Mccloud v. State, Dept. of Public Safety

• Decision Date: 09 November 2007
• Docket Number: No. 2 CA-CV 2007-0006.,2 CA-CV 2007-0006.
• Citation: 170 P.3d 691,217 Ariz. 82
• Parties: Brystal McCLOUD, an individual, Plaintiff/Appellant, v. STATE of Arizona, ARIZONA DEPARTMENT OF PUBLIC SAFETY, a political subdivision of the State of Arizona; and Thomas Max Kimbro, an individual, Defendants/Appellees.
• Court: Arizona Court of Appeals

170 P.3d 691

217 Ariz. 82

Brystal McCLOUD, an individual, Plaintiff/Appellant, v. STATE of Arizona, ARIZONA DEPARTMENT OF PUBLIC SAFETY, a political subdivision of the State of Arizona; and Thomas Max Kimbro, an individual, Defendants/Appellees.

No. 2 CA-CV 2007-0006.

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

November 9, 2007.

Stephen Gorey, Tucson, Attorney for Plaintiff/Appellant.

Terry Goddard, Arizona Attorney General By Bruce L. Skolnik, Tucson, Attorneys for Defendants/Appellees.

OPINION

BRAMMER, Judge.

¶ 1 Appellant Brystal McCloud appeals from the trial court's dismissal of her personal injury complaint against appellees Thomas Kimbro and the State of Arizona. She contends the trial court erred "in failing to equitably toll the one year statute of limitations governing claims against governmental bodies." Alternatively, she asserts that a question of fact existed as to whether Kimbro was acting within the course and scope of his employment when the vehicle he was driving struck her car, and, if he was not, her negligence claim was governed by a two-year statute of limitations. We affirm in part, reverse in part, and remand the case to the trial court for further proceedings.

Factual and Procedural Background

¶ 2 The facts are essentially undisputed. Thomas Kimbro, a Department of Public Safety (DPS) officer, was searching for a restaurant on April 1, 2005, when his state-owned vehicle collided with the back of McCloud's vehicle. McCloud suffered injuries, incurred medical expenses, and lost earnings. Four days later, McCloud filed an administrative claim pursuant to A.R.S. § 12-821.01 against the State of Arizona, the Department of Public Safety, and Kimbro, but did not file the lawsuit against them until June 27, 2006.

¶ 3 Kimbro and the state moved to dismiss the complaint pursuant to Rule 12(b)(6), Ariz. R. Civ P., asserting McCloud's claim was barred because she had filed her complaint more than one year after the accident had occurred, the limitations period applicable to claims against a public entity or employee. See A.R.S. § 12-821. In response, McCloud argued the late filing of the complaint had been the result of "excusable neglect" and therefore the "statute of limitations should be equitably tolled."

¶ 4 McCloud stated in her response that "a truly bizarre and unusual set of circumstances [had] converged to prevent plaintiff's counsel from being able to concentrate on his work and resulted in the untimely filing." McCloud's counsel filed an affidavit stating that his sister, who had cared for their mother and brother, both of whom were disabled, had died in November 2005. Consequently, counsel had to make arrangements for his mother and brother to live at a facility. Counsel's wife, who was his secretary before she became disabled due to a heart condition, underwent open heart surgery. In February and March 2006, counsel underwent separate surgical procedures on both of his knees and subsequently was placed on pain medication and sleeping pills. Counsel's mother died unexpectedly in March, and counsel underwent gall bladder surgery later that month, which, according to counsel, was one day before the one-year limitations period applicable to McCloud's claim was to expire. Counsel was in bed on pain medication the day the limitations period expired. Counsel attached to his affidavit, which was filed with his response to the motion to dismiss, death certificates for his mother and sister, as well as doctors' and pharmacies' reports.

¶ 5 During this series of family health issues, in November 2005 counsel found a second attorney "to assist [him] by handling some of the day to day requirements of most of [his] files." This lawyer "was not a personal injury attorney" and counsel stated he "would guide him through the process," not expecting him "to learn the various statute of limitation requirements on his own." This backup attorney and his family were diagnosed with tuberculosis in November 2005, and he took an "extended leave of absence from [his] law practice beginning in February 2006." Although the backup attorney was judicially excused from meeting time requirements in his own cases, he did not inform counsel of this fact, nor did he do anything to seek relief from the court in McCloud's case. McCloud's counsel "did not ask [the backup attorney] to file the complaint" before the one-year limitations period expired "[d]ue to [counsel's] inability to concentrate on [his] work during this time."

¶ 6 In reply to McCloud's response to the motion to dismiss, the state argued that these circumstances did not constitute excusable neglect, asserting instead that these facts amounted to "attorney malpractice," and that attorney illness is "a garden variety claim of excusable neglect" that fails as a matter of law. After a hearing, the trial court concluded "as a matter of law under the unusual facts and circumstances of this case, there is no excusable neglect," granting the state's motion to dismiss. This appeal followed.

Discussion

Equitable Tolling

¶ 7 McCloud contends the trial court erred in failing to equitably toll the limitations period because she was diligent in pursuing her remedies, the delay in no way caused the state prejudice, and the "concurrent illnesses of plaintiff's attorney and [the] backup attorney ... remove the case from the category of `garden variety excusable neglect.'" Section 12-821 states: "All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward." Although McCloud timely filed her notice of claim pursuant to § 12-821.01 four days after the accident, and nearly six months before it was due, her complaint was not filed until nearly three months after it was due.

¶ 8 "The affirmative defense of statute of limitations is properly raised in a motion to dismiss where it appears from the face of the complaint that the claim is barred." Anson v. Am. Motors Corp., 155 Ariz. 420, 421, 747 P.2d 581, 582 (App.1987). The party opposing a motion to dismiss based on a statute of limitations defense "bears the burden of proving the statute has been tolled." Id.; see also Baden-Winterwood v. Life Time Fitness, 484 F.Supp.2d 822, 826 (S.D.Ohio 2007) ("It is the plaintiff's burden to demonstrate why he or she is entitled to equitable tolling of the statute of limitations.").

¶ 9 Although the state moved to dismiss pursuant to Rule 12(b)(6), Ariz. R. Civ. P., the trial court considered matters outside the pleadings. Thus, normally, we would review the trial court's ruling as a grant of a motion for summary judgment. Ariz. R. Civ. P. 12(b); see also James v. State, 215 Ariz. 182, ¶ 5, 158 P.3d 905, 907 (App.2007). We conclude, however, that whether to apply equitable tolling is a question the trial court, not the jury, should determine. Cf. Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 579 (D.C.Cir.1998) ("[E]quitable tolling and estoppel, which ask whether equity requires extending a limitations period, are for the judge to apply, using her discretion, regardless of the presence of a factual dispute."). Indeed, although we find no Arizona authority squarely addressing this issue, there is some precedent from which we can draw to sanction this procedure. See Kosman v. State, 199 Ariz. 184, ¶ 12, 16 P.3d 211, 214 (App.2000) ("remand[ing] for findings" where plaintiff had raised factual questions relevant to whether equitable estoppel should be applied). Similarly, the related doctrine of equitable estoppel is properly determined by the trial court. See Nolde v. Frankie, 192 Ariz. 276, ¶ 20, 964 P.2d 477, 482 (1998) (trial court determines whether equitable estoppel applies).¹ And, because both equitable estoppel and equitable tolling by definition sound in equity, the trial court is the fact-finder. See City of Tucson v. Superior Court, 165 Ariz. 236, 242 n. 5, 798 P.2d 374, 380 n. 5 (1990) ("Although either party to litigation in the superior court is entitled to demand a jury trial as a matter of right, whether the case falls in equity or in law, in an equity case the verdict is merely advisory.") (internal citation omitted); Mullins v. Horne, 120 Ariz. 587, 591, 587 P.2d 773, 777 (App.1978) ("[I]n equity matters, the court may disregard the jury's verdict or answers to interrogatories. In such event, the court becomes the trier of all issues of fact and law."). Moreover, the facts related to the reasons for equitable tolling are frequently unrelated to the central facts relevant to the merits of the plaintiff's claim. See Pauling v. Sec'y of Dep't of Interior, 71 F.Supp.2d 231, 233 (S.D.N.Y.1999) (trial court should determine whether to apply doctrine of equitable tolling because there is no overlap of factual issues).

¶ 10 No Arizona case discusses the standard of review an appellate court should employ in addressing a trial court's refusal to apply the doctrine of equitable tolling. There is much disagreement among courts in other jurisdictions on this question. See, e.g., Belot v. Burge, 490 F.3d 201, 205-06 (2d Cir.2007) (discussing conflicting standards used by federal courts); Dunlap v. United States, 250 F.3d 1001, 1007 n. 2 (6th Cir.2001) (same). We find the reasoning of the Second Circuit in Belot instructive.

[T]he appropriate standard of review depends on the aspect of the decision which is under review. A rule of law that gives the court discretion to grant an equitable exception in extraordinary circumstances seems almost inherently to invite the court's discretion in applying these standards. The balancing of factors involved in determining what result is equitable and the appraisal of whether the circumstances are sufficiently extraordinary seem to contemplate that in the same set of facts, different results could be acceptable. In such circumstances, courts often say that appellate review is for "abuse of discretion." But that label in a way...