395 P.3d 297
Ariz. Ct. App.2017Background
- Noreen and Clifford Passmore filed a medical-malpractice suit in March 2013 naming Dr. James McCarver, Ellen Lorenz (CFNP), and Prescott Valley Clinic. Plaintiffs certified expert testimony might be necessary under A.R.S. § 12-2603(A) but failed to timely serve preliminary expert affidavits.
- Parties stipulated to a March 2014 deadline for the affidavits; Plaintiffs missed that deadline as well. Defendants moved to dismiss.
- In September 2014 the superior court granted dismissal for Plaintiffs’ failure to serve the affidavits and ordered dismissal without prejudice under A.R.S. § 12-2603(F).
- Plaintiffs refiled about two weeks later, after the statute of limitations had expired. Defendants moved to dismiss the refiling as time-barred.
- Plaintiffs argued they were entitled to automatic relief under the savings statute, A.R.S. § 12-504(A), because the original dismissal was not a dismissal for lack of prosecution; alternatively they asked the court to exercise its discretion to allow refiling.
- The superior court concluded the original § 12-2603 dismissal constituted dismissal for lack of prosecution and, in the exercise of its discretion, denied relief under § 12-504(A). This appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a § 12-2603(F) dismissal (failure to serve preliminary expert affidavit) qualifies as a dismissal for lack of prosecution under A.R.S. § 12-504(A) | Passmore: § 12-2603(F) dismissal is not equivalent to dismissal for lack of prosecution, so mandatory § 12-504 relief applies | Defendants: Failure to serve required affidavits is unambiguous delay and therefore a dismissal for lack of prosecution | Court: A § 12-2603 dismissal for failure to serve affidavits is a dismissal for lack of prosecution; mandatory § 12-504 relief not available |
| Whether the trial court abused its discretion in denying discretionary relief under § 12-504(A) after a dismissal for lack of prosecution | Passmore: Even if deemed for lack of prosecution, court should exercise discretion to allow refiling | Defendants: Plaintiffs’ long, unjustified delay and failure to meet extensions justified denial; defendants prejudiced by delay | Court: No abuse of discretion; plaintiffs failed to show reasonable diligence or lack of prejudice to defendants |
Key Cases Cited
- Janson v. Christensen, 167 Ariz. 470 (1991) (describing purpose and operation of the savings statute)
- Roller Village, Inc. v. Superior Court (Dow), 154 Ariz. 195 (1987) (distinguishing mandatory and discretionary relief under § 12-504)
- Sedona Grand, LLC v. City of Sedona, 229 Ariz. 37 (App. 2012) (de novo review for statutory interpretation)
- Dressler v. Morrison, 212 Ariz. 279 (2006) (review standard for denial of § 12-504 discretionary relief)
- Copeland v. Ariz. Veterans Mem’l Coliseum & Exposition Ctr., 176 Ariz. 86 (App. 1993) (review standard for dismissal and discretionary relief)
- Cooper v. Odom, 6 Ariz. App. 466 (1967) (delay can justify dismissal for failure to prosecute)
- Gorney v. Meany, 214 Ariz. 226 (App. 2007) (purpose of § 12-2603 to curb frivolous malpractice suits and set deadlines)
- Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317 (App. 2008) (§ 12-2603 does not contemplate dismissal with prejudice for a deficient preliminary affidavit)
- Jepson v. New, 164 Ariz. 265 (1990) (factors for discretionary § 12-504 relief: good faith, diligence, procedural impediments, prejudice)