IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

MANU DUBE,

Plaintiff/Appellant,

v.

CHANDRA S. DESAI and PATRICIA

DESAI, husband and wife,

Defendants/Appellees. )

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) 2 CA-CV 2007-0084

DEPARTMENT A

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C 20044924

Honorable Deborah Bernini, Judge

AFFIRMED

Raven, Awerkamp & Clancy, PC

By Don Awerkamp and Ivelisse Bonilla-Torrado

Sandra S. Froman, P.L.C.

By Sandra S. Froman Tucson

Attorneys for Plaintiff/Appellant

Tucson

Attorney for Defendants/Appellees

H O W A R D, Presiding Judge. JAN 11 2008 

### FILED BY CLERK

COURT OF APPEALS

DIVISION TWO2

¶1 Appellant Manu Dube appeals the grant of summary j udgment in favor of

appellees Chandra S. Desai and Patricia Desai in Dube’s tortious interference action. He

claims genuine issues of material fact exist concerning whether Desai acted in the scope of

his employment with the University of Arizona, precluding summary judgment based on his

failure to file a timely notice of claim under A.R.S. § 12-821.01. Finding no error, we

affirm.

Facts and Procedural History

A. Background Facts

¶2 We view the facts in the light most favorable to the party opposing summary

judgment and draw all reasonable inferences arising from the evidence in favor of that party.

Prince v. City of Apache Junction

, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App. 1996). In

reviewing the trial court’s decision, we co nsider only the evidence presented to the trial

court when it addressed the motion for summary judgment. B rookover v. Roberts Enters.,

Inc. , 215 Ariz. 52, ¶ 8, 156 P.3d 1157, 1160 (App. 2007).

¶3 In 1998, Dube transferred to the University of Arizona to continue his postgraduate studies in engineering mechanics. Chandra Desai served as Dube’s doctoral

advisor, research advisor, and course professor, as well as an academic advisor for Dube’s

technical work in his Curricular Practical Training.

¶4 Under the name of C. Desai, Inc., Chandra Desai marketed certain engineering

codes he had developed. Desai hired Dube to work on a contract for a corporate client of3

C. Desai, Inc. The client paid C. Desai, Inc. for the work, and C. Desai, Inc. paid Dube.

Dube signed a consultant agreement. Because Dube was an international student, Desai

submitted information so that the University could secure immigration work authorization

for Dube.

¶5 Part of Dube’s assignment as a consultant was to use a “yield function model,”

developed and licensed by Desai through C. Desai, Inc., to perform work for the client.

Dube alleges that, while workin g with this model, he detected problems with it. Dube

brought th e problems to Desai’s attention and proposed solutions. According to Dube,

Desai “reacted with hostility” and was dismissive of Dube’s suggestions. Dube then decided

to focus his dissertation in a way that he believed would “undermine” Desai’s yield function

model. Dube avows that Desai was not supportive of Dube’s dissertation plan and attempted

to take credit for the new equation that Dube had developed.

¶6 In the fall of 2002, Dube requested that Desai be removed from his dissertation

committee, alleging that Desai was making improper requests for acknowledgment of credit

for Dube’s work and was attempting to misappropriate Dube’s work for himself. According

to Dube, Desai was subsequently removed from the dissertation committee at a meeting held

on November 4, 2002. After this meeting, Desai no longer had decision-making power with

respect to Dube’s dissertation, but he was still to have some input on Dube’s citations.

B. Facts Relevant to Appeal1 This evidence is taken from the statement of facts that Dube submitted to the trial

court. At oral argument, Dube suggested that ¶¶ 88-113 of this statement contain the facts

that support his claim for interference with his business relationships or expectancies. The

court has reviewed these paragraphs and has included all facts that could possibly constitute

admissible evidence of interference by Desai.

4 ¶7 In his “Reply to Defendants’ Statement of Facts,” Dube stated that “at the time

of the actions for which relief is sought in the Amended Complaint, Desai was no longer

Dube’s advisor.” Also, in his “Opposition to Defendants’ Motion for Summary Judgment,”

Dub e argued he had proffered facts that show Desai was acting for his own profit when,

“after Desai was removed from Dube’s dissertation committee, Desai continued to interfere

with Dube’s obtaining hi s Ph.D., getting his dissertation published and going on with his

career.” Accepting Dube’s assertion that Desai was removed as his advisor on November 4,

2002, we review the following evidence of Desai’s actions after that date: 1

1. On November 18, 2002, Desai sent a letter to the Dean of Students, stating that Desai

was concerned that Dube had engaged in disruptive actions. A copy of this letter was

sent to the University police department and two other University admi nistrators.

This letter was sent on University letterhead and was signed “Chandrakant S. Desai,

Regents’ Professor.”

2. Also on November 18, 2002, Desai sent a memorandum to R ichard P., the

University’s Vice President for Research and Graduate Studies. This memorandum

was a response to a memorandum from Richard P. informing Desai that “[i]ndividuals

ha[d] expressed concern

. . . with regard to companies [Desai] may [have] be[en]5

opera ting . . . and the employment of students in those companies.” In Desai’s

response, he asserted he had “fulfilled all the requirement s” for engaging in his

consulting work, including obtaining proper permission when employ ing foreign

students. This memorandum was sent on University letterhead. The caption stated

it was from “Chandrakant S. Desai, Regents’ Professor, CEEM Department.”

3. On November 22, 2002, the chairperson of Dube’s dissertation committee sent an

e-mail to Dianne H., Associate Dean of the Graduate College, expressing c oncern

over Desai’s accusations and demands regarding Dube’s di ssertation. The

chairperson stated that Desai was questioning the quality of Dube’s dissertation and

was objecting to the faculty members who had been proposed to replace Desai on

Dube’s committee.

4. On May 12, 2003, Desai sent a memorandum to Dube’s committee and copied other

administrators. In this memorandum, Desai asked that he be given a draft copy of

Dube’s dissertation so he could check for prope r acknowledgments and citations.

Desai expressed concern over the quality of Dube’s dissertation and his purported

failure to meet the requirements of a research sponsor. Desai also asserted that Dube

could not claim ownership of the equation for which Dube had developed a

modification because the equation itself was the product of many years’ work and

contributions by Desai and many of his students. This memorandum was printed on6

University letterhead. The caption indicated it was from “Chandrakant S. Desai,

Regents’ Professor.”

5. On May 16, 2003, Desai sent an e-mail to Dianne H. in response to an e-mail she had

written. Dianne’s original e-mail stated that a draft of Dube’s dissertation had been

sent to Desai, that she and other administrators would carefully review Desai’s

written comments, and that they would not award the degree unless Dube properly

acknowledged Desai’s work. She also stated that another person would ensure the

sponsor’s requirements were met. She asked that Desai not have direct contact with

Dube’s committee. Desai’s reply e-mail indicated he had received the draft and

would send his comments directly to Dianne H. Desai also expressed concern that

there were no “external me m bers” to review Dube’s dissertation. These e-mails

originated from arizona.edu e-mail addresses.

6. On June 9, 2003, Desai sent a memorandum to Dianne H. and copied other

administrators. Desai stated that he had prepared the memorandum in response to

a request from Dianne H. that he review Dube’s draft dissertatio n and provide

comments. Desai then listed a se ries of detailed criticisms of Dube’s citations and

acknowledgments, including a s uggestion that Dube had committed plagiarism. Desai

also stated that Dube’s work did not satisfy the requirements of a research sponsor.

This memorandum was printed on University letterhead. The caption stated it was

from “Chandra S. Desai, Regents’ Professor, CEEM Department.”2 Dube included additional parties in the action but included Patricia Desai only

because any judgment might affect the community property interests of both Chandra and

Patricia Desai. With respect to the summary judgment at issue in this appeal, the trial court

ordered judgment as to Chandra Desai and Patricia Desai only, finding “no just reason for

delay.” Ariz. R. Civ. P. 54(b). We therefore address only the relevant issues that involve

the individual Desai defendants.

7 7. On June 25, 2003, Desai sent another memorandum to Dianne H. and copied other

administrators. Desai indicated he was responding to a request from Dianne H. for

details on his comments in the June 9 memorandum. Desai apparently attached

materials to this memorandum and also set forth additional criticisms of both Dube

and the dissertation committee. Desai’s comments were in part directed at the quality

of the dissertation and its reflection on the research by Desai and others at the

University. He suggested the dissertation should be reviewed by a committee of

e xternal experts. This memorandum was printed on University letterhead. The

caption stated it was from “Chandra Desai, Regents’ Professor.”

8. On January 14, 2006, Desai sent an e-mail from an ariz ona.edu e-mail address,

apparently to another scholar regarding a paper authored by “Dube and Kundu.”

C. Procedural History

¶8 Dube sued Chan d ra Desai and Patricia Desai, his wife, alleging “Tortious

Interference with Business Relationships and/or Expectancies.” 2 He claimed that Chandra

Desai interfered with Dube’s obtaining his Ph.D. and employment. The Desais moved for

summary judgment based on the notice-of-claim statute, § 12-821.01, arguing that, during8

all relevant times, Chandra Desai was acting within the course and scope of his employment

with the state. They relied on § 12-821.01(A), which requires that any claim against a

public entity or public employee must be filed with the representative authorized to accept

service for that public entity or employee “within one hundred eighty days after the cause

of action accrues.” It was undisputed that Dube had not complied with the notice-of-claim

statute. The trial court found “uncontroverted evidence . . . that all of Mr. Dube’s

actionable claims [arose] from his relationship with Dr. Desai as his academic advisor” and

therefore the Desais were entitled to summary judgment and dismissal of Dube’s claim.

Discussion

¶9 On appeal, Dube argues the trial court erred by granting summary judgment

because genuine issues of material fact exist concerning whether Desai was acting within the

scope of his employment when he allegedly interfered with Dube’s graduation and

employment. He contends that only if Desai was acting within the scope of employment is

summary judgment based on § 12-821.01 appropriate.

¶10 Summary judgment is proper when “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law.” Ariz.

R. Civ. P. 56(c)(1). A court should grant summary judgment “if the facts produced in

support of the claim or defense have so little probative value, given the quantum of evidence

required, that reasonable people could not agree with the conclusion advanced by the

proponent of the claim or defense.” Orme Sch. v. Reeves

, 166 Ariz. 301, 309, 802 P.2d9

1000, 1008 (1990). We review de novo whether there are any genuine issues of material fact

and whether the trial court applied the law properly. Brookover v. Roberts Enters., Inc.

,

215 Ariz. 52, ¶ 8, 156 P.3d 1157, 1160 (App. 2007). A mere scintilla of evidence or a slight

doubt as to whether a material factual dispute exists is not sufficient to overcome summary

judgment. Orme Sch. , 166 Ariz. at 309, 802 P.2d at 1008. When the material facts are not

disputed, a “trial court may decide as a matter of law whether an employee was acting in the

scope of employment at the relevant time.” O rtiz v. Clinton

, 187 Ariz. 294, 298, 928 P.2d

718, 722 (App. 1996).

¶11 Although A.R.S. § 12-820(1) was not cited by e ither party, it defines an

employee, for purposes of the notice-of-claim statute, § 12-821.01, as “an officer, director,

employee or servant, whether or not compensated or part time, who is authorized to perform

any act or service.” In M cCloud v. State

,

___ Ariz.

___, ¶ 25, 170 P.3d 691, 699 (App.

2007), we noted that § 12-821.01 “has consistently been applied only to claims arising out

of acts by public employees in the scope of their employment.” We further observed that

an “employee’s ‘[c] onduct falls within the scope [of employment] if it is the kind the

employee is employed to perform, it occurs within the authorized time and space limits, and

furthers the employer’s business even if the employer has expressly forbidden it.” I d. ¶ 29,

quoting Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phoenix, Inc.

, 197

Ariz. 535, ¶ 17, 5 P.3d 249, 254 (App. 2000) (alteration in M cCloud ); see also Love v.

Liberty Mut. Ins. Co.

, 158 Ariz. 36, 38, 760 P.2d 1085, 1087 (App. 1988) (conduct within10

scope of employment if, inter alia, “it is actuated at least in part by a purpose to serve the

master”). An employee’s improper actions, even those serving personal desires, will be

deemed motivated to serve the employer if those actions are incidental to the employee’s

legitimate work activity. See State v. Schallock

, 189 Ariz. 250, 258, 941 P.2d 1275, 1283

(1997) (an employee may act within scope of authorized employment when sexually

harassing subordinates).

¶12 Dube correctly observed at ora l argument that, to prevail on summary

judgment, Desai had the burden to show evidence supporting his assertion that he was acting

within the “authorized” scope of his employment, thus triggering the notice-of-claim

requirement. S ee Orme Sch.

, 166 Ariz. at 310, 802 P.2d at 1009. To defeat summary

judgment, Dube then had to show evidence creating a genuine issue of fact on this question.

See id. But, as noted above, when the material facts are undisputed, we may decide as a

matter of law whether Desai was acting within the scope of his employment. See Ortiz

, 187

Ariz. at 298, 928 P.2d at 722.

¶13 The parties do not dispute what Desai did. What they do dispute is whether

Desai’s actions were motivated, at least partially, to serve Desai’s employer. S ee Schallock

,

189 Ariz. at 258, 941 P.2d at 1283. Dube contends that a jury could “easily find that

[Desai’s] interference was in no way motivated by [his] University position.” The

undisputed facts, taken together with any disputed facts resolved in Dube’s favor, do not

support this assertion.3 One exception is the e-mail Desai sent in 2006, which Dube cites as support for his

allegation that Desai has interfe red with Dube’s efforts to publish the research from his

dissertation. Dube also cites to an excerpt from Desai’s deposition, but the pages that he

cites are not included in the attachments to his statement of facts filed with the trial court.

Dube was responsible for ensuring the record on appeal contained all documents necessary

for us to consider the issues he raises. When the necessary items are omitted, “we assume

they would support the court’s findings and conclusions.” Baker v. Baker

, 183 Ariz. 70,

73, 900 P.2d 764, 767 (App. 1995). In the e-mail, which is included in the record, Desai

does not identify himself as a regents’ professor, and it is unclear whether the recipient is a

member of the University. The e-mail was sent from a University-based e-mail account.

Without additional information, the significance of the e-mail is unclear. Dube has not

submitted any evidence that Desai was not “authorized” to communicate with this person.

At oral argument, De sai asserted that the 2006 e-mail could not have interfered with

publication because Dube’s dissertation had already been published by that time. Dube

responded that the e-mail interfered with additional publication efforts. But other than this

e-mail, there w as no admissible evidence offered below by Dube regarding attempted or

successful publication. We find at most that this e-mail amounts to a scintilla of evidence

suggesting Desai might have been acting outside the scope of his employment and is

insufficient to overcome summary judgment. S ee Orme Sch.

, 166 Ariz. at 309, 802 P.2d at

1008.

11 ¶14 Desai first alerted administrators and authorities to his concern over what he

alleged to be the disruptive actions of a student, Dube. Almost all of Desai’s subsequent

actions involved communications relating to the dissertation of that student; were printed

on University letterhead or sent to and from University-based e-mail accounts; were directed

to other members of the University; and identified Desai as a regents’ professor of the

University. 3 Dube has not produced any evidence that Desai’s job as a University professor

did not include commenting on a disrupt ive student or on a student’s dissertation or

communicating with other members of t he University. In fact, other members of the4 The only communication that does not refer to Dube by name is the memorandum

Desai sent to Richard P. However, this document was on University letterhead, sent to an

administrator of the University, and sent in Desai’s capacity as a “Regents’ Professor.” In

addition, the subject matter pertains entirely to the issue o f compliance with University

policy. Dube has offered nothing to suggest Desai was not authorized to write this

memorandum.

5 Dube cites Demas v. Levitsky

, 738 N.Y.S. 2d 402, 409-10 (App. Div. 2002),

asserting that the plaintiff there m ade allegations similar to his own and that the court

determined that a professor who takes credit for a student’s research for personal fame and

recognition is not acting within the scope of his employment for a university. We decline

to adopt the reasoning in Demas as it is inconsistent with Arizona’s case law addressing the

issue of motivation to serve the employer’s interests.

12 University specifically requested that Desai comment on the dissertation. 4 Thus, his actions

were at least incidental to his employment and therefore were motivated in part by a desire

to serve his employer. See Schallock , 189 Ariz. at 258, 941 P.2d at 1283.

¶15 The sexual harassment analysis in Schallock is conceptually analogous to the

issue in the present case. In S challock

, our supreme court observed that, when a supervisor

harasses employees while performing his authorized duties, the harassment can be incidental

to his work and thus within the scope of his employment. I d. at 258, 941 P.2d at 1283.

Even though a supervisor may harass from some personal desire, he commits the harassment

in the course and scope of performing his duties, so long as he is authorized to perform those

duties. I d. In this case, Desai may have had a desire to protect C. Desai, Inc. and may have

used his position at the University to advance a personal agenda. But even if this is true, all

the actions of which Dube complains were incidental to Desai’s work for the University. 513

¶16 At oral argument, Dube correctly noted that the supreme court in Schallock

found issues of fact that made summary judgment inappropriate. I d. at 262-63, 941 P.2d at

1287-88. But here, Dube has failed to produce any evidence showing that Desai’s acts were

not at least incidental to his job. Therefore, he has failed to raise any issue of fact. S ee

Ortiz

, 187 Ariz. at 298, 928 P.2d at 722 (court may decide whether conduct within scope

of employment as matter of law when material facts undisputed). Dube also cited E -Z Livin’

Mobile Homes, Inc. v. Tommaney

, 27 Ariz. App. 11, 15-16, 550 P.2d 658, 662-63 (1976),

for the proposition that use of a princ ipal’s stationery is insufficient to create an agency

relationshi p. He claimed therefore that the use of University letterhead is insufficient to

place Desai within the scope of his employment. But the evidence presented by Dube

involves far more than mere use of the University’s letterhead. The evidence shows multiple

reciprocal communications between Desai and University administrators about subjects that

directly related to Desai’s position as a professor at the University. On the other hand, Dube

produced no evidence suggesting that Desai’s actions were not incidental to his employment.

¶17 Dube argues that to find Desai was acting within the scope of his employment

would be tantamount to saying Desai “was employed by the University

. . . to tortiously

interfere with the academ ic and employment opportunities of his students.” But, in

Schallock

, the supreme court observed that “[t]he relevant purpose to be ascertained is not

whether [the supervisor] had authority to harass—no supervisor has that authority—but

whether he had authority to run and was running [the employer’s] business.” I d

. at 258, 94114

P.2d at 1283. In the present case, the relevant inquiry is not whether Desai had the authority

to commit tortious interference but whether he had the authority to communicate with other

members of the University about Dube.

¶18 Dube suggested in his statement of facts filed below that some of Desai’s

communications were in defiance of Dianne H.’s instructions. The evidence Dube proffered

in support of that asser tion does not substantiate such an inference. But, even assuming

Dube were corre ct in this regard, the fact that Desai’s actions may have displeased his

employer or contravened his employer’s instructions does not remove him from the scope

of his employment. S ee Baker

, 197 Ariz. 535, ¶ 17, 5 P.3d at 254 (even expressly forbidden

actions may be within scope of employment). To the contrary, the evidence suggests Desai’s

employer w as actively overseeing his actions, reinforcing the conclusion that Desai was

acting within his scope of employment. And Dube acknowledges that, after Desai was no

longer serving on his dissertation committee, Dianne H. still expected Desai to provide

comments on Dube’s citations.

¶19 Dube argues that “[a]ny scholar from any University with some expertise on

the area can discredit and/or criticize research being performed” and can ask that he be given

credit he believes is due for any research. He also contends that “there is no difference”

between interference by Desai and interference by an employee of the corporate client who

might have learned of Dube’s work and tried to appropriate it. But Dube’s contentions are6 In his statement of facts, Dube cited a portion of Desai’s deposition as support for

the proposition that anyon e can submit comments to a dissertation committee. But the

testimony cited actually suggests the opposite conclusion.

15 mere conclusory suppositions, which are not supported in the record. 6 And the fact that

others could commit the same tort does not mean that Desai was not acting within the scope

of his employment when he allegedly committ ed it. This case does not involve “any

scholar” or r andom employee of another company. It involves a University professor,

sending communications on University letterhead or from University-based e-mail accounts

to other members of the University, regarding the work of a student wit h whom that

professor had had a formal academic relationship. And the evidence shows the University

expected Desai to continue to play some kind of role in the dissertation process even after

he was no longer Dube’s advisor.

¶20 Dube also contends he has shown that Desai was attempting to mislead the

University about C. Desai, Inc. and suggests the only explanation for this subterfuge was that

any work for C. Desai, Inc. was not intended to serve the University. Similarly, Dube argues

that, because Desai required, as a condition of doing consulting work, that his students sign

an agreement releasing to C. Desai, Inc. any codes they might develop, this also proves

Desai’s work for C. Desai, Inc. was not intended to serve the interest of the University. But

the actions Dube complains of as constituting tortious interference do not include Desai’s

own work or his students’ work for C. Desai, Inc. As noted above, Dube asserted that all

actions that underlie his claim of interference took place after November 4, 2002. Those7 On appeal Dube cites Balson v. Ohio State Univ.

, 677 N.E.2d 1216 (Ohio Ct. App.

1996), in support of his assertion that Desai was acting on behalf of C. Desai, Inc. As the

Desais observe in their answering brief, Theobald v. Univ. of Cincinnati , 827 N.E.2d 365

(Ohio Ct. App. 2005), calls into doubt the analysis in Balson. But, in any event, B alson

involved the question whether a physician-faculty member of a state university, who was

also a member of a private corporation, was acting within the scope of his employment for

the university when he performed a particular surger y. 677 N.E.2d at 1218-19. B alson

would only be applicable to the question whether Desai’s research for C. Desai, Inc., or his

supervision o f students performing that research, was conducted within the scope of his

employment for the University. Again, the actions complained of do not include research

performe d for C. Desai, Inc.; the actions that form the basis of the complaint are the

communications Desai sent after November 4, 2002.

16 actions are outlined above and do not involve any releases signed b y Dube or any other

student with respect to work done for C. Desai, Inc. After November 4, Desai’s only action

that appears to refer to C. Desai, Inc. is the memorandum he sent to Richard P. As we have

discussed, the contents of this memorandum address only Desai’s compliance, as a

University employee, with University policy with respect to his outside consulting work and

employment of international students. Irrespective of whether this memorandum was

misleading, it was written within the scope of Desai’s employment. 7

Conclusion

¶21 Viewing the evidence in the light most favorable to Dube, we conclude the

trial court did not err in finding no genuine issue of material fact as to whether Desai was

acting within the scope of his employment and that, therefore, Dube’s failure to comply with

§ 12-820.01 required dismissal of his complaint. There is no more than a scintilla of

evidence to suggest that Desai was not “authorized to perform any act or service,” § 12-17

820(1), when he engaged in the conduct upon which Dube’s claims of tortious interference

are based. Nor is there any admissible evidence to suggest that Desai was acting solely on

behalf of C. Desai, Inc. or that his actions were not at least incidental to his employment and

therefore motivated by the University’s interests. We further conclude that “the trial judge

would not have been required to pass on the credibility of witnesses with differing versions

of material facts, would not have been required to weigh the quality of documentary or other

evidence, and was not required to cho ose among competing or conflicting inferences.”

Orme Sch. , 166 Ariz. at 311, 802 P.2d at 1010.

¶22 In light of the foregoing, we affirm the trial court’s grant of summary judgment,

dismissing Dube’s complaint against Chandra Desai and Patricia Desai.

____________________________________ JOSEPH W. HOWARD, Presiding Judge

CONCURRING:

____________________________________ JOHN PELANDER, Chief Judge

____________________________________ J. WILLIAM BRAMMER, JR., Judge