective Date of Overpayment Reimbursement

¶15           Lockerby also argues that the court erred by not awarding
him reimbursement for taxes he claims he overpaid from 2009 to 2013.
Because this issue involves a question of statutory interpretation, our
appellate review is de novo. See Vincent v. Nelson, 238 Ariz. 150, 153, ¶ 8
(App. 2015); City of Phoenix v. Harnish, 214 Ariz. 158, 161, ¶ 6 (App. 2006).



                                      6
                   LOCKERBY v. PIMA COUNTY, et al.
                        Decision of the Court


¶16            As explained above, the superior court properly treated
Lockerby’s complaint as a tax appeal under A.R.S. § 42-16201. In relevant
part, that statute provides:

       A property owner who is dissatisfied with the valuation or
       classification of the property as determined by the county
       assessor may appeal directly to the court as provided by this
       article on or before December 15 regardless of whether the
       person has exhausted the administrative remedies under this
       chapter[.]

A.R.S. § 42-16201(A).

¶17           Lockerby’s complaint was filed on October 7 of the valuation
year 2013. See Forum Dev., L.C. v. Ariz. Dep’t of Revenue, 192 Ariz. 90, 94
(App. 1997) (explaining that under the post-1996 tax rules, an appeal of a
property valuation must be filed by December 15 of the year in which the
valuation is determined). Accordingly, the complaint constituted a timely
appeal of the Property’s assessment for the tax year 2014 (which is based on
the assessment from valuation year 2013). See id. But contrary to
Lockerby’s argument, it was not a timely appeal as to the property
assessments for any other valuation year, because it was not filed by
December 15 of the corresponding valuation years. The court’s judgment
awarding reimbursement for only the 2014 tax year was not error.

IV.    Lockerby’s Application for Costs

¶18            Finally, Lockerby contests the superior court’s calculation of
costs. Lockerby contends the trial court improperly failed to reimburse him
for all the costs he incurred during the course of the lawsuit. We review de
novo the superior court’s determination of whether a particular expense
qualifies as a taxable cost. Schritter v. State Farm Mut. Auto. Ins. Co., 201
Ariz. 391, 392, ¶ 5 (2001). We review for an abuse of discretion the superior
court’s factual determinations underpinning the amount of costs awarded.
See Ahwatukee Custom Estates Mgmt. Ass’n., Inc. v. Bach, 193 Ariz. 401, 404, ¶
16 (1999).

¶19            In his application for costs before the superior court, Lockerby
identified a total of $56,553.99 in expenses incurred during the duration of
this suit. The superior court ultimately awarded Lockerby $369 in costs,
representing the cost of filing his October 2013 complaint and the cost of



                                      7
                   LOCKERBY v. PIMA COUNTY, et al.
                        Decision of the Court

paying a private process server.3 Having examined Lockerby’s application
for costs, we discern no error in the court’s award. A successful party in a
civil action is entitled to recover all “costs expended” during the civil suit.
A.R.S. § 12-341. “Costs” are defined as “taxable costs,” including the fees
of “officers and witnesses.” A.R.S. § 12-332(A). Filing fees and fees of
process servers related to this action are properly included in this
calculation.4 The other expenses listed by Lockerby, however, such as the
costs of vehicle maintenance, office supplies, and legal research, are not
compensable as taxable costs under A.R.S. § 12-332(A). See, e.g., Ahwatukee
Custom Estates, 193 Ariz. at 402, ¶ 3. The superior court did not err, and we
affirm the $369 costs award.

                              CONCLUSION

¶20           We affirm the superior court’s judgment.




                                  :RT




3 The process server fee awarded by the court represented one-fourth of
the fee actually paid. This is proper because Lockerby was successful only
on his claims against one defendant, Pima County, and not successful on
his claims against the remaining three defendants.

4 Lockerby listed additional taxable costs in his application, but they relate
to separate cases and are therefore not recoverable in this action.

                                        8
