Delong v. Merrill
233 Ariz. 163
| Ariz. Ct. App. | 2013Background
- In Jan 2009 DeLong loaned Merrill $5,143 secured by a handwritten agreement; DeLong alleged Merrill agreed to repay by July 2, 2009 or lose the property.
- Merrill alleged she repeatedly attempted to pay beginning May 2009, located DeLong in Florida in June 2010, and that DeLong refused to accept repayment.
- DeLong sued (quiet title, breach of contract, declaratory relief); Merrill counterclaimed (including quiet title, wrongful recordation, constructive trust, and torts).
- Merrill failed to timely respond to eight Rule 36 requests for admission; DeLong moved for summary judgment relying on deemed admissions.
- Merrill filed late responses (claiming inadvertent clerical error) and opposed summary judgment; trial court denied allowing late responses, deemed the admissions and granted summary judgment to DeLong, dismissing Merrill’s property-related counterclaims.
- The Court of Appeals reversed: it held the trial court abused its discretion in refusing to allow late responses where delay was inadvertent and no prejudice shown, and reversed the summary judgment and fee/cost awards, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument (DeLong) | Defendant's Argument (Merrill) | Held |
|---|---|---|---|
| Whether the court abused its discretion in refusing to allow late responses to Rule 36 requests | DeLong argued Merrill’s long delay prejudiced discovery and justified deeming the requests admitted and summary judgment | Merrill argued the delay was inadvertent (attorney oversight), discovery was ongoing, no trial set, and DeLong showed no trial prejudice | Reversed: court abused its discretion by failing to apply Rule 36(c) factors; delay was inadvertent and no prejudice shown, so late responses should have been allowed |
| Whether deemed admissions supported summary judgment on quiet title and breach of contract | DeLong argued the admissions established the contract, nonpayment, and that repayment failure transferred ownership, entitling him to summary judgment | Merrill denied the contract copy, asserted she attempted to repay and DeLong refused, and raised factual disputes (affidavits/evidence) precluding judgment | Reversed: summary judgment was improper as genuine issues of material fact remained and summary judgment is not a sanction for missed Rule 36 responses |
| Proper scope of sanctions for failure to respond to Rule 36 requests | DeLong treated deemed admissions and summary judgment as appropriate remedies for delay | Merrill argued Rule 36 prescribes admissions as consequence but courts should favor resolution on merits and limited sanctions under Rule 36 (distinct from Rule 37 sanctions) | Held that striking pleadings/summary judgment as sanction for late Rule 36 responses was improper absent proper Rule 36(c) analysis; Rule favors resolution on merits |
| Whether appellate fees/costs should be awarded to Merrill | DeLong did not respond on appeal; DeLong implicitly urged affirmance | Merrill sought fees under A.R.S. §§ 12-341 and 12-341.01 as prevailing party on appeal | Court granted Merrill appellate fees and costs subject to compliance with appellate rules, citing DeLong’s failure to file a brief and merits of appeal |
Key Cases Cited
- Nydam v. Crawford, 181 Ariz. 101 (App. 1994) (appellee’s silence may be treated as confession of reversible error)
- Wickman v. Ariz. State Bd. of Osteopathic Exam’rs, 138 Ariz. 337 (App. 1983) (appellee’s failure to respond can constitute confession on appeal)
- McDowell Mountain Ranch Cmty. Ass’n, Inc. v. Simons, 216 Ariz. 266 (App. 2007) (courts may exercise discretion to decide debatable issues on the merits)
- Edwards v. Young, 107 Ariz. 283 (1971) (Arizona courts give great weight to federal interpretations of procedural rules that mirror Arizona rules)
- Conlon v. United States, 474 F.3d 616 (9th Cir. 2007) (Rule 36(b) withdrawal standard: permit withdrawal when presentation of merits will be subserved and opposing party not prejudiced)
- Hadley v. United States, 45 F.3d 1345 (9th Cir. 1995) (upholding admissions eliminates presentation of merits; framing prejudice inquiry)
- Gutting v. Falstaff Brewing Corp., 710 F.2d 1309 (8th Cir. 1983) (requests to file late responses treated as motions to withdraw admissions; courts must consider Rule 36 factors)
- Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242 (9th Cir. 1981) (withdrawing inadvertent admissions generally favored to promote resolution on merits)
- Foman v. Davis, 371 U.S. 178 (1962) (Federal Rules favor deciding cases on the merits rather than on technical pleading missteps)