Opinion
2 CA-CV 2021-0042
10-29-2021
Arizona Automobile Insurance Company, a foreign corporation, Plaintiff/Appellee, v. Trent Nicholas Tulve, Defendant/Appellant.
Crosby &Gladner P.C., Mesa By Marc S. Gladner Counsel for Plaintiff/Appellee Barton &Storts, Tucson By Brick P. Storts III Counsel for Defendant/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20203285 The Honorable Kellie Johnson, Judge
Crosby &Gladner P.C., Mesa By Marc S. Gladner Counsel for Plaintiff/Appellee
Barton &Storts, Tucson By Brick P. Storts III Counsel for Defendant/Appellant
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
VASQUEZ, Chief Judge
¶1 Trent Tulve appeals the trial court's summary judgment in favor of Arizona Automobile Insurance Co. (AAI) and its denial of his motion for relief from judgment. He argues on appeal that the court erred by failing to view the evidence in the light most favorable to him and deciding the case based on a procedural rule, rather than on the merits. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to Tulve, the party against whom summary judgment was entered. United Ins. Co. v. Lutz, 227 Ariz. 411, ¶ 8 (App. 2011). Tulve was involved in an automobile accident with AAI's insured in June 2019. AAI filed a negligence action against Tulve in August 2020, and Tulve, representing himself, filed an answer in early September 2020.
¶3 On September 14, 2020, AAI submitted a request for admissions to Tulve. After the deadline had passed for Tulve's response, AAI filed a motion for summary judgment and attached the request for admissions in support of its motion. Tulve filed a timely response to the motion for summary judgment that included his untimely response to the request for admissions. His response to the motion for summary judgment addressed why his response to the request for admissions was late, stating that he had "only received the Request for Admissions at the time he received the Motion for Summary Judgment." The trial court granted AAI's motion for summary judgment on December 15. In a supplemental order affirming its decision, the court noted that it had failed to state in its initial order that in granting AAI's motion, it had considered Tulve's response and "even assuming the denials entered are appropriate answers to [AAI's] request for admission, [Tulve] failed [to] properly respond to the Motion for Summary Judgment as required by Ariz. R. Civ. P. Rule 56(e)."
¶4 Tulve subsequently retained counsel, who filed a motion for relief from judgment on January 8, 2021. On February 12, 2021, the trial court held a hearing on the motion to address the service issue Tulve had raised concerning the request for admissions. During the hearing, the court noted it "may have made a mistake" when it had stated in its supplemental order that summary judgment should be granted even if Tulve's denials were proper and clarified that it "does not find that the admissions were . . . appropriately responded to . . . and even the late responses still do not comply with the applicable rules." The court then stated that it deemed the matters in the request for admissions admitted, found the admissions warranted summary judgment, entered judgment in favor of AAI, and denied Tulve's motion for relief from judgment. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶5 Tulve contends the trial court erred in granting summary judgment because it failed to view the evidence in the light most favorable to him by refusing to consider his responses to the request for admissions when he had failed to timely answer. He maintains that granting summary judgment based on this "pure technicality not shown to be purposeful conduct" deprived him of his right to have the case decided on the merits. But purposeful or not, courts hold self-represented litigants like Tulve to "the same familiarity with court procedures and the same notice of statutes, rules, and legal principles as is expected of a lawyer." Higgins v. Higgins, 194 Ariz. 266, ¶ 12 (App. 1999). We review a trial court's grant of summary judgment de novo. United Ins. Co., 227 Ariz. 411, ¶ 8. Summary judgment is appropriate "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a).
¶6 Under Rule 36(a)(4), Ariz. R. Civ. P., "[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Tulve did not respond to AAI's request for admissions until nearly two months after service. Even then, his response did not comply with Rule 36(a)(4) because he had not signed it. Although Tulve maintains he did not receive the request for admissions until he received the motion for summary judgment, AAI complied with the service requirements by mailing the request for admissions to Tulve's last known address, the same address where he received all other filings, including the motion for summary judgment. See Ariz. R. Civ. P. 5(c)(2)(C).
¶7 Tulve argues the trial court should have allowed him to present evidence as to why he had failed to timely respond to the request for admissions because there was good cause to allow him to withdraw or amend them. See Ariz. R. Civ. P. 36(b) (withdrawal or amendment permitted if it would promote decision on merits and requesting party is not prejudiced). But the cases Tulve relies upon do not support his argument. Unlike in Raiser v. Utah County, 409 F.3d 1243, 1245-46 (10th Cir. 2005), Tulve did not file a motion to withdraw or amend his admissions until after the motion for summary judgment had been filed. And in DeLong v. Merrill, 233 Ariz. 163, ¶ 15 (App. 2013), this court recognized that Rule 36(b) is "permissive, not mandatory" and that "[t]rial courts may consider other factors, including whether there was good cause for the delay and the merits of the moving party's case." The court considered those factors in this case. It did not accept Tulve's assertion that he had first learned of the requests when he received AAI's motion for summary judgment. It also implicitly found that Tulve's responses, whether timely or untimely, had not created a genuine issue of material fact. We cannot say the court abused its discretion by deeming the matters in the request for admissions admitted. See DeLong, 233 Ariz. 163, ¶ 11 (court's decision on request to amend or withdraw admissions reviewed for abuse of discretion); see also Ariz. R. Civ. P. 36(a)(4).
¶8 Tulve nonetheless contends there was "no quantum of proof through other discovery methods or investigation" that would support summary judgment. He maintains AAI's request for admissions simply reframed the allegations in its compliant. And he asserts it is undisputed that his liability was a genuine issue for trial at the time the trial court entered judgment against him because he "officially denied" liability in his answer. First, Tulve cites no authority, and we are aware of none, that precludes AAI from reframing the allegations in its complaint as requests for admissions. Second, in opposing summary judgment, a party "may not rely merely on allegations or denials of its own pleading" but must "set forth specific facts showing a genuine issue for trial." Ariz. R. Civ. P. 56(e). Failure to do so requires that the court enter summary judgment against the opposing party, if the moving party "shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a), (e); see Schwab v. Ames Constr., 207 Ariz. 56, ¶ 15 (App. 2004) (record must support summary judgment when opposing party fails to respond to motion for summary judgment). Tulve's response to the motion for summary judgment did not comply with Rule 56 in that he did not file a separate statement of facts with proper citations to the record that "establish a genuine dispute or otherwise preclude summary judgment in favor of the moving party." Ariz. R. Civ. P. 56(c)(3)(B)(ii). His response to the motion for summary merely provided a reason why his response to the request for admissions was late.
In his opening brief, Tulve argues that AAI did not file its initial disclosure statement before filing its request for admissions as required by Rule 26(f)(1), Ariz. R. Civ. P. However, he did not make this argument before the trial court, and, thus, we will not address it. Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 13 (App. 2000) (we generally do not consider issues raised for first time on appeal).
¶9 Last, we reject Tulve's contention that the trial court's reasoning for granting summary judgment denied him the right to have this case resolved on the merits and acted as an improper sanction that amounted to a punishment for his failure to comply with the rules. The court considered the merits of AAI's claims and Tulve's responses, and there is no indication that the court granted summary judgment as a sanction. See Tilley v. Delci, 220 Ariz. 233, ¶ 13 (App. 2009) ("Summary judgment is not a sanction."). Therefore, summary judgment in favor of AAI was appropriate.
¶10 Tulve also appeals from the trial court's denial of his motion for relief from judgment. We review the denial of such motion for an abuse of discretion. Fry v. Garcia, 213 Ariz. 70, ¶ 7 (App. 2006). In challenging the court's ruling, Tulve again argues that the court should have resolved this case on the merits and not on a procedural rule. Because the court did resolve the case on the merits, it did not abuse its discretion.
Disposition
¶11 For the foregoing reasons, we affirm.