Delong v. Merrill

• Citation: 310 P.3d 39,233 Ariz. 163
• Decision Date: 27 September 2013
• Docket Number: No. 2 CA–CV 2013–0023.,2 CA–CV 2013–0023.
• Parties: Thomas DeLONG, Plaintiff/Counterdefendant/Appellee, v. Kathleen MERRILL, Defendant/Counterclaimant/Appellant.
• Court: Court of Appeals of Arizona

233 Ariz. 163

310 P.3d 39

Thomas DeLONG, Plaintiff/Counterdefendant/Appellee,

v.Kathleen MERRILL, Defendant/Counterclaimant/Appellant.

No. 2 CA–CV 2013–0023.

Court of Appeals of Arizona, Division 2, Department B.

Sept. 27, 2013.

Thomas DeLong, Orlando, FL, In Propria Persona Not Appearing.

The Dutson Law Firm, Ltd., By James C. Dutson, Apache Junction, Attorney for Defendant/Counterclaimant/Appellant.

OPINION

ESPINOSA, Judge.

¶ 1 Defendant/counterclaimant/appellant Kathleen Merrill appeals the trial court's denial of her request to file late responses to plaintiff/counterdefendant/appellee Thomas DeLong requests for admission. She also appeals the trial court's summary judgment in favor of DeLong and its dismissal of two of Merrill's counterclaims. Because we conclude the trial court abused its discretion in disallowing Merrill's untimely responses and erred in granting summary judgment, we reverse and remand.

Factual and Procedural Background

¶ 2 In January 2009, DeLong loaned Merrill $5,143 to pay past due taxes on her home in Apache Junction. According to DeLong's complaint, he and Merrill had signed a handwritten contract in which Merrill agreed to repay the loan in full, plus six percent interest, no later than July 2, 2009 and if Merrill did not, she would “lose [the] property” to DeLong. In her answer, Merrill attested she had made repeated attempts starting in May 2009 to contact DeLong, determine his whereabouts, and pay off the loan, finally locating him in Florida in June 2010, but that “[s]ince May 29, 2009, [he] has failed and/or refused to accept payment on the loan.”

¶ 3 In September 2010, DeLong filed an action for eviction in the Apache Junction Justice Court. Merrill answered and counterclaimed, and requested that the case be transferred to Superior Court to determine rights to the property. DeLong then filed an amended complaint alleging quiet title (count one), breach of contract (count two) and declaratory relief (count three). Merrill filed another answer and counterclaims to DeLong's amended complaint alleging, inter alia, quiet title (counterclaim one), wrongful recordation (counterclaim seven), and constructive trust (counterclaim eight).

¶ 4 In March 2011, DeLong submitted discovery requests to Merrill, including eight requests for admission pursuant to Rule 36, Ariz. R. Civ. P. Merrill failed to respond to the requests. In October, DeLong moved for summary judgment on counts one and two of his amended complaint. He noted that “[a]s a result of Merrill's failure [to respond], all eight [requests for admission] are deemed admitted by Rule 36.” He further argued, “based on the substance of those admitted requests, [he was] entitled to summary judgment.”

¶ 5 In November, Merrill responded to the requests for admission and opposed the motion, arguing that the delay did not support summary judgment. Merrill averred that her delay in responding was “a[n] inadvertent oversight on the part of Merrill's attorney, for which Merrill, herself, was not responsible,” and asserted that Rule 36 “support[s] this court allowing and accepting the late filing of [her] responses to requests for admission[ ].” She further asserted that DeLong was not prejudiced by the delay as discovery was still ongoing and no trial date had been set.

¶ 6 In February 2012, the trial court granted summary judgment to DeLong on counts one and two of his amended complaint as a sanction against Merrill for undue delay in responding to the requests for admission. The court noted that DeLong had presented “statements to the Court regarding rule 36(a) and how prejudice does apply.” At oral argument, DeLong had described his prejudice as “the fact that we were waiting for a long time to continue with discovery in the case and we were expecting that there would be some kind of resolution as a result of discovery.” He had also asserted: “The prejudice is the fact that we are still having to continue with this case, [where] ... rule[s] and ... standards set forth in the Rules of Civil Procedure and the Rules of Evidence ... dictate this matter can and should be resolved because of the actions or omissions of Ms. Merrill and her counsel.”

¶ 7 Merrill filed a motion for reconsideration arguing that the most severe sanction provided by the rules for failure to respond to requests for admission is that they are deemed admitted. Even if admitted, according to Merrill, there remained factual issues for trial that made summary judgment inappropriate. The court denied the motion and determined that Merrill's first counterclaim for quiet title, seventh counterclaim for wrongful recordation, and eighth counterclaim for constructive trust were rendered moot by its ruling on the summary judgment motion.¹ Merrill's two remaining claims, counterclaims for abuse of process and intentional infliction of emotional distress, were for money damages only. A subsequent jury trial on those claims resulted in a verdict for DeLong.

¶ 8 The court awarded DeLong $296 in costs pursuant to A.R.S. §§ 12–1103 and 12–341, and $6,955 in attorney fees ² pursuant to A.R.S. §§ 12–1103 and 12–341.01. Merrill timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1).

Discussion

Requests for Admission

¶ 9 On appeal, Merrill argues the trial court “abused [its] discretion in failing to allow the late filed responses to requests for admission without any proof of prejudice.” DeLong has filed no appearance in this court and has submitted no answering brief, which we may deem a confession of reversible error. See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App.1994); see also Wickman v. Ariz. State Bd. of Osteopathic Exam'rs, 138 Ariz. 337, 340, 674 P.2d 891, 894 (App.1983) (“If a debatable issue is raised on appeal, appellee's silence constitutes a confession of reversible error.”). Because resolution of cases on their merits is preferred, and because important issues of procedural law are presented in this appeal, in our discretion we address those issues on their merits. See McDowell Mountain Ranch Cmty. Ass'n, Inc. v. Simons, 216 Ariz. 266, ¶ 13, 165 P.3d 667, 670 (App.2007) (although debatable issue presented, addressing merits to clarify law); Nydam, 181 Ariz. at 101, 887 P.2d at 631 (confession of reversible error doctrine discretionary); Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App.1984) (courts prefer to decide cases on their merits).

¶ 10 Rule 36(a), Ariz. R. Civ. P., states that a matter that is the subject of 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, signed by the party or by the party's attorney.” Once admitted, the matter is “conclusively established unless the court on motion permits withdrawal or amendment of the admission” pursuant to Rule 36(c). That subsection provides “the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.” We have found, no Arizona case applying this test. Rule 36(c), however, is substantially similar to its federal counterpart, Fed.R.Civ.P. 36(b), and we therefore consider federal interpretations of that rule. See Edwards v. Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971) (giving great weight to federal interpretations of rules of civil procedure); Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, 548 n. 8, 189 P.3d 1114, 1121 n. 8 (App.2008) (“It is appropriate to look to federal courts' interpretations of federal rules that mirror Arizona rules.”).

¶ 11 Federal courts apply an abuse-of-discretion standard when reviewing a trial court's decision whether to permit withdrawal or amendment of responses to requests for admission under Rule 36(b), Fed.R.Civ.P. Raiser v. Utah Cnty., 409 F.3d 1243, 1245–46 (10th Cir.2005). And requests to file late responses have been deemed the equivalent of a motion to withdraw admissions. See, e.g., Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1313 (8th Cir.1983). The court may permit withdrawal or amendment when (1) the presentation of the merits will be promoted, and (2) the party obtaining the admission is not prejudiced. Conlon v. United States, 474 F.3d 616, 621 (9th Cir.2007). Although the court has discretion to permit withdrawal or amendment of an admission, prejudice is one of the two factors central to the analysis, and a court's failure to consider them both is an abuse of discretion. Id. at 625 (court's failure to consider these factors will constitute abuse of discretion); Gutting, 710 F.2d at 1313 (error to fail to consider Rule 36(b) factors); cf. Quasius v. Schwan Food Co., 596 F.3d 947, 952 (8th Cir.2010) (parameters permitting withdrawal of admissions under Rule 36(b) designed to guide court's discretion in assessing a motion to withdraw, but where party files nothing “that might be construed as a motion to withdraw or amend under Rule 36(b),” even when directed by the court to do so, court need not apply Rule 36(b) analysis).

¶ 12 The first prong of Rule 36(b), Fed.R.Civ.P., “is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case.” Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir.1995). When the trial court granted summary judgment on DeLong's claims of quiet title and breach of contract, Merrill's most substantive counterclaims were lost: her first counterclaim for quiet title, seventh counterclaim for wrongful recordation, and eighth counterclaim for constructive trust. She was left with only two tort claims, not directly related to the loss of her home. Permitting...