Tyman v. Hintz Concrete, Inc.

SUPREME COURT OF ARIZONA
En Banc

SUZANNE TYMAN, ) Arizona Supreme Court
) No. CV-06-0008-PR
Plaintiff-Appellant, )
) Court of Appeals
v. ) Division One
) Nos. 1 CA-CV 05-0165
HINTZ CONCRETE, INC., an Arizona ) 1 CA-CV 05-0352
corporation; HAINES CONSTRUCTION, ) (Consolidated)
INC., an Alaska corporation, )
) Maricopa County
Defendants-Appellees. ) Superior Court
__________________________________) No. CV2004-010551
)
SUZANNE TYMAN, )
)
Plaintiff-Appellant, ) O P I N I O N
)
v. )
)
NEW SONG UNITED METHODIST CHURCH, )
a non-profit Arizona corporation, )
)
Defendant-Appellee. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Michael J. O'Melia, Judge

AFFIRMED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One
Filed Dec. 8, 2005

VACATED
________________________________________________________________

YEN PILCH KOMADINA & FLEMING, P.C. Phoenix
By F. Kenton Komadina
Robert E. Yen
Caroline A. Pilch
Neil Landeen
Attorneys for Suzanne Tyman
SKYPECK & SORENSEN Phoenix
By John H. Ishikawa
Attorneys for Hintz Concrete, Inc.

CHEIFETZ IANNITELLI MARCOLINI, P.C. Phoenix
By Steven W. Cheifetz
Matthew Klopp
Attorneys for Haines Construction, Inc.

SWENSON STORER ANDREWS & FRAZELLE, P.C. Phoenix
By Michael J. Frazelle
Kimberly J. Sayre
Attorneys for New Song United Methodist Church
________________________________________________________________

H U R W I T Z, Justice

¶1 This case requires us to interpret Arizona Rule of

Civil Procedure 15(c), which provides that in certain

circumstances an amended complaint “relates back to the date of

the original pleading” for statute of limitations purposes.

I.

¶2 On June 4, 2002, Suzanne Tyman tripped and fell at a

sidewalk construction site. She sustained personal injuries and

retained counsel to pursue redress.

¶3 Tyman initially filed a notice of claim against the

City of Surprise pursuant to A.R.S. § 12-821.01(A) (2001).

Tyman learned, however, that the City was not responsible for

the construction site at which she sustained her injuries. Her

counsel then sent letters of representation to Arizona Public

Service and Mastec Construction. Tyman later learned that

neither had any involvement with the construction site.

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¶4 On the eve of the expiration of the statute of

limitations, Tyman still had not identified the parties

responsible for the construction site. She nevertheless filed a

complaint in superior court on June 2, 2004, two days before the

two-year statute of limitations expired. See A.R.S. § 12-542(1)

(2003) (providing two-year limitations period for personal

injury claims). The complaint named as defendants Arizona

Public Service; Mastec Construction; Pinnacle West Capital

Corporation; Pinnacle West Construction, LLC; Temcon Concrete

Construction Company; Bob’s Barricades, Inc.; United Rentals

Highway Technologies, Inc.; and thirty fictitious defendants.

¶5 After further investigation, Tyman filed an amended

complaint on August 23, 2004. The amended complaint dropped all

non-fictitious defendants named in the original complaint and

instead sought damages against Hintz Concrete, Inc.; Haines

Construction, Inc.; and New Song United Methodist Church

(collectively, the “New Defendants”). Tyman served Hintz

Concrete and New Song with the amended complaint eighty-four

days after the statute of limitations expired. Haines

Construction was served seven days later.

¶6 The New Defendants moved for summary judgment, arguing

that the statute of limitations barred the amended complaint.

The superior court granted the New Defendants’ motions and

entered judgment. The court of appeals affirmed. Tyman v.

3
Hintz Concrete, Inc., 1 CA-CV 05-0165 (Ariz. App. Dec. 8, 2005)

(mem. decision).

¶7 Tyman petitioned this court for review. We granted

review because the courts below have interpreted Rule 15(c)

inconsistently. We have jurisdiction pursuant to Arizona

Constitution article 6, section 5, clause 3 and A.R.S. § 12-

120.24 (2003).

II.

¶8 Rule 15(c) provides, in relevant part:

Whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in
the original pleading, the amendment relates back to
the date of the original pleading. An amendment
changing the party against whom a claim is asserted
relates back if the foregoing provision is satisfied
and, within the period provided by law for commencing
the action against the party to be brought in by
amendment, plus the period provided by Rule 4(i) for
service of the summons and complaint, the party to be
brought in by amendment, (1) has received such notice
of the institution of the action that the party will
not be prejudiced in maintaining a defense on the
merits, and (2) knew or should have known that, but
for a mistake concerning the identity of the proper
party, the action would have been brought against the
party.

¶9 The purpose of Rule 15(c), like the federal rule upon

which it is modeled, is “to ameliorate the effect of the statute

of limitations.” See 6A Charles Alan Wright, Arthur R. Miller &

Mary Kay Kane, Federal Practice and Procedure § 1497 (2d ed.

1990) (describing Fed. R. Civ. P. 15(c)). Rule 15(c) permits

4
this amelioration upon three conditions: (1) the claim in the

amended pleading must arise “out of the conduct, transaction, or

occurrence” alleged in the original complaint, Ariz. R. Civ. P.

15(c); (2) “within the period provided by law for commencing the

action against the party to be brought in by amendment, plus the

period provided by Rule 4(i) for service of the summons and

complaint,” the new defendant must have “received such notice of

the institution of the action that the party will not be

prejudiced in maintaining a defense on the merits,” Ariz. R.

Civ. P. 15(c)(1); and (3) during the same period, the new

defendant either “knew or should have known that, but for a

mistake concerning the identity of the proper party,” the new

defendant would have been named in the original complaint, Ariz.

R. Civ. P. 15(c)(2).

A.

¶10 The first requirement of Rule 15(c) is not at issue

here. The amended complaint plainly involved the same

occurrence described in the original complaint.

¶11 Nor is there any question that the second requirement

was satisfied. Arizona Rule of Civil Procedure 4(i) allows

service of a complaint within 120 days of filing. The New

Defendants were served with the amended complaint, and therefore

received notice of the claim, fewer than 120 days after the

original complaint was filed. A defendant brought in through an

5
amended complaint suffers no prejudice for purposes of Rule

15(c)(1) if served “within the time that would have been proper

if [the defendant] had been correctly named in the first place.”

Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 466, 799

P.2d 801, 807 (1990).

B.

¶12 The case before us turns, then, on whether the third

requirement of Rule 15(c) was satisfied — whether during the

specified time period, the New Defendants “knew or should have

known that, but for a mistake concerning the identity of the

proper party,” they would have been named in the original

complaint. The courts below took differing approaches to this

issue.

¶13 The superior court’s minute entry granting summary

judgment concluded, without elaboration, that “there is no

mistake concerning the identity of the proper party.” The court

also relied on the fact that the New Defendants “had absolutely

no notice or knowledge of the claim until” the statute of

limitations had run.

¶14 The court of appeals, on the other hand, assumed

arguendo the existence of a “cognizable mistake under Rule

15(c).” Tyman, 1 CA-CV 05-0165, ¶ 10. But it nonetheless

affirmed the judgment below, holding that Tyman presented no

evidence that the New Defendants “knew or should have known

6
within the time period specified by Rule 15(c)” that they would

have been included in the original complaint but for the

mistake. Id. ¶ 11. The court of appeals stressed that the New

Defendants did not know of the accident until being served with

the amended complaint. Id. The court also held that service of

the amended complaint did not confer on the New Defendants the

knowledge required under Rule 15(c)(2). Id.

1.

¶15 The superior court erred in interpreting Rule 15(c) as

requiring that the New Defendants know of Tyman’s claim before

expiration of the statute of limitations. Rule 15(c)(2) does

not require knowledge of a cognizable mistake within the

original two-year statute of limitations period. Rather, the

Rule expressly provides for relation back when the defendant

knew or should have known of the mistake within the statute of

limitations period “plus the period provided by Rule 4(i) for

service of the summons and complaint.” Ariz. R. Civ. P. 15(c)

(emphasis added).

¶16 Nor does Rule 15(c)(2) require, as the court of

appeals suggested, that a new defendant know before the end of

the original limitations period about the occurrence alleged in

the complaint. Rule 15(c)(2) only requires knowledge during the

limitations period plus the period provided for service by Rule

4(i) of “a mistake concerning the identity of the proper party.”

7
The Rule does not require that a defendant have knowledge of the

occurrence underlying the complaint before learning of the

mistake.

¶17 The court of appeals also erred in suggesting that

service of an amended complaint cannot confer the knowledge

required under Rule 15(c)(2). In some cases, comparison of the

amended complaint to the original pleading will, or should, give

a defendant sufficient knowledge of the mistake in identity.

For example, in Ritchie, the original complaint sought damages

for injuries caused by a mule ride at the Grand Canyon. The

defendant was initially identified as Fred Harvey Transportation

Company “doing business as Grand Canyon Scenic Rides.” 165

Ariz. at 462, 799 P.2d at 803. After the statute expired, the

plaintiff learned that Grand Canyon Scenic Rides, a separate

corporation unaffiliated with the Harvey Corporation, conducted

the mule ride. She amended the complaint accordingly. Id.

When served with the amended complaint, the new defendant in

Ritchie surely knew, or should have known, that its omission

from the original complaint was caused by a mistake concerning

identity. Thus in Ritchie there understandably was no dispute

as to whether the new defendant knew or should have known of the

plaintiff’s mistake; the case turned entirely on other issues.

¶18 Were we to adopt the court of appeals’ assumption that

Tyman made a mistake cognizable under Rule 15(c)(2), the next

8
question would therefore be whether service of the amended

complaint gave the New Defendants sufficient knowledge of that

mistake. But we need not address the knowledge issue today

because, like the superior court, we conclude that Tyman made no

“mistake concerning the identity of the proper party” in the

original complaint.

C.

¶19 Although Arizona courts have not interpreted the term

“mistake” in Rule 15(c), other jurisdictions have given the word

its ordinary meaning when interpreting similar provisions: “a

wrong action or statement proceeding from faulty judgment,

inadequate knowledge, or inattention.” Leonard v. Parry, 219

F.3d 25, 28 (1st Cir. 2000) (quoting Webster’s Ninth New

Collegiate Dictionary 760 (1983) and interpreting Fed. R. Civ.

P. 15(c)); Centuori v. Experian Info. Solutions, Inc., 329 F.

Supp. 2d 1133, 1138 (D. Ariz. 2004) (same); accord Pan v. Bane,

141 P.3d 555, 563-64 ¶¶ 24-31 (Okla. 2006) (interpreting Okla.

Stat. tit. 12, § 2015(C)(3)(b) (2006)); see also Black’s Law

Dictionary 1022 (8th ed. 2004) (defining mistake as “[a]n error,

misconception, or misunderstanding; an erroneous belief”). To

decide whether a Rule 15(c)(2) “mistake” has occurred, the court

must determine “whether, in a counterfactual error-free world,

the action would have been brought against the proper party.”

Leonard, 219 F.3d at 29 (interpreting Fed. R. Civ. P. 15(c)(3)).

9
Therefore, “what the plaintiff knew (or thought he knew) at the

time of the original pleading generally is the relevant datum in

respect to the question of whether a mistake concerning identity

actually took place.” Id.; accord Centuori, 329 F. Supp. 2d at

1137-41.

¶20 In deciding whether the plaintiff has made a mistake,

we start from the assumption that, “by definition, every mistake

involves an element of negligence, carelessness, or fault.”

Leonard, 219 F.3d at 29; accord Centuori, 329 F. Supp. 2d at

1138. Thus, Rule 15(c) “encompasses both mistakes that were

easily avoidable and those that were serendipitous.” Leonard,

219 F.3d at 29.

¶21 Not every omission of a defendant from an original

pleading is a mistake cognizable under Rule 15(c)(2). Because

Rule 15(c)(2) requires a mistake concerning the identity of the

proper party, it plainly does not cover a “deliberate decision

not to sue a party whose identity plaintiff knew from the

outset.” Leonard, 219 F.3d at 29 (quoting Wells v. HBO & Co.,

813 F. Supp. 1561, 1567 (N.D. Ga. 1992)); accord Centuori, 329

F. Supp. 2d at 1139-40. For the same reason, “a mistake of law

by counsel regarding whom to name in a lawsuit” is not a Rule

15(c)(2) mistake. O’Keefe v. Grenke, 170 Ariz. 460, 465, 825

P.2d 985, 990 (App. 1992); accord Leonard, 219 F.3d at 31.

Neither is there a Rule 15(c) mistake when “defendants [are]

10
added because of a new legal theory” or “to replace fictitious

defendants.” Servs. Holding Co. v. Transam. Occidental Life

Ins. Co., 180 Ariz. 198, 209, 883 P.2d 435, 446 (App. 1994).

Lack of knowledge as to the appropriate defendant — as opposed

to a mistaken belief that a defendant is liable — does not

constitute a Rule 15(c)(2) mistake.

¶22 Thus, the superior court typically must determine,

through reference to the original complaint, analysis of

affidavits or other evidence submitted by the parties, and by

applying common sense, whether the new defendant truly was

omitted because of a “mistake concerning the identity of the

proper party.” It is the plaintiff’s burden to establish the

requisite mistake. Leonard, 219 F.3d at 28; see also Levinson

v. Jarrett ex rel. County of Maricopa, 207 Ariz. 472, 476 ¶ 13,

88 P.3d 186, 190 (App. 2004) (discussing the plaintiff’s failure

to prove a mistake).

¶23 In the case at hand, the superior court correctly

determined that Tyman had not discharged her burden of

demonstrating mistake. Indeed, the affidavits of her counsel,

confirmed by counsel’s statements at oral argument, make plain

that no mistake concerning the identity of the proper parties

was made in this case. When the initial complaint was filed,

plaintiff did not know or think she knew that the original

defendants were liable for her injuries. Rather, she believed

11
that the original defendants were not liable, and she was simply

unaware of who was. Just as naming a “John Doe” defendant in

the initial complaint is not a Rule 15(c)(2) mistake, it is not

a mistake to name placeholder defendants while the plaintiff

attempts to identify the appropriate parties. See Garrett v.

Fleming, 362 F.3d 692, 696 (10th Cir. 2004); Baskin v. City of

Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998); Servs. Holding

Co., 180 Ariz. at 209, 883 P.2d at 446.

D.

¶24 Tyman argues that because her counsel acted with

reasonable diligence during the limitations period and could not

discover the responsible parties, Rule 15(c)(2) relation back

should be allowed despite the absence of a cognizable mistake.

But this argument conflates the “discovery” rule for tolling the

statute of limitations — under which the statute does not begin

to run until a plaintiff could reasonably have discovered the

identity of a responsible defendant, see Walk v. Ring, 202 Ariz.

310, 315-16 ¶¶ 20-23, 44 P.3d 990, 995-96 (2002) — with the

mistake requirement of Rule 15(c)(2). Rule 15(c)(2) requires a

mistaken belief at the time of filing that a defendant is

appropriately named, as well as subsequent discovery that there

was a mistake in identification. Rule 15(c)(2) is not satisfied

12
when the plaintiff simply has no knowledge of the identity of

the appropriate defendant when filing the original complaint.1

E.

¶25 Tyman also suggests, citing Ritchie and the

Supplemental State Bar Committee Note to Rule 15(c)(2), that

relation back is allowed without regard to mistake whenever a

new party is served within 120 days of the expiration of the

statute of limitations. Although certain language in Ritchie

and the Note provide superficial support to this argument, it

fails.

¶26 Ritchie did not concern the “mistake” requirement of

Rule 15(c)(2). Rather, Ritchie addressed language in a prior

version of the Rule that required that the added defendant

obtain the notice required by the Rule “within the period

provided by law for commencing the action against him.” 165

Ariz. at 463, 799 P.2d at 804. We interpreted the phrase to

mean the limitations period plus any additional time given by

1
A plaintiff’s diligence in discovering the identity of a
defendant may be relevant to the trial court’s exercise of
discretion in considering a motion to amend a complaint pursuant
to Arizona Rule of Civil Procedure 15(a)(1). See generally 6A
Wright, Miller & Kane, supra, § 1498 (discussing Fed. R. Civ. P.
15(a)). In this case, however, Tyman filed the amended
complaint before a responsive pleading or motion for summary
judgment was filed; the amendment was thus filed as of right and
required no leave of the court. See Ariz. R. Civ. P. 15(a)(1).

13
the Rules of Civil Procedure to serve the complaint.2 Id. at

465-68, 799 P.2d at 806-09.3 Ritchie did not deal with the

Rule’s express requirement of a mistake, let alone abrogate it.

¶27 Nor does the Supplemental State Bar Committee Note to

Rule 15(c), which simply explains the holding in Ritchie,

achieve that result indirectly. This is made plain by the 1996

amendment to Rule 15(c), which codified the holding in Ritchie

while retaining the “mistake” language in Rule 15(c)(2).4 If

Ritchie had done away with the mistake requirement, there would

2
When Ritchie was decided, Arizona Rule of Civil Procedure
6(f) gave the plaintiff one year to serve a complaint after it
was filed. 165 Ariz. at 466, 799 P.2d at 807.
3
In so holding, we declined to follow Schiavone v. Fortune, 477 U.S. 21 (1986), which interpreted Federal Rule 15(c) as
requiring that added defendants receive notice of a claim before
the statute of limitations expired. Id. at 465-68, 799 P.2d at
806-09.
4
Before 1996, Arizona Rule 15(c) required that an added
defendant receive notice of the plaintiff’s claim “within the
period provided by law for commencing the action against the
party to be brought in by amendment.” Ariz. R. Civ. P. 15(c),
16 A.R.S. Ann. (Supp. 1996). Rule 15(c) was amended in 1996 and
now requires that the notice and knowledge be imparted within
the limitations period “plus the period provided by Rule 4(i)
for service of the summons and complaint.” Ariz. R. Civ. P.
15(c).

Federal Rule 15(c) was similarly amended in 1991 to address
the Schiavone holding, and now requires that the knowledge and
notice required under Rule 15(c) be imparted to the new
defendant “within the period provided by Rule 4(m) for service
of the summons and complaint.” See Fed. R. Civ. P. 15 advisory
committee’s note, 1991 amend.

14
have been no reason to retain the word “mistake” in the 1996

amendment.

¶28 We therefore conclude that the mistake requirement

survived Ritchie. Levinson, 207 Ariz. at 475 ¶ 12, 88 P.3d at

189 (“The plain language of [Rule 15(c)(2)] still requires [a

mistake]; Ritchie did not change it.”). And, because Tyman

cannot establish the requisite mistake in this case, the

superior court correctly rejected her relation-back argument.

III.

¶29 For the reasons above, we conclude that Tyman’s

amended complaint does not relate back to the date of the

original complaint. The superior court therefore correctly

concluded that the statute of limitations barred the amended

complaint against the New Defendants. The judgment of the

superior court is affirmed; the memorandum decision of the court

of appeals is vacated.

__________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

15
_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

16