Court of Appeals of Arizona, Second Division, Department B
APPEAL FROM THE SUPERIOR COURT OF GILA COUNTY Cause No. CV201000376 Honorable Gary V. Scales, Judge Pro Tempore Honorable Christopher P. Staring, Judge
Watters & Watters, P.L.L.C. By Andrea E. Watters Attorneys for Plaintiff/Appellant
Law Offices of Mary Brooksby, PLLC By Don Stevens Attorneys for Defendant/Appellee
PETER J. ECKERSTROM, Judge
¶ 1 Plaintiff Susan Wyckoff appeals from the trial court's grant of summary judgment in favor of defendant Mogollon Health Alliance. For the following reasons, we affirm.
Factual and Procedural Background
¶ 2 In reviewing a trial court's grant of summary judgment, we view the facts and reasonable inferences therefrom in the light most favorable to the losing party. See Acosta v. Phx. Indem. Ins. Co., 214 Ariz. 380, ¶ 2, 153 P.3d 401, 402 (App. 2007). Wyckoff was employed by a hospital owned by Mogollon Health Alliance (Mogollon) when she noticed water leaks in her office "staining the walls and causing an offensive odor." Throughout the time of her employment, Wyckoff recognized a pattern of illness: she would gradually become more and more ill as the workweek progressed, feel "very ill" by Friday, but would then feel better by Sunday, "only to start the illness cycle all over again come Monday." Wyckoff moved to another office within the same building, but her health did not improve. After the move, she noticed "a black substance she believed to be mold" throughout the building. Wyckoff and other employees complained about the mold problem. She also conducted an air quality test within her office and provided the results to her employer as proof that the environment was unsafe. Wyckoff s health problems worsened, and she eventually left her employment at the hospital on February 1, 2008.
¶ 3 Wyckoff filed a complaint in Pima County against Mogollon, alleging premises liability and negligence. Mogollon did not file an answer in a timely manner, and the court entered a default judgment against Mogollon in the amount of $650, 000. Mogollon filed a motion to set aside the default judgment, which the court granted. The court also granted Mogollon's motion to transfer the case to Gila County. Mogollon then filed a motion for summary judgment in Gila County, claiming Wyckoff s action was barred by the statute of limitations. The court granted Mogollon's motion. On appeal, Wyckoff contends the court erred in setting aside the default judgment and in granting Mogollon's motion for summary judgment.
¶ 4 As a threshold matter, Mogollon posits that this court lacks jurisdiction to consider the order vacating the default judgment. Under A.R.S. § 12-2101(A)(2), this court has jurisdiction to hear an appeal "[f]rom any special order made after final judgment." Although this does not include an order setting aside an entry of default, it does generally include an order setting aside a default judgment. Sanders v. Cobble, 154 Ariz. 474, 475-76, 744 P.2d 1, 2-3 (1987). However, the order setting aside the default judgment in this case was not signed and did not concern all parties, and it was therefore not appealable under § 12-2101(A)(2). See Ariz. R. Civ. P. 54(a), (b), 58(a). Nonetheless, "an appealable judgment . . . brings before us all the orders from which . . . separate appeals could not be taken." Miller v. Ariz. Bank, 45 Ariz. 297, 303, 43 P.2d 518, 521 (1935); see A.R.S. § 12-2102(A) (appellate review from "final judgment" includes "intermediate orders involving the merits of the action and . . . all orders and rulings assigned as error"). Therefore, because we have jurisdiction to consider the trial court's grant of summary judgment under § 12-2101(A)(1), we likewise have jurisdiction to consider all issues related to this judgment that were not separately appealable, including the order vacating the initial default judgment.
¶ 5 Mogollon also argues that Wyckoffs failure to serve her complaint in a timely manner caused her action to abate. Abatement is an affirmative defense that must be raised below, otherwise it is waived. Snow v. Steele, 121 Ariz. 82, 86, 588 P.2d 824, 828 (1978); see Schwartz v. Ariz. Primary Care Physicians, 192 Ariz. 290, 295, 964 P.2d 491, 496 (App. 1998) (recognizing 1991 rule changes "did not eliminate the doctrine of abatement" but "simply shortened the time limit for service"). Because Mogollon has raised this claim for the first time on appeal, and because the trial court did not dismiss the action against Mogollon due to untimely service, see Ariz. R. Civ. P. 4(i), we do not consider the argument further. Owens v. City of Phoenix, 180 Ariz. 402, 407 n.8, 884 P.2d 1100, 1105 n.8 (App. 1994).
¶ 6 Wyckoff asserts the court erred in granting Mogollon's motion to set aside the default judgment. We review a trial court's order vacating a default judgment for an abuse of discretion. See BYS Inc. v. Smoudi, 228 Ariz. 573, ¶ 14, 269 P.3d 1197, 1201 (App. 2012). She claims the court erred in finding the judgment was void, rather than voidable, and that Mogollon had not met its burden of showing the judgment should be vacated under Rule 55(c) and Rule 60(c), Ariz. R. Civ. P. However, Wyckoff never argued to the trial court that the judgment was voidable, rather than ...