Rowland v. Kellogg Brown and Root, Inc., 2 CA-CV 2004-0209.

CourtSupreme Court of Arizona
Writing for the CourtEspinosa
Citation210 Ariz. 530,115 P.3d 124
PartiesJames Dennis ROWLAND, Plaintiff/Appellant, v. KELLOGG BROWN AND ROOT, INC., and Kellogg Brown and Root Services, INC., Defendants/Appellees.
Docket NumberNo. 2 CA-CV 2004-0209.,2 CA-CV 2004-0209.
Decision Date20 June 2005
115 P.3d 124
210 Ariz. 530
James Dennis ROWLAND, Plaintiff/Appellant,
KELLOGG BROWN AND ROOT, INC., and Kellogg Brown and Root Services, INC., Defendants/Appellees.
No. 2 CA-CV 2004-0209.
Court of Appeals of Arizona, Division 2, Department B.
June 20, 2005.

Page 125

McNamara, Goldsmith, Jackson & Macdonald, P.C., by Bruce G. Macdonald and Sue Ann Welch, Tucson, for Plaintiff/Appellant.

Humphrey & Petersen, P.C., by Elizabeth L. Warner and Andrew J. Petersen, Tucson, for Defendants/Appellees.



¶ 1 Appellant James Rowland contends the trial court erred by granting summary judgment in favor of appellee Kellogg, Brown and Root, Inc., and dismissing Rowland's personal injury action on the ground that the applicable limitations period had elapsed before he had filed a valid complaint. We agree and reverse.

Factual and Procedural Summary

¶ 2 In reviewing a grant of summary judgment, we view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. CDT, Inc. v. Addison, Roberts & Ludwig, C.P.A., 198 Ariz. 173, 7 P.3d 979 (App.2000). On September 28, 2001, Rowland was apparently injured by an employee of Kellogg while working at Fort Huachuca. He obtained counsel, who later withdrew after advising him of the deadline for filing a complaint. Thereafter, Rowland sent a letter and filing fee to the Clerk of the Cochise County Superior Court a few days before the two-year limitations period, established by A.R.S. § 12-542, was to elapse.

¶ 3 The letter stated:

On September 28th 2001, James D Rowland was injured by a forklift operator employed by Brown and Root. Accident took place at Fort Huachuca Arizona. Law suite [sic] would be for Liability damages, bodily injuries, down time, and medical

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expenses, in the amount of Five million dollars.

Please call me with any questions.

The letter also included Rowland's name, address, and telephone numbers and a caption of "Re: Rowland VS Brown And Root." Finally, it was addressed "[t]o whom it may concern," and was accompanied by the $130 filing fee.

¶ 4 The Clerk refused to file this document, instead returning it and Rowland's filing fee to him "because the appropriate civil complaint was not sent to [their] office." Rowland then obtained new counsel, who filed a complaint that was clearly outside the limitations period, but properly served the defendants within 120 days of both the filing of that complaint and the original attempt to file the letter, in compliance with Rule 4(i), Ariz. R. Civ. P., 16 A.R.S., Pt. 1. The trial court granted Kellogg's motion for summary judgment based on § 12-542. This appeal followed.

Standard of Review

¶ 5 Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(c), 16 A.R.S., Pt. 2. We first determine if any genuine issue of material fact exists, and if there is none, we then determine whether the trial court correctly applied the law. Aaron v. Fromkin, 196 Ariz. 224, 994 P.2d 1039 (App.2000). Issues concerning the interpretation of statutes and court rules present questions of law. See Powers v. Carpenter, 203 Ariz. 116, 51 P.3d 338 (2002); Fragoso v. Fell, 210 Ariz. 427, 111 P.3d 1027 (App.2005); Koller v. Ariz. Dep't of Transp., 195 Ariz. 343, 988 P.2d 128 (App.1999); Schwab Sales, Inc. v. GN Constr. Co., 196 Ariz. 33, 992 P.2d 1128 (App.1998). Because the parties agree on most of the facts and all relevant dates in the case, we review de novo whether the trial court erred in applying the law. Nelson v. Rice, 198 Ariz. 563, 12 P.3d 238 (App.2000).


¶ 6 Section 12-542 requires a plaintiff to commence an "action" for negligence within two years "after the cause of action accrues." Rule 3, Ariz. R. Civ. P., 16 A.R.S., Pt. 1, provides that an "action" is commenced by the filing of a "complaint." Failure to do so within the time limit generally bars a negligence action. See Safeway Stores, Inc. v. Maricopa County Superior Court, 19 Ariz.App. 210, 505 P.2d 1383 (1973). Thus, filing a complaint is critical for purposes of the statute of limitations.

¶ 7 Rowland initially argues that the superior court clerk's office did not have the authority to refuse to file his document, noting that no Arizona law provides such discretion to the clerk. Kellogg responds that "[a]ppellant's letter was not a complaint . . . [and][t]he court was not required to treat it as a complaint." Although this argument was presented below, the trial court did not address this issue in its order granting summary judgment.

¶ 8 Whittaker Corp. v. Estate of King, 25 Ariz.App. 356, 543 P.2d 477 (1975), appears to be the only Arizona case that addresses a similar issue. In Whittaker, the plaintiff filed a complaint to recover on a creditor's claim against a probate estate within the ninety-day period prescribed by former A.R.S. § 14-579(A), but the Clerk of the Maricopa County Superior Court refused to accept it because it did not comply with Rule XII of the Uniform Rules of Practice.1 Whittaker corrected the deficiency and returned the document, but the ninety-day period had elapsed and the complaint was dismissed. Division One of this court vacated the dismissal and held that the existing rule did not authorize the clerk to reject a filing for non-compliance, and Whittaker's complaint was held to have been "constructively filed" when it had submitted the first document.

¶ 9 Neither party has directed this court to an Arizona statute or rule that permits the clerk of the court to reject an improperly formatted or deficient pleading, and we have

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found none. Although Kellogg cites Rule 4(a), Ariz. R. Civ. P., that rule only codifies the clerk's...

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