Thielking v. Kirschner

• Decision Date: 07 September 1993
• Docket Number: CA-CV,No. 1,1
• Citation: Thielking v. Kirschner, 176 Ariz. 154, 859 P.2d 777 (Ariz. App. 1993)
• Parties: In re the Matter of Nora THIELKING, Plaintiff-Appellant, v. Leonard KIRSCHNER, as Director of the Arizona Health Care Cost Containment System Administration; Arizona Health Care Cost Containment System Administration; Julie Trepeta, as Director, Medical Administration Mercy Care Plan; Mercy Care Plan, Defendants-Appellees. 90-584.
• Court: Arizona Court of Appeals

Page 777

859 P.2d 777

176 Ariz. 154

In re the Matter of Nora THIELKING, Plaintiff-Appellant, v. Leonard KIRSCHNER, as Director of the Arizona Health Care Cost Containment System Administration; Arizona Health Care Cost Containment System Administration; Julie Trepeta, as Director, Medical Administration Mercy Care Plan; Mercy Care Plan, Defendants-Appellees.

No. 1 CA-CV 90-584.

Court of Appeals of Arizona Division 1, Department C.

Sept. 7, 1993.

[176 Ariz. 155] Sharon E. Sergent, Glendale, for appellant.

Gammage & Burnham by Richard B. Burnham, Susan L. Watchman, Phoenix, for appellees Trepeta/Mercy Care Plan.

Johnston, Maynard, Grant & Parker by Charles J. Adornetto, Phoenix, for appellees Kirschner/AHCCCS.

OPINION

FIDEL, Judge.

We hold in this appeal that Rule 6(e), Arizona Rules of Civil Procedure, extends the time for filing a superior court complaint seeking judicial review of an administrative decision when the decision has been served by mail. In doing so, we reconsider and reject the analysis of United Farm Workers v. Arizona Agricultural Employment Relations Board, 149 Ariz. 70, 716 P.2d 439 (App.1986).

I. PROCEDURAL HISTORY

Plaintiff/appellant Nora Thielking (Thielking) received medical care through Mercy Care Plan (Mercy), a health plan within the Arizona Health Care Cost Containment System (AHCCCS). See Ariz.Rev.Stat.Ann. ("A.R.S.") §§ 36-2901 to

-2975 (1986 & Supp.1992). When Mercy denied Thielking coverage for orthognathic surgery, Thielking sought administrative review. On May 1, 1990, at the conclusion of administrative proceedings, AHCCCS issued a final decision denying coverage. On that same date, AHCCCS mailed its decision by certified mail to Thielking's attorney, who received it on May 3. On June 7, 1990, Thielking filed a complaint in the superior court seeking review of the administrative decision, a trial de novo, injunctive relief, declaratory relief, and a writ of mandate. The defendants moved to dismiss, challenging the timeliness of the complaint and the propriety of joining an administrative review action with the remaining claims for relief. The trial court concluded that, because Thielking did not file a timely complaint, it lacked jurisdiction to review the administrative decision. The court further found that Thielking could not extend the time limit for an administrative appeal by filing claims for special action and declaratory relief.

Arizona's Administrative Review Act, A.R.S. sections 12-901 through -914 (1992), establishes a thirty-five day time limit, measured from the date of service of a final administrative decision, for filing a complaint seeking judicial review of an administrative decision. A.R.S. § 12-904. Thielking concedes that she filed her complaint more than thirty-five days after service of the AHCCCS decision. She also concedes that the time limit for filing an appeal under section 12-904 is jurisdictional, see Hurst v. Bisbee Unif. Sch. Dist., 125 Ariz. 72, 75, 607 P.2d 391, 394 (App.1979), and that, when a party fails to seek timely review, the administrative decision becomes final. State ex rel. Dandoy v. City of Phoenix, 133 Ariz. 334, 337, 651 P.2d 862, 865 (App.1982); see also A.R.S. § 12-902.B (unless review is sought within time provided by statute, review of the administrative decision is barred). Thielking argues that her filing was timely, however, on the following grounds:

1. that rule 6(e), Arizona Rules of Civil Procedure, expanded her filing time by five days because the administrative decision was served by mail;

2. that time does not run under section 12-904 until service is received;

3. that the agency erred by mailing its decision only to her attorney and not personally to her; and

4. that, independently of her 12-904 appeal, she filed timely claims for declaratory judgment and special action relief.

II. PRELIMINARY MATTERS

Before examining the interrelationship between Rule 6(e) and A.R.S. section 12-904, the principal issue in this case, we address the other issues Thielking has raised.

A. The Claims for Declaratory and Special Action Relief

We first hold that the trial court correctly dismissed those portions of Thielking's complaint seeking declaratory relief and a writ of mandate (special action). A party attempting to correct errors in an appealable administrative decision cannot substitute a declaratory relief action for a timely appeal. Tanner v. Arizona State Land Dep't, 142 Ariz. 183, 187, 688 P.2d 1075, 1079 (App.1984); see also Arizona Bd. of Regents v. Harper, 108 Ariz. 223, 229, 495 P.2d 453, 459 (1972). Nor can such a party avoid the requirements of timely appeal by seeking relief in the nature of mandamus or special action. Hurst, 125 Ariz. at 75, 607 P.2d at 394. The issues that Thielking raises in the declaratory judgment and special action portions of her complaint, she also raises in her appeal; and her entire claim must stand or fall on the timeliness of that appeal.

B. Time Runs Under 12-904 From Service, Not Receipt

Second, we reject Thielking's argument that her time to file an administrative review proceeding did not begin to run on the date the agency served its final decision but rather on the date she received it.

Section 12-904, which we set forth in its entirety below, expressly requires that a party file such a proceeding "within thirty-five days from the date when a copy of the decision sought to be reviewed is served upon the party affected." The statute further provides that, if the administrative agency does not establish a different method of service, the decision is "deemed to have been served when personally delivered or mailed by registered mail." (emphasis added). The agency in this case has not established a different method of service. Rather, AHCCCS regulation A.A.C. R9-22-802(E)(1) tracks section 12-904 by directing that the final written decision be personally delivered or mailed by certified mail to all parties. ¹ Accordingly, this issue is resolved by section 12-904's provision that a decision is "deemed to have been served" when mailed. Because the AHCCCS director's decision is deemed served on the date a copy was mailed by certified mail, Thielking's time to seek review began running on that date.

C. Service on Thielking's Lawyer

We also reject Thielking's argument that the time for filing her administrative appeal did not start running when her attorney was mailed the decision because Thielking should have been personally served.

In October 1989, Thielking's lawyer entered her appearance in the AHCCCS proceedings and requested in writing that all future notices be sent to her. AHCCCS sent all future notices to that attorney, not to Thielking personally, and there is no indication in the record that Thielking ever objected.

Moreover, Rule 5(c)(1), Arizona Rules of Civil Procedure, provides, "Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court." The rules of civil procedure apply to proceedings in Article 6 of Title 12, Chapter 7 (judicial review of administrative decisions), unless a provision in that article conflicts with a rule. See A.R.S. § 12-914. Because section 12-904 does not preclude service on a party's attorney as a means of satisfying the requirement of service on a party, the statute does not conflict with Rule 5(c), and the administrative agency could properly follow the rule.

For these reasons, service on Thielking's attorney was proper and did not delay the running of the thirty-five day period for filing a complaint for judicial review.

III. THE INTERRELATIONSHIP OF RULE 6(e) AND § 12-904

Thielking argues that because AHCCCS mailed her its decision, Rule 6(e) of the Arizona Rules of Civil Procedure ("Rule 6(e)") adds five mailing days to the period for filing her appeal. If she is correct, her appeal is timely; if she is incorrect, it is not.

This is not an issue of first impression. In United Farm Workers of Am., AFL-CIO v. Arizona Agric. Employment Relations Bd. ("UFW"), 149 Ariz. 70, 716 P.2d 439 (App.1986), Division Two of this court considered and rejected the same argument that Thielking advances now. We do not reject a decision by our colleagues lightly. See, e.g., Scappaticci v. Southwest Sav. & Loan Ass'n, 135 Ariz. 456, 461, 662 P.2d 131, 136 (1983). However, for the reasons that follow, we are persuaded that the UFW decision is wrong.

A. The Rule and Statute Are Complementary, Not Inconsistent

Rule 6(e) has accustomed generations of Arizona lawyers to expand the prescribed response time to a document served by mail. It provides:

Additional time after service by mail. Whenever a party has the right or is required to take some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, five days shall be added to the prescribed period. This rule has no application to the mailing of notice of entry of judgment required by Rule 77(g). ²

The Rule--whose last sentence states a single exception not applicable here--governs civil proceedings in the superior court. Because administrative appeals such as appellant's are civil proceedings in the superior court, to be filed within a prescribed period after service of a decision serveable by mail, they fall within the sweep of Rule 6(e).

The UFW decision reads A.R.S. section 12-904 to bar application of Rule 6(e). Specifically, it reads the thirty-five day appeal time of the statute as jurisdictionally insusceptible to expansion by a time-expanding rule. 149 Ariz. at 73, 716 P.2d at 442. Our disagreement with that decision begins with the text of 12-904:

Commencement of action. An action to review a final administrative decision shall be commenced by filing a complaint within thirty-five days from the date when a copy of the...