NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT 

PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JAMES MINOTTO, an individual, Plaintiff/Appellant,

v.

CHARLES VAN COTT, an individual, and JANE DOE MINOTTO, 

husband and wife; STEVENS & VAN COTT, PLLC, an Arizona 

professional limited liability company, Defendants/Appellees.

No. 1 CA-CV 15-0159

Appeal from the Superior Court in Maricopa County

No. CV2014-052152

The Honorable John R. Hannah, Jr., Judge

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

COUNSEL

Gillespie, Shields, Durrant & Goldfarb, Phoenix

By DeeAn Gillespie Strub

Counsel for Plaintiff/Appellant

Manning & Kass, Ellrod, Ramirez, Trester, LLP, Scottsdale

By Anthony S. Vitagliano, Robert B. Zelms, 

Counsel for Defendants/Appellees
MINOTTO v. VAN COTT

Decision of the Court

2

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which Chief

Judge Michael J. Brown and Judge Maurice Portley joined.

GEMMILL, Judge:

¶1 James Minotto (“Father”) appeals the superior court’s 

judgment dismissing his claims against Charles Van Cott, Jane Doe Van 

Cott,

1 and Stevens & Van Cott, PLLC (collectively “Van Cott”). For the 

following reasons, we affirm in part, vacate in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Van Cott represented Father’s former spouse (“Mother”) 

during divorce proceedings between the parties. In the course of the 

divorce proceedings, Father sought modification of the custody and 

parenting time orders regarding the couple’s minor children, and the court 

scheduled an evidentiary hearing.

¶3 The day before the hearing, Mother sent an email to Van Cott. 

In the email’s “RE:” line, Mother prefaced the email with the title “dramatic 

letter LOL” (the “LOL Email”). Attached to the LOL Email was a letter from 

the girlfriend of Mother’s adult son, in which the girlfriend accused Father 

of improper sexual conduct with children, including sexually abusing the 

adult son during his childhood.

¶4 Based on these allegations, Van Cott filed, on Mother’s behalf,

a motion to continue the evidentiary hearing and requesting a limited scope 

custody evaluation.

2 The superior court granted the motion, continued the 

evidentiary hearing, and appointed a physician to conduct a custody 

evaluation.

 

1 The superior court caption mistakenly named Charles Van Cott’s spouse 

as “Jane Doe Minotto.”

2 Arizona law requires the superior court to determine parenting time in 

the best interests of the child, which includes considering whether there has 

been child abuse. A.R.S. § 25-403(A)(8).
MINOTTO v. VAN COTT

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¶5 After the evaluation, polygraph testing of Father, and an 

eventual trial, the superior court determined that Mother knew the 

allegation of sexual abuse against Father was unequivocally untrue. In its 

ruling, the court explained that Mother was “all too happy to perpetrate a 

fraud on this Court.”

¶6 Based on the litigation resulting from the LOL Email, Father 

filed a civil lawsuit against Mother, Van Cott, and others. In his complaint, 

Father alleged the following as the basis of his claims against Van Cott:

¶ 25. Mother’s flippant description of her own allegation of 

sexual abuse against one of her children — conveniently 

made on the day before an evidentiary hearing on Father’s 

petition — should have alerted Defendant Van Cott that the 

allegation was bogus. Nonetheless, to deprive Father of his 

day in court – for which he had already waited nearly a year 

– Defendant Van Cott filed, on Mother’s behalf — a Motion 

[to] Continue & For Limited Scope Custody Evaluation based 

upon these false allegations.

. . . 

¶ 32. Moreover, during this period, Defendant Van Cott 

engaged in numerous ex parte contacts with, Dr. Pecaut, the 

counselor of the minor children at issue in the Family Court 

Matter, in an apparent attempt to sway the counselor in a 

manner favorable to Mother.

Van Cott moved to dismiss Father’s complaint for failure to state a claim 

pursuant to Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). The superior 

court granted the motion and dismissed with prejudice all claims against 

Van Cott.

¶7 Father timely appeals. We have jurisdiction pursuant to 

Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

¶8 Father argues the superior court erred by dismissing his 

complaint against Van Cott for failure to state a claim. We review de novo 

the dismissal of claims pursuant to Rule 12(b)(6). Orca Communications

Unlimited, LLC v. Noder, 236 Ariz. 180, 181, ¶ 6 (2014); Coleman v. City of Mesa,

230 Ariz. 352, 355, ¶ 7 (2012). We will uphold a court’s dismissal for failure 

to state a claim only if, as a matter of law, the plaintiff “would not be entitled 
MINOTTO v. VAN COTT

Decision of the Court

4

to relief under any interpretation of the facts susceptible of proof.” Fid. Sec. 

Life Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998); Orca, 236 Ariz. 

at 181, ¶ 6.

¶9 When assessing the sufficiency of a complaint, Arizona courts 

follow a notice-pleading standard. Coleman, 230 Ariz. at 356, ¶ 9. We will 

“assume the truth of all well-pleaded factual allegations and indulge all 

reasonable inferences from those facts.” Id.; Cullen v. Auto-Owners Ins. Co., 

218 Ariz. 417, 419, ¶ 7 (2008). We do not, however, “speculate about 

hypothetical facts that might entitle the plaintiff to relief.” Cullen, 218 Ariz. 

at 420, ¶ 14.

¶10 Father alleges four claims against Van Cott: abuse of process, 

wrongful use of civil proceedings,3 intentional infliction of emotional

distress, and aiding and abetting tortious conduct. We address the superior 

court’s dismissal of each claim in turn. 

A. Abuse of Process

¶11 A claim for abuse of process requires a defendant (1) 

undertake “a willful act in the use of judicial process,” (2) with “an ulterior 

purpose not proper in the regular conduct of the proceedings,” and (3) the 

plaintiff suffers harm as a result. Nienstedt v. Wetzel, 133 Ariz. 348, 353 (App. 

1982); see also Crackel v. Allstate Ins. Co., 208 Ariz. 252, 264, ¶ 40 (App. 2004). 

Abuse of process “encompasses the entire range of procedures incident to 

the litigation process,” including filing motions for continuances. Nienstedt, 

133 Ariz. at 352–53. 

¶12 Father argues that Mother’s “flippant description” of the 

sexual abuse allegations should have been sufficient to alert Van Cott that 

the accusations were false. Father therefore asserts Van Cott’s filing a 

motion to continue based on those allegations was motivated by a desire to 

“deprive Father of his day in court.” Father also asserts Van Cott engaged 

in ex parte contact with the minor children’s counselor in order to sway the 

counselor in favor of Mother.

¶13 An abuse of process claim is appropriate when a party 

misuses the legal process “for an end other than that which it was designed 

to accomplish.” Nienstedt, 133 Ariz. at 353. But there is no liability for a 

party who, “even though with bad intentions,” utilizes legal process in a 

 

3 The parties refer to this tort as “wrongful institution or continuation of 

civil proceedings.” In this decision we choose the title “wrongful use of 

civil proceedings.” See Restatement (Second) of Torts § 674 (1977). 
MINOTTO v. VAN COTT

Decision of the Court

5

manner consistent with legitimate goals of litigation. Id.; see also Crackel, 208 

Ariz. at 259, ¶ 19. A party is liable for abuse of process only when the 

procedure becomes “so lacking in justification as to lose its legitimate 

function as a reasonably justifiable litigation procedure.” See Nienstedt, 133 

Ariz. at 354.

¶14 We agree that filing a motion to continue is a willful act in the 

use of judicial process. See id. at 352–53. But even if we assume the motion 

to continue caused Father harm through delay in trial and additional 

expenses, a defendant’s knowledge and awareness that the use of the 

judicial process will “necessarily subject the opposing party to additional 

legal expenses” is insufficient to show ulterior motive. Id. at 354. The crux 

of the abuse of process tort is that the ulterior purpose is the primary

motivation for the use of the judicial process. Crackel, 208 Ariz. at 259, ¶ 18. 

Van Cott’s motion to continue can “logically be explained without reference 

to the defendant’s improper motives.” Id. We therefore agree with the 

superior court’s determination that Father did not sufficiently allege Van 

Cott abused legal process for the primary purpose of depriving Father of 

his rights.

¶15 Further, Father’s allegation regarding ex parte contact with 

the counselor did not satisfy the “willful act” prong of an abuse of process 

claim. See Nienstedt, 133 Ariz. at 353. It is entirely unclear from the face of 

the complaint what role the counselor played in the judicial process and 

what limitations, if any, there were on ex parte contact with the counselor. 

In the absence of more definite allegations, contacting a counselor ex parte 

is not a procedure incident to the litigation process such that an abuse of 

process claim would arise therefrom, even if Van Cott’s ulterior purpose 

was to sway the counselor in Mother’s favor. Moreover, Father has shown 

no specific harm resulting from this alleged conduct. See id. Father did not 

allege the superior court ruled against him on parenting time in the 

dissolution proceedings because Mother’s ex parte contact influenced the 

counselor’s input. Thus, we discern no error in the superior court’s 

dismissal of Father’s abuse of process claim.

B. Wrongful Use of Civil Proceedings

¶16 The elements of a wrongful use of civil proceedings claim are 

that the defendant (1) instituted or continued a civil action which was (2) 

motivated by malice, (3) maintained without probable cause, (4) resolved 

in plaintiff’s favor, and (5) damaged plaintiff. Bradshaw v. State Farm Mut. 

Auto. Ins. Co., 157 Ariz. 411, 416–17 (1988); Wolfinger v. Cheche, 206 Ariz. 504, 

508–09, ¶ 23 (App. 2003). 
MINOTTO v. VAN COTT

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¶17 Unlike abuse of process, a wrongful use claim encompasses 

not only the initiation of legal proceedings, but also the continuation 

thereof. See Restatement (Second) of Torts § 674 (1977). Father’s complaint 

alleges Van Cott continued to pursue a course of legal action based on the 

LOL Email, even after it became clear that Mother’s allegations were 

baseless. Because it points to the continuation of legal proceedings based 

on Mother’s email, the complaint contains sufficient factual allegations to 

support a claim that Van Cott lacked probable cause to continue the action 

against Father. See Wolfinger, 206 Ariz. at 508–09, ¶ 23. Accordingly, it 

sufficiently pleads a claim for wrongful use. The superior court erred by 

dismissing Father’s claims against Van Cott. 

C. Aiding and Abetting Tortious Conduct

¶18 Arizona recognizes the tort of aiding and abetting tortious 

conduct as set forth in Restatement (Second) of Torts § 876(b) (1979). Wells 

Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 

Pension Trust Fund, 201 Ariz. 474, 485, ¶ 31 (2002); Gomez v. Hensley, 145 

Ariz. 176, 178 (App. 1984). The Restatement provides that a party may be 

liable for “harm resulting to a third person from the tortious conduct of 

another” if the third party “knows that the other’s conduct constitutes a 

breach of duty and gives substantial assistance or encouragement to the 

other so to conduct himself.” Restatement (Second) of Torts § 876(b) (1979). 

Aiding and abetting therefore requires proof of scienter: “the defendants

must know that the conduct they are aiding and abetting is a tort.” Wells 

Fargo, 201 Ariz. at 485, ¶ 33 (quoting Witzman v. Lehrman, Lehrman & Flom, 

601 N.W.2d 179, 186 (Minn. 1999)). Although this court may infer 

knowledge from the circumstances alleged, “an inference of knowledge 

will not be made lightly.” See Federico v. Maric, 224 Ariz. 34, 36, ¶ 9 (App. 

2010). 

¶19 In the complaint, Father did not affirmatively plead that Van 

Cott knew Mother’s allegations were false, but only that Father should have 

known Mother’s email was “bogus.” On appeal, Father continues to argue 

only that Van Cott should have known that Mother’s email regarding 

Father’s alleged behavior was false. Accordingly, we agree with the 

superior court that Father has not alleged a level of knowledge sufficient to 

satisfy the elements of aiding and abetting tortious conduct. We discern no 

error in the superior court’s dismissal of Father’s claim. 
MINOTTO v. VAN COTT

Decision of the Court

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D. Intentional Infliction of Emotional Distress

¶20 The elements of a claim for intentional infliction of emotional 

distress are (1) the defendant’s conduct must be “‘extreme’ and 

‘outrageous,’” (2) the defendant must have either intended “to cause 

emotional distress or [have] recklessly disregard[ed] the near certainty that 

such distress [would] result from his conduct,” and (3) “severe emotional 

distress must indeed occur as a result of defendant’s conduct.” Ford v. 

Revlon, Inc., 153 Ariz. 38, 43 (1987).

¶21 The superior court determines whether the pleaded acts are

“sufficiently outrageous to state a claim for relief.” Johnson v. McDonald, 

197 Ariz. 155, 160, ¶ 23 (App. 1999). Recovery for this claim requires that 

the defendant’s conduct was “so outrageous in character, and so extreme in 

degree, as to go beyond all possible bounds of decency, and to be regarded 

as atrocious and utterly intolerable in a civilized community.” Id. (quoting 

Cluff v. Farmers Ins. Exchange, 10 Ariz. App. 560, 562 (1969)). 

¶22 Father claims the sexual abuse allegation was objectively false 

and thus Van Cott’s conduct in filing the motion to continue based on the 

false allegations was outrageous. But we agree with Van Cott that in order 

for Father’s conduct here to be classified as extreme or outrageous, Father 

must have had actual knowledge that Mother’s email was false. And as 

explained above, the complaint’s allegations do not give rise to allegations 

of actual knowledge. See supra ¶ 19. Father similarly failed to allege facts 

supporting a conclusion that any ex parte contact with the counselor was 

extreme and outrageous. Thus, we discern no error in the superior court 

dismissing Father’s intentional infliction of emotional distress claim against 

Van Cott.

II. Leave to Amend Complaint

¶23 Father also argues, for the first time on appeal, that the 

superior court erred by not sua sponte granting leave to amend the 

complaint pursuant to Arizona Rule of Civil Procedure 15(a). Father argues 

that the 2007 amendments to Rule 15(a) were intended to bring the rule in 

conformity with the local federal rule. Accordingly, he asks that we 

interpret Rule 15(a) to mean – as the Ninth Circuit Court of Appeals has 

held – that a court abuses its discretion when it dismisses a complaint under 

Rule 12(b)(6) without automatically granting leave to amend.

¶24 Generally, we “do not consider arguments . . . raised for the 

first time on appeal.” K.B. v. State Farm Fire and Cas. Co., 189 Ariz. 263, 268 

(App. 1997). But even if we were to consider Father’s arguments, we 
MINOTTO v. VAN COTT

Decision of the Court

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decline to read Rule 15(a) as requiring a superior court to sua sponte grant 

leave to amend. Although the rule requires that “[l]eave to amend shall be 

freely given when justice requires,” nothing in the rule gives a party an 

automatic right to amend a pleading. To the contrary, long-standing

Arizona case law explains the right to amend a pleading is not automatic. 

See Matter of Torstenson’s Estate, 125 Ariz. 373, 376 (App. 1980); Blumenthal 

v. Teets, 155 Ariz. 123, 131 (App. 1987) (finding it was not error for a trial 

court to fail to allow the plaintiff leave to amend the complaint when the 

plaintiff made no motion for leave to amend). Father did not move for leave 

to amend his complaint, and the superior court did not err by not sua sponte 

granting Father leave to amend.

CONCLUSION

¶25 We affirm the court’s dismissal of Father’s claims for abuse of 

process, intentional infliction of emotional distress, and aiding and abetting 

tortious conduct. We vacate the superior court’s dismissal of Father’s claim 

for wrongful use of civil proceedings and remand for further proceedings.