Opinion
1 CA-CV 12-0403
05-16-2013
LESLIE LEROW, Plaintiff/Appellant, v. BRADLEY R. NICOL, M.D., and LAURA NICOL, husband and wife; Defendants/Appellees.
Law Offices of Earle & Associates By Robert L. Earle Attorneys for Plaintiff/Appellant Quintairos, Prieto, Wood & Boyer, P.A. By Vincent J. Montell Michael J. Ponzo Attorneys for Defendants/Appellees
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Coconino County
Cause No. S0300CV201100518
The Honorable Dan R. Slayton, Judge
VACATED AND REMANDED
Law Offices of Earle & Associates
By Robert L. Earle
Attorneys for Plaintiff/Appellant
Sedona Quintairos, Prieto, Wood & Boyer, P.A.
By Vincent J. Montell
Michael J. Ponzo
Attorneys for Defendants/Appellees
Phoenix PORTLEY, Judge ¶1 We are asked to decide whether the trial court properly dismissed Bradley R. Nicol, M.D., and Laura Nicol from this lawsuit. Leslie Lerow argues that the Nicols waived their abatement claim by not specifically including the defense in their answer or not amending their answer to include the defense before filing their motion to dismiss. Because we agree, we vacate the ruling and remand the matter back to the trial court.
FACTS AND PROCEDURAL BACKGROUND
¶2 Lerow filed her medical malpractice suit on June 22, 2011. Pursuant to rule, she was required to serve the summons and complaint by October 19, 2011. See Ariz. R. Civ. P. 4(i). She made no attempt to serve the summons and complaint before October 19. ¶3 Lerow filed a motion to continue the case on the inactive calendar on October 24, 2011, and submitted an order extending the time for service. Although she claims that she simultaneously filed a motion to extend the time for service, the motion is not in the record. ¶4 The court signed the order extending time for service three days later, and Lerow had until November 23, 2011, to complete service. She served the Nicols, and they filed their answer on November 15, 2011. In paragraph 16 of their answer, they alleged "all affirmative defenses in 8(c) and 12(b) Ariz.R.Civ.P. to avoid waiver." ¶5 Unbeknownst to the Nicols at the time, another defendant moved to dismiss the complaint based on abatement and invalid service. Before the hearing on the motion, the court discovered that Lerow's motion for extension to complete service was not in the file and issued a notice to all parties that gave Lerow ten days "to file their clerk stamped copy." Because she did not produce a clerk stamped copy, the court subsequently vacated its October 27, 2011 order extending the time for service. ¶6 The Nicols filed a motion to dismiss the lawsuit based on abatement in February 2012. After considering Lerow's response, the court dismissed the lawsuit against the Nicols and denied Lerow's request to refile the case under Arizona's saving statute, Arizona Revised Statutes ("A.R.S.") section 12-504 (West 2013).
DISCUSSION
¶7 Lerow challenges the ruling dismissing her lawsuit based upon abatement. We review the ruling for abuse of discretion. Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App. 1997). We, however, review the court's interpretation of statutes and rules de novo. Schwartz v. Ariz. Primary Care Physicians, 192 Ariz. 290, 294, ¶ 13, 964 P.2d 491, 495 (App. 1998). ¶8 Abatement occurs when a defendant is not served within the 120-day limit for service. Id. at 294-95, ¶ 15, 964 P.2d at 495-96. Lerow did not meet the deadline and did not seek an extension before the 120-day time period expired. See Corbett v. ManorCare of Am., Inc. , 213 Ariz. 618, 623, ¶¶ 8-9, 146 P.3d 1027, 1032 (App. 2006). ¶9 Lerow, however, raises three arguments. First, she contends that she served the Nicols in accordance to Arizona Rule of Civil Procedure ("Rule") 4(i) and pursuant to a court-ordered extension. Second, she claims that the Nicols waived any abatement claim by not specifically raising it in their answer and participating in the litigation. Finally, she argues that the court erred by refusing to allow her to refile her lawsuit under the savings statute. We review each in turn.
I
¶10 Rule 4(i) provides:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to Rule 4.2(h), (i), (j) and (k) of these rules.¶11 Under the Rule, a court must extend the time for service for an appropriate period if the plaintiff establishes good cause for failure to accomplish service within 120 days. Maher v. Urman, 211 Ariz. 543, 547, 549, ¶¶ 8-10, 19, 124 P.3d 770, 774, 776 (App. 2005) (affirming the superior court's ruling finding no good cause based upon a lack of due diligence and citing the failure to request an extension within the 120-day time frame). A court, however, even in the absence of good cause, has discretion to extend the time for service based on its ability to "direct that service be effected within a specified time." Id. at ¶ 10 (quoting Ariz. R. Civ. P. 4(i)). ¶12 Here, Lerow never sought a timely extension to serve the defendants. She filed a motion to continue the case on the inactive calendar after the 120 days had expired and filed an order extending service but never filed a motion seeking to extend the service time period. After the court signed the order, Lerow served the Nicols within the extended service period, but the court vacated its prior order extending the time for service. ¶13 Citing Toy, Lerow claims that she was entitled to rely upon the order granting her an extension to serve the defendants. In Toy, the court granted plaintiff three extensions to complete service "without reading the reasons for the requested extension." 102 Ariz. at 80, 961 P.2d at 1028. When finally served, the defendant moved to dismiss. Id. at 82, 961 P.2d at 1030. The court determined that it had mistakenly granted the extensions, but declined to dismiss because the plaintiff had a right to rely on them. Id. at 84, 961 P.2d at 1032. In affirming the ruling of the trial court, we stated: "The decision . . . of what was to be done, given that the motions for extension had been granted and relied upon, was within the sound discretion of the trial court." Id. at 85, 961 P.2d at 1033. ¶14 Contrary to Lerow's argument, Toy does not require the court to reject the motion to dismiss based upon her alleged reliance. Rather, Toy simply holds that the court has discretion to grant or deny the motion to dismiss based on an order that may have been improvidently granted. See id. ¶15 Moreover, and unlike the facts here, the Toy plaintiff complied with Rule 4(i) by moving for extensions well within the time for service. Id. at 81-82, 961 P.2d at 1029-30. Had the Toy court denied the extension motions, the plaintiffs still could have served the defendants pursuant to Rule 4(i) and avoided abatement. Id. at 82, 961 P.2d at 1030. Lerow, on the other hand, did not seek an extension until after the original time for service had elapsed. Accordingly, the court did not abuse its discretion by vacating its order granting an extension. Compare id. with Air Power, Inc. v. Superior Court (Phillips), 142 Ariz. 492, 493-95, 690 P.2d 793, 794-96 (App. 1984) (holding that the plaintiff was not entitled to an enlarged time for service because he had filed the motion for extension one day before the time limit for service had run, and had failed to exhibit diligence in attempting to serve). ¶16 As a subset of her argument, Lerow contends that she relied to her detriment on the court's approval of her extension order. Although she may have relied on the order that the court later found was improvidently granted, she was not entitled to reasonably rely on it because she did not seek an extension until after the 120-day period had already passed, and the action abated. Consequently, because she had not timely sought an extension, she was not entitled to rely on the order which the court subsequently found was improvidently granted. ¶17 Lerow also contends that the court failed to recognize that Rule 4(i) also allowed it to extend the time for service even in the absence of a motion for extension. Although the Rule allows the court to act, the Rule also provides that there must be a good cause showing for failure to complete service within the requisite period. Because the court found that Lerow was not diligent during the 120-day window, she was unable to demonstrate good cause to extend the time for service. Consequently, the court did not abuse its discretion by vacating its October 2011 order granting Lerow an extension to complete service.
Lerow claims, without any affidavit, that an employee of the office of the clerk of the superior court told one of her representatives when service had to be completed that was contrary to the 120-day rule, and she relied on that date to file her request for extension. We find, as a matter of law, that Lerow was not entitled to rely on the employee's interpretation of the rules and facts to determine when the 120-day time limit expired.
II
¶18 Lerow contends that the Nicols waived their abatement defense by not specifically raising it in their answer. We agree. ¶19 Any abatement defense must be asserted in a responsive pleading, or an amended pleading; otherwise, it is waived. See Ariz. R. Civ. P. 12(h)(1); City of Phoenix v. Fields, 219 Ariz. 568, 574, ¶ 27, 201 P.3d 529, 535 (2009) (stating that "[d]efenses omitted from an answer or Rule 12 motion are therefore waived"); Snow v. Steele, 121 Ariz. 82, 84-86, 588 P.2d 824, 826-28 (1978) (holding that abatement is a defense under Rule 12(b)(5) that must be asserted when it is "then available," and reversing a dismissal as to defendants who had failed to do so); see generally 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Civil § 1353 (3d ed. 2012) (explaining that Rule 12(b)(5) covers the mode of delivery, or lack of delivery, of the summons and complaint). ¶20 In their answer, the Nicols did not specifically assert abatement and never sought leave to amend that pleading. The answer, however, stated that they were preserving "all affirmative defenses in 8(c) and 12(b) Ariz.R.Civ.P. to avoid waiver." They claim that the allegation covers abatement, and that they were entitled to delay filing their motion to dismiss based on the extension of time to serve. ¶21 Although the Nicols sought to preserve all Rule 12(b) defenses, the rules of civil procedure require that the defense of abatement be pled with specificity. See Ariz. R. Civ. P. 12(b). If there was any question about how abatement has to be pled, Rule 12(h)(1) provides the answer - "[a] party waives all defenses . . . which that party does not present either by motion . . . or . . . in that party's answer." ¶22 Moreover, in Snow, our supreme court examined the predecessor to Rule 4(i), and stated Rule 12(b) was clear and provided that every defense has to be asserted in a responsive pleading "except that insufficiency of process and insufficiency of service of process may be made by motion. The failure to raise the insufficiency of process and insufficiency of service of process constitutes a waiver thereof." 121 Ariz. at 85, 588 P.2d at 827. See also Wieman v. Roysden, 166 Ariz. 281, 286, 802 P.2d 432, 437 (App. 1990) (noting that "[f]ailure to specifically plead an affirmative defense results in waiver of the defense"); Burleson v. Lathem, 968 So.2d 930, 933-36, ¶¶ 10-12 (Miss. 2007) (finding that even though service was not completed within 120 days, any service-of-process defenses must be affirmatively asserted either in the initial responsive pleading or by motion or are waived unless raised in an amended answer; that a catch-all assertion of Rule 12(b) in the answer does not preserve the defense; and finding that the defense had been waived). Although old Rule 6(f) no longer exists, Rule 4(i) has replaced it. Ariz. R. Civ. P. 4(i) (the comment to the 1991 amendments recognizes that Rule 6(f) was eliminated as the rules were brought into conformity with the federal rules). Because the Nicols failed to specifically assert the abatement defense in their first filing and did not amend their answer before filing their motion to dismiss, they waived the defense. ¶23 The Nicols contend, however, that they had no reason to assert the defense when they filed the motion because the court had given Lerow additional time to complete service. Although they properly determined that they could not assert abatement at the time they filed the answer, they were not precluded from seeking to amend the answer pursuant to Rule 15(a) to assert the defense after the court's notice that the motion to extend was not in the file or after the court vacated the order extending the time for service. As a result, the defense had not been preserved and the Nicols should not have been dismissed from this action. See Snow, 121 Ariz. at 84-86, 588 P.2d at 826-28; cf. Dicenso v. Bryant Air Conditioning Co., 131 Ariz. 605, 606, 643 P.2d 701, 702 (1982) (finding a waiver of the abatement defense because the defendants first asserted it in their second motion to dismiss).
CONCLUSION
¶24 We vacate the dismissal of the Nicols and remand the matter to the trial court for further proceedings.
_________________
MAURICE PORTLEY, Judge
CONCURRING: _________________
MARGARET H. DOWNIE, Presiding Judge
_________________
PHILIP HALL, Judge