                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                   SHARYN NESBITT, Plaintiff/Appellant,

                                        v.

  RADISSON HOTELS INTERNATIONAL, INC., a foreign corporation,
                     Defendant/Appellee.

                             No. 1 CA-CV 13-0336
                              FILED 08-28-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-003064
                The Honorable Michael J. Herrod, Judge

                                  AFFIRMED


                                   COUNSEL

Cheifetz Iannitelli Marcolini PC, Phoenix
By Jeffrey R. Finley
Counsel for Plaintiff/Appellant

Kelhoffer Manolio & Firestone PLC, Scottsdale
By Charles I. Kelhoffer, Joy A. Garvey
Counsel for Defendant/Appellee
                          NESBITT v. RADISSON
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Michael J. Brown joined.


C A T T A N I, Judge:

¶1            Sharyn Nesbitt appeals the dismissal of her amended
complaint against Radisson International Hotels, Inc. (“Radisson”).
Nesbitt challenges the superior court’s determination that the amended
complaint, which attempted to substitute Radisson for a different
defendant named in a January 19, 2012 complaint, did not relate back to
the original complaint and was time-barred. For reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Nesbitt fell and fractured her foot on January 24, 2010, while
attending a car auction on the grounds of the Fort McDowell Yavapai
Nation casino. On January 9, 2012, she brought an action for personal
injuries against the Fort McDowell Indian Community and Gaming
Center in Fort McDowell Yavapai Nation Tribal Court. The tribal court
dismissed Nesbitt’s claim with prejudice based on the one-year statute of
limitations under Fort McDowell Yavapai Nation Law and Order Code §
4-54. Nesbitt did not seek to amend her complaint to assert a premises
liability claim against Radisson or Tribal First, the third-party
administrator responsible for handling personal injury claims filed against
the Fort McDowell Indian Community. Nor did she file an appeal from
the adverse ruling.

¶3           On January 19, 2012, Nesbitt filed a negligence complaint
against the Fort McDowell Indian Community and Gaming Center in
Maricopa County Superior Court. The superior court dismissed the suit
with prejudice based on sovereign immunity. Nesbitt did not seek to
amend or to appeal from the ruling.

¶4            In the instant case, also initiated on January 19, 2012, Nesbitt
filed a complaint in Maricopa County Superior Court against Tribal First.
The complaint alleged that Tribal First practiced “bad faith” in handling
“legitimate liability claims,” that “claims over $5000 are routinely thrown



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                         NESBITT v. RADISSON
                          Decision of the Court

out,” that Tribal First discouraged Nesbitt from filing a notice of claim,
and that “Tribal First is lying.” After itemizing asserted medical expenses,
Nesbitt requested judgment for damages in the amount of $450,000.

¶5            Tribal First moved to dismiss, asserting that because Nesbitt
was not a party to the insurance contract, she could not sue for tortious
bad faith. The superior court agreed, dismissing Tribal First without
prejudice, and granting Nesbitt leave to join a proper party on or before
April 16, 2012.

¶6             Nesbitt filed an amended complaint against Radisson on
April 16, 2012. This pleading, served on October 9, 2012, eliminated the
insurance bad faith allegations and dropped Tribal First as a defendant.
The amended complaint instead alleged that Radisson controlled the
property and breached its duties to keep the property free of hazards and
to warn guests, including Nesbitt, of any hazards. Nesbitt further alleged
that she sustained financial loss from her inability to work and from
medical bills, and that she endured pain and suffering.

¶7            Radisson moved to dismiss the amended complaint as
untimely under Rules 12(b)(1), (6) and 15(c) of the Arizona Rules of Civil
Procedure. Following briefing and oral argument, the superior court
granted Radisson’s motion and dismissed Nesbitt’s complaint. Nesbitt
timely appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1).1

                              DISCUSSION

¶8              Nesbitt asserts that under Rule 15(c), her amended
complaint against Radisson related back to the original (January 19, 2012)
complaint against Tribal First. She thus argues that the amended
complaint was not untimely under the statute of limitations and should
not have been dismissed. We review issues concerning the application of
the statute of limitations—here, the interplay between the applicable
limitations period and Rule 15(c)—de novo. See Andrews ex rel. Woodard v.
Eddie’s Place, Inc., 199 Ariz. 240, 241, ¶ 1, 16 P.3d 801, 802 (App. 2000).

¶9            Rule 15(c) provides that “[w]henever 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,

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



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                          NESBITT v. RADISSON
                           Decision of the Court

the amendment relates back to the date of the original pleading.” If an
amendment adding a party is filed after the applicable statute of
limitations has expired, the amendment is nonetheless timely if, within the
limitations period, plus the time allowed for service, the party to be added
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.” Id.

¶10           The purpose of Rule 15(c)’s relation back provision is “to
ameliorate the effect of the statute of limitations.” Tyman v. Hintz Concrete,
Inc., 214 Ariz. 73, 74, ¶ 9, 148 P.3d 1146, 1147 (2006) (citation omitted).
Amendment thus may be proper where an amended complaint advances
a different theory relating to the same conduct, or where a proper party is
substituted for an original party. See Marshall v. Superior Court, 131 Ariz.
379, 383–84, 641 P.2d 867, 871–72 (1982) (holding that relation back under
Rule 15 is appropriate to add additional claims arising from same conduct
by defendant); Quiles v. Heflin Steel Supply Co., 145 Ariz. 73, 74–76, 699
P.2d 1304, 1305–07 (App. 1985) (holding insured’s intervenor complaint
alleging defendant’s negligence related back to insurance carrier’s
complaint alleging that defendant’s negligent conduct resulted in injury to
insured).

¶11            Nesbitt did not satisfy her burden under Rule 15(c) of
demonstrating that the amended complaint related back to the original
complaint. See Pargman v. Vickers, 208 Ariz. 573, 578, ¶¶ 24–27, 96 P.3d
571, 576 (App. 2004) (noting that the plaintiff bears the burden of
establishing the elements required by Rule 15(c)). Nesbitt’s original
complaint asserted the tort of insurance bad faith, which requires a
showing that an insurer intentionally denied, failed to process, or failed to
pay a claim without a reasonable basis for doing so. See Ness v. W. Sec. Life
Ins. Co., 174 Ariz. 497, 500, 851 P.2d 122, 125 (App. 1992). In contrast, her
amended complaint asserted a premises liability claim, which involves a
breach of the duty of reasonable care, including the duty to discover and
correct or warn of unreasonably dangerous conditions that could
reasonably be foreseen to cause injury. See McMurtry v. Weatherford Hotel,
Inc., 231 Ariz. 244, 252–53, ¶ 23, 293 P.3d 520, 528–29 (App. 2013). Thus,
the two complaints involved significantly different conduct.

¶12            Nesbitt points out that her original complaint contained
factual information similar to that in the amended complaint, in particular
facts relating to her attendance at the car auction and her injury resulting


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                          NESBITT v. RADISSON
                           Decision of the Court

from slipping on a hole in the property where the auction was held.
Nevertheless, the original complaint’s liability allegations are premised
solely on Tribal First’s alleged bad faith handling of her claim. Thus, the
claims in the two complaints do not share the same operative facts.

¶13            This conclusion is further borne out by Nesbitt’s series of
complaints in this matter, which collectively demonstrate that she
understood there was a difference between the types of claims being
alleged in the original and amended complaints. Nesbitt filed a premises
liability claim (against the Fort McDowell Indian Community and Gaming
Center) in Maricopa County Superior Court on the same date she filed the
bad faith action against Tribal First. If Nesbitt had intended to pursue a
claim against Tribal First based on the conduct underlying her premises
liability claim, Tribal First would presumably have been included as an
additional defendant in the premises liability lawsuit. Thus, it is apparent
that the Tribal First litigation involved different conduct than that at issue
in Nesbitt’s original (premises liability) complaint.

¶14          Moreover, when her premises liability claim against Fort
McDowell Indian Community and Gaming Center was dismissed, Nesbitt
never attempted to amend that complaint to name Radisson as a
defendant or to appeal that dismissal. Her attempt to substitute Radisson
as a defendant in the instant case does not revive the previously-
dismissed premises liability litigation.

¶15            Citing Quiles, Nesbitt argues that this court has permitted
amendment under circumstances similar to those here. But in Quiles, an
insurance carrier had filed a timely complaint against a defendant whose
negligent conduct had injured the insured. 145 Ariz. at 75, 699 P.2d at
1306. The insured sought to intervene while the case was pending but
after the statute of limitations had run on his cause of action. Id. The trial
court barred the insured’s complaint based on the statute of limitations,
id., but this court reversed, holding that the insured’s complaint related
back to the insurance carrier’s original complaint. Id. at 76, 699 P.2d at
1307. Quiles is distinguishable because the conduct implicated in the
insurance carrier’s initial complaint was the same as that in the insured’s
amended complaint: in both cases the conduct at issue was the
defendant’s negligence that allegedly resulted in the insured being
injured. See id. In contrast, in the instant case, the conduct at issue in the
original complaint involved the denial of an insurance claim, which
related to a contract between an insured and an insurer, and not
necessarily to the merits of the underlying cause of action against the
insured.


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                        NESBITT v. RADISSON
                         Decision of the Court

¶16           Because Nesbitt’s amended complaint for premises liability
did not relate back to her original bad faith claim, we conclude that the
superior court did not err by applying the statute of limitations and
dismissing her amended complaint.

¶17             Finally, as the prevailing party on appeal, Radisson is
entitled to its costs on appeal upon its compliance with ARCAP 21.

                            CONCLUSION

¶18          For the foregoing reasons, we affirm the superior court’s
judgment.




                              :gsh




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