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Dunlap v. City of Phoenix12/27/1990
hat [they] had a constitutional, statutory and equitable duty to disclose.
XLI
In furtherance of their conspiracy to injure and damage Dunlap, [the defendants]
maliciously, deliberately, and with malevolent intent, destroyed, shredded, misfiled, secreted, ensconced, dissembled, covertly concealed, and surreptitiously withheld from Dunlap the aforesaid material and information that was their constitutional and statutory duty to disclose and would have tended to negate Dunlap's guilt of the crime charged.
XLII
The aforesaid concealed information and evidence was material under the circumstances and its concealment was intended by the [defendants] to, and did in fact, deceive Dunlap into believing that the [defendants] had performed their constitutional, statutory and equitable duty imposed upon them by law.
XLIII
Dunlap, under the circumstances, justifiably relied and had a right to rely that such concealed exculpatory evidence, information and material would be communicated to Dunlap.
LI
On several occasions between January 16, 1977, and continuing to June, 1980, the [defendants], in furtherance of their conspiracy to injure and damage Dunlap and with intent to deceive and defraud Dunlap, represented to Dunlap through counsel prosecuting Dunlap that no material or information exculpatory of Dunlap existed that tended to mitigate Dunlap's guilt as to the offense charged.
LII
On several occasions between January 16, 1977, and continuing to June 1980, the [defendants], in furtherance of their conspiracy to injure and damage Dunlap and with intent to deceive and defraud Dunlap, omitted to inform Dunlap that material or information exculpatory to Dunlap existed that tended to mitigate Dunlap's guilt as to the offense charged.
LIII
The aforesaid representations and/or omissions were false and were then and there known by Defendants to be false; that in truth and in fact Defendants knew at the time of their investigation that they had in their possession material evidence exculpatory to Dunlap, information lessening the credibility of Adamson and other material witnesses who testified against Dunlap and information establishing that persons other than Dunlap were criminally responsible for Bolles' murder.
Dunlap argues that his cause of action is fraud and that the limitations period is therefore three years under A.R.S. § 12-543(3). The defendants argue that Dunlap's cause of action could be one of four different possibilities: (1) an action under 42 U.S.C. § 1983; (2) malicious prosecution; (3) intentional infliction of emotional distress; or (4) "spoliation of evidence." Thus, they argue, the limitations period is either one or two years under A.R.S. §§ 12-541(3) or 12-542(1) (Supp.1989), but not three years.
Dunlap simply argues that because he has made allegations of fraud and fraudulent concealment, his cause of action necessarily
sounds in fraud. We disagree. The essence or gravamen of the cause of action controls this determination, not the form in which the cause is pleaded. See Hansen v. Stoll, 130 Ariz. 454, 460, 636 P.2d 1236, 1242 (App.1981); Atlee Credit Corp. v. Quetulio, 22 Ariz. App. 116, 117, 524 P.2d 511, 512 (1974). A close examination of Dunlap's complaint reveals that the true essence of his action is the defendants' alleged concealment (and des
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