*1 MECHANICAL, AA an Arizona business

entity, Dwayne Kramer,

Petitioners, Ari

SUPERIOR COURT of State of

zona, In and For COUNTY OF

MARICOPA, R. Honorable Brian

Hauser, judge thereof, Respondent

Judge, VREE, Judy Vree,

Robert M.D. and wife,

husband and Real Parties

in Interest. ARCHITECTS, LTD.,

DEVENNEY subsidiary of Hofmann-Dietz

Architects, Ltd., Petitioner, Ari

SUPERIOR COURT of the State of

zona, In and For the COUNTY OF

MARICOPA, Brian R. Honorable

Hauser, thereof, judge Respondent

Judge, VREE, Vree, Judy M.D.

Robert wife, Real Parties

husband

in Interest.

Nos. CA-SA CA-SA 97-0012. Arizona, Appeals Douglas, by Ricker Keith Bustamante & 1, Department Division C. Ricker, Phoenix, AA R. for Petitioner Me- Nov. 1997. chanical. Review March 1998.* Denied Decker, by White Gardner & P.C. Jackson Mesa, Foote,

Roger Deven- R. for Petitioner Architects, ney Ltd.

Robbins, Shumway & Foreman Joel B. Heathcotte, Phoenix, for Robbins and Brock Respondents.

OPINION KLEINSCHMIDT, Judge. interest, parties Robert and real Vree, Judy AA Mechanical and sued both others, Architects, Devenney among alleging injured by environ- that Robert Vree was neg- toxins caused the defendants’ mental building ligent design and construction of the worked. The Petitioners filed which Vree asserted, separate motions to dismiss * Martone, J., J., participate. grant McGregor, did not voted to review.

365 right subject part, comply fringes that to strict scru- that the Vrees failed to with on is tiny. legislative Arizona section 12-2602 Revised Statutes Annotated The hurdle (“A.R.S.”) infringement section 12-2602. The Petitioners erects no less an than was is special trial limitations su- seek action review of the court’s the restrictive statute of the Kenyon. preme dealing denial of motions was these to dismiss. court of section 12-2602 purpose The whole A.R.S. party requires Section 12-2602 as bring infringe right is to to a claim. serting profes against registered a claim remaining The issue is whether to an expert’s sional or contractor submit complaint on AA Mechanical service of the complaint attesting affidavit with the origi that timely. undisputed was It is gave acts rise the claim and how 17, nal was on complaint filed November damage. caused assert that Petitioners 1995, AA was on and that Mechanical served requirements. failed to meet such Vrees 4(i), 18, March Arizona Rules of 1996. Rule recently held, panel Another of has Procedure, requires of Civil service the sum Court, Contracting Superior in Hunter Co. v. complaint upon mons and to be made a de 318, (App.1997), 190 Ariz. 892 days filing fendant within 120 after the of the “infringes 12-2602 A.R.S. section on the fun complaint. AA Mechanical asserts that the action,” right of not damental does survive day days 120 should include the the com analysis, scrutiny strict is un therefore plaint day filed and 120th fell on was that the agree constitutional. We that Hunter cor is 15, 1996. Friday, disagree. March We rect, disposes and it of the Petitioners’ claims 6(a), Rule Arizona Rules of Civil Proce- based section 12-2602. dure, any computing period “[i]n states that rules, prescribed time or of allowed these The dissent criticizes Hunter for act, ... day of the event or default from “putfting] category into review the fatal designated period begins time scrutiny by which the extending strict the intended Thus, day run shall not be included.” reach” of section A.R.S. include 17,1995, filing, not “simple” November does count negligence “professional” as well as day for then negligence. the last service would be Satur draws a distinction dissent 16, 6(a), however, day, 1996. Rule nor March supports. statute neither mentions holidays alleged excludes weekends and example, negligence For Hunt day period last a time counted as the leaving lying a barricade in the road— er— 18, 1996, Monday, therefore March was “simple” “professional.” was both One day timely last service. See Maciborski professional gener of the common of a duties 560, 557, Ariz. Corp., v. Chase Service 161 keep al site contractor is the work safe. (first See, day (App.1989) 1299 e.g., Enterprises, P.2d Lewis v. N.J. Riebe Inc., (1992); computing time in excluded when 170 Ariz. P.2d done). judge’s act is to be The trial Project, v. River Cohen Salt Ariz. timely ruling complaint was served (App.1987). In event, proper. was indisputably before us the case with the reach of statute because the al above, For reasons set forth review is leged was nature. granted but relief denied. The dissent concludes that sec A.R.S. J., GRANT, concurs. infringe not on a tion 12-2602 does funda THOMPSON, Presiding Judge, dissenting. subject right, mental and is not to a thus analysis, agree scrutiny I with the result this court strict dissent While Contracting Superi survive. This reached in Hunter Co. concedes the statute cannot (App. Kenyon In P.2d 892 puts the before the horse. cart 1997), Hammer, agree analysis, I I not with its 142 Ariz. do 12-2602 is uncon agree do A.R.S. court said my view, damages opinion the Hunter bring an is a stitutional. action recover imprudently extended the intended reach right. Any statute that in- fundamental yet glimmer the statute which resulted in the conclusion in Hunter there is not a of this infringed that it important judicial on the- fundamental doctrine of deference to pursue damage put action. This stretch policy-making prerogatives legisla- of the category review into the fatal of strict scruti- ture. ny. scrutiny weapon Once the of strict scrutiny analysis, Because it leads to strict bear, was,

brought to this statute as “infringes § finding 12-2602 on a say, history. right” state dooms the statute. constitutional us are cases before here fundamental- ways § 12- Hunter sets forth four which ly distinct from the facts of Hunter. Be- assertedly “infringes” on the differences, § cause of these 12-2602 should bring lawsuits. applied require appropriate have been affi- Vrees, these, claims,

davits from the and the Vrees’ failure The first of the Hunter court supply the affidavits should have resulted is that under the statute “a must my opinion in dismissals of It expert these cases. is an even when none would other- hire ap- fundamentally our constitution does not forbid the required.” wise be This plication 12-2602, of the § statute to the Vrees. fatally requires which misreads party against that asserts a claim “[a] Hunter, a motorist struck a barricade registered professional or contractor shall employees company aof barricade left (Emphasis file an affidavit with the claim.” lying in the street near a construction added.) Nowhere in Hunter will the reader 319, site. 190 Ariz. at 947 P.2d at 893. The claim, statutory find the definition company motorist sued the barricade 12-2601(1): § appears at “‘Claim’ means a (Hunter), Contracting gener Hunter Co. ... legal brought against action in tort project. al contractor on the construction Id. registered professional or contractor based at 947 P.2d at 893-94. Hunter registered professional’s or contrac- pursuant moved to dismiss misconduct, alleged negligence, tor’s errors expert lack an based on the affidavit de rendering professional or omissions in ser- tailing alleged negligence. Al Hunter’s Id. ____” added.) (Emphasis It is obvious vices though against it is obvious that the action only definition of “claim” that it is professional negli Hunter did not involve brought against professionals claims and con- gence ordinary negligence, but rather professionals and contractors tractors as expert required prove that no would be require affidavits. The Hunter court’s rules, negligence existing under our both the assumption expert required an is under trial court and this court construed the stat profes- against claim statute impermissibly requiring expert’s ute as an simple pro- contractor whether or sional or contemporaneously affidavit filed with the fessional is asserted would render complaint. Id. highlighted portion of the definition Here, against petitioners the Vrees’ actions utterly superfluous, “claim” and its misread- plainly allege peculiar the failure to meet the view, ing, my completely wipes out Hunt- applicable of care to contractors standards Indeed, only premise. plausible ex- ers Hunter, respectively. and architects Unlike planation legislative inclusion of the for the very these cases involve the kind of actions highlighted language be to make it would legislature which the intended this law to abundantly require- clear that the affidavit apply. panel But as did the which decided brought apply every claim ment does not Hunter, majority here has failed to do its contractor, against professional but duty to construe this statute consistent with alleging professional negligence. to claims legislative intent and with our constitution. have previously appellate acted courts of other states This court has under problem appreciating lim- this distinction that “we must consider whether a no belief iting placed explicit as our statute as construction could be on the which is elsewhere, infirmity.” including that en to cure the constitutional similar statutes 145, Ann. 9— 11— Steiger, Georgia. acted in See Ga.Code State v. added). Research, Inc., (emphasis In Razete v. (App.1989) And 9.1. Preferred minutes reflect- committee fendants. Senate case Ga.App. 397 S.E.2d 489 provision of this ing legislative consideration that “oth proposition in Hunter for the cited summary of one testimonial: include this exceptions to the provide er such laws n. a result of archi- requirement,” legislation proposed evidence Georgia tects, design profes- engineers n. and other 947 P.2d at requiring joined many an civil Appeals noted that the statute frivolous sionals damages alleging lawsuits, by plaintiff “any instigated many times affidavit in action everyone “limit or involved professional malpractice” attorneys failed to that name project what service shall as defendants. define or restrict with a construction architect, the court then ... ‘professional’” By way example deemed regard- explain that no affidavit in a civil lawsuit proceeded wrongfully named construction, negli alleged inadequate ing in a case where defective *4 $8,000 staple, to the dismissed gence spend of a failure to consisted who had to page of the with report, nothing of a title the last that had to do rest from a lawsuit subject real report showing liens on the his architectural services. notwithstanding property, that the claim that 80-90% of all Another witness testified professional. Id. 397 brought against a in small businesses design professionals work same obvious at 490. Based on the S.E.2d single claim defending a frivolous and that distinction, plaintiffs do not need affidavits financial out- destroy a small business’s could patient lamp a doctor burns a with when year. for the look (Jones Bates, Ga.240, during surgery v. 261 statute, certificate of merit The California (1991)), or when a mental 403 S.E.2d 804 411.35, very which is Pro.Code Cal. Civ. prescribes perverse men health counselor likely as a our statute and served similar to regimen requiring the health tal treatment it, discourage the enacted to model for “was clothes while patient to wear the counselor’s claims of filing frivolous lawsuits” based on patient’s and then the counselor dons architects, en professional negligence of (Roebuck Smith, Ga.App.20, him 204 whips v. surveyors. gineers Ponderosa Ctr. or land (1992)),or when nurses fail to 418 S.E.2d 165 McClellan, Cal.App.4th v. 45 Partners her, up examining patient their while hold (1996). objective Cal.Rptr.2d 64 the floor and allowing her to fall down on of the statute (Flowers Ctr., hip v. Memorial Med. break a plaintiff indepen- require a to obtain is to (1991)). Inc., Ga.App.651, 402 S.E.2d 541 support of the merits of his action dent prevent Georgia designed to statute was defendant____ In most prior serving cases, i.e., malpractice it cannot be actions,” professional pro- or unsuitable “frivolous defendant’s conduct established that malpractice actions in which the fessional of care applicable standard by expert opinion fell below prove cannot testimony expert an familiar without the of ____ practice professional that a standard violated____ [Wjhere [however] plain- with that standard ... has been require con- Legislature did not intend without prove negligence can or breach tiff experts their testimo- when customary procedure viola- sultation proof and necessary establish liabili- it, ny will not be professional tion of the case is not ty- malpractice does not [the statute] case “expert’s affidavit.”

apply require Cal.App.3d Superior v. Ammon (1988) (citations Cal.Rptr. Razete, at 490. 397 S.E.2d omitted). California, Thus, Georgia as with states, by judicial sensibly and other origin in similar senti- statute has its Our intended, require- interpretation applies the affidavit clearly legislature ments. Our negli- professional only to claims of incidence ment enacting § to reduce the require expert support, and pro- gence which against registered lawsuits of frivolous such certificate of merit statute by re- reads the contractors and licensed fessionals beyond not extended cases that it is to make individualized quiring plaintiffs also legislative concern. See naming scope de- clear when informed determinations Gilbert, Boigegrain damaged by 850 the builder a home soil subsi dence, (despite (Colo.Ct.App.1989) statutory rejected testimony lan- of an guage affidavit, apparently requiring an engineer qualified ex- as an expert who was pert necessary opinion not stan- prac establish soil not on construction conditions but acceptable professional dard of engineer opine conduct when tices. While the could as to palpable”); is “clear and underlying deviation Martinez the soil conditions home and (Colo.1992) Badis, (not- plaintiffs’ conditions caused soil statutory withstanding language, broad damages, “pivotal affi- he could not answer question” davit not where not re- involving the intricacies of home quired). differing construction soils: “would a rea sonable builder in Tucson have obtained a my opinion, Hunter court failed to prior test soil to construction?” recognize legislature’s our careful delineation 522, 687 P.2d at 1277. The court reasoned that claims of builder, that an a home engineer is not were requirement, affected the affidavit requisite could not standard offer the of care requirement ap- the affidavit assumed ; specifically evidence. The court relied plied simple negligence claim of to a allow- approvingly Angeles County v. Los on Miller ing roadway, barricades to lie and then Flood Control 8 Cal.3d 106 Cal. Dist. easily the straw knocked over man thus cre- (1973). Rptr. course, expert testimony ated. is needed Of *5 only subject matter where the of the claim Miller, plaintiffs alleged profes In that special involves and technical information. failing negligence sional of a home builder in The motorist in Hunter did not need an retaining part as construct a wall of a expert prove that it is careless to leave design residential their allowed home to be bulky roadway, objects in a and he did not basin, nearby flooded with debris from need an affidavit either. causing family of one the death member. 3, Cal.Rptr. at at 505 P.2d 195. In contrast, By the Vrees must have an ex- support of plaintiffs their suit offered the pert jury get to the under our rules testimony engineer of a mechanical who was procedure, because unlike Mr. Grandinetti hydraulics hydrology, experi trained in and (the Hunter), they in allege motorist in discerning enced the characteristics of petitioners professional violated standard flooding prior in hillside areas based on em professional negli- and committed care district, ployment control with a flood and gence. The Vrees do not contend that fact, in regular who had in the course of his prove expert can their case without an employment, plaintiffs’ examined the lot after Similarly, indeed at least two of them. hired the flood determine whether the lot could statute, Vrees, under unlike Mr. again destroyed. be rebuilt without Grandinetti, required to were file affidavits. 8, engineer, Id. at 505 P.2d at 200. The who The Hunter court also determined that “testified that he had observed construc upon infringes to recover develop tion of hundred residential several damages injuries by “restricting] plaintiffs’, in similar to ments hillside areas” that, plaintiffs experts,” in choice of assert- in but had close involvement the con “no statute, edly, governed “[i]n cases “building prac struction of or with homes” plaintiffs seeking experts are not restricted tices,” was trial precluded court from practice discipline in the those who same offering opinions retaining his that a wall Hunter, 321, as Ariz. at defendant.” reasonably should have been used in the Again disagree. I 947 P.2d at 895. must design home’s and the structure structural impose qualitative Our cases the same limita- ground of the should have elevated “off been expert regarding tions the substance testi- because of Id. at 505 P.2d its location.” mony intends. as this statute 200, Supreme at 201. The California Co., ruling, noting In 141 affirmed the trial court’s Woodward v. Chirco Constr. 520, (App.1984), regard- engineer’s lack of “close in involvement” “unfamiliarity ing against home construction and claim enacting building practices” ruling ing legislature’s purposes at supported engineer qualified concluding give to express” “was not the law that it did not opinion give. he at prepared any Id. bidder preferences to Arizona resident 9, at 201. bidder, 505 P.2d over resident notwithstand other interpreted have ing that the law could been judicially These cases clear that make it providing preferences Arizona as between developed evidentiary preclude engi- rules an bidders, by a interpreted had been so testifying expert an against neer as wrote, hearing will The court “we officer. professional negli- on a contractor claim of give the a constitutional construction gence, 12-2602 broke no new Mardian, possible.” where ground topic. on this v. Ari 557 P.2d at 530. Arizona Downs founders, Generally, opinion the Hunter Found., 550, 637 zona 130 Ariz. Horsemen’s view, my in its these discussion of first two P.2d court noted purported infringements usually a man word ‘shall’ indicates “the bring (requiring lawsuits otherwise datory provision,” and then read the word unnecessary restricting the available directory challenged “shall” in a statute as choices) adopted because the court a stilted mandatory, construe and not because to reading rendering it of the statute in viola ordinary have word its sense would constitution, reasonably tion of our instead imperiled viability the constitutional of the construing the in a manner in law Lycett, statute. 133 Ariz. And State constitution, can coexist with the as we are (App.1982), we supposed Landgraff Wagner, to do. See rejected vagueness a void for and over- (1976) (“a Ariz.App. criminalizing challenge breadth to a statute strong presumption ... favors the constitu schemes, pyramid chal involvement tionality legislature”; of acts of the lenge lan was based fact that beyond “must satisfied reasonable guage of could the statute have been read declaring before doubt” statute unconstitu *6 make as perpetrators. victims liable We tional); Steiger, Ariz. at 162 781 P.2d at sensibly the consistent construed statute (court appeals 623 of “must consider” limit legislative intent to those sanction ing construction to cure of statute constitu join encourage pyramid who others added). infirmity) (emphasis tional I think it schemes, duty “this court has a because Hunter, say that is fair to the court in which construe a statute in such a manner that it purport indulge any in presump did Lycett, will be constitutional.” 133 constitutionality tion in favor of 12- of 190, 650 P.2d at 492. construing 2602 or to consider the statute in constitution, way a that would not violate in That must seek to a statute we construe neither. did way constitutionally permis- a that renders it appellate routinely way saying Arizona’s courts sible is of we must invoke another constitutionality presume of presumptive legislature the doctrine has intended to construing of right thing. in the course statutes to save do the noted that “[a]ll Hobbes laws, unwritten, example, Killings them. For in Schecter v. have need of written worth, (1963), interpretation,” Ariz. 93 but in the course of such inferred, interpretation supreme legislator court into a statute which “the intention of the provision, request always no such that the a supposed equity: contained to be for were by hearing great contumely judge a for a motorist whose license was to think other- Hobbes, suspended Department sovereign.” of of Motor Vehi wise Thomas (Nelle stayed Chapter the suspension, cles because the stat Leviathan 26 8 Britannica, ed., process. Encyclopaedia In Fuller Inc. ute would otherwise violate due 1952) (1651). Superior respect “It is but a due Mardian Constr. Co. decent wisdom, integrity, patrio- Ariz. to the and the body, any declaring legislative avoided of law unconstitutional tism the passed, validity, in providing preferences presume for certain of its statute favour proved public projects by on look- until its violation of the constitution is bids construction enacting beyond Ogden legislative to the intent a ‘reasonable doubt.’” v. mane Saunders, legislature, regis According to the statute. Wheat. 25 U.S. (1827). are professionals tered and contractors presumption, L.Ed. This same unfairly by having to defend them burdened constitutionality legislative enact- claims, many too meritless selves from ments, legislatures properly also reflects that availability summary judgment at interpreting applying have a voice point protecting in mid-lawsuit is not some judicial power constitutions. Our review is precisely cases which ut them. It is those determining not the exclusive mode of terly merit from the outset lack constitutionality of has been statutes. As becoming prevent seeks to statute relationship regarding said of the federal burden on conscientious busi unconscionable courts, legislature every to the “[f]or by requiring some show people. ness It is Supreme that the has nullified on con- of a suit ing of merit at the commencement have, grounds, stitutional on the score legislature sought what it that the to address grounds, congressional same failed of enact- is, problem, that it had identified as the Burnham, Congress ment.” James and the unfairly costly professionals and con (1965). American Tradition 114 There are get out of frivolous tractors to themselves among legislators who conscientious voices legislative judgment lawsuits. While this is a public properly seek to attend to the business defer, skeptic to which I would could look ways comport with the constitution. much at number of our cases to see how generally That a bill has become law reflects money registered profession it can cost-for legislative judgment some that the statute is finally get al out of a meritless lawsuit constitutional, a notion which is embodied summary judgment. E.g., out on Res tossed presumption constitutionality Technologies, Corp. v. Western olution Trust legislation duly attaches to enacted. Inc., (App.1994) P.2d 294 opinion in Hunter also held that the (defendant judgment prevailing summary on statutory requirement of “an affidavit at the negli appeal on claim of litigation infringed on outset” of $65,000 in gence incurred over fees and sue. 190 Ariz. at 947 P.2d at 895-96. costs). say I cannot that the “affidavit at the could, depending requirement This indeed requirement outset” is unwarranted. case, any given the facts of because of an Finally, “penalty of Hunter held that the inability discovery, prove to conduct needed infringed dismissal” to sue. impractical impossible prospec- for a to be apart, analytically as the Hunter Considered claim to tive with a meritorious it, “penalty court considered of dismissal” *7 application Kenyon preclude of meet. would impermissibly abrogates a cause of no more requirement to the “affidavit at the outset” summary “penalty” of action than does the facing poten- plaintiff. a Professionals such summary judgment, granting of and the not, agree, of should I tial claims although an action judgment, it also bars liability stonewalling expect to avoid rea- merits, affording trial on the is sure without pre-litigation requests for informa- sonable ly See Morrell a constitutional mechanism. In regarding tion their conduct. Ctr., Ariz.App. v. Luke’s Med. St. weight have had no Hunter this factor should rejected we a claim P.2d 334 because, it, I see the statute did not as “summary judgment should not be en that plaintiff require an affidavit of the there. early stages malpractice liti tered in the of they had the information Here the Vrees [plaintiff] was gation, especially ... when lawsuit; they filed the claim- needed before testify sup to secure an to unable frequently do. We ants in similar situations port complaint.” of limitation of his Statutes plight plaintiff of a who could consider the action, yet violate of and do not “bar” causes provide expert’s affidavit due to cannot bring to an action. the fundamental unavoidability information the of needed State, 174, 180,412 P.2d Rutledge v. 100 Ariz. plaintiff presented if such a when and such a (1966). court has 471-72 present claim. is not here. Such a stat a violation where found constitutional However, brought within noting that the “affidavit that an action be bears ute unlikely impracti- and entirely ger- a time in which it was requirement is at the outset” particular legislative choice be the cal the for the action could necessitated that basis express § I presented in court. Barrio 12-2602. wish discovered reflected Magma Hosp. Copper disapproval of approval San Manuel Div. nor the neither Co., sought to re- mechanism which the statute (statute (1984) requiring action minor legisla- of say quire. I mean to injured age brought when of seven below make have been allowed to ture should age before minor reached ten unconstitution decision, arguments against policy and that action). However, ally abrogated of cause prudence of should have the measure prevents that a statute a claimant body. been directed prospective of a learning from a defendant short, agree I with the Hunter do not not basis for a cause of action does mean majority here that 12-2602 action, abrogated has cause of statute facts of that unconstitutional under either the there even where contends that proper no this case. statute had for dis are no other reasonable alternatives Here, in Hunter. the Vrees application timely covering the information needed to they experts anyway, and needed to hire prosecute Hosp. the action. Humana v. Su provided they with the information were perior 154 Ariz. comply require- needed to with the affidavit (App.1987). may Though a statute have the They comply ment. did not with the statute. actions, practical barring effect of some regarding AA Mechanical did Their affidavit dismissal,” itself, “penalty of of does sufficiently pertinent describe either not equate abrogation of cause action. of care or the in which it standard of manner § 12- repeating application It of bears violated, allegedly affiant is not was and the the Vrees’ of action here causes in the field AA Mechanical. As to same as precluded would not have their lawsuits be Devenney, general who was not the contrac- they opportunity fore had an discover building, tor for the Vrees’ affidavit failed building circumstances under which the pertinent a breach to demonstrate constructed, allege “sick” was because the grant care. I would relief on standard of opportunity. did have such an Vrees petition, respectfully dissent from each court, my erroneously Once Hunter majority opinion. view, infringed determined that bring fundamental lawsuits showing only upon to be was sustained interest, compelling state resolution constitutionality the issue the statute’s foregone conclusion stat because the STATE COMPENSATION not, could, if such sur ute could FUND, Petitioner, scrutiny.” employed, vive “strict Once deny “is to effect of such “active review” judgments usually legislative the deference of Ari COURT of State SUPERIOR dispense gen zona, with the accorded them and In and For the COUNTY OF constitutionality usually presumption eral MARICOPA, Brian R. the Honorable *8 given state classifications.” Constitu thereof, judge Respondent Hauser, America, Analy tion States United Judge, (Johnny Interpretation H. Killi sis INC., ENERGCORP, Real 1987). ed., Congress Library Without Party in Interest. constitutionality, judicial presumption of suspicion legislative attempts regulate No. CA-SA 97-0055. quash particular litigation sufficed to Arizona, Appeals Court of measure. 1, Department A. Division scrutiny, Thus, by proceeding strict Nov. 1997. scope al- the usual Hunter court disallowed judgments differing policy lowed for sure, may To legislators come. compelling interest which

there is no state