Tilley v. Delci

• Decision Date: 29 January 2009
• Docket Number: No. 1 CA-CV 07-0777.,1 CA-CV 07-0777.
• Citation: 204 P.3d 1082
• Parties: Jerry Dean TILLEY and Sharon Tilley, husband and wife, Plaintiffs/Appellants, v. Benjamin Albert DELCI; Americor Contractors, Inc., an Arizona corporation, Defendants/Appellees.
• Court: Arizona Court of Appeals

204 P.3d 1082

Jerry Dean TILLEY and Sharon Tilley, husband and wife, Plaintiffs/Appellants, v. Benjamin Albert DELCI; Americor Contractors, Inc., an Arizona corporation, Defendants/Appellees.

No. 1 CA-CV 07-0777.

Court of Appeals of Arizona, Division 1, Department A.

January 29, 2009.

Collins & Collins LLP By C. Robert Collins, Meyer L. Ziman, Attorney at Law By Meyer L. Ziman, Phoenix, Co-Counsel for Plaintiffs/Appellants.

Lewis Brisbois Bisgaard & Smith LLP By Kevin C. Nicholas, Michael G. Gluski, Phoenix, Meagher & Greer PLLP By Rob A. Justman, Scottsdale, Co-Counsel for Defendants/Appellees.

OPINION

DOWNIE, Judge.

¶ 1 Jerry Tilley ("Tilley")¹ appeals from the superior court's entry of summary judgment in favor of Benjamin Albert Delci and Delci's employer, Americor Contractors (collectively referred to as "Delci"). We affirm the superior court's judgment. In doing so, we hold that summary judgment is not a sanction and that the superior court was not required to either: (1) hold a hearing to determine whether Tilley or his lawyer was at fault for the clearly deficient response to Delci's motion for summary judgment; or (2) consider less drastic alternatives to granting judgment as a matter of law.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Tilley was involved in an automobile accident with Delci in November of 2003. He filed a negligence action on October 28, 2005. In February 2006, Delci filed an answer and submitted written discovery requests, including requests for admissions. Tilley did not respond to the discovery requests despite receiving a number of extensions of time. Tilley filed a Motion to Set and Certificate of Readiness on July 24, 2006. Delci filed a controverting certificate, stating that discovery could not be completed within 60 days and pointing out that Tilley had not responded to written discovery propounded over five months earlier. He further advised that Tilley had not yet submitted a disclosure statement.²

¶ 3 On October 13, 2006, the superior court held a Rule 16 scheduling conference and ordered Tilley to respond to Delci's outstanding discovery requests within 30 days. By mid-December, however, Tilley had not submitted discovery responses or a disclosure statement. On December 15, 2006, Delci filed a motion to dismiss for failure to prosecute, as well as a motion for summary judgment. The court set oral argument on both motions for February 23, 2007. The day before the scheduled argument, Tilley hand-delivered to Delci a disclosure statement and discovery responses. The next day, on the date of the hearing, Tilley filed a cursory "response" to the pending motions, stating that he had now submitted a disclosure statement and discovery responses. He did not attach either his disclosure statement or his discovery responses to this filing.

¶ 4 The superior court heard oral argument. Delci's counsel argued that nothing in Tilley's belated "response" created a genuine issue of material fact under Rule 56 of the Arizona Rules of Civil Procedure. The trial judge, while acknowledging that he had not had the opportunity to fully digest Tilley's tardy filing, also commented on the inadequacy of the response. The judge further stated that, "There's been a wholesale — as far as I can tell, a wholesale disregard of the rules of procedure by the plaintiff in this case." The court denied Delci's motion to dismiss for failure to prosecute, but ordered Tilley to pay Delci's reasonable attorneys' fees as a sanction for the delays.³ The court further ordered Tilley to submit a "proper response" to Delci's motion for summary judgment within ten days.

¶ 5 On March 8, 2007, Tilley filed three documents: (1) a "Motion to Amend/Allow Responses to Defendants' Requests for Admission;" (2) a response to Delci's statement of facts and a separate statement of facts; and (3) "Plaintiff's Response to Defendants' Motion for Summary Judgment and Alterative [sic] Request for Leave to Re-File Pursuant to A.R.S. § 12-504." Delci replied to Tilley's filings, noting that they were still non-compliant with Rule 56(e). On May 2, 2007, the superior court granted Tilley's Motion to Amend/Allow Responses to Requests for Admission. The court again ordered Tilley to file an appropriate response to Delci's long-pending summary judgment motion, stating:

IT IS FURTHER ORDERED that Plaintiff shall file and serve a response to Defendant's Motion for Summary Judgment supported as required by Ariz. R. Civ. P. 56(c) within thirty (30) days of the date of entry of this order.

¶ 6 Tilley did not comply. The superior court held oral argument on June 29, 2007. It granted Delci's motion for summary judgment because Tilley had failed to submit anything that would create a genuine issue of material fact. Tilley filed a motion for reconsideration. For the first time, he provided a copy of his discovery responses to the court. After ordering a response from Delci, the superior court denied the motion for reconsideration. It entered judgment for Delci and dismissed Tilley's claims with prejudice on August 27, 2007. Tilley timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003).

DISCUSSION

Tilley Failed to Create a Genuine Issue of Material Fact.

¶ 7 A court may grant summary judgment when "there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1). We review a trial court's grant of summary judgment de novo, "viewing the facts and reasonable inferences therefrom in the light most favorable to the nonmoving party." Hourani v. Benson Hosp., 211 Ariz. 427, 432, ¶ 13, 122 P.3d 6, 11 (App.2005).

¶ 8 To prevail on a negligence claim, a plaintiff must show "the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused by that breach." Flowers v. K-Mart Corp., 126 Ariz. 495, 497, 616 P.2d 955, 957 (App.1980). See also Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983) (plaintiff may maintain negligence action if he proves duty, breach of duty, proximate causation, and actual damage). Delci moved for summary judgment at a time when Tilley had failed to respond to his requests for admissions for almost ten months, despite numerous extensions of time, demands by defense counsel, and a court-ordered deadline. The requests for admissions asked Tilley to, inter alia, admit that he had not been injured or damaged as a result of the automobile accident with Delci. Pursuant to Rule 36(a), a request for admission is deemed admitted "unless, within (40) days after service of the request ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter." Ariz. R. Civ. P. 36(a).

¶ 9 In his first belated response to Delci's motion for summary judgment, Tilley offered no evidence. He merely argued that the motion should be denied because he had now responded to Delci's discovery requests. In his second attempt to respond to the motion, the only evidence Tilley proffered was an affidavit of Meyer L. Ziman, his attorney. However, an affidavit submitted in opposition to a summary judgment motion "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Ariz. R. Civ. P. 56(e); see also GM Dev. Corp. v. Community Am. Mortgage Corp., 165 Ariz. 1, 7, 795 P.2d 827, 833 (App.1990). Ziman's affidavit did not reflect that he had personal knowledge of relevant facts. The "affidavit of an attorney is insufficient under Rule 56(e), except where the facts set out are based upon his personal knowledge." Compton v. Nat'l Metals Co., 10 Ariz.App. 366, 369, 459 P.2d 93, 96 (1969). Moreover, Ziman's affidavit did not set forth facts pertaining to the accident; rather, it described counsel's involvement with the insurance company and personal issues relating to the failure to timely respond to Delci's discovery requests.

¶ 10 In deciding a motion for summary judgment, the trial court considers "those portions of the verified pleadings, deposition, answers to interrogatories and admissions on file which are brought to the court's attention by the parties." Choisser v. State ex rel. Herman, 12 Ariz.App. 259, 261, 469 P.2d 493, 495 (1970) (emphasis added). See also Ariz. R. Civ. P. 56(c)(1) ("The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."). Tilley did not attach his discovery responses to his various filings opposing the motion for summary judgment, and he submitted no competent evidence to create a genuine issue of material fact. It was insufficient to merely state that Tilley had now responded to Delci's discovery requests. The superior court communicated this fact to Tilley and gave him repeated opportunities to cure the deficiencies in his filings. The trial judge had no ability to discern what Tilley's discovery responses disclosed or whether they raised factual issues sufficient to defeat summary judgment. This is not a case where the trial judge could have independently searched the record and discovered evidence that placed factual matters in dispute, to the extent that such a search was required.⁴

¶ 11 Rule 56(e) provides that "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial." Ariz. R. Civ. P. 56(e). This means that "an adverse party who fails to respond does so at his peril because uncontroverted evidence...