Sahf v. Lake Havasu City Ass'n for the Retarded and Handicapped, 1

• Decision Date: 17 June 1986
• Docket Number: CA-CIV,No. 1,1
• Citation: Sahf v. Lake Havasu City Ass'n for the Retarded and Handicapped, 721 P.2d 1177, 150 Ariz. 50 (Ariz. App. 1986)
• Parties: Nell SAHF, as guardian for Charles Scrabeck, an incapacitated person, and Individually, Plaintiffs-Appellants, v. LAKE HAVASU CITY ASSOCIATION FOR THE RETARDED AND HANDICAPPED, a non-profit corporation, and The State of Arizona, a governmental body, Defendants-Appellees. 8488.
• Court: Arizona Court of Appeals

Page 1177

721 P.2d 1177

150 Ariz. 50

Nell SAHF, as guardian for Charles Scrabeck, an incapacitated person, and Individually, Plaintiffs-Appellants, v. LAKE HAVASU CITY ASSOCIATION FOR THE RETARDED AND HANDICAPPED, a non-profit corporation, and The State of Arizona, a governmental body, Defendants-Appellees.

No. 1 CA-CIV 8488.

Court of Appeals of Arizona Division 1, Department D.

June 17, 1986.

[150 Ariz. 52] Miller & Pitt, P.C. by David A. Thomson, John L. Tully, Tucson, for plaintiffs-appellants.

Weyl, Guyer, MacBan & Olson, P.A. by Suzanne P. Clarke, Phoenix, for defendants-appellees Lake Havasu City Assn.

Sorenson, Moore & Julian by George R. Sorenson and John S. Schaper, Phoenix, for defendant-appellee State of Ariz.

OPINION

BROOKS, Judge.

The two primary issues raised in this appeal are (1) whether the appointment of a guardian for an incapacitated person starts the running of a statute of limitations tolled by that incapacity and (2) whether an organization which furnishes residential living services to developmentally disabled individuals under contract with the Arizona Department of Economic Security is a "licensed health care provider" for purposes of actions for medical malpractice.

FACTS

On June 13, 1984, Nell Sahf, the mother and guardian of Charles Scrabeck, filed a complaint in her individual capacity and on behalf of Scrabeck against the Lake Havasu City Association for the Retarded and Handicapped (Lake Havasu) and the State of Arizona. The complaint alleged that Scrabeck sustained personal injuries in 1981 as the result of negligent care while he was a resident of a group home operated by Lake Havasu. Those injuries were identified as an infected burn injury to Scrabeck's foot and a pressure sore on his right buttock and hip resulting in an infection requiring the surgical removal of the right hip joint.

The complaint also alleged that the State of Arizona is vicariously liable for the acts of Lake Havasu and is liable for negligently certifying, inspecting and supervising the group home.

Lake Havasu filed a motion to dismiss on grounds that the action was barred by A.R.S. § 12-542, the two-year statute of limitations for ordinary negligence. Sahf responded that the action was for "medical malpractice" and was therefore subject to a three-year statute of limitations under A.R.S. § 12-564(A). Sahf also argued that any statute of limitations had been tolled pursuant to A.R.S. § 12-502 because Scrabeck was an incapacitated person. Lake Havasu contended that it was not a "licensed health care provider" and therefore was not subject to suit for medical malpractice. Additionally, it argued that the tolling statute was inapplicable where a guardian had been appointed.

The trial court held that Lake Havasu was not a licensed health care provider; that A.R.S. § 12-542 was applicable; and A.R.S. § 12-502 did not toll the period of limitations because Scrabeck had a guardian. Accordingly, it granted Lake Havasu's motion to dismiss.

The State of Arizona later filed a motion for summary judgment on the same grounds and judgment was entered in favor of the state on May 30, 1985. Sahf filed a timely appeal to this court from the judgments.

SCOPE OF REVIEW

Lake Havasu obtained judgment granting a motion to dismiss the complaint on grounds that A.R.S. § 12-542 bars the action.

Appellees appear to argue on appeal that the judgment in favor of Lake Havasu must be upheld not only for the reasons stated by the trial court but also because the complaint was insufficient to withstand a motion to dismiss. They point to the absence in the complaint of any allegations that Scrabeck was a person of unsound mind or that Lake Havasu was a licensed health care provider. Sahf first raised these contentions in response to the motion to dismiss.

The record is clear that Lake Havasu did not identify these alleged insufficiencies in the complaint in support of its motion to dismiss. To the contrary, in its reply to Sahf's response, Lake Havasu stated "... Charles Scrabeck is mildly mentally retarded and should probably be deemed of unsound mind within the meaning of A.R.S. § 12-502." It then argued the tolling issue on its merits. Lake Havasu and Sahf also argued whether Lake Havasu was a licensed health care provider as a matter of law. Lake Havasu did not argue that it was entitled to judgment on the basis of insufficiency of the pleadings. The motion and subsequent responsive pleadings focused on legal issues relevant to whether the litigation was barred by A.R.S. § 12-542.

This court will not consider issues and theories not presented to the court below. Richter v. Dairy Queen of Southern Arizona, Inc., 131 Ariz. 595, 643 P.2d 508 (App.1982). Thus we do not consider whether the complaint was fatally deficient in failing to expressly identify Scrabeck as a person of "unsound mind" and Lake Havasu as a "licensed health care provider."

On review of granting a motion to dismiss, the truth of the allegations must be assumed. Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985). Dismissal can be upheld only if Sahf or Scrabeck would not be entitled to relief under any facts susceptible of proof under the claims stated. Donnelly Const. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 677 P.2d 1292 (1984); Bischofshausen v. Pinal-Gila Counties Air Quality Control Dist., 138 Ariz. 109, 673 P.2d 307 (App.1983). For purposes of the dismissal of the complaint against Lake Havasu, we consider Lake Havasu's position before the trial court to be a concession that the complaint avers that Scrabeck is of unsound mind and we assume the truth of that allegation.

The State of Arizona was granted summary judgment. For purposes of that motion the state conceded that Scrabeck was a person of "unsound mind" within the meaning of A.R.S. § 12-502. In reviewing a grant of summary judgment, the evidence and inferences drawn therefrom must be viewed in a light most favorable to the party opposing the motion. Transamerica Ins. Group v. Meere, 143 Ariz. 351, 694 P.2d 181 (1984). The granting of summary judgment is only proper where two prerequisites have been met: first, after examining the entire record there is no genuine dispute as to any material fact and that only one inference can be drawn from the undisputed material facts; second, based uoon the undisputed material facts the moving party is entitled to judgment as a matter of law. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982).

For purposes of the appeal of both judgments we assume the following facts to be true. Charles Scrabeck has been mentally retarded since birth. He was adjudged an incapacitated person and placed under the guardianship of his mother, Nell Sahf, on September 24, 1979 by order of Mohave County Superior Court.

DOES THE APPOINTMENT OF A GUARDIAN START THE RUNNING OF A PERIOD OF LIMITATION TOLLED BY A.R.S. § 12-502 FOR PERSONS OF UNSOUND MIND?

A.R.S. § 12-502 provides:

A. If a person entitled to bring an action other than those set forth in Article 2 of this chapter is at the time the cause of action accrues either under eighteen years of age or of unsound mind, the period of such disability shall not be deemed a portion of the period limited for commencement of the action. Such person shall have the same time after removal of the disability which is allowed to others.

In Allen v. Powell's International, Inc., 21 Ariz.App. 269, 518 P.2d 588 (1974) this court held that, for purposes of A.R.S. § 12-502, a person of "unsound mind" is unable to manage his affairs or to understand his legal rights or liabilities. There is no express exception in A.R.S. § 12-502 for persons under guardianship. However, the trial court concluded that the tolling statute is inapplicable where a person adjudicated to be mentally incompetent has a guardian who is capable of filing a lawsuit on behalf of her ward. We find no Arizona appellate decisions which address this issue.

In the jurisdictions where this issue has been considered, the majority have held that their respective statutes of limitations are tolled on claims held by an incompetent even though a guardian has been judicially appointed. See generally Annot. 86 A.L.R.2d 965 (1962); 51 Am.Jur.2d Limitation of Actions, § 189 (1970). See, e.g., Mason v. Sorrell, 260 Ark. 27, 551 S.W.2d 184 (1976); Gottesman v. Simon, 169 Cal.App.2d 494, 337 P.2d 906 (1959); Whalen v. Certain-Teed Products Corp., 108 Ga.App. 686, 134 S.E.2d 528 (1963); Paavola v. St. Joseph Hospital Corp., 119 Mich.App. 10, 325 N.W.2d 609 (1982); Young v. State Dept. of Social Services, 92 Misc.2d 795, 401 N.Y.S.2d 955 (1978).

Although Arizona has not considered whether the appointment of a guardian starts the running of a period of limitation for persons of unsound mind, our supreme court has discussed the effect of guardianship upon an infant's right to bring a lawsuit.

In Barrio v. San Manuel Division Hospital for Magma Copper Co., 143 Ariz. 101, 692 P.2d 280 (1984), the Arizona Supreme Court held that the personal injury action of an injured minor is tolled by A.R.S. § 12-502 regardless of whether the minor has a parent or guardian who could have brought suit on his behalf. The court held that A.R.S. § 12-564, which shortened the statute of limitations for minors injured by medical malpractice, was unconstitutional because it deprived the minor of his cause of action while he was under a disability and powerless to act on his own behalf. The court noted that even though there might be a parent or guardian who could assert the claim on behalf of the minor, the period of limitation was tolled by A.R.S. § 12-502 because there can be no guarantee that the minor's claim would be asserted by that parent or guardian. Barrio, 143 Ariz. at 107, 692 P.2d at 286.

Appellees attempt to distinguish Barrio because infancy unlike "unsound mind" will eventually terminate. They point out that statutes of limitations are intended to...