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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PETER ANDREW HERSHFELDT, Plaintiff/Appellant/Appellee, 

v.

ARIZONA DEPARTMENT OF CORRECTIONS, et al., 

Defendants/Appellees/Appellants. 

No. 1 CA-CV 18-0785 

 FILED 01-07-2020 

Appeal from the Superior Court in Maricopa County 

No. CV2015-010532 

The Honorable Connie Contes, Judge 

REVERSED AND REMANDED 

COUNSEL

Peter Andrew Hershfeldt, Fairview, PA

Plaintiff/Appellant/Appellee

Arizona Attorney General’s Office, Phoenix

By Michael E. Gottfried

Counsel for Defendants/Appellees/Appellants
HERSHFELDT v. ADOC, et al.

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MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the Court, in which 

Acting Presiding Judge David D. Weinzweig and Judge David B. Gass

joined.

S W A N N, Judge:

¶1 Peter Hershfeldt, a former inmate, brought an action for 

damages contending his term of imprisonment was miscalculated. 

Hershfeldt won at trial, and the State appeals the trial court’s denial of its 

motion for judgment as a matter of law based on a statute of limitations 

defense. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

¶2 In 1995, Hershfeldt was convicted of kidnapping and sexual 

assault and sentenced to a term of imprisonment in an Arizona Department 

of Corrections (“DOC”) prison. In 2001, Hershfeldt’s DOC time 

computation showed that he had an early release date of August 2012 based 

on earned release credits (“ERC”). In December 2002, the DOC removed 

Hershfeldt’s ERC release date, showing his sentence end date as July 2014.

In 2003, Hershfeldt delivered an inmate letter to the DOC saying the DOC 

miscalculated his sentence under State v. Tarango, 185 Ariz. 208 (1996) and 

he was entitled to ERC. The DOC disagreed. Hershfeldt filed an inmate 

grievance arguing that he was entitled to ERC and that the DOC had 

applied ERC under Tarango to him in 2000-2001. The DOC replied saying 

his time computation was not a “grievable” issue. Hershfeldt appealed. 

After Hershfeldt’s administrative appeal was denied, he appealed a second 

time, which was also denied.

¶3 Hershfeldt also petitioned for post-conviction relief in 2003

and 2008, arguing that his sentence was improperly extended in violation 

of Tarango. He argued that Tarango would have reduced his 15-year 

sentence by two years and three months, giving him a release date of April 

2012. In June 2009, Hershfeldt, through counsel, agreed with the State that

his Tarango claim was premature. Hershfeldt withdrew his Tarango claim

“subject to reassertion at the proper time.” He never reasserted his Tarango

claim, however, and was not released from prison until June 11, 2014. Upon 

his release, the trial court ordered that Hershfeldt be taken to the Arizona 
HERSHFELDT v. ADOC, et al.

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Community Protection and Treatment Center because probable cause 

existed that he was a sexually violent person under A.R.S. § 36–3701.

Hershfeldt was released three and one-half months later.

¶4 Hershfeldt served a notice of claim on the DOC and the State 

on November 26, 2014, and then sued for false imprisonment on June 8, 

2015. The DOC was dismissed as a party based on its non-jural status. The 

State moved for summary judgment arguing that Hershfeldt’s claim was 

barred by the statute of limitations and that Hershfeldt failed to mitigate 

his damages. The trial court denied the State’s motion and held a bench 

trial. At the close of evidence, the State moved for judgment as a matter of 

law, which the trial court denied. The trial court found that the DOC should 

have released Hershfeldt on May 5, 2012 rather than June 11, 2014. The trial 

court found in Hershfeldt’s favor and awarded him $208,000 in damages, 

reduced to $120,654.52 after deducting incarceration costs and restitution 

owed from his criminal case.

¶5 The State appealed, and Hershfeldt cross-appealed. 

DISCUSSION

¶6 The State argues that the trial court erred in denying its 

motion for judgment as a matter of law because Hershfeldt’s claim was 

barred by the statute of limitations. We review a trial court’s decision on 

motions for judgment as a matter of law de novo. Glazer v. State, 237 Ariz. 

160, 167 ¶ 29 (2015).

¶7 Arizona law required Hershfeldt to serve a notice of claim on 

the State within 180 days after his cause of action accrued, and to sue the 

State within one year after his claim accrued. See A.R.S. §§ 12–821.01, –821.

A cause of action accrues when “the damaged party realizes he or she has 

been damaged and knows or reasonably should know the cause, source, 

act, event, instrumentality or condition that caused or contributed to the 

damage.” § 12–821.01(B). A plaintiff need not know all the facts underlying 

a cause of action but must at least possess knowledge sufficient to identify 

that a wrong occurred and caused injury. Doe v. Roe, 191 Ariz. 313, 323 ¶ 32 

(1998).

¶8 Hershfeldt’s cause of action for false imprisonment accrued 

on May 5, 2012. Hershfeldt knew in 2003 that he was entitled to be released 

in 2012 based on his understanding of ERC. In 2002, the DOC removed 

Hershfeldt’s ERC, changing his release date from 2012 to 2014. Shortly 

thereafter, Hershfeldt sent an inmate letter to the DOC arguing he was 

entitled to ERC and the DOC incorrectly removed his ERC release date.
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Hershfeldt raised the issue again in a 2008 petition for post-conviction 

relief.

¶9 In June 2009, Hershfeldt’s counsel withdrew the Tarango

claim raised in Hershfeldt’s petition for post-conviction relief because the 

Tarango claim was not timely, saying the withdrawal was “subject to 

reassertion at the proper time.” By May 2012, however, when 

post-conviction relief under Tarango would have been proper, Hershfeldt 

did not reassert his claim and continued to serve the remainder of his 

sentence. By May 2012, Hershfeldt knew he had been damaged and knew 

that the DOC caused the damage by alleging that the DOC erroneously 

removed his ERC. Thus, Hershfeldt’s cause of action for false imprisonment 

accrued when he remained in prison after May 5, 2012.

¶10 Hershfeldt’s claims failed on two independent grounds, 

including an untimely notice of claim and complaint. Hershfeldt’s false 

imprisonment claim accrued no later than May 5, 2012, meaning that he 

needed to serve notice of his claim on the State by November 5, 2012, and 

then sue by May 5, 2013. Yet, Hershfeldt served his notice of claim on 

November 26, 2014, and sued on June 8, 2015, after the statute of limitations 

had run. As a result, the trial court erred when it denied the State’s motion 

for judgment as a matter of law on the statute of limitations defense.

1

¶11 The only evidence submitted in opposition to the State’s

summary judgment motion was an affidavit from Hershfeldt in which he 

said he relied on the legal knowledge of other inmates, used arguments 

from the motions of other inmates, did not know he had a valid Tarango

claim, and “did not have knowledge, with any degree of confidence, that 

[his] release date was in 2012[.]” But Hershfeldt wrote his inmate letter, his 

grievance, and his petitions for post-conviction relief, all of which argued 

that he was entitled to ERC and should be eligible for release in 2012.

Hershfeldt did not need to know “with confidence” that he was entitled to 

be released in 2012; he only needed to possess knowledge sufficient to 

identify that a wrong occurred and caused injury. Doe, 191 Ariz. at 323 ¶ 32.

Hershfeldt believed he possessed such knowledge after the DOC removed 

his ERC, which led him to file a grievance and petition for post-conviction 

relief.

1 We need not address Hershfeldt’s cross-appeal that 

A.R.S. § 31–238(D) and A.R.S. § 12–1721 are unconstitutional because this 

decision renders his argument moot.
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¶12 Hershfeldt argues that the trial court correctly found that his 

notice of claim and complaint were timely because two separate judges who 

presided over the case found them timely, and timeliness is within the 

sound discretion of the trial court. But we review de novo when a cause of 

action accrues for statute of limitations purposes, and that date is not 

discretionary. Larue v. Brown, 235 Ariz. 440, 443 ¶ 14 (App. 2014). The 

legislature has prescribed rigid procedures and deadlines for actions 

against the State. As a matter of law, Hershfeldt waited too long to serve his 

notice of claim and file his cause of action. 

CONCLUSION

¶13 For the foregoing reasons, we reverse and remand for entry 

of judgment in favor of the State.