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Passmore v. McCarver

Court of Appeals of Arizona, First Division

April 6, 2017

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.

         Appeal 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

          Acting 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.


          SWANN, Judge

         ¶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.


         ¶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 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 ...

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