Opinion
2 CA-CV 2024-0022
07-15-2024
Jatai Gonder, individually and as Personal Representative of the estate of Rosa Ross, Plaintiff/Appellant, v. Arizona Hospice MD Partners, LLC; Haven Hospice Tucson, LLC, dba Haven Hospice, Defendants/Appellees.
Doug Newborn Law Firm PLLC, Tucson By Douglas J. Newborn Counsel for Plaintiff/Appellant Burch & Cracchiolo P.A., Phoenix By Daryl Manhart and Susanne E. Ingold Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20222466 The Honorable Gary J. Cohen, Judge
Doug Newborn Law Firm PLLC, Tucson By Douglas J. Newborn Counsel for Plaintiff/Appellant
Burch & Cracchiolo P.A., Phoenix By Daryl Manhart and Susanne E. Ingold Counsel for Defendants/Appellees
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Gard and Chief Judge Staring concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Jatai Gonder, individually and as the personal representative of the estate of his mother, Rosa Ross, appeals from the superior court's November 2023 order denying his combined motion for relief from judgment and for reconsideration of his motion for leave to refile his complaint against Arizona Hospice MD Partners LLC ("Arizona Hospice"). For the reasons that follow, we affirm.
Gonder's complaint also named-and the superior court's relevant orders also refer to-Haven Hospice Tucson LLC. However, both the answer filed in superior court by Arizona Hospice and its answering brief on appeal indicate that Arizona Hospice is or was doing business as Haven Hospice. This decision therefore refers only to Arizona Hospice.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the superior court's rulings. See MacLean v. Newgioco Grp., Inc., 251 Ariz. 31, ¶ 8 (App. 2021). Ross died on August 22, 2020, while in the care of Arizona Hospice. On June 20, 2022, Gonder filed the civil complaint underlying this appeal on behalf of himself and his mother's estate. He asserted claims for negligence and violation of the Adult Protective Services Act, A.R.S. §§ 46-454 and 46-455.
In addition to Arizona Hospice, Gonder's complaint named Grace Home Assisted Living LLC and Gracious Haven Adult Care Assisted Living. In January 2023, the superior court entered an order of dismissal without prejudice as to these defendants because the complaint against them abated due to non-service under Rule 4(i), Ariz. R. Civ. P. They are not parties to this appeal.
¶3 In January 2023, the superior court issued a notice placing the case on the dismissal calendar. It advised that the case would be dismissed without further notice unless certain listed actions were taken. Gonder did not file anything in response. Thus, on April 10, 2023, the court entered an order of dismissal without prejudice as to Arizona Hospice for lack for prosecution, pursuant to Rule 38.1(d), Ariz. R. Civ. P.
¶4 On October 6, 2023, Gonder refiled the complaint. Then, on October 11, he filed a motion for leave to refile under A.R.S. § 12-504(A). On October 31, the superior court denied that motion.
¶5 On November 16, 2023, Gonder filed a combined motion seeking: (a) relief under Rule 60(b)(1), Ariz. R. Civ. P., from the superior court's April 10, 2023 order dismissing the case, on the ground of excusable neglect; and (b) reconsideration of the court's October 31, 2023 order denying his motion to refile the complaint under § 12-504(A). Gonder asked the court to permit refiling of the case only as to Arizona Hospice.
¶6 On November 21, 2023, the superior court issued a ruling denying both motions. Gonder filed his notice of appeal on December 21, 2023.
Jurisdiction
¶7 Arizona Hospice questions whether we have jurisdiction over this appeal. We only have jurisdiction pursuant to statute and have no authority to consider the merits of an appeal from an order that is not appealable. See Hall Fam. Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386 (App. 1995).
¶8 Under A.R.S. § 12-2101(A)(1) and (2), we have jurisdiction over appeals from "a final judgment" and from "any special order made after final judgment." Dismissals without prejudice are not final judgments. McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4 (App. 2009); see also Olewin v. Nobel Mfg., LLC, 254 Ariz. 346, ¶ 16 (App. 2023) (order dismissing case without prejudice generally nonfinal and nonappealable because plaintiff can refile and thus has nothing to appeal).And, where a Rule 60 motion for relief due to excusable neglect follows such a dismissal, the denial of that motion cannot be a special order made after final judgment. See Ruesga v. Kindred Nursing Cntrs., L.L.C., 215 Ariz. 589, ¶ 11 (App. 2007). Thus, we do not have jurisdiction of this appeal under § 12-2101(A)(1) or (2).
Regardless, Gonder has not filed a notice of appeal as to either the January 2023 or April 2023 orders dismissing the case without prejudice.
¶9 However, under § 12-2101(A)(3), we have jurisdiction over appeals "[f]rom any order affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken." This exception applies when a complaint is dismissed after the statute of limitations has clearly run, precluding the plaintiff from refiling his claims. See Garza v. Swift Transp. Co., 222 Ariz. 281, ¶ 15 (2009) (noting that "dismissal without prejudice entered after the statute of limitations has run" is "classic example" of order falling under precursor to § 12-2101(A)(3)); see also Olewin, 254 Ariz. 346, ¶¶ 16-17, 21-22.
¶10 Gonder concedes that both of his claims are subject to a two-year statute of limitations, which began to run around or upon Ross's death on August 22, 2020. See A.R.S. §§ 12-542(2) (negligence), 46-455(K) (abuse, neglect, or exploitation of vulnerable adult). He has argued that the two-year limitations period had run on both claims by the end of August 2022, such that they were long-since time-barred by the time he filed his motion under § 12-504(A) over a year later, in October 2023. Arizona Hospice agrees. The superior court's November 2023 denial of Gonder's request for relief under Rule 60 from the order dismissing his case, alongside his request for reconsideration of his motion under § 12-504(A) for leave to refile, was thus an appealable order pursuant to § 12-2101(A)(3), giving this court jurisdiction to hear the present appeal. See Garza, 222 Ariz. 281, ¶ 15; Olewin, 254 Ariz. 346, ¶¶ 16-17, 21-22.
Discussion
¶11 We review all of the rulings at issue for an abuse of discretion. See Maher v. Urman, 211 Ariz. 543, ¶¶ 21, 25 (App. 2005) (denial of relief under Rule 60 and § 12-504); Worldwide Jet Charter, Inc. v. Christian, 255 Ariz. 67, ¶ 10 (App. 2023) (denial of motion for reconsideration). We will affirm the rulings of the superior court if they are correct for any reason. See Delbridge v. Salt River Project Agric. Improvement &Power Dist., 182 Ariz. 46, 54 (App. 1994).
¶12 Gonder first argues that the superior court erred in denying his request for relief under Rule 60. Through that aspect of his motion, Gonder sought "reinstatement of the prior lawsuit," which the court had dismissed on April 10, 2023. Jepson v. New, 164 Ariz. 265, 272 (1990). But a motion under Rule 60(b)(1) must be made "no more than 6 months after the entry of the judgment or order" from which the moving party seeks relief. Ariz. R. Civ. P. 60(c)(1). "This deadline may not be extended by stipulation or court order," except in circumstances not relevant here. Id. Thus, the absolute deadline for a filing a motion under Rule 60(b)(1) for relief from the court's April 10 dismissal was October 10, 2023. Gonder did not file his Rule 60 motion until November 16, 2023. The court had no jurisdiction to grant the untimely motion and cannot have abused its discretion by denying it. See Martin v. Martin, 182 Ariz. 11, 16 (App. 1994) (where Rule 60 motion untimely, "court had no jurisdiction to grant relief"); see also Maher, 211 Ariz. 543, ¶ 21.
¶13 Gonder next contends the superior court erred in denying his motion to reconsider its denial of his request to refile the complaint under § 12-504, commonly known as the "savings statute." That statute establishes in relevant part as follows: "If an action timely commenced is terminated by . . . dismissal for lack of prosecution, the court in its discretion may provide a period for commencement of a new action for the same cause, although the time otherwise limited for commencement has expired." § 12-504(A). However, "[s]uch period shall not exceed six months from the date of termination." Id.; see also Roller Vill., Inc. v. Superior Court, 154 Ariz. 195, 197 (App. 1987) (superior court may, in its discretion, decline to provide period in which to commence new action, but if refiling permitted, "the period may not exceed six months from the date of termination"). Thus, the plain terms of the savings statute allowed the court to exercise its discretion to allow for the commencement of a new action involving Gonder's otherwise time-barred claims, but only within six months of the April 10, 2023 dismissal for lack of prosecution-that is, by October 10, 2023. Gonder did not successfully file his motion under § 12-504(A) until the next day, October 11.
¶14 Gonder nonetheless asserts that his motion for leave to refile under § 12-504(A) was timely filed. He apparently attempted to file it on October 9, 2023, the day before the deadline, at 5:09 in the evening. He received confirmation from TurboCourt that the filing had been "successfully completed and delivered." However, the motion was ultimately rejected "due to an exhibit naming convention issue." According to Gonder, after discussions with the Office of the Clerk of the Superior Court, the naming issue was fixed and the motion "immediately refiled" and accepted in the evening of October 11, as indicated in the time stamp.
¶15 Under Rule 5.1(b)(1), Ariz. R. Civ. P., a document filed electronically "is deemed filed on the date and time the clerk receives it as shown on the email notification from the court's electronic filing portal or as displayed within the portal, unless . . . the clerk later rejects the document based on a deficiency in the filing." That is what occurred here. Moreover, the electronic filing policies of the Pima County Superior Court in effect at the time had placed Gonder on notice that no document would be considered filed until it was accepted by the court and that filings received after business hours would not be reviewed by the clerk and marked as either accepted or deficient until the following business day. See eFiling Frequently Asked Questions, Office of the Clerk of the Superior Court in Pima County, Arizona (Aug. 2023), pp. 2, 6. Those policies also provided specific guidelines on how exhibits must be titled, and they warned-in red-that submissions with deficient titles would not be accepted. Id. at p. 5.
Pursuant to § 1-901(W), Ariz. Code of Jud. Admin., Pima County Superior Court has established policies regarding electronic filing and posted them online at http://www.azcourts.gov/efilinginformation.
¶16 For all these reasons, the superior court did not abuse its discretion in deeming Gonder's § 12-504(A) motion filed on October 11, 2023, the day it was accepted and time stamped by the clerk. Because the six-month extension authorized under the savings statute had expired by that time, the court had no authority to grant the relief requested. See § 12-504(A); Roller Vill., Inc., 154 Ariz. at 197 (if permitted by superior court, refiling "must be accomplished within a maximum of six months" after dismissal for lack of prosecution). Thus, the court did not abuse its discretion in denying relief or in declining to reconsider that denial. See McKernan v. Dupont, 192 Ariz. 550, ¶ 25 (App. 1998) (motion under savings statute filed after six-month deadline untimely and properly denied); see also Maher, 211 Ariz. 543, ¶ 25; Worldwide Jet Charter, 255 Ariz. 67, ¶ 10.
¶17 Finally, Arizona Hospice requests its costs on appeal, citing Rule 21, Ariz. R. Civ. App. P., and A.R.S. § 12-341. As the successful party, Arizona Hospice is entitled to its costs on appeal, § 12-341, upon its compliance with Rule 21(b).
Disposition
¶18 For the foregoing reasons, we affirm the November 2023 ruling of the superior court.