Noreen Passmore and Clifford Passmore v. James W. McCarver, M.D., et al.

¶1 The superior court dismissed appellants’ medical malpractice

action without prejudice for failure to serve preliminary expert affidavits

under A.R.S. § 12-2603. Appellants then sought to refile the action under

Arizona’s “savings statute,” A.R.S. § 12-504, but the court found that relief

was not available under that statute and dismissed the claims with

prejudice. We affirm. First, we hold that appellants were not entitled to

automatic relief under § 12-504, because the original dismissal constituted

a dismissal for failure to prosecute within the meaning of the statute.

Second, we hold that the court did not abuse its discretion by otherwise

denying relief under § 12-504.

FACTS AND PROCEDURAL HISTORY1

¶2 In March 2013, Noreen and Clifford Passmore (“Plaintiffs”)

filed a medical malpractice action against James W. McCarver, M.D., Ellen

Lorenz, C.F.N.P., and Prescott Valley Primary and Urgent Care Clinic

(collectively, “Defendants”).2 Concurrent with the complaint, Plaintiffs

certified under A.R.S. § 12-2603(A) that “[e]xpert testimony . . . may be

necessary to prove Defendants fell below the standard of care.” But they

did not thereafter serve preliminary expert affidavits within the time

prescribed by § 12-2603(B). And though the parties later agreed to a March

2014 deadline for service of the affidavits and the court eventually

1 We take judicial notice of relevant superior-court orders not

included in the record on appeal. See In re Sabino R., 198 Ariz. 424, 425, ¶ 4

(App. 2000).

2 Yavapai Regional Medical Center was also named as a defendant,

but was later dismissed without objection.

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Opinion of the Court

3

approved the agreement, Plaintiffs failed to meet that deadline as well.

Defendants then moved for dismissal.

¶3 By the time the court held oral argument in September 2014,

Plaintiffs still had not provided the affidavits. The court granted

Defendants’ motion to dismiss and directed them to submit a proposed

form of judgment. Defendants’ proposed judgment contemplated a

dismissal “with prejudice” and cited “the failure to . . . prosecute this case,”

an “intentional and willful failure to comply with a court order and Arizona

statute,” and Ariz. R. Civ. P. 41(b), which authorizes presumptive “with

prejudice” dismissals for failure to prosecute or comply with rules or court

orders. Plaintiffs objected to the proposed judgment, arguing that the

motion to dismiss had not mentioned Rule 41(b), that the court’s order had

not mentioned either Rule 41(b) or intentional or willful conduct, and that

§ 12-2503(F) required dismissal without prejudice. In November 2014, the

court held that Defendants’ proposed judgment “exceed[ed] the scope of

the Court’s . . . Ruling,” and ordered the claims “DISMISSED without

prejudice pursuant to A.R.S. § 12-2603(F).”

¶4 Approximately two weeks later, Plaintiffs refiled their claims.

Defendants filed a motion to dismiss based on the statute of limitations.

Plaintiffs did not dispute that the statute of limitations had expired, but

argued that the new action was automatically proper under A.R.S. § 12-504

because the original dismissal was not for lack of prosecution. Plaintiffs

also argued in the alternative that even if the dismissal was for lack of

prosecution, the court should exercise its discretion under § 12-504 to

permit the new action.

¶5 The court held that it “[would] not make new findings

concerning [the] prior case” but “[could] not ignore the result of the prior

case, given that the [same judge] was also the assigned judge” in that case.

The court concluded that, “[h]aving considered all the facts and

circumstances of what went on in that prior case, the Court does determine

that the dismissal under [A.R.S. § 12-2603(F)] was for lack of prosecution.”

The court further concluded that “the exercise of discretion would not be

appropriate and Plaintiffs’[ ]request for discretion for the savings of this

particular case is denied.” The court dismissed the new action with

prejudice.

¶6 Plaintiffs timely appeal.

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Opinion of the Court

4

DISCUSSION

¶7 A.R.S. § 12-504 creates a remedial procedure by which

plaintiffs may, in some circumstances, refile terminated actions without

regard to the statute of limitations. Janson v. Christensen, 167 Ariz. 470, 470,

472 (1991). The statute includes a mandatory provision and a discretionary

provision. Roller Village, Inc. v. Superior Court (Dow), 154 Ariz. 195, 197

(App. 1987). First, § 12-504(A) provides:

If an action is commenced within the time limited for the

action, and the action is terminated in any manner other than

by abatement, voluntary dismissal, dismissal for lack of

prosecution or a final judgment on the merits, the plaintiff or a

successor or personal representative, may commence a new action

for the same cause after the expiration of the time so limited

and within six months after such termination.

(Emphases added.) Second, § 12-504(A) provides:

If an action timely commenced is terminated by abatement,

voluntary dismissal by order of the court or 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. Such period shall not exceed six months from the

date of termination.

(Emphases added.) We interpret § 12-504(A)’s mandatory- and

discretionary-relief provisions de novo. See Sedona Grand, LLC v. City of

Sedona, 229 Ariz. 37, 39, ¶ 8 (App. 2012). We review the grant of a motion

to dismiss and the denial of discretionary relief under § 12-504(A) for abuse

of discretion. Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11 (2006); Copeland

v. Ariz. Veterans Mem’l Coliseum & Exposition Ctr., 176 Ariz. 86, 91 (App.

1993).

I. PLAINTIFFS WERE NOT ENTITLED TO AUTOMATIC RELIEF

UNDER § 12-504(A), BECAUSE THE DISMISSAL OF THE

ORIGINAL ACTION UNDER § 12-2603 WAS A DISMISSAL FOR

FAILURE TO PROSECUTE.

¶8 Plaintiffs first contend that they were entitled to refile as a

matter of right under § 12-504(A) because their initial action was dismissed

in a “manner other than by abatement, voluntary dismissal, dismissal for

lack of prosecution or a final judgment on the merits.” Specifically, they

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contend that a dismissal without prejudice under § 12-2603(F) is not

equivalent to a dismissal for lack of prosecution. We hold that when a case

is dismissed for failure to serve a preliminary expert affidavit under

§ 12-2603, the dismissal is for lack of prosecution.

¶9 The superior court has discretion to dismiss cases that are not

diligently prosecuted. Cooper v. Odom, 6 Ariz. App. 466, 469 (1967); see also

Ariz. R. Civ. P. 41(b). “Mere delay can be the basis of dismissal.” Cooper, 6

Ariz. App. at 469. Failure to serve the preliminary affidavit required by §

12-2603 is an unambiguous form of delay. Section 12-2603 seeks to “curb

frivolous medical malpractice lawsuits by imposing a stricter standard of

pleading and setting deadlines for the early involvement of the plaintiff’s

expert witnesses.” Gorney v. Meany, 214 Ariz. 226, 229, ¶ 8 (App. 2007). To

that end, the statute defines specific tasks that must be completed by

specific deadlines to prosecute claims against health care professionals,

along with specific procedures whereby plaintiffs may obtain extensions of

time and opportunities to cure deficiencies. See A.R.S. § 12-2603(A)–(C), (F).

Accordingly, a dismissal for failure to comply with the statute’s directive to

serve a preliminary affidavit is a dismissal for failure to prosecute.

Plaintiffs’ second action therefore did not fall within the scope of § 12-504’s

mandatory-relief provision — without regard to whether the court had

firsthand knowledge of the original action.

¶10 The court’s ruling did not, as Plaintiffs contend, create “new

findings re[garding] the original case.” The court simply recognized the

legal effect of the first judgment. And contrary to Plaintiffs’ contention, the

fact that the court rejected Defendants’ proposed form of judgment in the

first action does not compel a different outcome. The procedural history

regarding the proposed form of judgment in the first action reflects that the

court correctly declined to apply Rule 41(b)’s presumption of dismissals

with prejudice in view of § 12-2603(F)’s prescription of dismissals without

prejudice. See Ariz. R. Civ. P. 41(b) (“Unless the court in its order for

dismissal otherwise specifies, a dismissal under this subdivision . . .

operates as an adjudication upon the merits.”); Sanchez v. Old Pueblo

Anesthesia, P.C., 218 Ariz. 317, 323, ¶ 20 (App. 2008) (holding that § 12-2603

“does not contemplate dismissal with prejudice as a sanction for a deficient

preliminary affidavit”). The procedural history does not suggest that the

dismissal was for any reason other than Plaintiffs’ failure to serve

preliminary expert affidavits and thereby prosecute their case.

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II. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY

DENYING DISCRETIONARY RELIEF UNDER § 12-504(A).

¶11 Plaintiffs next contend that they were entitled to relief under

§ 12-504(A)’s discretionary provision. The record supports the superior

court’s denial of relief.

¶12 “[T]he very nature of the discretionary portion of [§ 12-

504(A)] requires a case-by-case application and evaluation.” Jepson v. New,

164 Ariz. 265, 271 (1990). The standard “must be flexible” and “must ensure

that the statute is not misused as a safe haven for the dilatory and a loophole

through which parties may avoid the applicable rules of practice and

procedure.” Id. In deciding how to exercise its discretion under the statute,

the court must consider several factors: “whether the plaintiff acted

reasonably and in good faith, whether he prosecuted his case diligently and

vigorously, whether a procedural impediment exists which affects his

ability to file a second action, and whether either party will be substantially

prejudiced.” Id. at 272 (citation omitted). The plaintiff bears the burden to

show entitlement to relief. Id.

¶13 The record shows that Plaintiffs failed to file any affidavits

under § 12-2603 even after obtaining a significant extension of time.

Plaintiffs’ primary explanation for the delinquency was that they had

difficulty determining the specialty of the expert who should opine as to

McCarver’s standard of care, and had difficulty communicating with their

chosen expert regarding Lorenz’s standard of care, first because Plaintiffs’

counsel’s office flooded and later because the expert relocated. It was

within the court’s discretion to find those explanations insufficient to justify

a conclusion that Plaintiffs acted reasonably and in good faith, especially in

view of the length of the delay and Plaintiffs’ failure to comply with the

stipulated extension. Further, it was within the court’s discretion to find

that the prejudice caused to Plaintiffs by denying relief under § 12-504 was

outweighed by the prejudice that Defendants would suffer were the claims

allowed to move forward in view of the extreme and unjustified delay. See

Jepson, 164 Ariz. at 274 (“[A]lthough the case is now barred by the statute of

limitations and in balancing the prejudice in that regard it appears that the

hardship is greatest upon [the plaintiff], all factors must be considered

together.”). Considering the totality of the circumstances, the court

reasonably concluded that Plaintiffs failed to meet their burden to show

entitlement to relief under the savings statute.

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Opinion of the Court

¶14 For the foregoing reasons, we affirm the court’s judgment

dismissing Plaintiffs’ claims with prejudice.