Fleitz v. Van Westrienen

• Citation: 114 Ariz. 246,560 P.2d 430
• Decision Date: 06 January 1977
• Docket Number: CA-CIV,No. 1,1
• Parties: Jeanette Ann FLEITZ and John William Fleitz, her husband, Appellants, v. David Charles VAN WESTRIENEN and Ruth Ann Van Westrienen, husband and wife, William Edwards and Ginnie Edwards, husband and wife, Appellees. 3048.
• Court: Court of Appeals of Arizona

Page 430

560 P.2d 430

114 Ariz. 246

Jeanette Ann FLEITZ and John William Fleitz, her husband, Appellants, v. David Charles VAN WESTRIENEN and Ruth Ann Van Westrienen, husband and wife, William Edwards and Ginnie Edwards, husband and wife, Appellees.

No. 1 CA-CIV 3048.

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

Jan. 6, 1977.

Rehearing Denied Jan. 27, 1977.

Review Denied Feb. 16, 1977.

Van Baalen Law Offices by Peter T. Van Baalen, Phoenix, for appellants

Hofmann, Salcito & Hover by Gene C. Stevens, Phoenix, for appellees Van Westrienen.

Harrison, Myers & Singer, P.C. by Mark I. Harrison, Phoenix, for appellees Edwards.

OPINION

NELSON, Judge.

Appellants, Jeanette and John Fleitz, brought suit against the appellees, David and Ruth Van Westrienen and William and Ginnie Edwards, to recover for personal injuries Mrs. Fleitz received in an automobile accident on March 26, 1971. Prior to trial appellants' action against the Edwards was dismissed on Edwards' motion for summary judgment. Appellants' motion for summary judgment against the Van Westrienens was denied and the case was tried before a jury which returned a verdict for appellants in the amount of $4,000.

Appellants have presented questions with respect to the trial court's rulings on several motions for summary judgment, evidentiary matters, its refusal to grant an additur or a new trial, assessment of costs and jury fees against appellants and several other rulings. For the reasons stated below we find no error and affirm the judgment.

The circumstances surrounding the accident are uncomplicated. On March 26, 1971, Mrs. Fleitz, a schoolteacher, was riding as a passenger in a vehicle driven by Mr. Edwards. They were traveling north on 7th street in Phoenix when Mr. Edwards stopped the car to permit a pedestrian in a crosswalk to cross the street. After stopping, Edwards' car was rear-ended by a vehicle driven by Mr. Van Westrienen and in the collision Mrs. Fleitz allegedly sustained injuries to her neck and thumb.

Appellants first question the entry of summary judgment in favor of the Edwards, contending a genuine issue as to a material fact existed regarding Mr. Edwards' negligence. At the time of the motion the trial court had before it the answers to interrogatories in which Mr. Van Westrienen claimed Edwards had come to a sudden and premature stop, materially contributing to the cause of the accident. More significantly, however, the court had Mrs. Fleitz' responses to requests for admissions, See Rule 36, Rules of Civil Procedure, 16 A.R.S., propounded by the Edwards, in which she admitted she believed Edwards had acted 'reasonably and prudently' in the manner of his stop and that in her opinion Edwards' stop was 'normal' as opposed to 'sudden.'

Appellants argue that Van Westrienens' allegations regarding Edwards' stop presented a genuine issue of material fact as to the propriety of his stop, foreclosing summary judgment. The Edwards, however, contend appellants were precluded by Mrs. Fleitz' admissions from further alleging Edwards' negligence. We agree with the latter position.

Prior to their amendment in 1970, some question existed as to whether admissions pursuant to Rule 36 and the analagous federal Rule 36, Fed.R.Civ.P., were binding on the party making them. See 8 Wright and Miller, Federal Practice and Procedure § 2264 (1970); Developments in the Law--Discovery, 74 Harv.L.Rev. 940, 968 (1961). The rules as amended, however, now specifically provide that '(a)ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment . . ..' Rule 36(b), Rules of Civil Procedure, 16 A.R.S.; Fed.R.Civ.P. 36(b). Comments regarding the amendments support the proposition that Rule 36 admissions now fall within the category of judicial admissions which preclude attempts to dispute the admitted fact or to submit evidence to disprove them. See McCormick, Law of Evidence 630, n. 11 (2d ed. 1972); 4A Moore's Federal Practice 36.08 (1974); 8 Wright and Miller, Federal Practice and Procedure § 2264 (1970); Advisory Committee Note to the 1970 Amendments of Rule 36(b), 48 F.R.D. 530--534 (1970); State Bar Committee Note, 1970 Amendment to Rule 36(b), 16 A.R.S. at 274. See Generally 9 Wigmore, Evidence § 2590 (3d ed. 1940); Finman, Request for Admissions in Federal Civil Procedure, 71 Yale L.J. 371, 418--426 (1962). Compare Armer v. Armer, 105 Ariz. 284, 463 P.2d 818 (1970); Adams v. Bear, 87 Ariz. 288, 350 P.2d 751 (1960). Were this not so:

'(t)he party securing an admission (could not) depend on its binding effect, he (could not) safely avoid the expense of preparing to prove the very matters on which he has secured the admission, and the purpose of the rule (would be) defeated.' State Bar Committee Note, 1970 Amendment to Rule 36(b), Supra.

Appellants made no attempt to seek withdrawal or amendment of the admissions as they could have done under the rule. While we do not state that a trial court under all circumstances must grant a summary judgment on the basis of a party's admissions, See Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2d Cir. 1966), we hold that where, as here, admissions are clearly dispositive of the issues, summary judgment is proper.

Appellants next urge error in regard to the trial court's failure to grant their motions for summary judgment against the Van Westrienens on the issue of liability. This Court has repeatedly stated that denial of a summary judgment is neither appealable nor subject to review on appeal from a final judgment in the same matter. O'Day v. George Arakelian Farms, Inc., 24 Ariz.App. 578, 540 P.2d 197 (1975); Lancaster v. Chemi-Cote Perlite Corporation, 20 Ariz.App. 229, 511 P.2d 673 (1973); Safeway Stores, Inc. v. Maricopa County Superior Court, 19 Ariz.App. 210, 505 P.2d 1383 (1973); Navajo Freight Lines, Inc. v. Liberty Mutual Insurance Co., 12 Ariz.App. 424, 471 P.2d 309 (1970). See also Annot.,15 A.L.R.3d 899 (1967). A narrow exception to this Rule exists if

'(d)enial was made strictly on a point of law, and that because of such ruling the losing party thereafter was precluded from offering evidence or urging the point at the time of trial on the merits . . .' Navajo Freight Lines, Inc. v. Liberty Mutual Insurance Co., supra at 428, 471 P.2d at 313.

One point raised in appellants' second motion is subject to review under this exception. In essence, the question is whether the court's finding of no genuine issue of material fact with respect to Edwards' negligence was res judicata as to the Van Westrienens, precluding them from injecting the issue of Edwards' negligence at trial.

Generally, a codefendant in a negligence case who holds an adversary position under the pleadings with another codefendant, as here, ¹ will be barred from arguing that the fault was that of the defendant dismissed from the action on summary judgment on the issue of negligence, where he does not appeal the dismissal. See Rigney v. Superior Court, 17 Ariz.App. 546, 499 P.2d 160 (1972); Burrell v. Southern Pacific Company, 13 Ariz.App. 107, 474 P.2d 466 (1970); Restatement of Judgments § 82 (1942). The theory of this rule is that as between the codefendants, the nonmoving defendant has standing, as an adverse party, to oppose the summary judgment, and is thereafter precluded from raising issues which were or could have been litigated at the time of the motion. Rigney v. Superior Court, supra; Restatement of Judgments § 82, Supra.

As our discussion above indicates, summary judgment for the Edwards was appropriate only because of Mrs. Fleitz' admissions. Since appellants were prohibited from further arguing the question of Edwards' negligence, consideration of Van Westrienens' allegations of Edwards' negligence at that juncture of the case would have been inappropriate. For this reason can cannot say that as between Edwards and Van Westrienens, Van Westrienens litigated or had the opportunity to litigate the question of Edwards' negligence. To hold them barred by res judicata would in effect foreclose them by Mrs. Fleitz' admissions, a result totally unwarranted by Rule 36.

Appellants next challenge the propriety of admitting into evidence interrogatories answered by Mrs. Fleitz and her testimony at a deposition, both of which were taken in a prior personal injury action brought by the appellants.

The Van Westrienens, in the course of their investigation, discovered that in 1967 appellants had filed suit to recover for personal injuries allegedly sustained by Mrs. Fleitz in a 1966 automobile accident. Her answers to interrogatories and deposition testimony in that case indicated she had seen three doctors in connection with neck injuries sustained in the 1966 accident.

In answer to interrogatories propounded by the Van Westrienens, Mrs. Fleitz disclosed her involvement in a 1961 accident, but failed to reveal the 1966 accident and the identities of the doctors she consulted as a result of that accident. In her deposition in this case, Mrs. Fleitz testified she could not recall being involved in any automobile accidents between 1961 and the one herein and that she had had no complaints whatsoever with respect to her neck during that period. Finally, at trial, Mrs. Fleitz testified she could not recall having neck problems or having been treated for such problems prior to present accident.

Appellants, in the meantime, had propounded non-uniform continuing interrogatories in which Van Westrienens were asked whether they contended any expenses claimed by Mrs. Fleitz were unreasonable or unnecessary or that her claimed injuries were inaccurate or did not result from the Edwards-Van Westrienen collision. The Van Westrienens did not, either in their original responses or in supplemental answers, disclose their knowledge of the 1966 accident and the subsequent lawsuit.

At trial, over appellants' objections, Van Westrienens were permitted to introduce...