Engle Bros., Inc. v. Superior Court In and For Pima County, 2

CourtCourt of Appeals of Arizona
Citation23 Ariz.App. 406,533 P.2d 714
Docket NumberCA-CIV,No. 2,2
PartiesENGLE BROTHERS, INC., a New Jersey Corporation, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PIMA, The Honorable Lee Garrett, a Judge thereof, Wilfred G. Barragan, Administrator of the Estates of Jesus Barragan and Delia Licon Barragan, Deceased, and Gloria, Edward, Carmen, Jesus, Jr. and Trina Barragan, children of the Decedents, Respondents. 1831.
Decision Date03 April 1975
Snell & Wilmer by Loren W. Counce, Jr., Phoenix, for petitioner


Should the respondent court have granted petitioner's motion to dismiss a complaint against it? That is the sole question presented in this special action proceeding. Since denial of a motion to dismiss is an interlocutory, nonappealable order, appellate intervention via special action is appropriate. Industrial Commission v. Superior Court, 5 Ariz.App. 100, 423 P.2d 375 (1967).

The following is a brief summary of what transpired below prior to the challenged ruling. Respondent real parties in interest filed a complaint against petitioner in September 1973, seeking to recover damages for the wrongful death of Jesus and Delia Barragan. The complaint alleged that an accident occurred on May 11, 1968, in Arizona which caused Mrs. Barragan's immediate death and injuries to Mr. Barragan which resulted in his death in 1969. In May 1974, petitioner received a copy of the summons and complaint in the mail. An affidavit in support of service by certified mail was filed by counsel. It recited that he was the attorney for the plaintiff, that Engle Brothers, a New Jersey corporation, caused an event to occur in Arizona out of which the claim which was the subject of the complaint arose, and that Engle Brothers had no agent in this jurisdiction upon whom service of process could be effected.

On July 24, 1974, Engle Brothers filed a motion to dismiss the complaint for lack of jurisdiction over the person alleging that process and service of process were insufficient. The thrust of the motion to dismiss was the insufficiency of the foregoing affidavit in support of service by certified mail. Subsequently, on August 19, 1974, service of process on Engle Brothers was effected by utilization of the Arizona Non-Resident Motorist Statute. On September 30, 1974, an amended motion to dismiss was filed by petitioner in which it realleged its previously asserted grounds for dismissal and additionally asserted the bar of the statute of limitations.

On October 9, 1974, a supplement to the opposition to the motion to dismiss was filed, stating that service had been effected upon Engle Brothers on August 19, 1974, pursuant to the provisions of the Non-Resident Motorist Statute. (It was argued that this renewed service of process cured any defects in the original service.)

On November 1, 1974, an opposition to the amended motion to dismiss and a motion to strike the defense of the statute of limitations were filed. The matter was argued on November 4th and on November 8th a minute entry order was entered denying petitioner's motion to dismiss.

We agree with petitioner that its motion to dismiss should have been granted. Before addressing ourselves to the statute of limitations issue, we briefly comment on the argument presented below as to waiver of the statute of limitations defense. Petitioner's initial motion to dismiss did not raise the limitations defense. Rule 12(h), Rules of Civil Procedure, 16 A.R.S., provides:

'A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (i)(2) hereof on any of the grounds there stated.'

Rule 12(b), Rules of Civil Procedure, permits, at the option of the pleader, presentation of certain defenses by way of motions. The defense of the statute of limitations is not therein enumerated. Rule 12(c) provides for a motion for judgment on the pleadings; Rule 12(e) provides for a motion for more definite statement; and Rule 12(g) provides for a motion to strike. Thus we see that a motion to dismiss based on the statute of limitations is not a motion 'herein provided for' within the ambit of Rule 12(h). We thus find no basis for sustaining the ruling below on the basis of waiver.

It is well settled in this state that the defense of ...

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    ...277 F.Supp. 995, 998 (S.D.N.Y.1967); Selby v. Karman, 110 Ariz. 522, 521 P.2d 609, 611 (1974); Engle Bros., Inc. v. Superior Court, 23 Ariz.App. 406, 533 P.2d 714, 716-17 (1975) (per curiam); Lipe v. Javelin Tire Co., Inc., 96 Id. 723, 536 P.2d 291, 293-94 (1975), after remand, 97 Id. 805, ......
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    ...Because he carries the burden of proof on this issue, he has waived the argument. See Engle Brothers Inc. v. Superior Court, 23 Ariz.App. 406, 533 P.2d 714, 716 (Ct.App.1975). 3 "Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursion......
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