Brady v. Tempe Life Care Vill., Inc.
| Docket Number | 1 CA-CV 21-0339 |
| Decision Date | 04 October 2022 |
| Citation | 80 Arizona Cases Digest 41,519 P.3d 707 |
| Parties | ESTATE OF Richard F. BRADY Sr., et al., Plaintiffs/Appellees, v. TEMPE LIFE CARE VILLAGE, INC., Defendant/Appellee Kenneth Brady, et al., Appellants/Cross-Appellees, v. Grace McKee, et al., Appellees Hospice of the Valley, Defendant/Appellee/Cross-Appellant |
| Court | Arizona Court of Appeals |
Kevin Beckwith, P.C., Phoenix, By Kevin L. Beckwith, Co-Counsel for Appellants/Cross-Appellees
Ahwatukee Legal Office, Phoenix, By David L. Abney, Co-Counsel for Appellants/Cross-Appellees
Solomon & Relihan, P.C., Phoenix, By Martin J. Solomon, Kevin J. McAlonan, Danielle R. Solomon, Co-Counsel for Plaintiffs/Appellees
The Breslo Law Firm, Scottsdale, By John C. Breslo, Co-Counsel for Plaintiffs/Appellees
Lewis Brisbois Bisgaard & Smith LLP, Phoenix, By Kevin C. Nicholas, Bruce C. Smith, Counsel for Defendant/Appellee
Jennings, Strouss & Salmon, P.L.C., Phoenix, By Jay A. Fradkin, Alexander J. Egbert, Counsel for Defendant/Appellee/Cross-Appellant
¶1 Nancy, Richard Jr. and Kenneth Brady appeal from the grant of summary judgment on their claims in this wrongful death action. Because they have shown no error, summary judgment is affirmed.
¶2 In March 2017, Richard Brady Sr. fell and was hurt at Tempe Life Care Village aka Friendship Village Tempe (FVT), a skilled nursing facility. He was 82 years old and died a few days later. Richard Sr. was survived by eight children: Barbara, Patrick, Nancy, Richard Jr., Kenneth, Grace, Deborah and Patricia. When he died, Richard Sr. apparently only had a relationship with Barbara and Patrick.
¶3 For most of his life, Richard Sr. lived in New Jersey. A New Jersey court designated Barbara, who lives there, executor of his estate. As executor, in March 2018, Barbara sued FVT, later adding Hospice of the Valley (HOV). The complaint alleged injuries to Richard Sr. as well as a statutory wrongful death claim by his eight children. See Ariz. Rev. Stat. (A.R.S.) § 12-612(A) () (2022).1
¶4 Barbara and Patrick are represented by the same attorneys. In June 2018, their attorneys sent letters, certified mail return receipt requested, to Richard Sr.’s other children. Noting the filing of this case, the letters stated that "only one lawsuit may be filed for a wrongful death" but that each sibling could assert a claim for damages. The letters explained that Barbara's and Patrick's attorneys did not represent the other siblings, adding that if they wished "to participate in this action as a claimant, you must arrange for another attorney to represent you, advise you, appear in court on your behalf, and present evidence of your individual damage claim at trial and in any settlement negotiations." The letters asked for a written response, within 30 days, stating either that they "DO WISH TO PARTICIPATE" or "DO NOT WISH TO PARTICIPATE."
¶5 Patricia wrote that she did not wish to participate. Deborah apparently received her letter but did not respond and has never appeared in the case. Grace's letter was returned as undeliverable. The other siblings did not respond, although United States Postal Service Domestic Return Receipts (PS Form 3811) show that they received their letters.
¶6 In August 2018, Barbara provided a lengthy initial disclosure statement. See Ariz. R. Civ. P. 26.1. The disclosure included four pages detailing the anticipated trial testimony of Barbara and Patrick. Although listing the other siblings by name, no such disclosure was provided for them. Along with describing the letters sent to the siblings, and noting Patricia did not wish to participate, the disclosure stated Barbara's and Patrick's counsel "does not represent" the siblings "and does not know whether [the siblings intend] to present a claim for damages in this action." For the next two years, the siblings did not appear or participate in the case.
¶7 Disclosure and discovery proceeded until fact discovery closed in May 2020. The court also set a November 2020 firm jury trial date. In June 2020, FVT (joined by HOV) moved for summary judgment on the claims by the other siblings, asserting they "failed to provide evidence that they have sustained a loss," and never provided disclosure or discovery, and the time to do so had passed.
¶8 Both FVT and Barbara's and Patrick's attorneys mailed copies of the motion to the other siblings, stating that their claims would be barred if the motion was granted. A mid-July 2020 response to the motion filed by Barbara and Patrick noted that Grace, Nancy, Patricia, Kenneth and Richard Jr. (collectively GNPKR) "recently obtained counsel to represent them in this action." The response added, however, that the other siblings had not "participated in this action or otherwise asserted or supported their individual damage claims."
¶9 Counsel for GNPKR then filed a notice of appearance and, in early August 2020, filed a response to defendants’ motion for summary judgment. Although disclosure and fact discovery had closed in May 2020, GNPKR argued that "defense counsel refuses to participate in discovery." GNPKR asserted that the motion for summary judgment "does not meet minimum professional standards, procedural requirements and lacks good faith." GNPKR blamed defendants for doing "nothing to investigate the losses during discovery," adding there was "no evidence" that GNPKR received the June 2018 letters from Barbara's and Patrick's attorneys. GNPKR variously claimed that "[a]ny alleged prejudice at trial is solely caused by [d]efendants," that "any prejudice [d]efendants argue exists has been cured and no longer exists" and that GNPKR had "attempt[ed] to cure any prejudice prior to trial." GNPKR asserted that "[a]mple time exists over the next four months" for disclosure, discovery and deposition before the November 2020 trial.
¶10 Also in early August 2020, GNPKR provided affidavits about their relationships with Richard Sr. and their claimed losses. Kenneth's affidavit admitted receiving the June 2018 letter, stating he "took one look at the letter, and reflexively threw it away." Affidavits from the others were less specific.
¶11 In October 2020, after full briefing and oral argument, the court granted summary judgment. The court first found GNPKR made no timely damage disclosure and were unable "to provide essentially any justification" for their failure. Disclosure and discovery deadlines had passed, and no request had been made to extend those deadlines or reopen disclosure or discovery. The court added GNPKR "really provide no explanation as to why they did not ask Barbara to submit something on their behalf."
¶12 Rejecting claimed "ignorance of this suit," the court found GNPKR "knew about this lawsuit, almost from its inception" but "chose not to participate" and presented "no good cause for the late disclosure." As a result, the court found the August 2020 GNPKR disclosure was "untimely and none of the information contained therein is admissible." Ruling GNPKR "will not be allowed to recover any damages in this case and will not be allowed to submit any damage information at trial," the court granted summary judgment for defendants on GNPKR's claims. The remaining claims were left to be resolved at the November 2020 jury trial.
¶13 Later in October 2020, Barbara and Patrick settled their claims against FVT. In November 2020, an 11-day jury trial began on the remaining claims against HOV. After deliberation, the jury found for plaintiffs, setting damages at $155,000 for Richard Sr.’s estate; $830,000 for Barbara and $700,000 for Patrick. The jury allocated fault at 20% to HOV, 75% to FVT and 5% to Richard Sr. The resulting judgment awarded $31,000 to Richard Sr.’s estate; $166,000 to Barbara and $140,000 to Patrick.
¶14 Nancy, Richard Jr. and Kenneth (collectively NRK), but not Grace or Patricia, filed a timely notice of appeal. This court has appellate jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
¶15 NRK argue the superior court (1) abused its discretion by refusing to allow their August 2020 disclosure and (2) erred by granting the motion for summary judgment. NRK also argue that Barbara breached her fiduciary duty by failing to properly represent their interests and improperly settled with FVT.
¶16 NRK argue the superior court should have allowed their August 2020 disclosure (including their affidavits) because there was no prejudice to the other parties. "Unless the court specifically finds that [a failure to make timely, proper disclosures] caused no prejudice or orders otherwise for good cause," a party is prohibited from using information in the disclosure as "evidence at trial, at a hearing, or with respect to a motion." Ariz. R. Civ. P. 37(c)(1). Factors relevant to whether untimely disclosure should be allowed include: (1) the reason for the failure; (2) whether the failure was willful or inadvertent; (3) prejudice to the other parties; (4) possible resolution short of exclusion and (5) "the overall diligence with which a case has been prosecuted or defended." Allstate Ins. Co. v. O'Toole , 182 Ariz. 284, 288, 896 P.2d 254, 258 (1995) ; accord Marquez v. Ortega , 231 Ariz. 437, 443 ¶ 23, 296 P.3d 100, 106 (App. 2013).2 Where a firm trial date has been set, "[f]actors supporting the exclusion of undisclosed evidence ‘gain strength as the trial nears.’ " Zimmerman v. Shakman , 204 Ariz. 231, 235 ¶ 14, 62 P.3d 976, 980 (App. 2003) (citation omitted). A decision not to allow untimely disclosures is...
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