NOREEN PASSMORE and CLIFFORD PASSMORE, a married couple, Plaintiffs/Appellants,
JAMES W. MCCARVER, M.D., and PATRICIA MCCARVER, a married couple; PRESCOTT VALLEY PRIMARY AND URGENT CARE CLINIC, an Arizona business entity; ELLEN LORENZ, C.F.N.P., and RODNEY LORENZ, a married couple, Defendants/Appellees.
from the Superior Court in Yavapai County No.
P1300CV201401138 The Honorable David L. Mackey, Judge
Laurence M. Berlin, Esq., Tucson By Laurence M. Berlin
Counsel for Plaintiffs/Appellants
Campbell, Yost, Clare & Norell, PC, Phoenix By Renee M.
Coury, Jeffrey McLerran Jones, Skelton & Hochuli, PLC,
Phoenix By Eileen Dennis GilBride Co-Counsel for
Defendants/Appellees James W. McCarver, Patricia McCarver,
and Prescott Valley Primary and Urgent Care Clinic
Broening Oberg Woods & Wilson PC, Phoenix By James R.
Broening, Megan E. Gailey, Kevin R. Myer Counsel for
Defendants/Appellees Ellen Lorenz and Rodney Lorenz
Presiding Judge Peter B. Swann delivered the opinion of the
court, in which Judge Patricia A. Orozco (retired) and Chief
Judge Michael J. Brown joined.
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.
AND PROCEDURAL HISTORY
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"). 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 approved the
agreement, Plaintiffs failed to meet that deadline as well.
Defendants then moved for dismissal.
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.
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.
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