                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


WILLIAM HILLER, an individual; LAURENCE M. BERLIN, on behalf of
      the estate of SUZANN RANDT a.k.a. SUZANN HILLER,
                        Plaintiffs/Appellants,

                                        v.

HUALAPAI MOUNTAIN MEDICAL CENTER, L.L.C., a North Carolina
limited liability company, d/b/a HUALAPAI MOUNTAIN MEDICAL
  CENTER; HUALAPAI MOUNTAIN MEDICAL PROFEES, L.L.C., an
  Arizona limited liability company, d/b/a HUALAPAI MOUNTAIN
  MEDICAL CENTER; HUALAPAI MOUNTAIN MEDICAL CENTER
  MANAGEMENT, L.L.C., a North Carolina limited liability company,
   d/b/a HUALAPAI MOUNTAIN MEDICAL CENTER; MEDCATH
     INCORPORATED, a North Carolina corporation; MEDCATH
CORPORATION, a Delaware corporation; DOUGLAS BUSHELL, M.D.;
MIKE IMHOLZ, R.N.; GRACE WOOD, R.N.; FAITH MARIE SMITH, the
  natural born child of Suzann Randt; MICHAEL DANIEL SMITH, the
                    natural born child of Suzann Randt,
                            Defendants/Appellees.

                             No. 1 CA-CV 14-0087
                                FILED 7-30-2015


           Appeal from the Superior Court in Mohave County
                        No. S8015CV201101627
              The Honorable Charles W. Gurtler, Judge

                      REVERSED AND REMANDED
                                COUNSEL

Law Office of Bradley L. Booke, Jackson, WY
By Bradley L. Booke
Counsel for Plaintiffs/Appellants

Slattery Petersen PLLC, Phoenix
By Elizabeth A. Petersen
Counsel for Defendant/Appellee Michael Imholz, R.N.

Quintairos Prieto Wood & Boyer LLC, Phoenix
By Thomas G. Bakker
Counsel for Defendant/Appellee Douglas Bushell, M.D.

Sanders Parks, Phoenix
By Mandi J. Karvis
Counsel for Defendant/Appellee Hualapai Mountain Medical Center



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Peter B. Swann joined. Judge Lawrence F. Winthrop
dissented.


C A T T A N I, Judge:

¶1            William Hiller and the estate of Suzann Randt (collectively,
“Hiller”) appeal from the superior court’s order dismissing his wrongful
death action for failure to prosecute and for failing to follow court orders.
For reasons that follow, we reverse.

             FACTS AND PROCEDURAL BACKGROUND

¶2         On October 27, 2010, Suzann Randt, a critically-ill indigent
woman with terminal liver cancer, died after seeking treatment for
abdominal pain at Hualapai Mountain Medical Center (“HMMC”).




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                       HILLER v. HUALAPAI, et al.
                          Decision of the Court

Randt’s husband, William Hiller,1 sued HMMC, Kingman Hospital Inc.,2
Douglas Bushell, M.D., Mike Imholz, R.N., and Grace Wood, R.N.
(collectively, the “defendants”). The complaint asserted that, rather than
providing necessary medical care, emergency room personnel at HMMC
tied Randt with a bed sheet into a wheelchair and left her in a waiting area.
Police officers, responding to HMMC’s request that Randt be removed from
the premises, found her dead in the wheelchair. The complaint alleged
several causes of action, including: wrongful death; medical malpractice;
negligent hiring, training, and management; negligence per se; assault and
battery; and abuse of a vulnerable adult. The defendants individually
answered Hiller’s complaint by March 9, 2012. The complaint and
responsive pleadings framed the central dispute as whether the defendants
had appropriately evaluated Randt and offered her proper medical care, as
well as any causal connection between the defendants’ conduct and Randt’s
death.

¶3            Beginning in June 2012, several defendants moved to dismiss
the case, arguing that Randt’s two adult children were indispensable parties
because they were statutory beneficiaries under the wrongful death
statutes. While that motion remained pending, HMMC (later joined by
other defendants) moved to dismiss based on Hiller’s failure to attach
preliminary expert opinion affidavits as required by Arizona Revised
Statutes (“A.R.S.”) § 12-2603.3 The superior court granted Hiller leave to
amend the complaint to include the requisite affidavits, and Hiller filed
compliant preliminary expert affidavits in September 2012.

¶4            By October 2012, in supplemental briefing on the
indispensable party motion, Hiller indicated that Randt’s daughter had
been located in an Oregon prison, but that Hiller was unable to speak with
her because of her mental health issues. The superior court denied the
motion to dismiss, but ruled the adult children were indispensable parties

1     The superior court appointed a guardian ad litem (“GAL”) for
William Hiller in December 2011 due to diminished mental competency.

2      The superior court later granted summary judgment for Kingman
Hospital on the grounds that it had only purchased HMMC’s assets after
HMMC ceased operations, and had not become HMMC’s successor in
interest. That ruling is not challenged on appeal.

3     Absent material revisions after the relevant date, we cite a statute’s
current version.



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                        HILLER v. HUALAPAI, et al.
                           Decision of the Court

and gave Hiller leave to amend the complaint to name Randt’s adult
children as involuntary plaintiffs.4 The court also ordered Hiller to seek
appointment of a GAL for Randt’s daughter, and to either locate and
personally serve Randt’s son or serve him by publication if necessary.

¶5           In mid-December 2012, Hiller filed an amended complaint
naming Randt’s adult children as statutory beneficiaries. Hiller served
Randt’s daughter on January 31, 2013, but did not seek appointment of a
GAL for the daughter, or take additional steps to locate Randt’s son or
otherwise attempt to serve him by publication.

¶6            In late October 2013, the defendants filed a joint motion to
dismiss for failure to prosecute and failure to comply with court orders. In
response, Hiller’s counsel acknowledged inefficient prosecution of the case,
but argued that Hiller had not abandoned the case and that the delay
related to “the unexpected loss of substantial members of [] counsel’s staff
over a short period of time, without any corresponding reduction in
caseload.” The superior court granted the motion to dismiss.

¶7           Hiller timely appealed. We have jurisdiction under A.R.S. §
12-2101(A)(1).

                                DISCUSSION

¶8             We review a dismissal for failure to prosecute for an abuse of
discretion. Slaughter v. Maricopa County, 227 Ariz. 323, 326, ¶ 14, 258 P.3d
141, 144 (App. 2011); see also Quigley v. City Court, 132 Ariz. 35, 37, 643 P.2d
738, 740 (App. 1982) (“An ‘abuse of discretion’ is discretion manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.”). Dismissal is only appropriate when a delay, given all of the
circumstances, demonstrates that the plaintiff has effectively abandoned
the action or that the adverse party is prejudiced by plaintiff’s delay. Cooper
v. Odom, 6 Ariz. App. 466, 469, 433 P.2d 646, 649 (1967). In assessing failure
to prosecute, the superior court considers the activities of both parties, the
information provided to the court regarding the status of the case, and other
factors that may explain or excuse lack of diligence in prosecuting the case.
Jepson v. New, 164 Ariz. 265, 276, 792 P.2d 728, 739 (1990).

¶9            Arizona courts have long recognized a preference for
resolving cases on their merits. See, e.g., Clemens v. Clark, 101 Ariz. 413, 414,
420 P.2d 284, 285 (1966) (reiterating preference to “decide cases on their

4     Hiller has not challenged the court’s ruling that the adult children
were indispensable parties.


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                       HILLER v. HUALAPAI, et al.
                          Decision of the Court

merits and not to punish litigants because of the inaction of their counsel”);
Walker v. Kendig, 107 Ariz. 510, 512, 489 P.2d 849, 851 (1971) (stating that,
although dismissal from inactive calendar for lack of prosecution is without
prejudice, “such an order must be issued only after careful consideration
because justice requires that when possible a matter be determined upon its
merits”); Montano v. Browning, 202 Ariz. 544, 546, ¶ 4, 48 P.3d 494, 496 (App.
2002). Here, the superior court dismissed the case more than two months
before the first scheduled trial date even though all of the relevant
documentary evidence had been disclosed and even though Hiller’s
counsel had avowed they were prepared to go to trial. The court did not
address any alternatives to dismissal and dismissed the case
notwithstanding the absence of any prior warnings. Moreover, the court
ordered dismissal—the death knell to the client’s case—without a finding
that Hiller himself, rather than his attorney, was at fault for the delay. Cf.
Lund v. Donahoe, 227 Ariz. 572, 581, ¶¶ 33–34, 261 P.3d 456, 465 (App. 2011)
(describing the purpose of a “culprit hearing,” which assesses whether
lawyer or party should be held responsible for a discovery violation, as
“protecting a party from dispositive sanctions when the fault lies only with
counsel”).

¶10           Although Hiller should have complied with the court’s order
directing him to seek the appointment of a GAL for Randt’s daughter, his
failure to do so does not justify dismissal. After Hiller advised the court
that the daughter had been served but may have mental health issues
requiring appointment of a GAL, the court could have done so sua sponte.
See Ariz. R. Civ. P. 17(g) (authorizing superior court to appoint a GAL for
an incompetent person not otherwise represented in the action). Moreover,
although the statutory beneficiaries’ interests are aligned regarding third-
party liability in a wrongful death action, any recovery to which the
daughter might be entitled would theoretically diminish Hiller’s potential
recovery. See A.R.S. § 12-612(C) (recovery in wrongful death action
distributed proportionally among statutory beneficiaries). Hiller’s counsel
was not representing the daughter and his responsibilities regarding the
daughter were arguably satisfied by locating her, amending the complaint
and serving her with a copy of the complaint. Similarly, although Hiller
should have served Randt’s son, that failure did not warrant dismissal,
particularly since the superior court made no finding that service by
publication was no longer feasible given the scheduled trial date, and the
court did not address whether other alternatives for dealing with the adult
son had been considered.

¶11           The superior court’s findings regarding the alleged prejudice
suffered by the defendants does not withstand scrutiny. The court found,


                                      5
                       HILLER v. HUALAPAI, et al.
                          Decision of the Court

for example, that, without Randt’s adult children participating, the
defendants could not be expected to initiate pre-trial discovery to
investigate and defend against the merits of Hiller’s allegations. But there
is no indication as to what information Randt’s two adult children (who
apparently had not seen her in more than 15 years) could have provided
regarding the merits of the case. And the record establishes that the
defendants were well aware of the circumstances giving rise to the
complaint. The parties had in fact disclosed and exchanged detailed
information about all of the factual and legal claims asserted, including all
relevant medical records, police records, records from the medical
examiner concerning the cause of the decedent’s death, and all of Randt’s
employment and income records. The parties had also identified and
exchanged information concerning all proposed trial witnesses.

¶12           The superior court further found that the defendants had
been prejudiced because the allegedly inordinate delay affected the ability
of some of the defendants to timely seek reemployment after operations at
HMMC ceased. But the case was dismissed prior to the initial trial date,
and the asserted prejudice would have resulted even if Hiller had complied
with every court directive and the case had gone to trial. Thus, this
prejudice is not tied to Hiller’s failure to comply with court orders.
Moreover, the facts underlying the incident were known and would
presumably have needed to be addressed by the defendants seeking
employment regardless whether anyone pursued litigation following
Randt’s death.

¶13           Similarly, the court relied on the fact that the continued
pendency of the action had to be documented and explained in various
credentialing and insurance applications. Again, however, these facts are
unrelated to Hiller’s conduct and instead relate to the underlying incident
resulting in Randt’s death. Because this alleged prejudice is not linked to
Hiller’s delay, these facts are not a proper basis for dismissing the case.

¶14           The superior court also noted that more than three years had
passed since the events giving rise to this action, resulting in potential
memory issues for witnesses and in problems with conducting witness
interviews and depositions. But such concerns overlook the fact that
dismissal occurred prior to the first scheduled trial date, and thus are
similarly unrelated to Hiller’s failure to properly deal with Randt’s adult
children. More importantly, the concerns do not support dismissal in light
of the discovery that had been conducted and given Hiller’s avowal that he
would be ready to proceed with trial on the first scheduled trial date.



                                     6
                       HILLER v. HUALAPAI, et al.
                          Decision of the Court

¶15           Implicitly recognizing the weakness in the superior court’s
prejudice analysis, our dissenting colleague states that “the real prejudice
to the defendants lies in the deleterious effect of continuing delay.” The
dissent posits that although Hiller’s counsel stated that he would have been
ready for trial on the scheduled date, there is no reason to believe that by
such date Hiller would have either located and served the adult son, or
would have filed the petition to have a GAL appointed for the adult
daughter. The dissent further notes that even assuming this case survived
to the scheduled trial date, the superior court would likely have either
dismissed the case at that point for failure to join indispensable parties or
would have continued the trial to some later date.

¶16           But any assessment of what “likely” would have happened
by the time of trial is premature. If the superior court had warned Hiller of
the possibility the case would be dismissed, and if Hiller had thereafter
immediately served the son by publication and had sought the
appointment of a GAL for the decedent’s adult daughter (or if the superior
court had sua sponte appointed a GAL), it is entirely possible that the trial
could have gone forward as scheduled. Neither the defendants nor the
superior court suggested any likelihood that the adult son or daughter has
information critical to the resolution of the merits of this case. And in any
event, any determination by this court regarding whether the trial could
have gone forward is speculative in light of the time remaining prior to trial
during which Hiller or the superior court could possibly have cured any
deficiencies relating to the decedent’s son and daughter’s status as
plaintiffs.

¶17           In sum, the superior court has denied Hiller a decision on the
merits based on a prejudice analysis that does not withstand scrutiny, and
based on technical requirements imposed on Hiller without an express
warning that failure to comply would result in outright dismissal. Under
the circumstances, Hiller has been denied access to justice, and we reverse
the superior court’s order dismissing the case.

                              CONCLUSION

¶18          For the foregoing reasons, we reverse the dismissal and
remand for further proceedings.




                                      7
                       HILLER v. HUALAPAI, et al.
                         Winthrop, J., dissenting

W I N T H R O P, Judge, Dissenting:

¶19            I respectfully dissent. The majority contends neither basis for
the trial court’s dismissal can withstand scrutiny. I disagree.

¶20            With regard to Hiller’s failure to properly join Randt’s adult
children, an order that Hiller has failed to contest or otherwise address in
this appeal, the majority overlooks several relevant factors. First, although
the trial court could have sua sponte appointed a guardian ad litem for
Randt’s adult daughter, it had no obligation to do so; instead, it expressly
directed Hiller to file the appropriate motion to designate a guardian ad
litem. Hiller’s failure to file the motion or otherwise seek an appointment
of a guardian violated that explicit court order. Next, after October 2012,
the record does not demonstrate that Hiller made any further attempts to
locate Randt’s adult son or serve him by publication, also in violation of the
court order. Hiller did not request authorization to utilize an alternative
method of service, did not seek a ruling that service by publication was not
feasible under these circumstances, did not request reconsideration of the
court’s order or otherwise seek a judicial determination that the case should
now proceed in the absence of the adult son. Another potential alternative,
not raised or explored by Hiller, would have been to propose that, at a
minimum, the mandatory settlement conference required by court rule
proceed, and that the issue of the missing son be dealt with in a probate
court setting as part of that court’s consideration and approval of any such
settlement.

¶21           From the time of the court’s order to the filing of the motion
to dismiss, Hiller had nearly one year to comply with the court’s orders or
take any of these alternative actions, and failed to do anything. Instead,
Hiller only argued that the case had stalled because his attorney’s office was
short-staffed and had “fallen behind the deadlines in this case.” Without
more, can this court really say the trial court abused its discretion in
determining that Hiller had not demonstrated sufficient diligence or that
such lack of diligence should be excused? I think not.

¶22           Hiller also failed to actively prosecute this case, and the real
prejudice to the defendants lies in the deleterious effect of continuing delay.
Even under the best case scenario, further delay here was inevitable. Hiller
claims on appeal that he would have been ready for trial on the scheduled
date; however, there is no reason to believe that by such date Hiller would
have either located and served the adult son, or would have filed the
petition to have a guardian ad litem appointed for the adult daughter, or
would have scheduled and participated in a settlement conference as


                                      8
                       HILLER v. HUALAPAI, et al.
                         Winthrop, J., dissenting

mandated by Rule 16.1, Ariz. R. Civ. P.5 In other words, even assuming this
case survived to the scheduled trial date, the trial court would likely have
either dismissed the case at that point for failure to join indispensable
parties and/or for failure to prosecute, or would have had to consider
whether to continue the trial to some later date. On this record, it is hard to
imagine what type of good cause Hiller could present to the trial court to
justify continuing the case at that point.

¶23            Finally, the majority argues dismissal was inappropriate
because the trial court had never previously warned Hiller about
potentially dismissing this case. Defendants, however, had previously filed
two other motions to dismiss based upon Hiller’s failure to comply with
Arizona statutes and rules. The trial court denied these motions, but
directed Hiller to correct the deficiencies in his complaint, and ordered that
Randt’s adult children be properly joined and served. Suffice to say Hiller
was implicitly aware that continued failure to comply with explicit court
orders, or to advance the case on the merits, could result in the dismissal of
his case. See Rule 41(b), Ariz. R. Civ. P.; see also Rule CV-2, Mohave County
Local Rules of Practice.

¶24            The trial court was in the best position to evaluate the
credibility of Hiller’s actions and his excuses for inaction, and to determine
the significance of the prejudice caused by Hiller’s failure to comply with
the court’s orders. I see no basis on appeal to conclude that the trial judge
abused his discretion, and I therefore respectfully dissent from my
colleagues’ conclusion to the contrary.




                                     :RT




5      The majority emphasizes Hiller’s avowal that he didn’t need to take
witness depositions and would have been ready for trial on the scheduled
trial date; however, Hiller himself alternatively requested that the court
deadlines be extended in order for the parties to conduct the necessary
depositions.


                                      9
