Court of Appeals of Arizona, First Division, Division One
MARK A. RYAN, for and on behalf of himself and as next friend for HESTER and HANNAH RYAN, minors; and MARGARET LEE RYAN; ANTHONY J. FOSTER; and VIRGINIA FOSTER and RICK PATTEN, his parents, Plaintiffs/Appellants,
STATE OF ARIZONA, Defendant/Appellee.
Not for Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24
Appeal from the Superior Court in Maricopa County No. CV2011-017196 The Honorable Mark H. Brain, Judge
Treon Aguirre Newman & Norris, PA, Phoenix By Richard T. Treon Counsel for Plaintiffs/Appellants
Arizona Attorney General, Phoenix By Claudia Acosta and Michael E. Gottfried Co-Counsel for Defendant/Appellee
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Samuel A. Thumma joined.
¶1 Mark A. Ryan and Anthony J. Foster (collectively Appellants) appeal the trial court's order granting the State's motion to dismiss. For the reasons set forth below, we convert part of this appeal to a special action, accept jurisdiction, and grant relief in part and reverse and remand the motion to dismiss.
FACTS AND PROCEDURAL HISTORY
¶2 This appeal arises from a lawsuit Appellants filed against the State of Arizona in May 2006, for wrongful incarceration, designated CV 2006-008189. Originally, the trial court granted the State's motion for summary judgment. However, this court reversed and remanded for further proceedings in light of McDonald v. Thomas, 202 Ariz. 35, 404 P.3d 819 (2002). In reversing, we noted that after McDonald, the Board of Executing Clemency lacked probable cause to continue Appellants' respective incarcerations.
¶3 On remand, before trial on the false imprisonment claim and damages commenced, the parties entered into an Agreement (Agreement) on February 9, 2011, where the parties agreed to dismiss CV 2006-008189 without prejudice and to give Appellants six months to re-file their claim if the parties could not reach a settlement. Pursuant to the Agreement, Appellants agreed that failure to re-file their lawsuit within the six month period would forever bar their ability to re-file the lawsuit. Upon a timely re-filing of the case by Appellants, the State agreed to waive any statute of limitations or notice of claim defense as a bar.
¶4 On February 14, 2011, the trial court (a different Judge than was assigned the subsequent case filed by Appellants) accepted the parties' stipulated dismissal and entered the order of dismissal, but struck "out" so the dismissal was "with prejudice." The parties neither appealed nor objected to the trial court's alteration. Under the letter agreement, Appellants needed to re-file the case by August 14, 2011, if the parties did not reach a settlement.
¶5 The State presented Appellants with offers of settlement on July 12, 2011, about one month before the six-month re-filing deadline. On July 15, 2011, Appellants' counsel, Richard Treon, sent the State's counsel, Michael Brodsky, a letter asserting to commemorate a phone conversation between Brodsky and Treon from earlier that day. Treon's letter purported to affirm Brodsky and Treon's agreement to extend the re-filing deadline from August 14 to September 11, 2011. Treon also emailed a copy of the letter to Brodsky's supervisor, Terry Harrison, because Brodsky informed Treon in their conversation that Brodsky was leaving on indefinite medical leave, and Harrison was taking over the case. No one from the State responded to Treon's July 15 letter. The State claims that Brodsky did not agree to the deadline extension and that Brodsky did not receive Treon's communication before Brodsky left the State's office on indefinite medical leave.
¶6 The parties did not reach a settlement and Appellants re- filed their complaint on September 9, 2011, designated CV 2011-017196. The State filed a Rule 12(b)(6) motion to dismiss the suit on the grounds that Appellants did not file their complaint by the August 14, 2011, deadline. The trial court granted the State's motion to dismiss on June 28, 2012.
¶7 Appellants timely appealed. As explained below, we have jurisdiction over the Motion to Dismiss pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised ...