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DeLong v. Merrill

Court of Appeals of Arizona, Second Division, Department B

September 27, 2013

THOMAS DeLONG, Plaintiff/Counterdefendant/Appellee,
KATHLEEN MERRILL, Defendant/Counterclaimant/Appellant.

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. CV201003697 Honorable Bradley M. Soos, Judge Pro Tempore

Thomas DeLong Orlando, Florida, In Propria Persona Not Appearing

The Dutson Law Firm, Ltd. By James C. Dutson Apache Junction Attorney for Defendant/Counterclaimant/Appellant



¶1 Defendant/counterclaimant/appellant Kathleen Merrill appeals the trial court's denial of her request to file late responses to plaintiff/counterdefendant/appellee Thomas DeLong's requests for admission. She also appeals the trial court's summary judgment in favor of DeLong and its dismissal of two of Merrill's counterclaims. Because we conclude the trial court abused its discretion in disallowing Merrill's untimely responses and erred in granting summary judgment, we reverse and remand.

Factual and Procedural Background

¶2 In January 2009, DeLong loaned Merrill $5, 143 to pay past due taxes on her home in Apache Junction. According to DeLong's complaint, he and Merrill had signed a handwritten contract in which Merrill agreed to repay the loan in full, plus six percent interest, no later than July 2, 2009 and if Merrill did not, she would "lose [the] property" to DeLong. In her answer, Merrill attested she had made repeated attempts starting in May 2009 to contact DeLong, determine his whereabouts, and pay off the loan, finally locating him in Florida in June 2010, but that "[s]ince May 29, 2009, [he] has failed and/or refused to accept payment on the loan."

¶3 In September 2010, DeLong filed an action for eviction in the Apache Junction Justice Court. Merrill answered and counterclaimed, and requested that the case be transferred to Superior Court to determine rights to the property. DeLong then filed an amended complaint alleging quiet title (count one), breach of contract (count two) and declaratory relief (count three). Merrill filed another answer and counterclaims to DeLong's amended complaint alleging, inter alia, quiet title (counterclaim one), wrongful recordation (counterclaim seven), and constructive trust (counterclaim eight).

¶4 In March 2011, DeLong submitted discovery requests to Merrill, including eight requests for admission pursuant to Rule 36, Ariz. R. Civ. P. Merrill failed to respond to the requests. In October, DeLong moved for summary judgment on counts one and two of his amended complaint. He noted that "[a]s a result of Merrill's failure [to respond], all eight [requests for admission] are deemed admitted by Rule 36." He further argued, "based on the substance of those admitted requests, [he was] entitled to summary judgment."

¶5 In November, Merrill responded to the requests for admission and opposed the motion, arguing that the delay did not support summary judgment. Merrill averred that her delay in responding was "a[n] inadvertent oversight on the part of Merrill's attorney, for which Merrill, herself, was not responsible, " and asserted that Rule 36 "support[s] this court allowing and accepting the late filing of [her] responses to requests for admission[]." She further asserted that DeLong was not prejudiced by the delay as discovery was still ongoing and no trial date had been set.

¶6 In February 2012, the trial court granted summary judgment to DeLong on counts one and two of his amended complaint as a sanction against Merrill for undue delay in responding to the requests for admission. The court noted that DeLong had presented "statements to the Court regarding rule 36(a) and how prejudice does apply." At oral argument, DeLong had described his prejudice as "the fact that we were waiting for a long time to continue with discovery in the case and we were expecting that there would be some kind of resolution as a result of discovery." He had also asserted: "The prejudice is the fact that we are still having to continue with this case, [where] . . . rule[s] and . . . standards set forth in the Rules of Civil Procedure and the Rules of Evidence . . . dictate this matter can and should be resolved because of the actions or omissions of Ms. Merrill and her counsel."

¶7 Merrill filed a motion for reconsideration arguing that the most severe sanction provided by the rules for failure to respond to requests for admission is that they are deemed admitted. Even if admitted, according to Merrill, there remained factual issues for trial that made summary judgment inappropriate. The court denied the motion and determined that Merrill's first counterclaim for quiet title, seventh counterclaim for wrongful recordation, and eighth counterclaim for constructive trust were rendered moot by its ruling on the summary judgment motion.[1] Merrill's two remaining claims, her counterclaims for abuse of process and intentional infliction of emotional distress, were for money damages only. A subsequent jury trial on those claims resulted in a verdict for DeLong.

¶8 The court awarded DeLong $296 in costs pursuant to A.R.S. §§ 12-1103 and 12-341, and $6, 955 in attorney fees[2] pursuant to A.R.S. ยงยง 12-1103 and 12-341.01. Merrill timely appealed, and we have jurisdiction pursuant to ...

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