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McManus v. Runner12/22/2003
MEMORANDUM DECISION
Not for Publication Rule 28, Rules of Civil Appellate Procedure
Plaintiff/appellant James McManus appeals from a summary judgment granted in favor of defendants/appellees Katherine Runner and San Pedro Valley Ace Hardware (appellees) in McManus's action for assault, slander per se, false light invasion of privacy, and intentional infliction of mental and emotional distress. As best we understand McManus's rambling and somewhat confusing opening brief, it appears he is arguing that the trial court erred in granting appellees' motion to dismiss, in denying his motions to continue, in denying his requests for leave to amend his complaint, in failing to read all of the depositions he had taken, and in granting appellees' motion for summary judgment. For the reasons set forth below, we affirm.
Facts and Procedural History
On appeal from a grant of summary judgment, we view the facts and all reasonable inferences therefrom in the light most favorable to the party against whom judgment was granted. Walk v. Ring, 202 Ariz. 310, 44 P.3d 990 (2002). In late 1997, McManus went to Ace's store with an exercise shoe and left it with Runner to give to one of her co-workers who was not there that day. McManus also left a handwritten sheet illustrating and explaining the use of the shoe. Some Ace employees saw the handwritten sheet and believed it was sexually suggestive, implying McManus had a sexual interest in the female employee for whom it was written. Later that day, Runner told a co-worker, the assistant store manager, and her husband that McManus had tried to grab her and that she was afraid of him. Still later that same day, Runner became upset and began to shout when she and her husband encountered McManus at a grocery store. Runner's husband stepped between her and McManus, and Runner called for the manager. Runner and her husband made disparaging remarks about McManus in front of other customers and grocery store employees.
When McManus returned to shop at Ace a few days later, he put items on a checkstand counter while he went to retrieve a credit card from his car. As he approached Ace's front door, assistant manager Dave Allard shouted at him not to take items out of the store without paying for them. About a year later, McManus came into a convenience store where Runner was then working. Runner pointed him out to another customer, stating that McManus had been banned from Ace and that he had made unwanted advances towards an Ace employee forty-five years his junior.
McManus subsequently filed a complaint against Runner, her husband, and Ace, alleging causes of action for slander per se, false light invasion of privacy, and intentional infliction of mental and emotional distress. McManus also alleged a cause of action for assault against Runner's husband. The court granted appellees' motion to dismiss McManus's claims of false light invasion of privacy and assault for failure to state a claim upon which relief could be granted, and the Runners' motion to dismiss for lack of proper service. Ariz. R. Civ. P. 12(b)(6) and (b)(5), 16 A.R.S., Pt. 1. Later, appellees filed a motion for summary judgment, arguing that any defamatory statements Runner had made were in her individual capacity, not as Ace's agent, that Ace's employees' statements were either privileged or not defamatory, and that none of Ace's employees' actions could give rise to a claim for intentional infliction of emotional distress. Ariz. R. Civ. P. 56(c), 16 A.R.S., Pt. 2. Over McManus's assertions that genuine issues of fact precluded summary judgment, the court granted appellees' motion. This appeal followed.
Dismissal for Failure to
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