                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                AND MAYBE BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                 MICHAEL P. THIEME, Plaintiff/Appellant,

                                        v.

          ARIZONA DEPARTMENT OF TRANSPORTATION,
                      Defendant/Appellee.

                             No. 1 CA-CV 14-0221
                               FILED 2-26-2015


           Appeal from the Superior Court in Maricopa County
                            CV2013-002843
              The Honorable Robert H. Oberbillig, Judge

                                  AFFIRMED


                                   COUNSEL

Michael P. Thieme, Prescott
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Brock J. Heathcotte
Counsel for Defendant/Appellee
                            THIEME v. ADOT
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.


H O W E, Judge:

¶1            Michael P. Thieme appeals the dismissal of his tort action
against the State of Arizona and the Arizona Department of Transportation
(ADOT).1 The superior court found that Thieme’s complaint failed to state
a claim upon which relief can be granted pursuant to Arizona Rule of Civil
Procedure Rule (“Rule”) 12(b)(6). For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In March 2012, a Yavapai County Sherriff’s Office (“YCSO”)
deputy entered Thieme’s home, arrested him, and asked him to consent to
a breath test. When Thieme refused to submit to the breath test, the deputy
served Thieme with an order of suspension of his driver’s license pursuant
to Arizona Revised Statute (“A.R.S.”) section 28-1321(D)(2)(b).

¶3           Thieme timely requested a hearing before ADOT to contest
the suspension. Thieme complained that the deputy had no basis for
requiring him to submit to the breath test. Since the March 2012 incident,
the YSCO deputy had been fired and therefore did not appear at the
suspension hearing. ADOT subsequently vacated the suspension of
Thieme’s license.

¶4            Thieme then brought this tort action against ADOT, alleging
that ADOT was liable for the YSCO deputy’s actions under the doctrine of
respondeat superior. The State moved to dismiss Thieme’s complaint under
Rule 12(b)(6) for failing to state a claim upon which relief could be granted.
The State argued that ADOT was not liable because ADOT neither
employed nor had no control over the YSCO deputy. The superior court
dismissed the complaint under Rule 12(b)(6) and Thieme timely appealed.



1    Although ADOT is a non-jural entity, we refer to the State of Arizona
as ADOT for consistency.



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                              THIEME v. ADOT
                             Decision of the Court

                                 DISCUSSION

¶5            Thieme argues that his tort action should have survived
dismissal under Rule 12(b)(6) because ADOT is vicariously liable for the
deputy’s actions. Thieme’s argument hinges on his contention that the
YCSO deputy acted as an ADOT employee under A.R.S. § 12–820(1) when
he served Thieme with a notice of suspension pursuant to A.R.S. § 28–
1321(D)(2)(b).

¶6              We review the dismissal of a complaint under Rule 12(b)(6)
de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7, 284 P.3d 863, 866
(2012). In our review, we accept the complaint’s allegations as true and
resolve all inferences in the plaintiff’s favor. Southwest Non–Profit Housing
Corp. v. Nowak, 234 Ariz. 387, 390–91 ¶ 10, 322 P.3d 204, 207–08 (App. 2014).
Dismissal pursuant to Rule 12(b)(6) is appropriate if—as a matter of law—
the plaintiff would not be entitled to relief under any interpretation of the
facts. Coleman, 230 Ariz. at 356 ¶ 8, 284 P.3d at 867 (quoting Fidelity Sec. Life
Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998)).
We will uphold a dismissal when it is certain that the plaintiff could not
prove any set of facts entitling him or her to relief. Wallace v. Casa Grande
Union High School Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 424, 909 P.2d
486, 491 (App. 1995). Mere conclusory statements are insufficient to state a
claim upon which relief can be granted. Cullen v. Auto-Owners, Ins. Co., 218
Ariz. 417, 419 ¶ 7, 189 P.3d 344, 346 (2008).

¶7             Section 12–820(1) defines employee of a public entity as an
“officer, director, employee, or servant . . . who is authorized to perform
any act or service, except that employee does not include an independent
contractor.” Arizona’s implied consent law generally requires a person who
operates a motor vehicle in this state to consent to alcohol or drug tests if
arrested for driving under the influence of those substances. See A.R.S. § 28–
1321; Caretto v. Ariz. Dep’t of Transp., 192 Ariz. 297, 302 ¶ 19, 965 P.2d 31, 36
(App. 1998). Section 28–1321(D)(2)(b) provides that if a person under arrest
refuses to submit to the test designated by the law enforcement agency, the
law enforcement officer directing the administration of the test shall “[o]n
behalf of [ADOT], serve an order of suspension on the person . . . .”

¶8             Even accepting the allegations of Thieme’s complaint as true,
ADOT is not liable for any alleged tortious conduct because the deputy was
employed by YCSO, not ADOT. The deputy’s decision to administer a
breath test triggered a statutory mechanism—A.R.S. § 28–1321(D)(2)(b)—
that required him to serve Thieme with an order of suspension once Thieme
refused to submit to the test. Although A.R.S. § 28–1321(D)(2)(b) directed


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                            THIEME v. ADOT
                           Decision of the Court

the deputy to serve the suspension order “on behalf of ADOT,” this does
not mean that an employer-employee relationship existed between the
deputy and ADOT. Instead, it means that the deputy served the order for
ADOT. By serving Thieme with notice upon his refusal to submit to the test,
the deputy acted in furtherance of his statutorily prescribed duties as a
sworn law enforcement officer for YCSO, not ADOT. ADOT therefore
cannot be liable for the deputy’s alleged negligent conduct. Thieme’s
allegations about the propriety of the deputy’s decision to administer the
breath test in the first place does not change the deputy’s employment
status. And because we find that the deputy was not an employee of ADOT,
we do not consider Thieme’s argument that ADOT owed him a duty of care.
Accordingly, we affirm the superior court’s dismissal of Thieme’s tort
claims for failure to state a claim upon which relief can be granted.

¶9            Thieme next argues that A.R.S. § 28-1321(N) “is overbroad
and unconstitutional[.]” Section 28-1321(N) provides that, “[i]f the
suspension or determination that there should be a denial of issuance is not
sustained, the ruling is not admissible in and has no effect on any
administrative, civil or criminal court proceeding.” Because Thieme’s tort
action hinged on finding ADOT vicariously liable for the deputy’s actions,
we need not decide the constitutionality of a statute governing the
admissibility of a license suspension ruling. The issue is moot.

¶10           For the first time on appeal, Thieme also argues that ADOT is
liable for “abuse of a civil administrative process.” We do not consider this
argument because it has been waived. See Van Loan v. Van Loan, 116 Ariz.
272, 274, 569 P.2d 214, 216 (1977) (arguments raised for first time on appeal
are untimely and, therefore, deemed waived).

                              CONCLUSION

¶11          For the foregoing reasons, we affirm.




                                  :ama



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