Opinion
No. 1 CA-CV 12-0443
03-12-2013
EVELYN DUNCAN, an individual, Plaintiff/Appellant, v. CITY OF PHOENIX, a governmental entity, Defendant/Appellee.
Schneider & Onofry PC By Jonathan D. Schneider and Luane Rosen Attorneys for Plaintiff/Appellant Phoenix Office of the Phoenix City Attorney By Shannon M. Bell, Assistant City Attorney Attorneys for Defendant/Appellee Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2011-017716
The Honorable J. Richard Gama, Judge
AFFIRMED
Schneider & Onofry PC
By Jonathan D. Schneider and Luane Rosen
Attorneys for Plaintiff/Appellant
Phoenix Office of the Phoenix City Attorney
By Shannon M. Bell, Assistant City Attorney
Attorneys for Defendant/Appellee
Phoenix BROWN, Judge ¶1 Evelyn Duncan appeals the trial court's order dismissing her complaint based on her failure to submit a timely notice of claim to the City of Phoenix. For the reasons set forth below, we affirm.
BACKGROUND
¶2 On October 20, 2010, Duncan drove to the Saguaro Branch Library in Phoenix and parked in one of the spaces reserved for disabled patrons. After stepping out of her car onto a "patch-back area," she lost her balance and fell backwards against her car. An ambulance transported Duncan to a nearby hospital where she was diagnosed with a fractured wrist, a skinned elbow, and aggravation of a preexisting back injury. A few days after her fall, Duncan returned to the parking lot with her son and noticed that the patch-back area appeared to have been built with too steep of a grade. According to her complaint, Duncan subsequently learned that the grade of the patch-back area violated the Americans with Disabilities Act ("ADA"). On April 19, 2011, 181 days after her fall, Duncan served a notice of claim on the City requesting damages. The City did not agree to settle the claim and Duncan sued the City for negligence on September 22, 2011. ¶3 The City moved to dismiss Duncan's complaint pursuant to Arizona Rule of Civil Procedure 12(b)(6), asserting her notice of claim was untimely under Arizona Revised Statutes ("A.R.S.") section 12-821.01(A) (2012). Specifically, the City argued Duncan's claim accrued on October 20, 2010, the day of her fall, because on that date, "[s]he knew or reasonably should have known that the source which caused or contributed to her fall was the ground of the parking stall in which she parked." In response to the City's motion, Duncan argued that the "180 day period did not begin to run . . . until she [knew or] should have known that the patch-back area was in violation of the ADA." Although Duncan's response made an alternative request for leave to amend her complaint to allege facts demonstrating the timeliness of her notice of claim, she filed no formal motion seeking leave to amend. The trial court granted the City's motion, stating that as of the date of the fall Duncan "possessed the minimum requisite knowledge needed to identify that a wrong occurred and caused injury." The court did not address Duncan's alternative request for leave to amend the complaint, and this timely appeal followed.
As described in the complaint, the patch-back area is approximately fifteen inches wide and abuts a curb located on the edge of the parking space.
Absent material revisions after the relevant date, we cite the current version of statutes.
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DISCUSSION
¶4 Duncan argues the trial court erred in finding that her notice of claim was untimely under A.R.S. § 12-821.01(A). We review de novo the trial court's dismissal of a complaint under Arizona Rule of Civil Procedure 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, ____, ¶ 7, 284 P.3d 863, 866 (2012) . We will uphold the dismissal "only if 'as a matter of law [Duncan] would not be entitled to relief under any interpretation of the facts susceptible of proof.'" Id. at ____, ¶ 8, 284 P.3d at 867 (quoting Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998)). And in making that determination, we "must assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient." Id. at ¶ 9. ¶5 Under A.R.S. § 12-821.01(A), a person who desires to file a lawsuit against a public entity must first file a notice of claim "within one hundred eighty days after the cause of action accrues." A cause of action accrues "when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage." A.R.S. § 12-821.01(B). If the notice of claim is not filed within the 180-day time limit, the claim is barred. A.R.S. § 12-821.01(A); see also Falcon ex rel. Sandoval v. Maricopa Cnty. , 213 Ariz. 525, 527, ¶ 10, 144 P.3d 1254, 1256 (2006). ¶6 In applying the accrual language of § 12-821.01(B), our court has noted that "[t]he legislative history of [the] statute, added in 1994, indicates that its intent was to 'reinsert the discovery rule' from a former version." Stulce v. Salt River Project Agric. Improvement & Power Dist., 197 Ariz. 87, 90, ¶ 11, 3 P.3d 1007, 1010 (App. 1999). A common-law doctrine, the discovery rule provides that "while an injured person need not know all the facts underlying a cause of action to trigger accrual[,] the plaintiff must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury." Walk v. Ring, 202 Ariz. 310, 316, ¶ 22, 44 P.3d 990, 996 (2002) (internal quotations and citation omitted). Applied in the specific context of § 12-821.01(B), "'the core question' . . . is when a 'reasonable person would have been on notice' to investigate whether negligent conduct may have caused her injury; [the rule] does not provide or suggest that a plaintiff first must receive an expert . . . opinion[.]" Little v. State, 225 Ariz. 466, 470, ¶ 13, 240 P.3d 861, 865 (App. 2010) (quoting Walk, 202 Ariz. at 316, ¶ 24, 44 P.3d at 996). While "[w]e recognize that whether a cause of action has accrued is 'usually and necessarily' a question of fact for the jury," if no issue of material fact exists, a trial court may determine the accrual date. Thompson v. Pima Cnty. , 226 Ariz. 42, 46-47, ¶ 14, 243 P.3d 1024, 1028-29 (App. 2010). ¶7 According to Duncan, the trial court failed to apply the discovery rule. We disagree. In its minute entry dismissing Duncan's complaint, the trial court cited Little and Stulce and aptly described the discovery rule, albeit without formally referring to it as such. ¶8 Duncan also asserts the trial court incorrectly applied the discovery rule when it determined that on the date of her fall, Duncan "knew or reasonably should have known the cause of her injury." Duncan argues she "had no reason to suspect that the condition of the parking stall was a potential violation of the ADA" until she returned to the accident scene with her son. Duncan's complaint, however, did not include any allegation about returning to the parking stall with her son. See Coleman, 230 Ariz. at ____, ¶ 9, 284 P.3d at 867 ("Courts look only to the pleading itself when adjudicating a 12(b)(6) motion." (internal quotations and citation omitted)). Nevertheless, even assuming the truth of that assertion, which Duncan raised for the first time in her response to the City's motion to dismiss, we agree that dismissal of the complaint was proper. ¶9 The record indicates that on October 20, when Duncan exited her vehicle and stepped on the allegedly steep patch-back area, she fell to the ground, injuring herself. Duncan's decision to return to the scene with her son a few days after her fall belies her argument that before she returned, she was not "on notice to investigate whether negligent conduct may have caused her injury." Little, 225 Ariz. at 470, ¶ 13, 240 P.3d at 865. ¶10 Furthermore, we are not persuaded by Duncan's argument that her cause of action accrued only when she learned that the condition violated the ADA. Indeed, this court has rejected similar arguments, concluding that verification of wrongdoing or negligence is not what triggers accrual under § 12-821.01. See Little, 225 Ariz. at 470, ¶ 13, 240 P.3d at 865 (rejecting plaintiff's argument that her cause of action did not accrue until she had received an "expert medical opinion of malpractice"); Thompson, 226 Ariz. at 47, ¶ 14, 243 P.3d at 1029 (finding that plaintiffs' lack of expert opinion until a certain date did "not mean they reasonably should not have known the cause of the accident before that time."). Rather, the claim accrued when Duncan knew or reasonably should have known she should investigate whether any condition existed at the library parking lot that caused her injury. See A.R.S. § 12-821.01(B) (stating a claim accrues when injured party "knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage"). Duncan was therefore on notice to perform such an investigation as of October 20 and the trial court did not err in dismissing her complaint based on an untimely notice of claim. ¶11 Duncan also argues the trial court abused its discretion by denying her request to amend her complaint. We note, however, that when first faced with the City's motion to dismiss, Duncan could have amended her complaint as a matter of right. See Ariz. R. Civ. P. 15(a)(1)(B). Duncan did not do so, nor did she make a proper request to amend. See Ariz. R. Civ. P. 7.1(a) (setting forth "Formal Requirements" for "Civil Motion Practice"); 15(a)(2) ("A party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion . . . "). Furthermore, the court's minute entry does not reflect an understanding that Duncan properly sought to amend her complaint and she never sought any clarification from the court on that issue. Accordingly, because Duncan never filed an amended complaint or properly requested leave to amend, we deem that argument waived and do not address it. See Sobol v. Marsh, 212 Ariz. 301, 303, ¶ 7, 130 P.3d 1000, 1002 (App. 2006) ("As a general rule, a party cannot argue on appeal legal issues and arguments that have not been specifically presented to the trial court.")
CONCLUSION
¶12 We affirm the trial court's order dismissing Duncan's complaint.
_________________
MICHAEL J. BROWN, Judge
CONCURRING: _________________
SAMUEL A. THUMMA, Presiding Judge
_________________
DIANE M. JOHNSEN, Judge