Hall v. Hardy

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

TAKIA SHENE HALL, Plaintiff/Appellant,

v.

RYAN WILLIAM HARDY, et al., Defendants/Appellees.

No. 1 CA-CV 22-0468
FILED 2-14-2023

Appeal from the Superior Court in Maricopa County
No. CV2021-051758
The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

Collins & Collins, L.L.P., Phoenix
By Joseph E. Collins
Counsel for Plaintiff/Appellant

Phoenix City Attorney’s Office, Phoenix
By Victoria R. Torrilhon
Counsel for Defendants/Appellees
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Daniel J. Kiley joined.

C R U Z, Judge:

¶1 Takia Shene Hall appeals the superior court’s dismissal of her
personal injury claim against the City of Phoenix (“the City”).1 For the
following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In June 2020, Ryan William Hardy (“Hardy”), a City
employee, drove a fire engine northbound on 26th Drive past a stationary
United States Postal Service (“USPS”) vehicle. Hall, an on-duty USPS
employee, was inside the USPS vehicle. As it passed the USPS vehicle, one
of the fire engine's passenger side mirrors collided with the USPS vehicle’s
rear driver-side mirror. Both vehicles sustained minor damage. Hall
served the City with a notice of claim in December 2020 but did not serve
Hardy with a notice of claim.

¶3 In May 2021, Hall filed a personal injury lawsuit against
Hardy and the City alleging claims of negligence against Hardy and
vicarious liability against the City. The City and Hardy answered and,
among other things, raised the affirmative defense that Hall had failed to
serve a notice of claim on Hardy as required by Arizona Revised Statutes
(“A.R.S.”) section 12-821.01.

¶4 In August 2021, Hall filed an “Unopposed Motion to Amend
Complaint.” Hall attached a proposed amended complaint to her motion,
which added a negligent entrustment of a vehicle claim against the City.
The proposed amended complaint named both the City and Hardy as
defendants. The superior court granted the motion.

1 The superior court also dismissed Hall’s claim against the City’s
employee, Ryan William Hardy. Hall makes no argument on appeal that
the superior court erred by dismissing Hardy. Accordingly, we do not
address Hardy’s dismissal. See ARCAP 13(a)(7).

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¶5 The next day, Hall filed an amended complaint which
differed from the unopposed proposed amended complaint. The amended
complaint eliminated Hardy from the caption and added the City’s
“agents” as defendants. The amended complaint referred to Hardy as
“Unnamed Ryan Hardy” and “Unnamed Defendant Hardy.” Hall
continued to seek damages “jointly and severally.” The City answered the
amended complaint.

¶6 The City moved for judgment on the pleadings pursuant to
Arizona Rule of Civil Procedure (“Rule”) 12(c) in March 2022. In its motion,
the City argued it was entitled to judgment because (1) Hall had failed to
serve Hardy with a notice of claim, and (2) she had failed to include her
negligent entrustment claim in the notice of claim served on the City. Hall
did not respond. The City moved for summary disposition pursuant to
Rule 41(b) for failure to prosecute, including Hall’s failure to respond to the
City’s motion for judgment on the pleadings. The superior court dismissed
the complaint. The court noted that because Hall had not filed a response
to the City’s motion for judgment on the pleadings the court could
summarily grant the motion, but considered the merits of the motion to
dismiss and entered judgment for the City because Hall had failed to
comply fully with the notice of claim statute. The court’s order contained
Rule 54(c) language.

¶7 Hall filed a motion and amended motion requesting the
superior court to set aside its order dismissing the complaint pursuant to
Rule 60(b)(1), asserting excusable neglect. The City responded, and the
superior court denied Hall’s motion. The court struck the City’s filings “to
the extent they [were] responses to the Motion for Reconsideration.” See
Rule 7.1(e)(2). The court ruled “[t]o the extent [Hall’s] Motion for
Reconsideration is an attempted [Rule] 60(b)(1) Motion . . . the court finds
no grounds here on which to base any [Rule] 60(b)(1) relief.”

¶8 Hall timely appealed, and we have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶9 We review de novo the superior court’s dismissal of a
complaint pursuant to Rule 12. Coleman v. City of Mesa, 230 Ariz. 352, 355,
¶ 7 (2012). On a motion for judgment on the pleadings, all material
allegations of the opposing party must be taken as true, and judgment may
only be granted if the moving party is clearly entitled to judgment. Young
v. Bishop, 88 Ariz. 140, 143 (1960). “We review de novo a trial court’s

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determination that a party’s notice of claim failed to comply with [A.R.S.]
§ 12-821.01.” Jones v. Cochise Cnty., 218 Ariz. 372, 375, ¶ 7 (App. 2008). We
review the superior court’s decision declining to set aside a judgment under
Rule 60(c) for an abuse of discretion. City of Phoenix v. Geyler, 144 Ariz. 323,
328-29 (1985).

¶10 As a threshold matter, the City argues Hall’s appeal “may” be
time-barred if Hall’s amended motion requesting the superior court to set
aside its order dismissing the complaint pursuant to Rule 60(b)(1) was a
motion for reconsideration, as suggested by its title. See Rule 7.1(e)(3)
(motions for reconsideration do not extend the time within which a notice
of appeal must be filed). As noted above, Hall cited Rule 60(b)(1) as
authority for her motion, and the superior court ruled accordingly: “[t]o the
extent the Motion for Reconsideration is an attempted [Rule] 60(b)(1)
motion . . . the court finds no grounds here on which to base any [Rule]
60(b)(1) relief.” We find that Hall timely appealed because she filed a time-
extending Rule 60 motion, regardless of its title, within fifteen days of entry
of judgment. See ARCAP 9(e)(1)(E).

¶11 It is undisputed in this case that Hall served the City with a
notice of claim but did not serve Hardy with a notice of claim.

¶12 Hall asserts that after she filed her amended complaint, the
City was the only defendant remaining in the lawsuit. 2 The City argues
Hall’s “attempt to dismiss [Hardy] from the lawsuit” was ineffective. We
agree that the new, unsanctioned language in the amended complaint did
not result in a voluntary dismissal of Hardy from the lawsuit. After Hardy
answered Hall’s complaint, Hall never received leave from the court to
dismiss Hardy or a stipulation from the parties agreeing to the dismissal.
See Rule 15(a)(2); 41(a)(1). And the superior court did not separately
dismiss Hardy before it dismissed the complaint in its entirety.

¶13 The City argues that, whether or not Hardy was still a named
defendant, Hall’s failure to serve Hardy with a notice of claim was fatal to
her vicarious liability claim against the City. Hall argues that she need not
sue Hardy to prevail on a vicarious liability claim against the City.

¶14 We need not address whether a dismissal of an employee
pursuant to A.R.S. § 12-821.01 precludes a claim of vicarious liability

2 On appeal, Hall refers to Hardy as a “non party at fault,” but she did
not file a notice naming Hardy as a non-party at fault under Rule 26(b)(5).

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Decision of the Court

against an employer. See, e.g., Banner Univ. Med. Ctr. Tucson Campus, LLC v.
Gordon (Banner I), 249 Ariz. 132 (App. 2020), vacated, Banner II, 252 Ariz. 264
(2022) (noting at n.2 the Banner II Court did not “address the underlying
merits of whether a dismissal of an employee pursuant to A.R.S. § 12-821.01
precludes a claim of vicarious liability against an employer”). Because Hall
failed to respond to the City’s motion to dismiss, a dispositive motion, she
has waived on appeal her argument about the City’s vicarious liability and
whether she was required to serve Hardy with a notice of claim for that
claim to survive. See BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, 593-94,
¶ 25 (App. 2021) (legal theories must be timely presented to the superior
court so the court may address all issues on their merits, and if the argument
is not raised below, it is waived on appeal).

CONCLUSION

¶15 For the foregoing reasons, we affirm.

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

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