NOTICE: NOT FOR PUBLICATION. 

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

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

ARIZONA COURT OF APPEALS DIVISION ONE

NINA TERTEROVA, Plaintiff/Appellant, 

v.

NICHOLAS ALAN BYOUS and SHARI L. NESTOR, Defendants/Appellees. 

No. 1 CA-CV 13-0286 

 

Appeal from the Superior Court in Maricopa County 

No. CV2013-090277 

The Honorable Douglas L. Rayes, Judge 

AFFIRMED 

COUNSEL 

Nina Terterova, Phoenix 

Plaintiff/Appellant 

Nicholas Alan Byous; Shari L. Nestor, Scottsdale 

Defendants/Appellees
TERTEROVA v. BYOUS/NESTOR 

Decision of the Court 

2 

MEMORANDUM DECISION 

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

Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined. 

S W A N N, Judge: 

¶1 Nina Terterova appeals from the trial court’s dismissal of her 

claim for damages against Nicholas Alan Byous and Shari L. Nestor 

(collectively, “Defendants”). We affirm because Terterova’s complaint 

fails to state a claim as a matter of law. 

FACTS AND PROCEDURAL HISTORY 

¶2 Terterova filed a complaint against Defendants alleging the 

following facts. On the evening of August 23, 2012, Terterova picked up 

Byous in her car and drove them to a bar. Byous told Terterova that they 

could receive free drinks at the bar because he knew the bartender. They 

“began drinking heavily” upon arriving, and Terterova, by her own 

estimate, “consumed approximately 12 or more shots of [v]odka” over the 

next three-and-a-half hours. In the early morning of August 24, Byous 

insisted that they return to “his place” and invited Terterova to “spend the 

night.” He drove them back to his residence in Terterova’s car, where 

they both smoked marijuana that he provided. Byous thereafter initiated 

sexual relations with Terterova, but his mother, Nestor, soon interrupted 

and screamed at him to make Terterova leave. Byous and Terterova left 

what was in fact Nestor’s home, and drove away in Terterova’s car with 

Terterova behind the wheel. Police stopped the car nearby and charged 

Terterova with “super extreme DUI,” at which point her blood alcohol 

level measured more than three times the legal limit. Byous was released 

from the scene without charges. 

¶3 On these facts, Terterova sued Defendants for negligence 

and intentional infliction of emotional distress. She alleged that (1) Byous 

owed a duty to protect her because they had established a relationship by 

seeing each other on numerous earlier occasions; and (2) Byous had 

breached that duty by “placing her in a precarious situation” when he 

“lied to her about [Nestor’s home] being his Residence and . . . claim[ed] 

she ‘could spend the night’ when he knew or, at the very least should 

have known that . . . Nestor in fact owned the residence and was the 

ultimate decision maker.” Terterova further alleged that Nestor, whom 
TERTEROVA v. BYOUS/NESTOR 

Decision of the Court 

3 

she had never met before, had acted with reckless and wanton disregard 

for Terterova’s safety by demanding that Terterova leave her home when 

Nestor knew or should have known that it would cause either Terterova 

or Byous to drive while intoxicated. According to Terterova, Defendants 

were at fault for causing her to “suffer numerous damages, including 

Fines, Felony Convictions, Community Service, [and] Probation.” In 

addition, Terterova asserted that Defendants’ actions were “considered 

outrageous in a civilized society” and caused her severe emotional 

distress for which she required anxiety and depression medication. 

¶4 Defendants moved to dismiss Terterova’s complaint for 

failure to state a claim. They argued, inter alia, that neither of them owed a 

duty to Terterova under the alleged facts, that she was entirely responsible 

for causing the asserted damages and that her alleged emotional distress 

was neither “severe” nor “extreme and outrageous.” The court granted 

Defendants’ motion to dismiss, reasoning that Defendants owed no duty 

to Terterova because she had become intoxicated voluntarily. Terterova 

timely appeals. 

DISCUSSION 

¶5 Terterova contends that the trial court erred by dismissing 

her complaint because the alleged facts supported her claims for 

negligence and intentional infliction of emotional distress.1 We disagree. 

¶6 A complaint must set forth a short, plain statement 

“showing that the pleader is entitled to relief.” Ariz. R. Civ. P. 8(a)(2). 

This requires the plaintiff to plead facts sufficient to support the claim. 

Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 

(2008). In reviewing the dismissal of a complaint for failure to state a 

claim, we accept as true the facts alleged in the complaint and will affirm 

the dismissal only if the plaintiff would not be entitled to relief under any 

interpretation of the facts susceptible of proof. Fidelity Sec. Life Ins. Co. v. 

State, 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998). We resolve all 

reasonable inferences from those facts in favor of the plaintiff, McDonald v. 

City of Prescott, 197 Ariz. 566, 567, ¶ 5, 5 P.3d 900, 901 (App. 2000), but 

 

1 Terterova raises several additional theories of liability on appeal. 

Because she did not mention them in her complaint, we decline to address 

them. Dillig v. Fisher, 142 Ariz. 47, 51, 688 P.2d 693, 697 (App. 1984) 

(“[A]ppellants did not raise [an] argument before the trial court and 

therefore cannot raise it for the first time on appeal.”). 
TERTEROVA v. BYOUS/NESTOR 

Decision of the Court 

4 

consider only the facts alleged, Don Kelland Materials, Inc. v. Langel, 114 

Ariz. 374, 375, 560 P.2d 1281, 1282 (App. 1977), and do not accept legal 

conclusions presented without supporting factual allegations as sufficient 

to establish a claim upon which relief can be granted, Cullen, 218 Ariz. at 

419, ¶ 7, 189 P.3d at 346. 

¶7 To state a claim for negligence, a plaintiff must show, among 

other elements, that the defendant owed the plaintiff “a duty requiring the 

defendant to conform to a certain standard of care” in order to “protect 

[the plaintiff] against unreasonable risks of harm.” Gipson v. Kasey, 214 

Ariz. 141, 143, ¶¶ 9-10, 150 P.3d 228, 230 (2007) (citation omitted). The 

issue of duty is a matter of law, id. at ¶ 9, and the plaintiff must allege 

facts sufficient to give rise to a duty before a negligence claim can proceed, 

see id. at ¶ 11 (“Whether the defendant owes the plaintiff a duty of care is a 

threshold issue; absent some duty, an action for negligence cannot be 

maintained.”). 

¶8 In its order dismissing Terterova’s complaint, the trial court 

focused on the voluntariness of Terterova’s intoxication. But voluntary 

intoxication alone does not negate the existence of a duty. Id. at 147, ¶ 31, 

150 P.3d at 234. In Gipson, the defendant argued for the adoption of “a noduty rule precluding recovery on the grounds that a person who 

voluntarily becomes intoxicated and thereby sustains an injury should not 

be able to recover from the person supplying the intoxicants.” Id. Our 

supreme court specifically “reject[ed] this reasoning,” explaining that 

“[plaintiff’s] own actions may reduce recovery under comparative fault 

principles or preclude recovery if deemed a superseding cause of the 

harm, but those are determinations to be made by the factfinder.” Id. The 

proper focus was therefore not on whether Terterova voluntarily became 

intoxicated, but rather on whether she voluntarily violated a criminal law. 

However, because “[w]e may affirm on any basis supported by the 

record,” State v. Robinson, 153 Ariz. 191, 199, 735 Ariz. 801, 809 (1987), we 

conclude that the court correctly dismissed Terterova’s negligence claim 

because Defendants did not owe her a duty to save her from her own 

criminal conduct. 

¶9 Whether a duty exists depends on the relationship between 

the parties and public policy considerations. A duty is not created by the 

mere foreseeability that the defendant’s actions could cause the plaintiff 

harm. Koss Corp. v. Am. Express Co., 233 Ariz. 74, 92, ¶ 62, 309 P.3d 898, 

916 (App. 2013). “While no special or direct relationship is required, 

duties of care based on relationship can be based on contract, family 

relationships or conduct undertaken by the defendant.” Id. “Public policy 
TERTEROVA v. BYOUS/NESTOR 

Decision of the Court 

5 

creating a duty can arise from a statute prohibiting conduct if the statute is 

designed to protect the class of persons in which the plaintiff is included 

against the risk of the type of harm which in fact occurs as a result of the 

violation.” Id.

¶10 Here, Terterova did not have a familial or contractual 

relationship with Defendants that could create a duty. As a matter of law, 

we decline to hold that the casual dating relationship she alleges is 

sufficient to create a legal duty. And Defendants’ mere knowledge of 

Terterova’s intoxication did not create a relationship that could give rise to 

a duty. See Restatement (Second) of Torts § 314 (1965) (“The fact that the 

actor realizes or should realize that action on his part is necessary for 

another’s aid or protection does not of itself impose upon him a duty to 

take such action.”); see also Danos v. St. Pierre, 383 So. 2d 1019, 1022 (La. Ct. 

App. 1980) (“Mere knowledge or awareness of the intoxicated condition of 

the driver, alone, does not create a relationship which imposes a duty 

upon a guest passenger . . . .”), aff’d, 402 So. 2d 633 (La. 1981); Olson v. 

Ische, 343 N.W.2d 284, 287 (Minn. 1984) (“[T]o impose a legal duty on the 

passenger, which makes him liable to others on the highway for what the 

driver himself chooses to do, seems to us, as a general proposition, 

inappropriate. Such a rule assumes, incorrectly, that a passenger 

somehow shares in the management of the motor vehicle, and it further 

assumes the driver is amenable to the passenger’s influence.”); Cole v. City 

of Spring Lake Park, 314 N.W.2d 836, 840 (Minn. 1982) (holding that 

refusing an intoxicated guest’s request to remain in one’s home was 

insufficient to support negligence action). 

¶11 Moreover, we can conceive of no public policy consideration 

that would create a duty under these circumstances. To the contrary, we 

hold that Terterova’s voluntary decision to drive her own car while 

intoxicated bars her from asserting that Defendants had a duty to shield 

her from the resulting criminal penalties. See Holt v. Navarro, 932 A.2d 

915, 920, ¶ 14 (Pa. Super. Ct. 2007) (“The common law principle that a 

person should not be permitted to benefit by his own wrongdoing, 

particularly his own crimes, prevents a plaintiff from recovering losses 

which flowed from those criminal acts.”); Francis Bowes Sayre, Criminal 

Responsibility for the Acts of Another, 43 Harv. L. Rev. 689, 717 (1930) (“[I]t is 

of the very essence of our deep-rooted notions of criminal liability that 

guilt be personal and individual . . . .”). It would be a gross distortion of 

the purposes of the criminal law to allow a convicted defendant to enlist 

the assistance of the courts to shift her responsibility for criminal penalties 

to others. The penalties Terterova endured were imposed upon her by the 
TERTEROVA v. BYOUS/NESTOR 

Decision of the Court 

6 

state as a punishment for her own voluntary criminal conduct -- she was 

forced neither to drink nor to drive. 

¶12 The court also properly dismissed Terterova’s complaint for 

intentional infliction of emotional distress. To recover on a claim for 

intentional infliction of emotional distress, a plaintiff must prove, among 

other elements, 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.” Cluff v. Farmers Ins. Exch., 10 Ariz. App. 560, 562, 

460 P.2d 666, 668 (1969) (quoting Restatement (Second) of Torts § 46 cmt. 

d), overruled on other grounds by Godbehere v. Phx. Newspapers, Inc., 162 Ariz. 

335, 783 P.2d 781 (1989). Whether an act is sufficiently extreme and 

outrageous for this purpose is a matter of law to be determined initially by 

the court. Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76, 79, 716 

P.2d 1013, 1016 (1986) (quoting Restatement (Second) of Torts § 46 cmt. h); 

see also Patton v. First Fed. Sav. & Loan Ass’n of Phx., 118 Ariz. 473, 476, 578 

P.2d 152, 155 (1978) (“It is the duty of the court as society’s conscience to 

determine whether the acts complained of can be considered sufficiently 

extreme and outrageous to state a claim for relief.”). In this case, viewing 

the facts in the light most favorable to Terterova, Byous employed less 

than honest methods in an attempt to seduce her, and Nestor was 

inhospitable when she ejected a stranger from her home. In a perfect 

world, such conduct might not occur. But we cannot say that the alleged 

conduct of either defendant can be “regarded as atrocious and utterly 

intolerable in a civilized community.” See Cluff, 10 Ariz. App. at 562, 460 

P.2d at 668. Any other holding would amount to a dramatic expansion of 

a tort that has historically been reserved for only the most extreme forms 

of malice. 

¶13 Finally, Terterova contends that the court abused its 

discretion by dismissing her complaint without allowing her an 

opportunity to present evidence. This argument misconceives the 

procedure governing motions to dismiss. See Coleman v. City of Mesa, 230 

Ariz. 352, 363, ¶ 46, 284 P.3d 863, 874 (2012) (“In adjudicating a Rule 

12(b)(6) motion to dismiss, however, a court does not resolve factual 

disputes between the parties on an undeveloped record. Instead, the issue 

is whether the pleading states a sufficient claim to warrant allowing the 

[plaintiffs] to attempt to prove [their] case.”); Cullen, 218 Ariz. at 419, ¶ 7, 

189 P.3d at 346 (“When adjudicating a Rule 12(b)(6) motion to dismiss, 

Arizona courts look only to the pleading itself . . . .”). 
TERTEROVA v. BYOUS/NESTOR 

Decision of the Court 

7 

CONCLUSION 

¶14 For the foregoing reasons, we affirm. 

¶15 Defendants request that we “enter an order awarding 

sanctions against [Terterova] and require her to pay the reasonable 

attorneys fees and costs incurred by [Defendants] in connection with this 

baseless and frivolous lawsuit.” Under ARCAP 25, we may award 

attorney’s fees and other “reasonable penalties or damages” when the 

appeal is “frivolous.” The determination to award or decline sanctions 

under ARCAP 25 is within this court’s discretion, Ariz. Dep’t of Revenue v. 

Gen. Motors Acceptance Corp., 188 Ariz. 441, 446, 937 P.2d 363, 368 (App. 

1996), and we impose ARCAP 25 sanctions with “great reservation,” Ariz. 

Tax Research Ass’n v. Dep’t of Revenue, 163 Ariz. 255, 258, 787 P.2d 1051, 

1054 (1989). Although we conclude that Terterova’s arguments were 

meritless, the record does not establish frivolousness, intentional delay, or 

an improper motive. See Hoffman v. Greenberg, 159 Ariz. 377, 380, 767 P.2d 

725, 728 (App. 1988) (“The line between an appeal which has no merit and 

one which is frivolous is very fine, and we exercise our power to punish 

sparingly.”). We therefore decline to award sanctions. As the prevailing 

parties, Defendants are entitled to an award of costs under A.R.S. § 12-341 

upon their compliance with ARCAP 21.