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Dunlap v. City of Phoenix12/27/1990
ved finality and that binds the trial court (and the appellate court) in subsequent proceedings in the same action. Stearns-Roger Corp. v. Hartford Accident & Indemnity Co., 117 Ariz. 132, 134, 571 P.2d 278, 280 (App.1976), vacated on other grounds, 117 Ariz. 162, 571 P.2d 659 (1977); see Black's Law Dictionary 798 (5th ed.1979). There has not been an appellate decision rendered on the motion to dismiss issue in this matter; therefore, law of the case does not apply.
Nonetheless, a superior court judge should exercise caution when considering a motion that has already been denied by another judge. "The general rule in Arizona is that a trial court should not reconsider a motion already decided by another superior court judge unless new circumstances are demonstrated by the movant." Lemons v. Superior Court, 141 Ariz. 502, 504, 687 P.2d 1257, 1259 (1984). However, this is a general rule and the trial judge has jurisdiction to reconsider the motion unless the first decision was a final judgment. Id.
The defendants argue that there were pertinent changes in circumstance, contending that von Bulow ex rel. Auersperg v. von Bulow, 657 F.Supp. 1134 (S.D.N.Y.1987), which was decided after Judge Rozar's ruling, demonstrates that Dunlap's claim actually sounds in malicious prosecution, not fraud. Dunlap argues that this decision did not change controlling law because it is not precedent in Arizona. However, no controlling law exists because no Arizona court has considered the precise question presented here. We note, however, that five years of discovery separates the first motion from the second motion. Thus, the record was much more clear at the time of the second motion.
Although we do not rely on von Bulow in our determination of this matter, we note that it was a new case providing possible guidance to the trial court and therefore may have provided a proper basis for reconsidering the statute of limitations defense. We find no abuse of discretion by Judge Gottsfield in considering the second motion. It would be folly to reverse on this ground having decided, as we do hereafter, that Judge Gottsfield's order was legally sound.
II. Statute of Limitations
Dunlap commenced this action on July 2, 1982. For purposes of the motion to dismiss and this appeal, the defendants have accepted Dunlap's contention that his cause of action arose on June 2, 1980, when the charges against him were dismissed. The issue therefore is how to characterize Dunlap's cause of action to determine the applicable statute of limitations.
Because it is at the heart of our discussion, we set forth pertinent excerpts from Dunlap's First Amended Complaint:
XXXVIII
During its investigation the City and its law enforcement agency, the City of Phoenix Police Department including individual Defendants, uncovered evidence exculpatory of Dunlap; information that lessened the credibility of material witnesses who testified against Dunlap including but not limited to John Harvey Adamson ("Adamson"), Bolles' confessed slayer; and information tending to establish that persons other than Dunlap were criminally responsible for Bolles' murder.
XXXIX
Such evidence and information, if disclosed, would have palpably demonstrated Dunlap's innocence probatum and unshrouded those who were in league with Adamson in the murder of Bolles.
XL
During the course of the criminal proceeding against Dunlap, the [defendants] fraudulently concealed from Dunlap, evidence in [their] possession t
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