IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


  NOREEN PASSMORE and CLIFFORD PASSMORE, a married couple,
                    Plaintiffs/Appellants,

                                      v.

 JAMES W. MCCARVER, M.D., and PATRICIA MCCARVER, a married
 couple; PRESCOTT VALLEY PRIMARY AND URGENT CARE CLINIC,
  an Arizona business entity; ELLEN LORENZ, C.F.N.P., and RODNEY
                      LORENZ, a married couple,
                          Defendants/Appellees.

                           No. 1 CA-CV 15-0420
                             FILED 4-6-2017


           Appeal from the Superior Court in Yavapai County
                        No. P1300CV201401138
               The Honorable David L. Mackey, Judge

                               AFFIRMED


                                COUNSEL

Laurence M. Berlin, Esq., Tucson
By Laurence M. Berlin
Counsel for Plaintiffs/Appellants

Campbell, Yost, Clare & Norell, PC, Phoenix
By Renee M. Coury, Jeffrey McLerran

Jones, Skelton & Hochuli, PLC, Phoenix
By Eileen Dennis GilBride
Co-Counsel for Defendants/Appellees James W. McCarver, Patricia McCarver,
and Prescott Valley Primary and Urgent Care Clinic
Broening Oberg Woods & Wilson PC, Phoenix
By James R. Broening, Megan E. Gailey, Kevin R. Myer
Counsel for Defendants/Appellees Ellen Lorenz and Rodney Lorenz



                                 OPINION

Acting Presiding Judge Peter B. Swann delivered the opinion of the court,
in which Judge Patricia A. Orozco (retired) and Chief Judge Michael J.
Brown joined.


S W A N N, Judge:

¶1           The superior court dismissed appellants’ medical malpractice
action without prejudice for failure to serve preliminary expert affidavits
under A.R.S. § 12-2603. Appellants then sought to refile the action under
Arizona’s “savings statute,” A.R.S. § 12-504, but the court found that relief
was not available under that statute and dismissed the claims with
prejudice. We affirm. First, we hold that appellants were not entitled to
automatic relief under § 12-504, because the original dismissal constituted
a dismissal for failure to prosecute within the meaning of the statute.
Second, we hold that the court did not abuse its discretion by otherwise
denying relief under § 12-504.

                FACTS AND PROCEDURAL HISTORY1

¶2             In March 2013, Noreen and Clifford Passmore (“Plaintiffs”)
filed a medical malpractice action against James W. McCarver, M.D., Ellen
Lorenz, C.F.N.P., and Prescott Valley Primary and Urgent Care Clinic
(collectively, “Defendants”).2 Concurrent with the complaint, Plaintiffs
certified under A.R.S. § 12-2603(A) that “[e]xpert testimony . . . may be
necessary to prove Defendants fell below the standard of care.” But they
did not thereafter serve preliminary expert affidavits within the time
prescribed by § 12-2603(B). And though the parties later agreed to a March
2014 deadline for service of the affidavits and the court eventually

1     We take judicial notice of relevant superior-court orders not
included in the record on appeal. See In re Sabino R., 198 Ariz. 424, 425, ¶ 4
(App. 2000).

2     Yavapai Regional Medical Center was also named as a defendant,
but was later dismissed without objection.


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approved the agreement, Plaintiffs failed to meet that deadline as well.
Defendants then moved for dismissal.

¶3             By the time the court held oral argument in September 2014,
Plaintiffs still had not provided the affidavits. The court granted
Defendants’ motion to dismiss and directed them to submit a proposed
form of judgment. Defendants’ proposed judgment contemplated a
dismissal “with prejudice” and cited “the failure to . . . prosecute this case,”
an “intentional and willful failure to comply with a court order and Arizona
statute,” and Ariz. R. Civ. P. 41(b), which authorizes presumptive “with
prejudice” dismissals for failure to prosecute or comply with rules or court
orders. Plaintiffs objected to the proposed judgment, arguing that the
motion to dismiss had not mentioned Rule 41(b), that the court’s order had
not mentioned either Rule 41(b) or intentional or willful conduct, and that
§ 12-2503(F) required dismissal without prejudice. In November 2014, the
court held that Defendants’ proposed judgment “exceed[ed] the scope of
the Court’s . . . Ruling,” and ordered the claims “DISMISSED without
prejudice pursuant to A.R.S. § 12-2603(F).”

¶4            Approximately two weeks later, Plaintiffs refiled their claims.
Defendants filed a motion to dismiss based on the statute of limitations.
Plaintiffs did not dispute that the statute of limitations had expired, but
argued that the new action was automatically proper under A.R.S. § 12-504
because the original dismissal was not for lack of prosecution. Plaintiffs
also argued in the alternative that even if the dismissal was for lack of
prosecution, the court should exercise its discretion under § 12-504 to
permit the new action.

¶5            The court held that it “[would] not make new findings
concerning [the] prior case” but “[could] not ignore the result of the prior
case, given that the [same judge] was also the assigned judge” in that case.
The court concluded that, “[h]aving considered all the facts and
circumstances of what went on in that prior case, the Court does determine
that the dismissal under [A.R.S. § 12-2603(F)] was for lack of prosecution.”
The court further concluded that “the exercise of discretion would not be
appropriate and Plaintiffs’[ ]request for discretion for the savings of this
particular case is denied.” The court dismissed the new action with
prejudice.

¶6            Plaintiffs timely appeal.




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                               DISCUSSION

¶7            A.R.S. § 12-504 creates a remedial procedure by which
plaintiffs may, in some circumstances, refile terminated actions without
regard to the statute of limitations. Janson v. Christensen, 167 Ariz. 470, 470,
472 (1991). The statute includes a mandatory provision and a discretionary
provision. Roller Village, Inc. v. Superior Court (Dow), 154 Ariz. 195, 197
(App. 1987). First, § 12-504(A) provides:

       If an action is commenced within the time limited for the
       action, and the action is terminated in any manner other than
       by abatement, voluntary dismissal, dismissal for lack of
       prosecution or a final judgment on the merits, the plaintiff or a
       successor or personal representative, may commence a new action
       for the same cause after the expiration of the time so limited
       and within six months after such termination.

(Emphases added.) Second, § 12-504(A) provides:

       If an action timely commenced is terminated by abatement,
       voluntary dismissal by order of the court or dismissal for lack
       of prosecution, the court in its discretion may provide a period
       for commencement of a new action for the same cause,
       although the time otherwise limited for commencement has
       expired. Such period shall not exceed six months from the
       date of termination.

(Emphases added.)         We interpret § 12-504(A)’s mandatory- and
discretionary-relief provisions de novo. See Sedona Grand, LLC v. City of
Sedona, 229 Ariz. 37, 39, ¶ 8 (App. 2012). We review the grant of a motion
to dismiss and the denial of discretionary relief under § 12-504(A) for abuse
of discretion. Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11 (2006); Copeland
v. Ariz. Veterans Mem’l Coliseum & Exposition Ctr., 176 Ariz. 86, 91 (App.
1993).

I.     PLAINTIFFS WERE NOT ENTITLED TO AUTOMATIC RELIEF
       UNDER § 12-504(A), BECAUSE THE DISMISSAL OF THE
       ORIGINAL ACTION UNDER § 12-2603 WAS A DISMISSAL FOR
       FAILURE TO PROSECUTE.

¶8            Plaintiffs first contend that they were entitled to refile as a
matter of right under § 12-504(A) because their initial action was dismissed
in a “manner other than by abatement, voluntary dismissal, dismissal for
lack of prosecution or a final judgment on the merits.” Specifically, they


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contend that a dismissal without prejudice under § 12-2603(F) is not
equivalent to a dismissal for lack of prosecution. We hold that when a case
is dismissed for failure to serve a preliminary expert affidavit under
§ 12-2603, the dismissal is for lack of prosecution.

¶9             The superior court has discretion to dismiss cases that are not
diligently prosecuted. Cooper v. Odom, 6 Ariz. App. 466, 469 (1967); see also
Ariz. R. Civ. P. 41(b). “Mere delay can be the basis of dismissal.” Cooper, 6
Ariz. App. at 469. Failure to serve the preliminary affidavit required by §
12-2603 is an unambiguous form of delay. Section 12-2603 seeks to “curb
frivolous medical malpractice lawsuits by imposing a stricter standard of
pleading and setting deadlines for the early involvement of the plaintiff’s
expert witnesses.” Gorney v. Meany, 214 Ariz. 226, 229, ¶ 8 (App. 2007). To
that end, the statute defines specific tasks that must be completed by
specific deadlines to prosecute claims against health care professionals,
along with specific procedures whereby plaintiffs may obtain extensions of
time and opportunities to cure deficiencies. See A.R.S. § 12-2603(A)–(C), (F).
Accordingly, a dismissal for failure to comply with the statute’s directive to
serve a preliminary affidavit is a dismissal for failure to prosecute.
Plaintiffs’ second action therefore did not fall within the scope of § 12-504’s
mandatory-relief provision — without regard to whether the court had
firsthand knowledge of the original action.

¶10             The court’s ruling did not, as Plaintiffs contend, create “new
findings re[garding] the original case.” The court simply recognized the
legal effect of the first judgment. And contrary to Plaintiffs’ contention, the
fact that the court rejected Defendants’ proposed form of judgment in the
first action does not compel a different outcome. The procedural history
regarding the proposed form of judgment in the first action reflects that the
court correctly declined to apply Rule 41(b)’s presumption of dismissals
with prejudice in view of § 12-2603(F)’s prescription of dismissals without
prejudice. See Ariz. R. Civ. P. 41(b) (“Unless the court in its order for
dismissal otherwise specifies, a dismissal under this subdivision . . .
operates as an adjudication upon the merits.”); Sanchez v. Old Pueblo
Anesthesia, P.C., 218 Ariz. 317, 323, ¶ 20 (App. 2008) (holding that § 12-2603
“does not contemplate dismissal with prejudice as a sanction for a deficient
preliminary affidavit”). The procedural history does not suggest that the
dismissal was for any reason other than Plaintiffs’ failure to serve
preliminary expert affidavits and thereby prosecute their case.




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                     PASSMORE v. MCCARVER, et al.
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II.    THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY
       DENYING DISCRETIONARY RELIEF UNDER § 12-504(A).

¶11           Plaintiffs next contend that they were entitled to relief under
§ 12-504(A)’s discretionary provision. The record supports the superior
court’s denial of relief.

¶12              “[T]he very nature of the discretionary portion of [§ 12-
504(A)] requires a case-by-case application and evaluation.” Jepson v. New,
164 Ariz. 265, 271 (1990). The standard “must be flexible” and “must ensure
that the statute is not misused as a safe haven for the dilatory and a loophole
through which parties may avoid the applicable rules of practice and
procedure.” Id. In deciding how to exercise its discretion under the statute,
the court must consider several factors: “whether the plaintiff acted
reasonably and in good faith, whether he prosecuted his case diligently and
vigorously, whether a procedural impediment exists which affects his
ability to file a second action, and whether either party will be substantially
prejudiced.” Id. at 272 (citation omitted). The plaintiff bears the burden to
show entitlement to relief. Id.

¶13            The record shows that Plaintiffs failed to file any affidavits
under § 12-2603 even after obtaining a significant extension of time.
Plaintiffs’ primary explanation for the delinquency was that they had
difficulty determining the specialty of the expert who should opine as to
McCarver’s standard of care, and had difficulty communicating with their
chosen expert regarding Lorenz’s standard of care, first because Plaintiffs’
counsel’s office flooded and later because the expert relocated. It was
within the court’s discretion to find those explanations insufficient to justify
a conclusion that Plaintiffs acted reasonably and in good faith, especially in
view of the length of the delay and Plaintiffs’ failure to comply with the
stipulated extension. Further, it was within the court’s discretion to find
that the prejudice caused to Plaintiffs by denying relief under § 12-504 was
outweighed by the prejudice that Defendants would suffer were the claims
allowed to move forward in view of the extreme and unjustified delay. See
Jepson, 164 Ariz. at 274 (“[A]lthough the case is now barred by the statute of
limitations and in balancing the prejudice in that regard it appears that the
hardship is greatest upon [the plaintiff], all factors must be considered
together.”). Considering the totality of the circumstances, the court
reasonably concluded that Plaintiffs failed to meet their burden to show
entitlement to relief under the savings statute.




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                  PASSMORE v. MCCARVER, et al.
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                            CONCLUSION

¶14          For the foregoing reasons, we affirm the court’s judgment
dismissing Plaintiffs’ claims with prejudice.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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