Viniegra v. Town of Parker Mun. Prop. Corp.

• Court: Arizona Court of Appeals
• Writing for the Court: KESSLER, Judge
• Citation: Viniegra v. Town of Parker Mun. Prop. Corp., 241 Ariz. 22, 383 P.3d 665, 749 Ariz. Adv. Rep. 19 (Ariz. App. 2016)
• Decision Date: 06 October 2016
• Docket Number: No. 1 CA–CV 15–0359,1 CA–CV 15–0359
• Parties: Luis Angel Viniegra and Sylvia De La Huerta–Viniegra, husband and wife, Plaintiffs/Appellants, v. Town of Parker Municipal Property Corporation, an Arizona non-profit corporation, Defendant/Appellee.

241 Ariz. 22

383 P.3d 665

749 Ariz. Adv. Rep. 19

Luis Angel Viniegra and Sylvia De La Huerta–Viniegra, husband and wife, Plaintiffs/Appellants,

v.Town of Parker Municipal Property Corporation, an Arizona non-profit corporation, Defendant/Appellee.

No. 1 CA–CV 15–0359

Court of Appeals of Arizona, Division 1.

FILED October 6, 2016

Parker Law Firm PLC, Phoenix, By John D. Parker, II, Counsel for Plaintiffs/Appellants

Popham Law Group PLC, Avondale, By Gary L. Popham, Jr., Counsel for Defendant/Appellee

Judge Donn Kessler delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Randall M. Howe joined.

OPINION

KESSLER, Judge:

¶ 1 Luis Angel Viniegra (“Viniegra”) and Sylvia De La Huerta–Viniegra (collectively, “Plaintiffs”) appeal the superior court's order dismissing their case with prejudice as barred by the one-year statute of limitations applicable to public entities, Arizona Revised Statutes (“A.R.S.”) § 12–821 (2016).¹ Plaintiffs contend that the statute is unconstitutional and that on the facts of this case the statute should be equitably tolled. We conclude that the one-year statute of limitations for bringing actions against public entities does not violate equal protection or the anti-abrogation clause of the Arizona Constitution and that principles of equitable estoppel do not apply here. Accordingly, we affirm the superior court.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 On April 14, 2012, Viniegra slipped and fell at a funeral at the Town of Parker Cemetery, a property owned and operated by the Town of Parker Municipal Property Corporation (“Town”).² Viniegra suffered severe, ongoing injuries and immediately began treatment. The Town asked Viniegra to complete and submit a notice of claim in accordance with A.R.S. § 12–821.01(A) (2015). Viniegra timely submitted his notice of claim. Then, Berkley Risk Administrators, L.L.C. (“Berkley”), the Town's risk adjudicator, opened a claim, assigned a claim number, and received billing statements from Viniegra's physicians. In fall 2013, Viniegra finished treatment but allegedly will need treatment in the future. However, the Town never responded to the notice of claim.

¶ 3 On April 10, 2014, almost two years after the date of injury, Plaintiffs filed a complaint and alleged the Town and Doe Defendants'³ negligence was the direct and proximate cause of Plaintiffs' injuries and damages, and that the Town's and Berkley's⁴ conduct created an implied promise they would resolve Viniegra's claim without him having to file a lawsuit. The Town filed a motion to dismiss, and argued Plaintiffs' action was barred by the one-year statute of limitations set forth in A.R.S. § 12–821, which provides for a one-year statute of limitations for actions against public entities and employees,⁵ and the statute was not tolled by the notice of claim process. Plaintiffs claimed the statute should have been tolled because Viniegra was still actively treating his injuries one year after he slipped and fell, and that § 12–821 was unconstitutional.

¶ 4 The superior court granted the motion to dismiss and filed a signed judgment on March 26, 2015. On April 13, 2015, Plaintiffs moved to alter or amend the judgment, and asked the court to address their argument that § 12–821 is unconstitutional as it applies to personal injury cases. The court rejected the constitutional argument and denied the Rule 59 motion in a signed order.

¶ 5 On May 27, 2015, Plaintiffs filed a notice of appeal from the judgment and order. We have jurisdiction pursuant to A.R.S. §§ 12–2101(A)(1), (2) (Supp. 2015) and 12–120.21(A)(1) (2003).⁶

STANDARD OF REVIEW

¶ 6 We review a Rule 12(b)(6) dismissal de novo. Coleman v. City of Mesa , 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863 (2012). Dismissal is appropriate under Rule 12(b)(6) only if, as a matter of law, the “plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.” Id. at 356, ¶, 284 P.3d 863 8 (quoting Fid. Sec. Life Ins. Co. v. State Dep't of Ins. , 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580 (1998) ).

When determining whether a complaint states a claim on which relief can be granted, courts “must assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts.” Id. at ¶ 9.

DISCUSSION

¶ 7 Plaintiffs argue the superior court abused its discretion in finding that the Town was not equitably estopped from asserting the statute of limitations defense. Plaintiffs also argue § 12–821 is unconstitutional and violates their equal protection rights, and § 12–542, providing a two-year statute of limitations, should apply instead. For the reasons below, we disagree.

I. Equitable Estoppel

¶ 8 We first address Plaintiffs' equitable estoppel argument. If the Town should have been equitably estopped from asserting the statute of limitations defense, then we need not address the constitutional argument. See Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 6, 111 P.3d 1027 (App. 2005) (explaining that courts should avoid constitutional issues “when other principles of law are controlling and the case can be decided without ruling on the constitutional questions”) (quoting In re U.S. Currency of $315,900.00 , 183 Ariz. 208, 211, 902 P.2d 351 (App. 1995) ).

¶ 9 We review the superior court's decision not to apply equitable tolling for an abuse of discretion. Flying Diamond Airpark, LLC v. Meienberg , 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149 (App. 2007) (citations omitted). A court abuses its discretion when the record does not support its findings. Id. (citation omitted).

¶ 10 To determine if a defendant may be equitably estopped from asserting the statute of limitations defense, a court must evaluate whether the defendant made specific promises, threats, or inducements to prevent the plaintiff from filing suit, those acts actually induced the plaintiff to forbear from filing suit, the acts reasonably caused the plaintiff to forbear filing suit timely, and the plaintiff filed the suit within a reasonable time after termination of the conduct warranting estoppel. Nolde v. Frankie , 192 Ariz. 276, 280–81, ¶¶ 16–19, 964 P.2d 477 (1998) ; accord McBride v. Kieckhefer Assocs., Inc. , 228 Ariz. 262, 267, ¶ 23, 265 P.3d 1061 (App. 2011). The plaintiff bears the burden of proving the statute has been tolled. Anson v. Am. Motors Corp. , 155 Ariz. 420, 421, 747 P.2d 581 (App. 1987) (citation omitted). To meet this standard, the plaintiff must support his or her allegations with evidence and cannot rely solely on personal conclusions or assessments. McCloud v. State, Ariz. Dep't of Pub. Safety , 217 Ariz. 82, 87, ¶ 13, 170 P.3d 691 (App. 2007) (citation omitted).

¶ 11 “[A]s a matter of equity, a defendant whose affirmative acts of fraud or concealment have misled a person from either recognizing a legal wrong or seeking timely legal redress may not be entitled to assert the protection of a statute of limitations.” Porter v. Spader , 225 Ariz. 424, 428, ¶ 11, 239 P.3d 743 (App. 2010) (emphasis added) (citations omitted). Plaintiffs argue it would be inequitable and unjust for the Town to solicit the claim, open a claim with its risk adjuster, undertake to honor the claim, and thereby cause him to expect it would honor the claim and he would not have to sue.

¶ 12 We disagree with Plaintiffs. We find the discussion and holding in McBride instructive. In McBride, McBride alleged that defendant KAI wrongfully terminated his employment. 228 Ariz. at 264, ¶ 4, 265 P.3d 1061. KAI moved for summary judgment on the grounds that McBride's claims were barred by the one-year statute of limitations of § 12–541 (2003). Id. McBride argued that the parties' attorneys orally agreed that the statute of limitations would be tolled when the parties attempted to negotiate a settlement and therefore KAI should be equitably estopped from asserting a statute of limitations defense. Id. The trial court found that equitable estoppel did not apply. Id. at 267, ¶ 24, 265 P.3d 1061. We held equitable estoppel is more likely found “when the defendant has accepted liability or agreed to pay, but the parties have not yet negotiated the amount to be paid.” Id. at 268, ¶ 28, 265 P.3d 1061. Even though KAI attempted to work out a settlement with McBride, it did not acknowledge that it owed McBride anything.

Id. Thus, we affirmed the trial court on the equitable estoppel claim. Id. at ¶ 32.

¶ 13 Here, there was no evidence of an admission of liability, an agreement to settle or negotiate the claim, a payment, or any negotiations or agreement to toll the statute of limitations. See also Certain t eed Corp. v. United Pac. Ins. Co., 158 Ariz. 273, 274–76, 762 P.2d 560 (App. 1988) (noting that negotiation of a claim alone is insufficient to support a finding of estoppel if negotiations cease in time for the plaintiff to timely sue, but holding that estoppel applied where there were extensive settlement negotiations between the parties with an admission of liability of some of the claimed contractual damages before the statute had run). Nor were there any settlement negotiations between the parties, only the Town's suggestion that Plaintiffs submit a notice of claim. Thus, there is no evidence that the Town affirmatively misled Plaintiffs from filing a timely complaint. Viniegra's personal beliefs do not satisfy his burden of proof. McCloud , 217 Ariz. at 87, ¶ 13, 170 P.3d 691.

¶ 14 Further supporting our conclusion is the fact that the Town never responded to the notice of claim. If a party receives no response from a public entity within sixty days after the service of the notice of claim, the claim is deemed denied. A.R.S. § 12–821.01(E). Thus, without any further affirmative act on which estoppel could rest, Plaintiffs were aware the notice of claim was deemed denied and should have timely filed a complaint. Their failure to do so shows that the third and fourth factors for equitable tolling of the statute are not met; that the actions of the Town...