Simon v. Maricopa Med. Ctr.

• Decision Date: 01 July 2010
• Docket Number: No. 1 CA-CV 09-0223.,1 CA-CV 09-0223.
• Citation: Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 234 P.3d 623 (Ariz. App. 2010)
• Parties: John Steven SIMON, Plaintiff-Appellant,v.MARICOPA MEDICAL CENTER; City of Phoenix Police Department, a municipal corporation; Officer Borquez; Officer Moore; Officer Masad; Officer Coudret; Officer Edwards; Officer Kerely; Officer Ippel; Officer Smoger; and Officer Burke, Defendants-Appellees.
• Court: Arizona Court of Appeals

225 Ariz. 55

234 P.3d 623

John Steven SIMON, Plaintiff-Appellant,v.MARICOPA MEDICAL CENTER; City of Phoenix Police Department, a municipal corporation; Officer Borquez; Officer Moore; Officer Masad; Officer Coudret; Officer Edwards; Officer Kerely; Officer Ippel; Officer Smoger; and Officer Burke, Defendants-Appellees.

No. 1 CA-CV 09-0223.

Court of Appeals of Arizona Division 1, Department C.

July 1, 2010.

COPYRIGHT MATERIAL OMITTED

John Steven Simon, in propria persona, Phoenix, Plaintiff-Appellant.

Maricopa County Office of General Litigation Services by Sherle R. Flaggman, Phoenix, Attorneys for Defendant-Appellee Maricopa Medical Center.

Berke Law Firm, PLLC by Lori V. Berke, Jody C. Corbett, Phoenix, Attorneys for Defendants-Appellees Phoenix Police Department and Officers Borquez, Masad, Coudret, Edwards, Ippel, Smoger, and Burke.

OPINION

KESSLER, Judge.

¶ 1 Plaintiff-Appellant John Steven Simon appeals the trial court's judgment dismissing his claims against Defendants-Appellees Maricopa Medical Center (“MMC”), the City of Phoenix Police Department (the “Police Department”), and Officers Borquez, Masad, Coudret, Edwards, Ippel, Smoger, and Burke (collectively, the “Officers”). We reverse the superior court's orders dismissing the Police Department and MMC. We hold that if a complaint includes a misnomer of a jural entity and service has been made on the associated jural entity, the appropriate remedy for the error is not dismissal of the complaint but leave to amend. We affirm the order dismissing the individual Officers because Simon failed to present any evidence creating a genuine issue of material fact on the issue of whether he served a notice of claim on them.

FACTUAL AND PROCEDURAL BACKGROUND ¹

¶ 2 Simon filed a complaint against MMC, the Police Department, and the Officers alleging claims arising out of an altercation with the Officers on February 13, 2008.² Simon alleges that during the altercation officers pinned him to the ground, held him still, and struck him with a heavy rigid object. His amended complaint attached medical records, which he seems to incorporate by reference to plead that officers broke two of his ribs during the altercation. He also alleges that he was then hospitalized at MMC, but received inadequate treatment. Simon's complaint alleges common law tort claims, but not federal civil rights claims.³

¶ 3 The Police Department moved to dismiss Simon's complaint on the basis that it is a non-jural entity that can neither sue nor be sued. Although vague, Simon's response requested the “opportunity to [a]mend [c]omplaint if such amendment cures it[']s defects.” The court granted the Police Department's motion to dismiss. After the superior court granted the Police Department's motion to dismiss, Simon filed a motion to amend his complaint, although he failed to attach a copy of his proposed amended complaint as required by Rule 15(a)(2). While the court did not expressly rule on that motion, it denied or struck related motions seeking to amend the complaint to correct any technical defects and ultimately entered a signed order striking the amended complaint “and its progeny”.⁴

¶ 4 The Officers moved to dismiss the complaint on the grounds that Simon had failed to comply with Arizona's notice of claim statute, Arizona Revised Statutes (“A.R.S.”) section 12-821.01 (2003), because he did not serve a notice of claim on them within the statutory period. The Officers attached affidavits indicating that they had never received a notice of claim from Simon, had never authorized anyone else to accept service for them, and did not know about his claim until they received the complaint. Simon's response asserted that he complied with the notice of claim requirement by delivering a notice of claim to the person designated in an informational packet provided by the City of Phoenix and to the superior court. We assume this refers to a notice of claim form Simon submitted to the City of Phoenix and attached to the Officers' motion to dismiss. That packet provides for delivery to the clerk of the City of Phoenix.

¶ 5 MMC also moved to dismiss on the basis that (i) it is a non-jural entity that can neither sue nor be sued, (ii) Simon had failed to file a notice of claim with Maricopa County as required by A.R.S. § 12-821.01, and (iii) Simon did not certify whether expert testimony was necessary, in violation of A.R.S. § 12-2603(A) (Supp.2009). Simon's response stated that he knew nothing about the jural status of MMC and argued that he complied with the notice of claim statute by mailing a copy of his notice of claim to MMC.

¶ 6 The court determined Simon's action was barred by his failure to comply with A.R.S. § 12-821.01. It granted both the Officers' and MMC's motions in an unsigned minute entry dated February 9, 2009.

¶ 7 Simon appealed from the unsigned minute entry. Pursuant to this Court's May 8, 2009 order revesting jurisdiction in the superior court, the court issued a signed order corresponding to its February 9, 2009 minute entry on May 28, 2009. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003). ⁵ See Eaton Fruit Co. v. Cal. Spray-Chem. Corp., 102 Ariz. 129, 130, 426 P.2d 397, 398 (1967).

ANALYSIS

¶ 8 On appeal, Simon argues that the superior court erred in determining that the Police Department and MMC were non-jural entities. Simon also argues that the superior court erroneously concluded that he failed to comply with A.R.S. § 12-821.01(A) because 1) all defendants actually received a notice of claim from him, 2) an unspecified person he sent the notice of claim to was an agent of the Officers, 3) he substantially complied with the notice of claim statute, 4) his failure to comply with the statute resulted from excusable neglect, 5) the notice of claim statute violates Arizona's constitutional anti-abrogation clause, 6) the notice of claim statute violates due process because it is unduly vague, and 7) the superior court lacked jurisdiction to enter an order dismissing his case for noncompliance with the notice of claim statute. Finally, he argues that a consistent pattern of judicial rulings favoring his opponents demonstrates that the superior court was biased against him in violation of his right to due process.

¶ 9 In relation to each motion in the trial court, at least one of the parties attached documents outside the pleadings. The court's consideration of those documents converted the motion to one for summary judgment. Ariz. R. Civ. P. 12(b). We review a grant of summary judgment de novo. Yollin v. City of Glendale, 219 Ariz. 24, 27, ¶ 6, 191 P.3d 1040, 1043 (App.2008). We construe all facts in favor of the nonmoving party and affirm only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

I. The Phoenix Police Department and the Maricopa Medical Center Should Not Have Been Dismissed as Non-Jural Entities

¶ 10 Arizona Rule of Civil Procedure (“Ariz. R. Civ. P.”) 17(d) requires that certain government entities be sued in their own names, but does not specify the remedy when a plaintiff fails to comply. When a plaintiff improperly names a non-jural entity, but properly serves the associated jural entity, the remedy for the error is amendment pursuant to Rule 10(f) ⁶ and not dismissal. Hedlund v. Holmes Tuttle Broadway Ford, Inc., 130 Ariz. 237, 239, 635 P.2d 525, 527 (App.1981); Harmon v. Meyer, 146 Or.App. 295, 933 P.2d 361, 364 (1997); see also Johnson v. Manders, 127 Or.App. 147, 872 P.2d 420, 421 (1994) (holding that complaint naming non-jural entity (decedent's estate) is valid against related jural entity (decedent's personal representative) when related jural entity received service); Simpson v. Shaw, 71 Ariz. 293, 296, 226 P.2d 557, 560 (1951) (permitting caption amendment to correct party's initial); 67A C.J.S. Parties § 227 (2009) (“Under the theory of ‘misnomer,’ when an intended defendant is sued under an incorrect name, the court acquires jurisdiction after service with the misnomer if it is clear that no one was misled or placed at a disadvantage by the error.”).

¶ 11 In Hedlund, the plaintiff filed a complaint naming “Holmes Tuttle Broadway Ford” as defendant on the day the statute of limitations expired. 130 Ariz. at 237, 635 P.2d at 525. Before serving the defendant, the plaintiff amended the complaint to reflect the defendant's proper name, “Holmes Tuttle Broadway Ford, Inc.” Id. The defendant filed a motion for summary judgment arguing that the amendment substituted parties and did not relate back to the original complaint. Id. We held that correction of a misnomer was not a change in party and reversed the superior court's grant of judgment to the defendant. Id. at 239, 635 P.2d at 527; accord Nat'l Refund & Utility Servs., Inc. v. Plummer Realty Corp., 22 A.D.3d 430, 803 N.Y.S.2d 63, 64 (2005) (permitting correction of Corp. to Inc.).

¶ 12 In Johnson, the plaintiff filed a complaint against the estate of a decedent who had injured her in an automobile collision. 872 P.2d at 420. She served the personal representative. Id. The trial court dismissed the complaint because the personal representative, rather than the estate, was the proper party. Id. at 421. The Court of Appeals reversed, holding that the complaint adequately identified the personal representative as the defendant notwithstanding the erroneous caption. Id. Reading the complaint as a whole, the Court of Appeals found that the factual allegations were adequate to alert the personal representative to the nature of the liability. Id. at 421-22. Therefore the complaint named the personal representative, notwithstanding the defective caption, and no substitution of parties was necessary. Id.; accord Taylor v. Hospice of Henderson County, Inc., 194 N.C.App. 179, 668 S.E.2d 923, 926 (2008); Fink v. Regent Int'l Hotels Ltd., 234 A.D.2d 39, 650 N.Y.S.2d 216, 217-18 (1996) (amending caption by order of appellate court when ...