Strojnik v. Brnovich ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 STROJNIK, Plaintiff/Appellant,
v.
STATE OF ARIZONA, ex rel. MARK BRNOVICH, and JANE DOE
BRNOVICH, Defendants/Appellees.
No. 1 CA-CV 20-0423
FILED 7-20-2021
Appeal from the Superior Court in Maricopa County
No. CV2019-054266
The Honorable Sally Schneider Duncan, Judge
AFFIRMED
COUNSEL
Peter Strojnik, Phoenix
Plaintiff/Appellant
Gallagher & Kennedy, P.A., Phoenix
By Mark C. Dangerfield, Kevin E. O’Malley
Counsel for Defendants/Appellees
STROJNIK v. BRNOVICH, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which Chief
Judge Kent E. Cattani and Judge Samuel A. Thumma joined.
F U R U Y A, Judge:
¶1 Plaintiff Peter Strojnik appeals the superior court’s order
granting an amended Arizona Rule of Civil Procedure (“Rule”) 12(b)(6)
motion to dismiss regarding his verified complaint, based on (1) his failure
to timely serve a notice of claim as to claims brought against Arizona
Attorney General Mark Brnovich (“AG Brnovich”) and (2) his lack of
standing to pursue a mandamus action against AG Brnovich. Strojnik
further appeals the court’s imposition of sanctions against him. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Strojnik is an attorney who, until he was disbarred in May
2019, was a member of the State Bar of Arizona (“SBA”). In the time
preceding his disbarment, Strojnik filed, as counsel, more than 1,700 cases
in Arizona state court and more than 160 cases in Arizona district court,
which he asserted was on behalf of the “disabled community in Arizona.”
Strojnik v. SBA, 446 F. Supp. 3d 566, 571 (D. Ariz. 2020). These cases alleged
various violations of the Americans with Disabilities Act (“ADA”) and
Arizona’s version of the ADA (“AzDA”)—Ariz. Rev. Stat. (“A.R.S.”) § 41-
1492 et. seq. Id. The lawsuits alleged “minor, even trivial” violations of the
ADA and AzDA. See, e.g., Advocs. for Individuals With Disabilities LLC v.
MidFirst Bank, 279 F. Supp. 3d 891, 892–93 (D. Ariz. 2017). And after filing
what were essentially cookie-cutter complaints, Strojnik would generally
refuse to dismiss a case—even if the defendants immediately corrected the
alleged problems—unless the defendants paid him thousands of dollars in
attorneys’ fees, which appeared unsupported by the amount of work
necessary to prepare or pursue these complaints. See e.g., id. (noting Strojnik
sought “no less than $5,000” under such circumstances). A federal judge
addressing Strojnik’s practices referred to them as an “unethical extortion
of unreasonable attorney’s fees from defendants.” Id. at 898.
¶3 In 2016 and 2017, AG Brnovich (on behalf of the State of
Arizona) successfully moved to intervene in, consolidate, and dismiss a
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large number of the state-court cases. In December 2017, Strojnik submitted
an opinion editorial article to the Arizona Republic criticizing AG Brnovich
for this intervention. 1 In March 2018, the SBA filed a motion with Arizona’s
presiding disciplinary judge requesting Strojnik’s interim suspension from
the practice of law, and in November 2018, the SBA filed a formal complaint
against Strojnik, which resulted in his consent to disbarment.
¶4 On June 10, 2019, Strojnik served AG Brnovich with a notice
of claim, followed by the filing of the verified complaint in this case on
September 3, 2019. Strojnik alleged that AG Brnovich and the SBA—which
was not joined as a party—conspired to halt ADA-related litigation in
Arizona by stripping Strojnik of his right to practice law. He sought
damages against AG Brnovich for (1) conspiring with others, including the
SBA, (2) aiding and abetting the SBA and others who were pursuing his
disbarment, (3) tortiously interfering with Strojnik’s contractual
relationships with his clients, (4) abuse of the judicial process, and (5)
intentional infliction of emotional distress. Strojnik additionally sought
mandamus relief against AG Brnovich, to compel him to conduct periodic
AzDA compliance reviews of covered entities.
¶5 AG Brnovich successfully moved to dismiss for failure to state
a claim under Rule 12(b)(6). The superior court dismissed Strojnik’s
damages claims with prejudice, citing his failure to timely comply with the
notice of claim statute. See A.R.S. § 12-821.01(A). The court further
dismissed Strojnik’s mandamus claim for lack of standing. The court also
denied Strojnik’s motion for leave to amend his damages claims based on
futility and his mandamus claim based on his failure to allege a factual basis
for standing. Finally, the court required Strojnik to pay AG Brnovich’s
reasonable attorneys’ fees as a sanction pursuant to A.R.S. § 12-349.
¶6 Strojnik timely appealed, and we have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
STANDARD OF REVIEW
¶7 We review de novo the dismissal of claims under Rule 12(b)(6).
Brittner v. Lanzilotta, 246 Ariz. 294, 295, ¶ 4 (App. 2019) (citing Coleman v.
City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012)). We further review de novo issues
of law and statutory interpretation. McNamara v. Citizens Protecting Tax
Payers, 236 Ariz. 192, 194, ¶ 5 (App. 2014).
1 Strojnik not only discussed his submission of the op-ed in the
verified complaint but also included a weblink to that article therein.
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Decision of the Court
¶8 In adjudicating a Rule 12(b)(6) motion, Arizona courts
generally “look only to the pleading itself,” assuming the truth of the well-
pled factual allegations and indulging all reasonable inferences therefrom.
Brittner, 246 Ariz. at 295–96, ¶ 4 (quoting Cullen v. Auto-Owners Ins. Co., 218
Ariz. 417, 419, ¶ 7 (2008)). However, courts do not “accept as true
allegations consisting of conclusions of law, inferences or deductions that
are not necessarily implied by well-pleaded facts, unreasonable inferences
or unsupported conclusions from such facts, or legal conclusions alleged as
facts.” Stauffer v. Premier Serv. Mortg., LLC, 240 Ariz. 575, 578, ¶ 9 (App.
2016). We will affirm the superior court’s dismissal if, as a matter of law,
Strojnik was “not entitled to relief under any interpretation of the facts
susceptible of proof.” Brittner, 246 Ariz. at 296, ¶ 4.
DISCUSSION
¶9 Strojnik argues the superior court erred by failing to convert
the amended motion to dismiss to a motion for summary judgment because
of AG Brnovich’s presentation of matters outside of his verified complaint.
He also argues the court erred because it “refused to accept as true” the
assertion in Strojnik’s complaint that he first discovered AG Brnovich’s
involvement in the loss of his permission to practice law on or about March
13, 2019—when disclosure of certain emails allegedly prompted him to
realize AG Brnovich and the SBA were conspiring to halt his ADA and
AzDA litigations. Thus, he argues his notice of claim was timely. Further,
Strojnik argues the court erred by dismissing his claim for mandamus relief.
Finally, Strojnik argues the court erred by imposing sanctions against him.
We address each argument in turn.
I. The Attachments to the Rule 12(b)(6) Motion to Dismiss did not
Convert the Motion into a Rule 56 Motion for Summary Judgment
¶10 Strojnik argues the superior court improperly considered
material outside his September 2019 verified complaint without converting
AG Brnovich’s amended Rule 12(b)(6) motion to a motion for summary
judgment. AG Brnovich’s amended motion to dismiss included 16 exhibits,
all of which were filings or orders in either (1) Strojnik’s attorney discipline
proceedings, which he referenced in his complaint, or (2) filings in cases
where he appeared as counsel of record. In his response to the amended
motion to dismiss, Strojnik claimed that “the truth of any statements” in
“Exhibits 3, 4, 5, 6 cannot be considered to alter, diminish or dispute any of
the factual allegations in” his complaint. Accordingly, Strojnik waived any
objection he may have had to the other 12 exhibits attached to the amended
motion to dismiss.
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¶11 Exhibit 3 was an order of interim suspension in his attorney
discipline proceedings, which were referenced in the complaint. And
Exhibits 4, 5 and 6 were a judgment, minute entry, and motion for sanctions
from a superior court case that also was referenced in the complaint.
Accordingly, the filing of these exhibits did not convert the motion to
dismiss into a motion for summary judgment. See Coleman, 230 Ariz. at 356,
¶ 9 (“public records regarding matters referenced in a complaint” are not
considered matters outside the pleading).
¶12 Therefore, the superior court did not err by considering the
attachments to AG Brnovich’s amended 12(b)(6) motion.
II. Accrual & Notice of Claim Statute, A.R.S. § 12-821.01
¶13 Strojnik argues the superior court erred by finding his
damages claims accrued at a time such that service of his notice of claim
upon AG Brnovich was untimely pursuant to A.R.S. § 12-821.01. On this
record, the court did not err.
¶14 Under A.R.S. § 12-821.01(A), a notice of claim must be filed
within 180 days after the cause of action “accrues.” A cause of action accrues
when the damaged party (1) “realizes he or she has been damaged” and (2)
“knows or reasonably should know the cause, source, act, event,
instrumentality or condition that caused or contributed to the damage.”
A.R.S. § 12-821.01(B).
¶15 Here, Strojnik served his notice of claim on AG Brnovich on
June 10, 2019. Therefore, if his causes of action accrued before December 12,
2018, his claims were statutorily time-barred. See A.R.S. § 12-821.01(A);
Thompson v. Pima Cnty., 226 Ariz. 42, 45, ¶ 10 (App. 2010). The record here
shows that Strojnik’s notice of claim was untimely.
¶16 For a cause of action to accrue, a plaintiff must possess “a
minimum requisite knowledge sufficient to identify that a wrong occurred
and caused injury,” but “need not know all the facts underlying a cause of
action to trigger accrual.” Cruz v. City of Tucson, 243 Ariz. 69, 72, ¶ 8 (App.
2017) (citing Doe v. Roe, 191 Ariz. 313, 323, ¶ 32 (1998)). “‘[T]he core
question’ of when a claim accrued is not when the plaintiff was conclusively
aware she had a cause of action against a particular party, but instead when
‘a reasonable person would have been on notice to investigate.’” Id.(quoting Walk v. Ring, 202 Ariz. 310, 316, ¶¶ 23–24 (2002)) (explaining
plaintiff need only understand that a wrong occurred and have a reason to
connect that wrong to a “particular ‘who’ in such a way that a reasonable
person would be on notice to investigate whether the injury might result
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from fault”). Accrual can be decided as a matter of law when “there is no
genuine dispute as to facts showing the plaintiff knew or should have
known the basis for the claim.” Humphrey v. State, 249 Ariz. 57, 64, ¶¶ 24–
25 (App. 2020).
¶17 Strojnik claims AG Brnovich conspired with others, including
the SBA, to have him disbarred, thereby preventing him from continuing to
represent plaintiffs in ADA and AzDA litigation. But this record
affirmatively shows accrual occurred, at the latest, in November 2018.
¶18 In 2016 and 2017, AG Brnovich successfully moved to
intervene in, consolidate, and dismiss many ADA and AzDA lawsuits filed
by Strojnik in superior court. In December 2017, Strojnik submitted his op-
ed published in the Arizona Republic criticizing AG Brnovich for
intervening. The op-ed expressed Strojnik’s beliefs regarding AG
Brnovich’s putative motivations behind the intervention and implied AG
Brnovich had aligned with a group impeding ADA-related litigation in
Arizona by, among other things, “fil[ing] bar charges” against civil rights
lawyers, such as Strojnik himself. The publication evidences Strojnik’s
personal belief AG Brnovich was affiliated with those pursuing bar charges
against him and others, as well as the anticipated effect these efforts would
have on the pursuit of further litigation. At the request of the SBA, Strojnik
was suspended from law practice in July 2018 after a proceeding where one
of AG Brnovich’s assistants testified against Strojnik as a key witness. In
November 2018, the SBA pursued Strojnik’s disbarment. These undisputed
facts taken together show Strojnik knew or should have known of AG
Brnovich’s role in what Strojnik alleges was tortious behavior to see him
disbarred no later than November 2018. Thus, his June 10, 2019 notice of
claim—filed more than 180 days after these claims for damages accrued—
was untimely, and it was not error to dismiss Strojnik’s damages claims as
time-barred. 2
¶19 Because the claims were time barred, any putative
amendment would have been futile. Accordingly, the superior court did
not err by denying Strojnik’s motion for leave to amend his complaint. See
Bishop v. State Dep’t of Corr., 172 Ariz. 472, 474–75 (App. 1992) (explaining
there is no abuse of discretion in denying a proposed amendment if
allowing such would be futile).
2 Because we affirm the dismissal of these claims based on Strojnik’s
failure to serve a timely notice of claim, we need not address the merits of
the other grounds relied upon by the court to dismiss his damages claims.
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III. Claims Against AG Brnovich Personally
¶20 The superior court did not expressly address Strojnik’s claim
that AG Brnovich is personally liable for Strojnik’s damages. Nevertheless,
when a trial court does not explicitly resolve a matter that was pending
before it within a final judgment, we deem it denied. See State v. Mendoza-
Tapia, 229 Ariz. 224, 231, ¶ 22 (App. 2012) (observing that “[w]hen a court
fails to expressly rule on a motion, we deem it denied.” (citing State v. Hill,
174 Ariz. 313, 323 (1993)). Further, we may affirm the court’s grant of the
amended motion to dismiss for any reason supported by the record. See
Dube v. Likins, 216 Ariz. 406, 417, ¶ 36 n.3 (App. 2007).
¶21 Here, Strojnik’s argument that AG Brnovich is personally
subject to liability is without merit. “A public official is entitled to immunity
from suit for actions taken by him within the scope of his duties as a public
official.” White Mountain Apache Indian Tribe v. Shelley, 107 Ariz. 4, 7 (1971)
(citing Barr v. Matteo, 360 U.S. 564 (1959)); see also Chamberlain v. Mathis, 151
Ariz. 551, 554–560 (1986) (discussing qualified immunity for government
officials from liability for acts within the scope of their public duties).
¶22 That AG Brnovich was acting within the scope of his public
duties is clear from the record. See A.R.S. § 41-193(A)(2) (granting the
attorney general power to represent the State in any state-court proceeding,
where the State or an officer thereof is a party or has an interest in such
proceeding). Further, Strojnik’s statements that AG Brnovich was
motivated by personal ambitions are irrelevant to the question of qualified
immunity in this case and are also conclusions unsupported by the record.
See Stauffer, 240 Ariz. at 578, ¶ 9.
IV. Mandamus Claim
¶23 Strojnik further argues the superior court erred by dismissing
his request for mandamus relief. When a request for mandamus relief is
initiated by complaint in superior court, “the judge must first exercise []
discretion and decide whether to consider the case on its merits.” Bilagody
v. Thorneycroft, 125 Ariz. 88, 92 (App. 1979). If the court did not assume
jurisdiction over the merits of the claim, “there exists no trial court
determination for the appellate court to review, and the sole issue on appeal
is whether the trial court abused its discretion when it declined to accept
jurisdiction.” Id.
¶24 Here, the superior court dismissed Strojnik’s mandamus
claim for lack of standing without reaching the merits, relying on a
“concrete-harm” standard. Strojnik argues that when a party seeks
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mandamus relief, the correct standard for determining standing is whether
that party is beneficially interested in the outcome, and not whether such
party has asserted a particularized concrete harm. See A.R.S. § 12-2021.
However, even assuming Strojnik to be correct, we may still affirm on the
record before us.
¶25 A mandamus action may only be brought to compel a public
officer to perform a statutory duty that is “purely ministerial.” Ponderosa
Fire Dist. v. Coconino Cnty., 235 Ariz. 597, 601, ¶ 19 (2014) (internal quotation
omitted). A ministerial duty is one that “specifically describes the manner
of performance” and “leaves nothing to the discretion” of the public officer.
Id. at 601–02, ¶ 19 (citing El Paso Nat. Gas Co. v. State, 123 Ariz. 219, 221
(1979)). Thus, “if an action of a public officer is discretionary[,] that
discretion may not be controlled by mandamus.” Id. at 602, ¶ 19 (citing
Collins v. Krucker, 56 Ariz. 6, 13 (1940)).
¶26 Strojnik seeks mandamus relief to compel AG Brnovich to
conduct periodic compliance reviews as required by A.R.S. § 41-1492.09,
which he alleges AG Brnovich has never done. This statute provides that
“the attorney general shall undertake periodic reviews of compliance of
covered entities under this article.” A.R.S. § 41-1492.09(A). Conspicuously
absent from the statute, however, is any language specifying when or in
what manner such review must be performed to achieve compliance. Id.
Nevertheless, Strojnik argues that because A.R.S. § 41-1492.09 includes a
requirement for “periodic” compliance reviews, a review must be
performed “at least once,” and mandamus relief is available,
notwithstanding any lack of other specific direction. But this argument is
undermined by the language of the statute itself.
¶27 The word “periodic” is given no special definition under the
AzDA. See A.R.S. § 41-1492 (“Definitions”); A.R.S. § 41-1492.09. In
construing the language of statutes, we look to the “ordinary and
commonly accepted meaning” of words. See JH2K I LLC v. Ariz. Dep’t of
Health Servs., 246 Ariz. 307, 310, ¶ 9 (App. 2019). Under ordinary and
commonly accepted meaning, “periodic” is defined as “recurring at regular
intervals.” Univ. Physicians, Inc. v. Pima Cnty., 206 Ariz. 63, 67, ¶ 21 (App.
2003) (citing 11 Oxford English Dictionary 560 (2d ed. 1989)). Although
Strojnik is correct that the ordinary meaning of “periodic” excludes
“never,” the term does not admit of any particular timeframe or deadline
by which AG Brnovich must adhere in performing the compliance reviews
required by A.R.S. § 41-1492.09. As such, the statute commends to AG
Brnovich discretion as to when he will perform his duty thereunder, both
in terms of beginning compliance reviews and in what interval they should
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recur. The statute also does not specify how AG Brnovich is to conduct the
required periodic compliance reviews. A.R.S. § 41-1492.09(A). The lack of
specification as to the manner by which AG Brnovich must complete the
duty imposed by the statute is further proof that it is not purely ministerial.
¶28 Because the attorney general’s duty to conduct periodic
compliance reviews is not purely ministerial, Strojnik’s claim for
mandamus relief seeking to compel AG Brnovich’s performance is
inappropriate, and the superior court did not err by dismissing it. See
Ponderosa Fire Dist., 235 Ariz. at 601–04, ¶¶ 19, 20, 30–33 (finding mandamus
relief “inappropriate” where a statute did not specify “when” a county is
required to call a bond; thus, where the statute was “silent on an issue,” the
appellate court would not read into it something that was not within “the
express manifest intention of the Legislature” nor “inflate, expand, stretch
or extend the statute to matters not falling within its express provisions”)
(citing Martin v. Althoff, 27 Ariz. App. 588, 591 (1976)).
¶29 Consequently, the superior court also did not err in denying
Strojnik’s motion for leave to amend his mandamus action because doing
so would have been futile. See Bishop, 172 Ariz. at 474–75.
V. Sanctions
¶30 Strojnik argues the superior court committed reversible error
by requiring him to pay AG Brnovich’s reasonable attorneys’ fees as a
sanction. See A.R.S. § 12-349 (mandating an award of reasonable attorneys’
fees in a civil action where, in relevant part, a party (1) brings or defends a
claim without substantial justification or (2) brings or defends a claim solely
or primarily for delay or harassment). “We review an award under § 12-349
to determine if there is sufficient evidence to support the finding of a
frivolous claim or defense.” Cypress on Sunland Homeowners Ass’n v.
Orlandini, 227 Ariz. 288, 301, ¶ 49 (App. 2011).
¶31 Strojnik argues that bringing his lawsuit was not sanctionable
because of the right to petition under Section 5, Article 2, of the Arizona
Constitution. But the right to petition the government does not extend to
frivolous or harassing lawsuits brought in bad faith, which is what the
superior court found Strojnik’s claims to be. See Hunter Contracting Co., Inc.
v. Super. Ct. In and For Cnty. of Maricopa, 190 Ariz. 318, 324 (App. 1997)
(“[T]he Arizona constitution does not assure the right to bring a frivolous
lawsuit.”). Further, Strojnik does not argue that § 12-349 is inapplicable. He
does not cite to the record to contravene the court’s findings, does not cite
any other authority to support his position, and our own review of the
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record substantiates the court’s findings. Therefore, his argument has been
waived, and in any event, is unsupported by the record. See ARCAP
13(a)(7); see also State Farm Mut. Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370
(App. 1990).
¶32 Strojnik further argues the superior court erred by not
bifurcating the fees “between the State and Mr. and Mrs. Brnovich
personally,” but offers no authority to support his argument that the court
was obliged to do so. Therefore, this argument is also waived. See id.
¶33 Contingent upon compliance with ARCAP 21, we grant the
Appellees’ request for reasonable attorneys’ fees incurred on appeal
pursuant to A.R.S. § 12-349 and ARCAP 25 because the claims within
Strojnik’s appeal lacked substantial justification. See A.R.S. § 12-349
(applying further to civil actions “appealed in a court of record in this
state”). As the successful party on appeal, we further award Appellees’
their costs upon compliance with ARCAP 21.
CONCLUSION
¶34 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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