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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

GLENN M. LOCKERBY, Plaintiff/Appellant,

v.

PIMA COUNTY, et al., Defendants/Appellees. 

No. 1 CA-CV 15-0277 

Appeal from the Superior Court in Maricopa County 

No. CV2013-090967 

The Honorable Mark Aceto, Judge (Retired) 

AFFIRMED 

APPEARANCES 

Glenn M. Lockerby, Tucson 

Plaintiff/Appellant 

Pima County Attorney’s Office, Tucson 

By Dennis C. Bastron 

Counsel for Defendants/Appellees

MEMORANDUM DECISION 

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

Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined. 
LOCKERBY v. PIMA COUNTY, et al. 

Decision of the Court 

2

G E M M I L L, Judge: 

¶1 Glenn Lockerby appeals the Maricopa County Superior 

Court’s judgment dismissing tort claims against multiple defendants and 

awarding Lockerby reimbursement of overbilled taxes for tax year 2014. 

For the following reasons, we affirm. 

BACKGROUND 

¶2 Lockerby owns a single-family residence located in Pima 

County (“the Property”). In October 2013, Lockerby filed suit against Pima 

County, Pima County Assessor Bill Staples, Pima County Chief Deputy 

Assessor Lon Berg, and two fictitious defendants (collectively “the 

County”). Lockerby alleged that between 2008 and 2014, the County 

intentionally overvalued the Property in its annual tax assessments. 

Lockerby asserts the assessments reflected additions to the Property that 

never actually existed, including a covered porch and other amenities. In 

his complaint, Lockerby alleged that by over-valuing the property for 

several years, the County committed several torts and caused Lockerby 

“ongoing emotional and financial injury.” Lockerby sought “permanent 

injunctive relief” against the County, as well as damages exceeding $80,000. 

¶3 The County filed a motion to dismiss Lockerby’s complaint

under Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). The County 

argued that to the extent Lockerby’s complaint asserted tort claims, he 

failed to state any viable claim for relief. The superior court agreed and 

explained that it was “unclear what claims [Lockerby] intend[ed] to assert 

through his Complaint.” The court granted the motion to dismiss 

Lockerby’s tort-related claims for failure to state a claim, but did not dismiss 

the remaining non-tort claims. 

¶4 At a bench trial, the court considered the evidence and 

arguments presented to determine whether Lockerby had established a 

viable claim under “any potentially applicable theory.” Ultimately, the 

superior court construed Lockerby’s complaint as a tax assessment appeal

under Arizona Revised Statutes (“A.R.S.”) section 42-16201 and held that 

the County’s valuation of the Property was in fact excessive. Based on the 

evidence presented, the court determined the true value of the property to 

be $81,357 and held that Lockerby was entitled to $111.19 in overbilled taxes 
LOCKERBY v. PIMA COUNTY, et al. 

Decision of the Court 

3

for tax year 2014.1 The court dismissed any remaining claims in Lockerby’s 

complaint. Lockerby timely appeals, and this court has jurisdiction under 

A.R.S. § 12-2101(A)(1). 

I. Dismissal of Lockerby’s Tort Claims and Construing of His 

Complaint as a Tax Appeal 

¶5 The superior court found Lockerby’s complaint attempted to 

assert four tort claims: (1) tortious interference with a business expectancy, 

(2) gross negligence, (3) intentional infliction of emotional distress, and (4) 

negligent infliction of emotional distress. Lockerby argues the trial court 

incorrectly dismissed these tort claims and that he is entitled to financial 

and injunctive relief. Lockerby also argues the trial court incorrectly treated 

his complaint as a tax appeal. We review de novo the superior court’s order 

granting a motion to dismiss under Rule 12(b)(6). Coleman v. City of Mesa, 

230 Ariz. 352, 355–56, ¶ 7 (2012). 

¶6 Dismissal under Rule 12(b)(6) is proper if there is no 

reasonable interpretation of the facts under which the plaintiff would be 

entitled to relief. Id. at 356, ¶ 8. In evaluating the sufficiency of the 

complaint under Rule 12(b)(6), the court assumes the truth of the well-pled 

facts, Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008), but not 

mere conclusory assertions or legal opinions, Belen Loan Investors, LLC v. 

Bradley, 231 Ariz. 448, 455, ¶ 18 (App. 2012). 

A. Tortious Interference with a Business Expectancy 

¶7 Lockerby argued that the County’s over-valuation of the 

Property tortiously interfered with his right to “peaceful use” of his home. 

The court construed this argument as a claim for tortious interference with 

a business expectancy. A plaintiff asserting this claim must allege that a 

valid business expectancy existed, that the interferer had knowledge of this 

expectancy and intentionally caused its termination, and that damage 

resulted. Dube v. Likins, 216 Ariz. 406, 412, ¶ 14 (App. 2007). Here, 

Lockerby’s complaint fails to allege that a valid business expectancy 

existed. Although he claims that the over-valuation made it difficult to sell 

the Property, he did not assert that he had a valid expectancy in such a sale. 

See id. (explaining that a business expectancy must be “more than a mere 

 

1 Lockerby had already over-paid his 2014 property taxes by $55.60. The 

court ordered that this amount be reimbursed to Lockerby and further that 

the bill for his second installment of property taxes be reduced by $55.59.
LOCKERBY v. PIMA COUNTY, et al. 

Decision of the Court 

4

‘hope’” (internal citation omitted)). The court’s dismissal of this claim was 

therefore proper. 

B. Gross Negligence 

¶8 Lockerby also argued the County’s actions rose to the level of 

“gross negligence” and caused him emotional and financial injury. A 

defendant is grossly negligent when he acts in a way that “not only creates 

an unreasonable risk of bodily harm to others but also involves a high 

probability that substantial harm will result.” Walls v. Ariz. Dep’t of Pub. 

Safety, 170 Ariz. 591, 595 (App. 1991). Here, Lockerby has not alleged facts 

sufficient to find a “high probability” of an “unreasonable risk” of 

“substantial harm.” In addition, a claim for gross negligence requires 

allegations that a defendant’s conduct was “flagrant and evince[d] a lawless 

and destructive spirit.” Kemp v. Pinal County, 13 Ariz. App. 121, 124 (1970) 

(quoting Scott v. Scott, 75 Ariz. 116 (1953)). We agree with the superior court 

that Lockerby’s complaint did not allege facts that rose to the level of gross 

negligence on the part of the County. Therefore, this claim was properly 

dismissed. 

C. Negligent Infliction of Emotional Distress 

¶9 Similarly, the superior court correctly dismissed any claim for 

negligent infliction of emotional distress. That tort requires that the 

plaintiff, having been in the “zone of danger” himself or having witnessed 

a loved one sustain injury or death, experience actual physical injury or 

bodily harm as a result of an unreasonable risk of harm created by the 

defendant. Keck v. Jackson, 122 Ariz. 114, 116 (1979); Rodriguez v. Fox News 

Network, LLC, 238 Ariz. 36, 39, ¶ 7 (App. 2015). A mere allegation of 

emotional injury is insufficient; the plaintiff must also allege that, because 

of the emotional injury, he or she suffered physical harm. Gau v. Smitty’s 

Super Valu, Inc., 183 Ariz. 107, 109 (App. 1995). Lockerby did not allege that 

he has experienced any physical injury, was in a zone of danger, or 

witnessed injury to a loved one. Therefore, the court properly dismissed 

this claim as well. 

D. Intentional Infliction of Emotional Distress 

¶10 Lockerby also argues that the County, “by gross, willful 

indifference,” inflicted emotional stress upon him. The tort of intentional 

infliction of emotional distress requires extreme and outrageous conduct by 

the defendant, with the intent of causing emotional harm, and the actual 

manifestation of severe emotional distress. Ford v. Revlon, Inc., 153 Ariz. 38, 
LOCKERBY v. PIMA COUNTY, et al. 

Decision of the Court 

5

43 (1987). Extreme and outrageous conduct is conduct that exceeds the 

bounds of social decency or expectation. Rowland v. Union Hills Country 

Club, 157 Ariz. 301, 304 (App. 1988). Here, although Lockerby’s claims 

allege that the County engaged in wrongful conduct, he does not plead facts 

sufficient to show that the County’s actions were outrageous or extreme. 

Furthermore, Lockerby does not allege that he has experienced any actual 

manifestation of severe emotional distress. See Ford, 153 Ariz. at 43. 

Therefore, the court properly dismissed any claims for intentional infliction 

of emotional distress. 

E. Treatment of Lockerby’s Case as a Tax Appeal

¶11 Although it found that Lockerby did not plead any legally 

sufficient claims for relief under tort law, the superior court allowed 

Lockerby to seek relief under Arizona’s tax statutes. Rather than dismissing 

his claims in their entirety, the superior court construed Lockerby’s 

arguments as a tax appeal under A.R.S. § 42-16201, which allows a 

“property owner who is dissatisfied with the valuation or classification of 

[his property] as determined by the county assessor” to seek legal 

intervention. We review de novo the superior court’s ruling regarding 

whether a complaint adequately stated a claim for relief under Rule 

12(b)(6). See Coleman, 230 Ariz. at 355–56, ¶ 7. 

¶12 The court’s treatment of Lockerby’s complaint was proper. 

The court ruled in favor of Lockerby on his tax appeal, then dismissed any 

other claims to the extent that Lockerby attempted to plead them. By so 

interpreting Lockerby’s complaint, the court followed the admonition in 

our Rules and case law to construe pleadings to achieve “substantial 

justice.” See Ariz. R. Civ. P. 8(f); see also Hammontree v. Kentworthy, 1 Ariz. 

App. 472, 481 (1965) (“Pleadings should be construed so as to do substantial 

justice.”). We therefore affirm the superior court’s grant of the County’s 

motion to dismiss and discern no error its subsequent treatment of 

Lockerby’s claims.2 

 

2 Because we hold that the superior court properly dismissed Lockerby’s 

tort claims and any claims remaining after the decision on his tax appeal, 

we also reject Lockerby’s argument that the court should not have 

dismissed his claims against Bill Staples. 
LOCKERBY v. PIMA COUNTY, et al. 

Decision of the Court 

6

II. Dismissal of Claims against Lon Berg 

¶13 Lockerby also contends the superior court improperly 

dismissed his claims against Pima County official Lon Berg. Berg was 

dismissed from the suit after the superior court granted summary judgment 

in his favor. We review de novo a superior court’s grant of summary 

judgment. Wickham v. Hopkins, 226 Ariz. 468, 470, ¶ 7 (App. 2011). 

¶14 The superior court held Lockerby had not satisfied the notice 

of claim requirements under A.R.S. § 12-821.01(A) for an action against a 

public official: 

Persons who have claims against a public entity, public school 

or a public employee shall file claims with the person or 

persons authorized to accept service for the public entity, 

public school or public employee as set forth in the Arizona 

rules of civil procedure within one hundred eighty days after 

the cause of action accrues. The claim shall contain facts 

sufficient to permit the public entity, public school or public 

employee to understand the basis on which liability is 

claimed. The claim shall also contain a specific amount for 

which the claim can be settled and the facts supporting that 

amount. Any claim that is not filed within one hundred eighty 

days after the cause of action accrues is barred and no action 

may be maintained thereon. 

Berg’s affidavit in support of the County’s motion for summary judgment 

stated that Lockerby never served him with a notice of claim. See Johnson v. 

Superior Court in & for Pima Cty., 158 Ariz. 507, 509 (App. 1988) (explaining 

that an earlier, similar version of A.R.S. § 12-821.01(A) required “that notice 

be given to the public employee, as well as the public entity,” in order to 

hold the public employee liable for his or her conduct). Lockerby presented 

no evidence to the contrary. Accordingly, the superior court did not err as 

a matter of law by dismissing Lockerby’s claims against Berg. 

III. Effective Date of Overpayment Reimbursement 

¶15 Lockerby also argues that the court erred by not awarding 

him reimbursement for taxes he claims he overpaid from 2009 to 2013. 

Because this issue involves a question of statutory interpretation, our 

appellate review is de novo. See Vincent v. Nelson, 238 Ariz. 150, 153, ¶ 8 

(App. 2015); City of Phoenix v. Harnish, 214 Ariz. 158, 161, ¶ 6 (App. 2006). 
LOCKERBY v. PIMA COUNTY, et al. 

Decision of the Court 

7

¶16 As explained above, the superior court properly treated 

Lockerby’s complaint as a tax appeal under A.R.S. § 42-16201. In relevant 

part, that statute provides: 

A property owner who is dissatisfied with the valuation or 

classification of the property as determined by the county 

assessor may appeal directly to the court as provided by this 

article on or before December 15 regardless of whether the 

person has exhausted the administrative remedies under this 

chapter[.] 

A.R.S. § 42-16201(A). 

¶17 Lockerby’s complaint was filed on October 7 of the valuation 

year 2013. See Forum Dev., L.C. v. Ariz. Dep’t of Revenue, 192 Ariz. 90, 94 

(App. 1997) (explaining that under the post-1996 tax rules, an appeal of a 

property valuation must be filed by December 15 of the year in which the 

valuation is determined). Accordingly, the complaint constituted a timely 

appeal of the Property’s assessment for the tax year 2014 (which is based on 

the assessment from valuation year 2013). See id. But contrary to 

Lockerby’s argument, it was not a timely appeal as to the property 

assessments for any other valuation year, because it was not filed by 

December 15 of the corresponding valuation years. The court’s judgment 

awarding reimbursement for only the 2014 tax year was not error. 

IV. Lockerby’s Application for Costs 

¶18 Finally, Lockerby contests the superior court’s calculation of 

costs. Lockerby contends the trial court improperly failed to reimburse him 

for all the costs he incurred during the course of the lawsuit. We review de 

novo the superior court’s determination of whether a particular expense 

qualifies as a taxable cost. Schritter v. State Farm Mut. Auto. Ins. Co., 201 

Ariz. 391, 392, ¶ 5 (2001). We review for an abuse of discretion the superior 

court’s factual determinations underpinning the amount of costs awarded. 

See Ahwatukee Custom Estates Mgmt. Ass’n., Inc. v. Bach, 193 Ariz. 401, 404, ¶ 

16 (1999). 

¶19 In his application for costs before the superior court, Lockerby 

identified a total of $56,553.99 in expenses incurred during the duration of 

this suit. The superior court ultimately awarded Lockerby $369 in costs, 

representing the cost of filing his October 2013 complaint and the cost of 
LOCKERBY v. PIMA COUNTY, et al. 

Decision of the Court 

8

paying a private process server.3 Having examined Lockerby’s application 

for costs, we discern no error in the court’s award. A successful party in a 

civil action is entitled to recover all “costs expended” during the civil suit. 

A.R.S. § 12-341. “Costs” are defined as “taxable costs,” including the fees 

of “officers and witnesses.” A.R.S. § 12-332(A). Filing fees and fees of 

process servers related to this action are properly included in this 

calculation.4 The other expenses listed by Lockerby, however, such as the 

costs of vehicle maintenance, office supplies, and legal research, are not 

compensable as taxable costs under A.R.S. § 12-332(A). See, e.g., Ahwatukee 

Custom Estates, 193 Ariz. at 402, ¶ 3. The superior court did not err, and we 

affirm the $369 costs award. 

CONCLUSION 

¶20 We affirm the superior court’s judgment. 

 

3 The process server fee awarded by the court represented one-fourth of 

the fee actually paid. This is proper because Lockerby was successful only 

on his claims against one defendant, Pima County, and not successful on 

his claims against the remaining three defendants.

4 Lockerby listed additional taxable costs in his application, but they relate 

to separate cases and are therefore not recoverable in this action.