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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


          ANTHONY JAMES MERRICK, III, Plaintiff/Appellant,

                                        v.

DOMINICK HURLEY; JOHN HURLEY; TRACEY WEAVER; HEATHER
              GEBERT, Defendants/Appellees.

                             No. 1 CA-CV 14-0259
                               FILED 5-12-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-010624
                The Honorable Douglas Gerlach, Judge

                                  AFFIRMED


                                   COUNSEL

Anthony Merrick, San Luis
Plaintiff/Appellant



                       MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.
                      MERRICK v. D HURLEY, et al.
                         Decision of the Court

T H O M P S O N, Judge:

¶1           Anthony James Merrick, III, appeals from the trial court’s
dismissal of his amended complaint against Dominick Hurley, John
Hurley, Tracey Weaver, and Heather Gebert (defendants). For the
following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2             In July 2011, Merrick was convicted of fraudulent schemes
and artifices, theft, and nine counts of theft of a credit card or obtaining a
credit card by fraudulent means.2 In August 2013, Merrick filed a pro per
complaint against defendants, including his co-defendant in cause no.
CR2010-005367-001, alleging numerous causes of action. Defendants
moved to strike portions of the complaint and to dismiss the complaint for
statute of limitations. On December 3, 2013, the trial court granted the
defendants’ motion to dismiss in part, and dismissed plaintiff's complaint
as insufficient as a matter of law. The trial court gave Merrick fifteen days
to file an amended complaint.

¶3           Merrick subsequently filed an amended complaint on
December 23, 2013, again alleging several causes of action, including
conversion; trespass; civil conspiracy; fraud; fraudulent concealment;
negligent misrepresentation; intentional misrepresentation; intentional
interference with business relationships; defamation;3 and intentional

1      In reviewing a motion to dismiss, “we review the well-pleaded facts
alleged in the complaint as true,” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386,
389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005), and resolve all reasonable
inferences in favor of the plaintiff. McDonald v. City of Prescott, 197 Ariz.
566, 567, ¶ 5, 5 P.3d 900, 901 (App. 2000).

2      This court affirmed all of Merrick’s convictions, with the exception
of four counts of theft of a credit card in State v. Merrick, 1 CA-CR 11-0549,
2012 WL 4955425, at *1, ¶ 1 (Ariz. App. Oct. 18, 2012) (mem. decision).

3      Merrick does not challenge the trial court's dismissal of the
defamation claim. Accordingly, we do not consider this aspect of the
court's ruling on appeal. See ARCAP 13(a)(6), (7) (appellant's brief shall
contain issues presented for review with argument); see also Hurd v. Hurd,
223 Ariz. 48, 51 n.3, 219 P.3d 258, 260 n.3 (App. 2009) (issues not raised
properly on appeal waived).



                                      2
                       MERRICK v. D HURLEY, et al.
                          Decision of the Court

infliction of emotional distress. On February 6, 2014, the court sua sponte
dismissed Merrick's amended complaint as insufficient as a matter of law.
Merrick timely appealed from the dismissal of the amended complaint.4
We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections
12-120.21(A)(1) (2003), -2101(A)(1) (2003).

                                DISCUSSION

¶4             Merrick argues that the trial court erred in determining that
the amended complaint was barred by the statute of limitations.5 We
review the trial court's dismissal of a complaint de novo. Coleman v. City of
Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). In our review, we
consider the pleading, documents attached to and referenced within the
pleading, as well as public records. Strategic Dev. & Const., Inc. v. 7th &
Roosevelt Partners, LLC., 224 Ariz. 60, 63-64, ¶¶ 10, 13, 226 P.3d 1046, 1049-
50 (App. 2010). To determine whether a claim is time-barred, we examine
four factors: “(1) when did the plaintiff’s cause of action accrue; (2) what is
the applicable statute of limitations period; (3) when did the plaintiff file his
[or her] claim; and (4) was the running of the limitations period suspended
or tolled for any reason?” Taylor v. State Farm Mut. Auto. Ins. Co., 182 Ariz.
39, 41, 893 P.2d 39, 41 (App. 1994) (citing Roldan v. Allstate Ins. Co., 544




4      Merrick filed a notice of appeal, dated February 28, 2014, which was
received and stamped filed by the clerk of the superior court on March 19,
2014. At the request of this court, Merrick filed a declaration of service of
notice, attesting that he submitted the notice of appeal to prison officials on
February 28, 2014, but that it was returned to him. Merrick further attested
that he mailed the notice of appeal to the Clerk of the Court on March 4,
2014. Accordingly, we deem Merrick’s notice of appeal to be timely filed.
See Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App. 1995) (“[P]ro se
prisoner is deemed to have filed his notice of appeal at the time it is
delivered, properly addressed, to the proper prison authorities to be
forwarded to the clerk of the superior court.”).

5      We note that defendants failed to file an answering brief. Thus, we
could regard their failure to do so as a confession of error and reverse the
superior court's order dismissing Merrick's claims against them. See
ARCAP 15(a)(2). In our discretion, we decline to do so, Nydam v. Crawford,
181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994) (confession of reversible
error doctrine is discretionary), and have reviewed the record and elected
to address the merits of Merrick’s claims against defendants.


                                       3
                       MERRICK v. D HURLEY, et al.
                          Decision of the Court

N.Y.S.2d 359, 362 (N.Y. App. Div. 1989)), vacated in part on other grounds, 185
Ariz. 174, 913 P.2d 1092 (1996).

¶5              A civil cause of action for conversion, trespass, civil
conspiracy, negligent misrepresentation, intentional misrepresentation,
intentional interference with business relationships, and intentional
infliction of emotional distress must be brought within two years. See
A.R.S. § 12-542(1), (3), (5) (2003). A cause of action accrues when one party
is able to sue the other, or when the plaintiff knows or, through the exercise
of reasonable diligence, should know the facts underlying the cause of
action. Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz.
586, 588, 898 P.2d 964, 966 (1995). Hence, the claims are barred two years
from when Merrick knew or should have known facts giving rise to his
claims.

¶6              Merrick asserts that between September 2007 and October
2008, defendants used his name, phone number and address without his
permission to obtain numerous gift cards. He further alleges that between
March 2009 and March 2011, defendants conspired to obstruct and interfere
with his investigation into the conversion of his property, and
misrepresented information that they gave to him and to legal authorities.
Based on the pleadings and trial transcript in Cause No. CR2010-005367-
001, it is clear that Merrick knew of the alleged wrongful conduct by June
2011, and, therefore, the accrual date had to be on that date or earlier. See
Taylor v. State Farm Mut. Auto. Ins. Co., 185 Ariz. 174, 177, 913 P.2d 1092,
1095 (1996). Because the complaint was not filed within two years of the
accrual date, the trial court did not err in dismissing these claims.

¶7             Notwithstanding the belated filing, Merrick argues that the
statute of limitations was equitably tolled. The equitable tolling doctrine
recognizes that “a defendant whose affirmative acts of fraud or
concealment have misled a person from either recognizing a legal wrong or
seeking timely legal redress may not be entitled to assert the protection of
a statute of limitations.” Porter v. Spader, 225 Ariz. 424, 428, ¶ 11, 239 P.3d
743, 747 (App. 2010). The elements of equitable tolling are: (1) specific
promises, threats or inducements that prevented the plaintiff from filing
suit; (2) the promises, threats or representations actually induced the
plaintiff to forebear filing suit; (3) the conduct reasonably caused the
plaintiff to forebear filing a timely action; and (4) the plaintiff filed suit
within a reasonable time after the estoppel-inducing conduct ended. Nolde
v. Frankie, 192 Ariz. 276, 280, ¶¶ 16–19, 964 P.2d 477, 481 (1998) (citations
omitted). Application of equitable tolling is a legal question for the court.



                                      4
                       MERRICK v. D HURLEY, et al.
                          Decision of the Court

McCloud v. State, 217 Ariz. 82, 86, ¶ 9, 170 P.3d 691, 695 (App. 2007) (citation
omitted).

¶8            Merrick identifies no promise, threat, or inducement by the
defendants that prevented him from filing a timely action. Furthermore,
despite Merrick assertion that he did not discover the alleged claims until
September to October 2011, the record shows that Merrick knew of the
claims by at least June 22, 2011, thereby triggering commencement of the
limitations period. See Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz.
107, 130, 412 P.2d 47, 63 (1966) (“[T]he statute of limitations runs from the
time the aggrieved party should have discovered the fraud in the exercise
of reasonable care and diligence.”).

¶9           Merrick’s additional argument that the statute of limitations
was tolled because of his incarceration is equally unavailing. Arizona no
longer recognizes imprisonment as a legal disability sufficient to toll the
time imposed by a statute of limitations. See A.R.S. § 12-502 (2003),
Historical and Statutory Notes (stating 1996 amendment deleted tolling
provision applicable to inmates). A.R.S. § 12-502 provides the following:

       If a person entitled to bring an action . . . is at the time the
       cause of action accrues . . . of unsound mind, the period of
       such disability shall not be deemed a portion of the period
       limited for commencement of the action. Such person shall
       have the same time after removal of the disability which is
       allowed to others.

“Tolling for unsound mind . . . requires that the factfinder determine
whether the plaintiff had the mental capacity to bring a claim. . . .” Doe v.
Roe, 191 Ariz. 313, 326, ¶ 41, 955 P.2d 951, 964 (1998). “In Arizona, unsound
mind occurs when the ‘person is unable to manage his affairs or to
understand his legal rights or liabilities.’“ Id. at ¶ 42, 955 P.2d 951 (quoting
Allen v. Powell's Int'l, Inc., 21 Ariz. App. 269, 270, 518 P.2d 588, 589 (1974)).
An assertion of an inability to bring suit timely due to an unsound mind
requires a plaintiff to “set forth specific facts―hard evidence―supporting
the conclusion of unsound mind.” Id. Because the record does not contain
evidence that Merrick was mentally disabled, the time for filing the
complaint was not tolled.

Fraud Claims

¶10          In addition, to the extent Merrick’s complaint raised a claim
for fraud and fraudulent concealment, it was properly dismissed as an
impermissible collateral attack on the prior judgment in Cause No. CR2010-


                                       5
                       MERRICK v. D HURLEY, et al.
                          Decision of the Court

005367-001. An action seeking independent relief that would have the
consequence of destroying a prior judgment is a collateral attack on the
prior judgment. Duncan v. Progressive Preferred Ins. Co, 228 Ariz. 3, 7, ¶ 13,
261 P.3d 778, 782 (App. 2011); see Cooper v. Commonwealth Title of Ariz., 15
Ariz. App. 560, 562, 489 P.2d 1262, 1264 (1971) (stating that a judgment is
under collateral attack when the primary purpose of an action is obtaining
independent relief, and vacating or setting aside the judgment is only
incidental to that purpose). A judgment may not be attacked collaterally,
even for fraud, unless the judgment is void on its face. Walker v. Davies, 113
Ariz. 233, 235, 550 P.2d 230, 232 (1976).

¶11             Merrick’s complaint does not assert a jurisdictional flaw in the
prior judgment. Rather, Merrick alleged that defendants were responsible
for the illegal activity he was accused of in Cause No. CV2006-005503, they
made false statements and withheld information in the 2011 criminal case,
and filed documents in that case containing “libelous and defamatory
statements” against him. Merrick’s complaint seeks relief that includes
damages to compensate for “lost wages and income, emotional distress,
loss of five businesses and income therefrom, lowering his credit score and
putting Plaintiff in debt more than $40,000.00.” Although the complaint
seeks some damages in addition to relief from the judgment, the claims
clearly arise out of Cause No. CV2006-005503; Merrick raises the same
arguments and accusations that were previously rejected by the jury in that
action; and it is clear that the relief sought would have the effect of
destroying the prior judgment. We agree with the trial court that the
complaint represented an impermissible collateral attack on the prior
judgment.

Court’s Sua Sponte Dismissal of Amended Complaint

¶12           Lastly, Merrick argues that the trial court erred in dismissing
the amended complaint sua sponte. We disagree. A trial court has inherent
authority to dismiss claims sua sponte, and does not err in dismissing all
claims sua sponte when the plaintiff cannot possibly obtain relief. See Acker
v. CSO Chevira, 188 Ariz. 252, 254, 934 P.2d 816, 818 (App. 1997); see also City
of Casa Grande v. Ariz. Water Co., 199 Ariz. 547, 549, 554, ¶¶ 4, 22, 20 P.3d
590, 592, 597 (App. 2001) (affirming trial court's dismissal even though
defendant had not filed motion to dismiss). Sua sponte dismissals are
generally used to “get control of inmates who have proven themselves to
be abusers of the in forma pauperis privilege by filing frivolous actions.”
Acker, 188 Ariz. at 254, 934 P.2d at 818. When a court issues a sua sponte
dismissal under its inherent authority, it should make findings to explain
its actions. See id. at 256, 934 P.2d at 820 (citations omitted). It is not


                                       6
                      MERRICK v. D HURLEY, et al.
                         Decision of the Court

required to provide the plaintiff with an opportunity to respond to the
motion; such an opportunity is only required when a court, sua sponte,
dismisses a claim under Arizona Rule of Civil Procedure 12(b)(6) rather
than under its inherent authority. See Acker, 188 Ariz. at 255-56, 934 P.2d at
819-20.

¶13            The trial court dismissed Merrick's amended complaint
because it was “insufficient as a matter of law.” The trial court explained
in its minute entry that the claims were barred by the statute of limitations,
were a collateral attack on the previous judgment, and failed to meet the
requisite standards necessary to sustain the claim. The court's sua sponte
dismissal was a proper exercise of its inherent authority to prevent “filing
excesses” by inmates that “interfere[ ] with the orderly administration of
justice.” See id. at 254, 934 P.2d at 818. Accordingly, the court did not err
by dismissing Merrick’s amended complaint.

                              CONCLUSION

¶14           For the foregoing reasons, we affirm the trial court's dismissal
of Merrick’s amended complaint.




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