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Dunlap v. City of Phoenix12/27/1990
Max Anderson Dunlap (Dunlap) appeals from the trial court's order granting the defendants-appellees' motion to dismiss his complaint on the grounds that his action is barred by the two-year statute of limitations. A.R.S. § 12-542(1) (Supp.1989). Defendants-appellees are the City of Phoenix and various individual members of its police department (defendants). We affirm.
FACTS AND PROCEDURAL HISTORY
In reviewing an order granting a motion to dismiss, we accept as true the well-pleaded facts as alleged in the complaint. See Drew v. United Producers & Consumers Coop., 161 Ariz. 331, 331, 778 P.2d 1227, 1227 (1989); Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 186, 677 P.2d 1292, 1294 (1984).
On June 2, 1976, a bomb exploded in a car occupied by investigative reporter Don Bolles. Bolles died eleven days later. On January 16, 1977, Dunlap was arrested and charged with Bolles' murder. On November 6, 1977, Dunlap was convicted of first-degree murder, and on January 10, 1978, he was sentenced to death. He was imprisoned for more than two years. On February 25, 1980, the supreme court reversed Dunlap's conviction. State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980). Dunlap was ordered to stand trial again, but the charges against him were dismissed without prejudice on June 2, 1980.
On July 2, 1982, Dunlap filed suit, alleging that the defendants fraudulently concealed from him the existence of information and evidence that would have tended to exculpate him in his murder trial. He requested $305,400,000 in general damages and $300,000,000 in punitive damages. In August 1982, the defendants filed a motion to dismiss, contending that the action was barred by the statute of limitations. Judge Morris Rozar denied the motion without explanation. There ensued years of discovery and motions and many changes of judge until trial commenced on January 7, 1987, before Judge Robert A. Hertzberg. Ten weeks into the trial, on March 12, 1987, the court granted a motion for mistrial. See Sellers v. Superior Court, 154 Ariz. 281, 742 P.2d 292 (App.1987). The trial was rescheduled and the matter was then assigned to Judge Robert L. Gottsfield.
On October 24, 1988, the defendants filed a second motion to dismiss based on the statute of limitations. Judge Gottsfield granted the motion, and Dunlap filed a motion for reconsideration. Judge Gottsfield denied this motion and entered judgment in favor of the defendants. Dunlap appeals, raising the following issues:
(1) Did Judge Gottsfield violate the "law of the case" in ruling on the same motion to dismiss already denied by Judge Rozar?
(2) Did the court err in holding that the three-year limitations period provided by A.R.S. § 12-543(3) did not apply?
(3) Did the trial court err by applying an improper legal standard in granting a motion to dismiss for failure to state a claim?
We have jurisdiction pursuant to A.R.S. § 12-2101(B).
I. "Law of the Case"
Dunlap first argues that Judge Gottsfield violated the law of the case by considering and granting the motion to dismiss after Judge Rozar had denied a previous motion based on the same grounds. Judge Rozar's denial of the first motion was not the law of the case. The law of the case doctrine relates to an appellate
court's decision that has achie
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