Corbett v. Manorcabe of America, Inc.

Decision Date29 November 2006
Docket NumberNo. 2 CA-CV 2005-0160.,2 CA-CV 2005-0160.
PartiesDyane CORBETT, Personal Representative of the Estate of Doris Loucks, Plaintiff/Appellant/Cross-Appellee, v. MANORCARE OF AMERICA, INC.; ManorCare Health Services, Inc.; and ManorCare of Arizona, Inc., a Delaware corporation with its principal place of business in Ohio, dba Manor Care Health Services-Tucson fka HCR Manor Care, Inc.; ManorCare Health Services of Arizona, Inc.; Nettie Elie and John Doe Elie, a married couple; Richard Park and Jane Doe Park; Paul Ormond and Jane Doe Ormond, a married couple; Michael Martinez and Jane Doe Martinez, a married couple; Rick Paredes and Jane Doe Paredes, a married couple; and Keith Weikel and Jane Doe Weikel, a married couple, Defendants/Appellees/Cross-Appellants.
CourtArizona Court of Appeals

Lisa Kimmel, Tucson, Attorney for Plaintiff/Appellant/Cross-Appellee.

Gust Rosenfeld, P.L.C. by James W. Kaucher, Tucson, Attorneys for Defendants/Appellees/Cross-Appellants.

OPINION

VÁSQUEZ, Judge.

¶ 1 Appellant Dyane Corbett, personal representative of the Estate of Doris Loucks, appeals from the trial court's grant of summary judgment to Manor Care of America, Inc.; Manor Care Health Services, Inc.; Manor Care of Arizona, Inc. (all corporate subsidiaries of Manor Care, Inc.); and several employees of Manor Care, Inc. and its subsidiaries. Corbett also appeals from the trial court's dismissal of her complaint against employee Richard Park and the court's award of attorney fees to the subsidiaries and the employees. The subsidiaries and employees cross-appeal from the trial court's denial of their motion for sanctions. We affirm in part and reverse in part the summary judgment and affirm the dismissal of Corbett's claim against Park. We vacate the attorney fee award and affirm the denial of sanctions.

Standard of Review

¶ 2 We review a trial court's grant of summary judgment de novo. Andrews v. Blake, 205 Ariz. 236, ¶ 12, 69 P.3d 7, 11 (2003). We will affirm a summary judgment only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. ¶ 13. "[W]e view the facts `in the light most favorable to the party against whom judgment was entered.'" Ariz. Prop. & Cas. Ins. Guar. Fund v. Martin, 210 Ariz. 478, ¶ 2, 113 P.3d 701, 701-02 (App. 2005), quoting Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 2, 965 P.2d 47, 49 (App.1998). We review for an abuse of discretion a trial court's decision on a motion to dismiss a complaint for failure to timely serve a defendant. Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App.1997).

Facts and Procedural Background

¶ 3 This appeal is from the second of two lawsuits Corbett filed on behalf of the estate of her mother, Doris Loucks, arising from the treatment provided Loucks in a Tucson Manor Care facility in April 2001.

Corbett I

¶ 4 Corbett filed her first complaint in 2002 in Pima County Superior Court against Manor Care, Inc., alleging violations of Arizona's Adult Protective Services Act (APSA), A.R.S. §§ 46-451 through 46-457, as well as claims of negligence, breach of contract, and fraud. Manor Care removed the case to federal district court in May 2002. Corbett learned during discovery that Manor Care, Inc. was the parent company of several subsidiaries. She amended her complaint pursuant to the parties' stipulation in May 2003 to include the subsidiaries. The subsidiaries moved to dismiss the complaint in February 2004, alleging Corbett had not timely served them. The district court granted the motion in April 2004 and dismissed the subsidiaries without prejudice.

¶ 5 Corbett then moved for leave to amend her complaint to include the subsidiaries. The district court denied the motion in May 2004 after finding the amendment would be futile because Corbett's personal injury and APSA claims were then barred by the statutes of limitations, a ground the court raised sua sponte. The district court denied Corbett's motion for reconsideration of that ruling. In September 2004, the court granted summary judgment in favor of the parent company, Manor Care, Inc., the only remaining defendant, after finding, inter alia, that Corbett had "pursued the incorrect defendant" by suing the parent company instead of the subsidiaries on her APSA claim. Corbett timely appealed that ruling to the Ninth Circuit Court of Appeals.1

Corbett II

¶ 6 In June 2004, while the district court case was pending, Corbett filed the present case in Pima County Superior Court against the subsidiaries and the employees, alleging APSA violations, breach of contract, and negligence. The subsidiaries and employees moved for summary judgment. The subsidiaries asserted that Corbett was barred under the doctrine of res judicata from pursuing her claims because of the district court's grant of summary judgment in favor of Manor Care, Inc. in Corbett I and also that Corbett was estopped from bringing her claims because of the district court's rulings regarding her motion to amend her complaint. The employees argued that the doctrines of res judicata and collateral estoppel barred Corbett from pursuing her claims because of the district court's rulings regarding her motion to amend her complaint. The employees also asserted that the statute of limitations had run on Corbett's negligence and breach of contract claims and that her APSA claim was baseless because they had not been "employed to provide care" to Loucks.

¶ 7 The trial court granted summary judgment in favor of the subsidiaries and employees, finding that Corbett's claims against the subsidiaries were barred by res judicata and collateral estoppel, that her claims against the employees were barred by collateral estoppel, and that her claims against the employees for negligence, breach of contract, and the APSA violation were barred by the statutes of limitations. The trial court further found that the employees were not liable as a matter of law on Corbett's APSA claim because they "were not 'employed to provide care'" to Loucks under the statute. The court also granted employee Richard Park's motion to dismiss the complaint without prejudice after finding he had not been timely served.

Discussion
Dismissal of Park

¶ 8 Corbett argues the trial court abused its discretion in granting Park's motion to dismiss on the ground she had failed to timely serve him. Corbett contended below that she had served the complaint in July 2004 on a Manor Care, Inc. employee, believing that the employee was authorized to accept service for all the employees who had not yet been served, including Park. In his affidavit submitted in support of his motion to dismiss, however, Park stated that he had not been employed by Manor Care, Inc. or "any Manor Care entity" in July 2004 and that he had not authorized Manor Care, Inc. to accept service on his behalf. Park therefore argued that he had not been timely served and the claim against him should be dismissed pursuant to Rule 4(i), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, which provides:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

¶ 9 Corbett now argues that the trial court erred in dismissing Park under this rule because she did not have "prior notice" that Park had not been served. She contends the trial court should have afforded her an opportunity to correct the deficiency. But Corbett cites no authority for the proposition that she was entitled to notice that Park had not been properly served before he filed his motion, and we are aware of none. And Rule 4(i), on its face, warranted the trial court's dismissal without prejudice of Corbett's complaint against Park. We therefore find no abuse of discretion in that ruling. See Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App.1997).

Summary judgment rulings

¶ 10 The party moving for summary judgment has the burden of showing there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Schwab v. Ames Constr., 207 Ariz. 56, ¶ 15, 83 P.3d 56, 60 (App.2004). We will uphold a grant of summary judgment if it is correct for any reason. CDT, Inc. v. Addison, Roberts & Ludwig, C.P.A., P.C., 198 Ariz. 173, ¶ 19, 7 P.3d 979, 984 (App.2000). We review issues of law, such as those involving res judicata, collateral estoppel, and statutory interpretation, de novo. Hall v. Lalli, 194 Ariz. 54, ¶ 5, 977 P.2d 776, 779 (1999) (res judicata); Campbell v. SZL Props., Ltd., 204 Ariz. 221, ¶ 8, 62 P.3d 966, 968 (App.2003) (collateral estoppel); Mercy Healthcare Ariz., Inc. v. Ariz. Health Care Cost Containment Sys., 181 Ariz. 95, 98, 887 P.2d 625, 628 (App.1994) (statutory interpretation).

¶ 11 We first note Corbett does not argue on appeal concerning the summary judgment on her breach of contract claim against the employees, which the trial court found was barred by the statute of limitations. The employees correctly assert that she has therefore waived any issue on that claim, and we do not address it. See Rowland v. Great States Ins. Co., 199 Ariz. 577, n. 1, 20 P.3d 1158, 1169 n. 1 (App.2001). Similarly, although the trial court granted summary judgment in favor of the employees on Corbett's common law negligence claim, also on statute of limitations grounds, Corbett's arguments on appeal refer only to her statutory negligence claim under APSA and not to any other negligence claim. Therefore, we do not address her common law negligence claim. See id.

A. Subsidiaries

¶ 12 Corbett...

To continue reading

Request your trial
56 cases
  • Braillard v. Maricopa County
    • United States
    • Arizona Court of Appeals
    • May 27, 2010
    ...¶ 4 We view the facts in the light most favorable to Braillard, the party against whom summary judgment was granted. See Corbett v. ManorCare of Am., Inc., 213 Ariz. 618, ¶ 2, 146 P.3d 1027, 1030-31 (App. On the night of January 1, 2005, Deborah was arrested on suspicion of drug possession ......
  • Banner Univ. Med. Ctr. Tucson Campus, LLC v. Gordon
    • United States
    • Arizona Court of Appeals
    • May 29, 2020
    ...of persons in privity include employers and employees, principals and agents, and indemnitors and indemnitees." Corbett v. ManorCare of Amer., Inc. , 213 Ariz. 618, ¶ 40, 146 P.3d 1027 (App. 2006).¶36 Banner is the direct employer of the Banner Physicians and the entity—as admitted by the H......
  • Aubuchon v. Brock
    • United States
    • Arizona Court of Appeals
    • May 14, 2015
    ...that nothing in our decision prevents the superior court from awarding sanctions in the same or different amount. See Corbett v. Manorcare of Am., Inc., 213 Ariz. 618, 630, ¶ 43, 146 P.3d 1027, 1039 (App. 2006) ("In view of our reversal of summary judgment . . . insufficient evidence suppor......
  • Clem v. Pinal Cnty.
    • United States
    • Arizona Court of Appeals
    • May 10, 2021
    ...Sheriff. ¶16 As with claim preclusion, federal law controls the issue-preclusive effect of an earlier federal ruling. Corbett v. ManorCare of Am., Inc. , 213 Ariz. 618, ¶ 12, 146 P.3d 1027 (App. 2006). Issue preclusion prevents "a party from relitigating an issue actually decided in a prior......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT