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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


       PETER ANDREW HERSHFELDT, Plaintiff/Appellant/Appellee,

                                         v.

           ARIZONA DEPARTMENT OF CORRECTIONS, et al.,
                   Defendants/Appellees/Appellants.

                              No. 1 CA-CV 18-0785
                               FILED 01-07-2020

            Appeal from the Superior Court in Maricopa County
                           No. CV2015-010532
                   The Honorable Connie Contes, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

Peter Andrew Hershfeldt, Fairview, PA
Plaintiff/Appellant/Appellee

Arizona Attorney General’s Office, Phoenix
By Michael E. Gottfried
Counsel for Defendants/Appellees/Appellants
                      HERSHFELDT v. ADOC, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the Court, in which
Acting Presiding Judge David D. Weinzweig and Judge David B. Gass
joined.


S W A N N, Judge:

¶1            Peter Hershfeldt, a former inmate, brought an action for
damages contending his term of imprisonment was miscalculated.
Hershfeldt won at trial, and the State appeals the trial court’s denial of its
motion for judgment as a matter of law based on a statute of limitations
defense. For the following reasons, we reverse.

                 FACTS AND PROCEDURAL HISTORY

¶2            In 1995, Hershfeldt was convicted of kidnapping and sexual
assault and sentenced to a term of imprisonment in an Arizona Department
of Corrections (“DOC”) prison. In 2001, Hershfeldt’s DOC time
computation showed that he had an early release date of August 2012 based
on earned release credits (“ERC”). In December 2002, the DOC removed
Hershfeldt’s ERC release date, showing his sentence end date as July 2014.
In 2003, Hershfeldt delivered an inmate letter to the DOC saying the DOC
miscalculated his sentence under State v. Tarango, 185 Ariz. 208 (1996) and
he was entitled to ERC. The DOC disagreed. Hershfeldt filed an inmate
grievance arguing that he was entitled to ERC and that the DOC had
applied ERC under Tarango to him in 2000-2001. The DOC replied saying
his time computation was not a “grievable” issue. Hershfeldt appealed.
After Hershfeldt’s administrative appeal was denied, he appealed a second
time, which was also denied.

¶3             Hershfeldt also petitioned for post-conviction relief in 2003
and 2008, arguing that his sentence was improperly extended in violation
of Tarango. He argued that Tarango would have reduced his 15-year
sentence by two years and three months, giving him a release date of April
2012. In June 2009, Hershfeldt, through counsel, agreed with the State that
his Tarango claim was premature. Hershfeldt withdrew his Tarango claim
“subject to reassertion at the proper time.” He never reasserted his Tarango
claim, however, and was not released from prison until June 11, 2014. Upon
his release, the trial court ordered that Hershfeldt be taken to the Arizona


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                      HERSHFELDT v. ADOC, et al.
                         Decision of the Court

Community Protection and Treatment Center because probable cause
existed that he was a sexually violent person under A.R.S. § 36–3701.
Hershfeldt was released three and one-half months later.

¶4              Hershfeldt served a notice of claim on the DOC and the State
on November 26, 2014, and then sued for false imprisonment on June 8,
2015. The DOC was dismissed as a party based on its non-jural status. The
State moved for summary judgment arguing that Hershfeldt’s claim was
barred by the statute of limitations and that Hershfeldt failed to mitigate
his damages. The trial court denied the State’s motion and held a bench
trial. At the close of evidence, the State moved for judgment as a matter of
law, which the trial court denied. The trial court found that the DOC should
have released Hershfeldt on May 5, 2012 rather than June 11, 2014. The trial
court found in Hershfeldt’s favor and awarded him $208,000 in damages,
reduced to $120,654.52 after deducting incarceration costs and restitution
owed from his criminal case.

¶5           The State appealed, and Hershfeldt cross-appealed.

                              DISCUSSION

¶6            The State argues that the trial court erred in denying its
motion for judgment as a matter of law because Hershfeldt’s claim was
barred by the statute of limitations. We review a trial court’s decision on
motions for judgment as a matter of law de novo. Glazer v. State, 237 Ariz.
160, 167 ¶ 29 (2015).

¶7            Arizona law required Hershfeldt to serve a notice of claim on
the State within 180 days after his cause of action accrued, and to sue the
State within one year after his claim accrued. See A.R.S. §§ 12–821.01, –821.
A cause of action accrues when “the damaged party realizes he or she has
been damaged and knows or reasonably should know the cause, source,
act, event, instrumentality or condition that caused or contributed to the
damage.” § 12–821.01(B). A plaintiff need not know all the facts underlying
a cause of action but must at least possess knowledge sufficient to identify
that a wrong occurred and caused injury. Doe v. Roe, 191 Ariz. 313, 323 ¶ 32
(1998).

¶8            Hershfeldt’s cause of action for false imprisonment accrued
on May 5, 2012. Hershfeldt knew in 2003 that he was entitled to be released
in 2012 based on his understanding of ERC. In 2002, the DOC removed
Hershfeldt’s ERC, changing his release date from 2012 to 2014. Shortly
thereafter, Hershfeldt sent an inmate letter to the DOC arguing he was
entitled to ERC and the DOC incorrectly removed his ERC release date.


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                      HERSHFELDT v. ADOC, et al.
                         Decision of the Court

Hershfeldt raised the issue again in a 2008 petition for post-conviction
relief.

¶9            In June 2009, Hershfeldt’s counsel withdrew the Tarango
claim raised in Hershfeldt’s petition for post-conviction relief because the
Tarango claim was not timely, saying the withdrawal was “subject to
reassertion at the proper time.” By May 2012, however, when
post-conviction relief under Tarango would have been proper, Hershfeldt
did not reassert his claim and continued to serve the remainder of his
sentence. By May 2012, Hershfeldt knew he had been damaged and knew
that the DOC caused the damage by alleging that the DOC erroneously
removed his ERC. Thus, Hershfeldt’s cause of action for false imprisonment
accrued when he remained in prison after May 5, 2012.

¶10          Hershfeldt’s claims failed on two independent grounds,
including an untimely notice of claim and complaint. Hershfeldt’s false
imprisonment claim accrued no later than May 5, 2012, meaning that he
needed to serve notice of his claim on the State by November 5, 2012, and
then sue by May 5, 2013. Yet, Hershfeldt served his notice of claim on
November 26, 2014, and sued on June 8, 2015, after the statute of limitations
had run. As a result, the trial court erred when it denied the State’s motion
for judgment as a matter of law on the statute of limitations defense.1

¶11            The only evidence submitted in opposition to the State’s
summary judgment motion was an affidavit from Hershfeldt in which he
said he relied on the legal knowledge of other inmates, used arguments
from the motions of other inmates, did not know he had a valid Tarango
claim, and “did not have knowledge, with any degree of confidence, that
[his] release date was in 2012[.]” But Hershfeldt wrote his inmate letter, his
grievance, and his petitions for post-conviction relief, all of which argued
that he was entitled to ERC and should be eligible for release in 2012.
Hershfeldt did not need to know “with confidence” that he was entitled to
be released in 2012; he only needed to possess knowledge sufficient to
identify that a wrong occurred and caused injury. Doe, 191 Ariz. at 323 ¶ 32.
Hershfeldt believed he possessed such knowledge after the DOC removed
his ERC, which led him to file a grievance and petition for post-conviction
relief.




1      We need not address Hershfeldt’s cross-appeal that
A.R.S. § 31–238(D) and A.R.S. § 12–1721 are unconstitutional because this
decision renders his argument moot.


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                      HERSHFELDT v. ADOC, et al.
                         Decision of the Court

¶12            Hershfeldt argues that the trial court correctly found that his
notice of claim and complaint were timely because two separate judges who
presided over the case found them timely, and timeliness is within the
sound discretion of the trial court. But we review de novo when a cause of
action accrues for statute of limitations purposes, and that date is not
discretionary. Larue v. Brown, 235 Ariz. 440, 443 ¶ 14 (App. 2014). The
legislature has prescribed rigid procedures and deadlines for actions
against the State. As a matter of law, Hershfeldt waited too long to serve his
notice of claim and file his cause of action.

                                CONCLUSION

¶13          For the foregoing reasons, we reverse and remand for entry
of judgment in favor of the State.




                         AMY M. WOOD • Clerk of the Court
                          ),/(' pjl




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