Marshall v. Superior Court, Maricopa County, 15804-SA

Citation131 Ariz. 379,641 P.2d 867
Decision Date23 February 1982
Docket NumberNo. 15804-SA,15804-SA
PartiesHazle MARSHALL, a protected person, by her conservator Charles J. Dyer, Petitioner, v. SUPERIOR COURT of the State of Arizona, MARICOPA COUNTY; the Honorable Roger G. Strand, Judge; the Honorable William P. French, Judge; and Patrick E. Eldridge and Violet E. Eldridge, real parties in interest, Respondents.
CourtSupreme Court of Arizona
FELDMAN, Justice

Acting through her conservator, plaintiff (the petitioner in this proceeding) brought an action against Britt, Eldridge and others. Eldridge is the only real party in interest in the special action before us. The complaint, filed in March 1977, alleged that plaintiff was a protected person (as defined in A.R.S. § 14-5101(2), that she had been "mentally incapacitated" at all material times to the extent that she was unable to "understand and comprehend the consequences of her action," and that defendants Britt and Eldridge had been aware of that incapacity. Plaintiff also alleged that as a result of "undue influence" by Britt she had been induced to convey certain property to Eldridge, who had then transferred it to Britt.

The complaint further alleged that Eldridge was an attorney and had acted as the attorney for both plaintiff and Britt in the transactions described. Count III of the complaint incorporated the foregoing allegations and continued with allegations that Eldridge had acted "in breach of (the) trust and fiduciary relation" which he owed to his incompetent client and that he had "disposed of or encumbered" the property which the plaintiff had conveyed to him as a result of Britt's undue influence. For purposes of this proceeding, we must assume the truth of these allegations.

The original complaint was not a model of clarity or technical skill. Despite the allegations outlined above, it failed to demand any relief from Eldridge other than a general prayer that title to the property be quieted in the plaintiff, that the deed from plaintiff to Eldridge be "delivered up and cancelled," and that a trust "be impressed" on the property in plaintiff's favor. No tort damages-nor, indeed, compensatory or punitive damages of any kind-were sought from Eldridge. As is customary, the court was asked to give such other and further relief as might be proper.

So far as the record before us shows, Eldridge's response to these allegations was to file a "disclaimer of interests" in the real property. This procedure is authorized in actions to quiet title by A.R.S. § 12-1103.

Four years later, through different counsel, plaintiff moved to amend the complaint in order to seek damages from Eldridge. Counts IV and V of the amended complaint are in issue here. Amended Count IV contains allegations that Eldridge acted as attorney for both parties, that he was negligent in handling the transactions (which are the same transactions as those described in the original complaint), and that his negligence caused damage to plaintiff. In Count V of the amended complaint, plaintiff alleges that Eldridge and Britt breached a confidential relationship with her. As a result, plaintiff claims she was deprived of her interest in the property. Eldridge and Britt are charged with having acted wrongfully and intentionally, and punitive damages are sought "against the defendants." 1 Thus, plaintiff now seeks tort damages from Eldridge, when none were sought in the original complaint. Amended Count IV seeks compensatory damages for Eldridge's alleged negligence, while amended Count V seeks both compensatory and punitive damages for Eldridge's alleged intentionally wrongful acts. 2

The court below granted plaintiff's motion to amend the complaint and Eldridge then moved to dismiss the amended complaint, contending that the damage actions were barred by the applicable statute of limitations. The court below first ordered that the amended complaint be dismissed with prejudice as against Eldridge, but when plaintiff moved for clarification, Judge French ruled that Eldridge's motion to dismiss had been directed only to the claim for professional negligence (Count IV) and entered a minute entry order to that effect. Subsequently, Judge Strand, acting in place of Judge French, entered an order denying plaintiff's motion for reconsideration and ordering that Count IV of the amended complaint be dismissed with prejudice as to Eldridge. Count V, the claim for intentional wrong, was not dismissed. The order did not contain the language required by Rule 54(b), Arizona Rules of Civil Procedure, 16 A.R.S., and is not appealable.

Eldridge claimed both here and in the court below that the negligence and intentional wrong counts of the amended complaint (Counts IV and V) were barred by the statute of limitations. Eldridge claims that the only error of the court below was in failure to dismiss Count V, as well as Count IV. 3 Plaintiff claims that both Counts IV and V relate back, so that neither is barred.


We accept jurisdiction because of circumstances such as the fact that the plaintiff is a ward of the court, that charges are made with respect to the professional conduct of an alleged fiduciary, and because there is bound to be considerable waste of time, effort and money if the case is tried on the count alleging intentional breach of duty, with that alleging negligent breach stricken. Such practical considerations create an appropriate situation for exercise of our discretion to accept jurisdiction. Nataros v. Superior Court, 113 Ariz. 498, 557 P.2d 1055 (1976).


In his response to the quiet title prayer, Eldridge disclaimed any interest in the real property. He claims he was thereby "automatically dismissed" from the action so that no later amendment of the complaint could relate back and any new action or claim against him would be barred by the statute of limitations. We do not agree.

A.R.S. § 12-1101(A) provides that an action to quiet title may be brought against "any person or the state when such person or the state claims an estate or interest in the real property which is adverse to the party bringing the action." By § 12-1102, it is required only that the complaint be made under oath, that it describe "generally" the nature of plaintiff's estate, describe the premises, and that it state that "plaintiff is credibly informed and believes defendant makes some claim adverse to plaintiff." The statute also requires that the complaint contain a prayer "for establishment of plaintiff's estate ...." Section 12-1103(A) contains the provision allowing defendant to appear and disclaim. It reads as follows:

12-1103. Disclaimer of interest and recovery of costs; request for quit claim deed; disclaimer of interest by state

A. If defendant ... appears and disclaims all right and title adverse to plaintiff, he shall recover his costs.

Eldridge argues that three California cases provide authority for the theory that when he disclaimed any interest in the real property he "passed out" of the action. Baar v. Smith, 201 Cal. 87, 255 P. 827 (1927), does contain an interesting discussion on the state of the law of trover and detinue, but does little to provide support for the "passing out" argument. Baar was an action brought to quiet title to stock in a mining company. No cause of action was alleged against the company, and the company claimed no interest in the stock. The court held there was, therefore, no triable issue against the company and mentioned that even counsel for the company had conceded that it "passes out along with the" other defendants who claimed no interest in the stock. Id. at 93, 255 P. at 831. This case provides no authority for the novel proposition that Eldridge was "automatically dismissed" from the action when he filed a disclaimer of any right, title and interest in the real property. The other California cases cited by Eldridge in support of his automatic disclaimer or argument are Muller v. Muller, 209 Cal.App.2d 704, 26 Cal.Rptr. 337 (1962), and Reese v. Gross, 2 Cal.App.2d 384, 37 P.2d 1058 (1934). They are even less on point than Baar.

Nothing in our statutes on quiet title actions provides for a dismissal at all, let alone "automatic dismissal." The allegations of the original complaint obviously went beyond those necessary or material to a simple quiet title action and absent any express procedural direction in the statutes, we refuse to hold that automatic dismissal follows from a defendant's disclaimer of any right, title or interest in the real property. If the party making such a disclaimer wishes to test the water to find whether the plaintiff asserts any other claim against him, he need only file a motion to dismiss after filing his disclaimer. If no other claim is asserted, then the motion to dismiss would be properly granted. Eldridge did not follow that procedure in the case at bench.


Eldridge's primary argument is that the two counts of the amended complaint which are here in question do not relate back and are therefore barred by the statute of limitations because the amended complaint seeks relief entirely different from that demanded in the original complaint and because the two new counts stated additional facts and new theories of law for recovery of tort damages. Thus, Eldridge claims, the amended counts "stated entirely new causes of action" against him. He argues that an amended complaint cannot relate back if it sets forth a new...

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