                                                                   FILED BY CLERK
                              IN THE COURT OF APPEALS               AUG 22 2013
                                  STATE OF ARIZONA
                                                                      COURT OF APPEALS
                                    DIVISION TWO                        DIVISION TWO




SUSAN WYCKOFF,                              )
                                            )
                       Plaintiff/Appellant, )       2 CA-CV 2012-0152
                                            )       DEPARTMENT B
              v.                            )
                                            )       OPINION
MOGOLLON HEALTH ALLIANCE,                   )
a foreign corporation,                      )
                                            )
                      Defendant/Appellee. )
                                            )


            APPEAL FROM THE SUPERIOR COURT OF GILA COUNTY

                                Cause No. CV201000376

                     Honorable Gary V. Scales, Judge Pro Tempore
                       Honorable Christopher P. Staring, Judge

                                      AFFIRMED


Watters & Watters, P.L.L.C.
 By Andrea E. Watters                                                          Tucson
                                                     Attorneys for Plaintiff/Appellant

Law Offices of Mary Brooksby, PLLC
 By Don Stevens                                                             Phoenix
                                                    Attorneys for Defendant/Appellee


E C K E R S T R O M, Judge.
¶1            Plaintiff Susan Wyckoff appeals from the trial court’s grant of summary

judgment in favor of defendant Mogollon Health Alliance. For the following reasons, we

affirm.

                         Factual and Procedural Background

¶2            In reviewing a trial court’s grant of summary judgment, we view the facts

and reasonable inferences therefrom in the light most favorable to the losing party. See

Acosta v. Phx. Indem. Ins. Co., 214 Ariz. 380, ¶ 2, 153 P.3d 401, 402 (App. 2007).

Wyckoff was employed by a hospital owned by Mogollon Health Alliance (Mogollon)

when she noticed water leaks in her office “staining the walls and causing an offensive

odor.” Throughout the time of her employment, Wyckoff recognized a pattern of illness:

she would gradually become more and more ill as the workweek progressed, feel “very

ill” by Friday, but would then feel better by Sunday, “only to start the illness cycle all

over again come Monday.” Wyckoff moved to another office within the same building,

but her health did not improve. After the move, she noticed “a black substance she

believed to be mold” throughout the building. Wyckoff and other employees complained

about the mold problem. She also conducted an air quality test within her office and

provided the results to her employer as proof that the environment was unsafe.

Wyckoff’s health problems worsened, and she eventually left her employment at the

hospital on February 1, 2008.1



          1
       In what appears to be a typographical error and repeated oversight, Wyckoff
mistakenly claims she retired in February 2006.

                                            2
¶3           Wyckoff filed a complaint in Pima County against Mogollon, alleging

premises liability and negligence. Mogollon did not file an answer in a timely manner,

and the court entered a default judgment against Mogollon in the amount of $650,000.

Mogollon filed a motion to set aside the default judgment, which the court granted. The

court also granted Mogollon’s motion to transfer the case to Gila County. Mogollon then

filed a motion for summary judgment in Gila County, claiming Wyckoff’s action was

barred by the statute of limitations. The court granted Mogollon’s motion. On appeal,

Wyckoff contends the court erred in setting aside the default judgment and in granting

Mogollon’s motion for summary judgment.

                                       Jurisdiction

¶4           As a threshold matter, Mogollon posits that this court lacks jurisdiction to

consider the order vacating the default judgment. Under A.R.S. § 12-2101(A)(2), this

court has jurisdiction to hear an appeal “[f]rom any special order made after final

judgment.” Although this does not include an order setting aside an entry of default, it

does generally include an order setting aside a default judgment. Sanders v. Cobble, 154

Ariz. 474, 475-76, 744 P.2d 1, 2-3 (1987). However, the order setting aside the default

judgment in this case was not signed and did not concern all parties, and it was therefore

not appealable under § 12-2101(A)(2).           See Ariz. R. Civ. P. 54(a), (b), 58(a).

Nonetheless, “an appealable judgment . . . brings before us all the orders from which . . .

separate appeals could not be taken.” Miller v. Ariz. Bank, 45 Ariz. 297, 303, 43 P.2d

518, 521 (1935); see A.R.S. § 12-2102(A) (appellate review from “final judgment”

includes “intermediate orders involving the merits of the action and . . . all orders and

                                            3
rulings assigned as error”). Therefore, because we have jurisdiction to consider the trial

court’s grant of summary judgment under § 12-2101(A)(1), we likewise have jurisdiction

to consider all issues related to this judgment that were not separately appealable,

including the order vacating the initial default judgment.

                                        Abatement

¶5            Mogollon also argues that Wyckoff’s failure to serve her complaint in a

timely manner caused her action to abate. Abatement is an affirmative defense that must

be raised below, otherwise it is waived. Snow v. Steele, 121 Ariz. 82, 86, 588 P.2d 824,

828 (1978); see Schwartz v. Ariz. Primary Care Physicians, 192 Ariz. 290, 295, 964 P.2d

491, 496 (App. 1998) (recognizing 1991 rule changes “did not eliminate the doctrine of

abatement” but “simply shortened the time limit for service”). Because Mogollon has

raised this claim for the first time on appeal, and because the trial court did not dismiss

the action against Mogollon due to untimely service, see Ariz. R. Civ. P. 4(i), we do not

consider the argument further. Owens v. City of Phoenix, 180 Ariz. 402, 407 n.8, 884

P.2d 1100, 1105 n.8 (App. 1994).

                                    Default Judgment

¶6            Wyckoff asserts the court erred in granting Mogollon’s motion to set aside

the default judgment. We review a trial court’s order vacating a default judgment for an

abuse of discretion. See BYS Inc. v. Smoudi, 228 Ariz. 573, ¶ 14, 269 P.3d 1197, 1201

(App. 2012). She claims the court erred in finding the judgment was void, rather than

voidable, and that Mogollon had not met its burden of showing the judgment should be

vacated under Rule 55(c) and Rule 60(c), Ariz. R. Civ. P. However, Wyckoff never

                                             4
argued to the trial court that the judgment was voidable, rather than void. She has

therefore waived this argument on appeal. See Dawson v. Withycombe, 216 Ariz. 84,

¶ 64, 163 P.3d 1034, 1055 (App. 2007).2

                                 Statute of Limitations

¶7            Wyckoff next contends the trial court erred in finding her claims time

barred.    “In reviewing the granting of summary judgment on statute of limitations

grounds, . . . [w]e must determine de novo whether there are any genuine issues of

material fact and whether the trial court erred in applying the law.”        Logerquist v.

Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996).

¶8            A cause of action based on a personal injury must be brought within two

years after the cause of action accrues. A.R.S. § 12-542(1). “The purpose of the statute

of limitations is to ‘protect defendants and courts from stale claims where plaintiffs have

slept on their rights.’” Doe v. Roe, 191 Ariz. 313, ¶ 29, 955 P.2d 951, 960 (1998),

quoting Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 590,

898 P.2d 964, 968 (1995). Statutes of limitations are premised on two foundations: First,

that a person who has a valid claim will promptly “‘attempt to enforce a demand,’” and

second, that after too much time has passed, “‘by loss of evidence from death of some

witnesses, and the imperfect recollection of others, or the destruction of documents, it

might be impossible to establish the truth.’” Mayer v. Good Samaritan Hosp., 14 Ariz.


       2
         Because Wyckoff’s remaining arguments challenging the trial court’s order
setting aside the default judgment are premised on her contention that the court erred in
concluding the judgment was void, we do not address them.

                                            5
App. 248, 251, 482 P.2d 497, 500 (1971), quoting Riddlesbarger v. Hartford Ins. Co., 74

U.S. 386, 390 (1868).

¶9            However, in some situations, a plaintiff may be injured in a way that is

difficult for her to discover within the period of limitations. Id. at 251-52, 482 P.2d at

500-01. Acknowledging that a plaintiff “cannot maintain an action before she knows she

has one,” Arizona courts have adopted the discovery rule. Id. at 252, 482 P.2d at 501.

Under that rule, “a cause of action accrues ‘when the plaintiff knew or by the exercise of

reasonable diligence should have known of the defendants’ conduct.’” Logerquist, 188

Ariz. at 19, 932 P.2d at 284, quoting Mayer, 14 Ariz. App. at 252, 482 P.2d at 501. In

other words, the statute begins to run not from the moment of the defendant’s injurious

conduct, but when a claimant knows or should know she has been injured and when she

likewise “knows or with reasonable diligence should know the facts underlying the

cause.” Doe, 191 Ariz. 313, ¶ 29, 955 P.2d at 960. Arizona follows the discovery rule in

cases of personal injury resulting from exposure to toxic substances.        See Burns v.

Jaquays Mining Corp., 156 Ariz. 375, 378, 752 P.2d 28, 31 (App. 1987). The plaintiff

has the burden of establishing that the discovery rule should apply to delay the statute of

limitations. Logerquist, 188 Ariz. at 19, 932 P.2d at 284.

¶10           Arizona courts have not addressed the issue of the discovery rule in the

specific context of toxic mold exposure.         However, in reviewing cases from other

jurisdictions, a general rule emerges: The cause of action begins to accrue when the

claimant experiences physical signs and symptoms of illness, knows that she has been

exposed to mold, and knows that mold may present a health hazard. See, e.g., Graveline

                                             6
v. Select Comfort Retail Corp., 871 F. Supp. 2d 1033, 1038 (E.D. Cal. 2012) (statute

began to run when plaintiff discovered mold in mattress); Doherty v. Admiral’s Flagship

Condo. Trust, 951 N.E.2d 936, 941-42 (Mass. App. Ct. 2011) (statute began to run when

plaintiff received report of hazardous mold in her condominium); Marcinkowski v.

Castle, 870 N.Y.S.2d 206, 207 (App. Div. 2008) (statute began to run when plaintiff

began to experience health issues from previously discovered mold); Pirtle v. Kahn, 177

S.W.3d 567, 573-74 (Tex. App. 2005) (statute began to run when plaintiff discovered

mold in her apartment and inferred connection to her health problems).

¶11           We find Gerke v. Romero, 237 P.3d 111 (N.M. Ct. App. 2010), particularly

instructive. In that case, a tenant began experiencing symptoms shortly after moving into

a rental home. Id. at 116. The tenant eventually moved out of the home, and, at the time

of the move, “was suffering from a host of symptoms, knew that there was mold in the

home, believed that the mold was causing his symptoms, and had been informed by the

[Environmental Protection Agency] that mold could indeed be dangerous to humans.” Id.

The court held that the date the tenant moved out was the latest possible date the accrual

period could have begun, id., even though he did not receive a “formal medical

diagnosis” until nearly three years later. Id. at 115.

¶12           Here, although Wyckoff does not provide specific dates for the events

leading up to her leaving employment at the hospital, they must have occurred before

February 1, 2008, when she retired. At that point, Wyckoff was experiencing physical

illness. She knew her illness grew worse as the workweek progressed and improved over

the weekend, which she concedes gave her cause to suspect a condition at her workplace

                                              7
was causing her illness. She had observed that “a black substance she believed to be

mold was pervasive in her office,” and she reported to her employer that this issue was

causing her to experience health problems. Wyckoff even conducted a petri-dish test of

the air in her office, and, although she does not specify precisely what was found, the

results were sufficient for her to “advise [her employer] that the workplace was unsafe.”

¶13          Like the plaintiff in Gerke, Wyckoff was experiencing physical symptoms,

aware of the presence of mold, knew that mold was dangerous, and suspected that the

mold could be the cause of her illness. 237 P.3d at 116. Because these events all

occurred before February 1, 2008, Wyckoff’s cause of action accrued at some point

before that date. Wyckoff did not file her complaint until February 1, 2010, more than

two years after accrual began.

¶14          Wyckoff emphasizes that, notwithstanding her suspicions regarding the

cause of her illness, her treating physicians during her employment and after her

retirement persistently declined to diagnose her ailments as having been caused by

exposure to mold. To support this argument she presents medical reports from her

treating physicians dated October and November 2006 (during her employment), March,

April, and May of 2009 (more than a year after she asserts she “medically retired”), and

August of 2009 (when she first received a diagnosis connecting her ailments to mold

toxicity). If, hypothetically, these documents revealed that Wyckoff had presented her

suspicions of mold toxicity to her physician in 2006 and had received a contradictory

diagnosis, those facts might cause us to postpone the date of accrual. Accrual begins

when a person knows, or with reasonable diligence should have known, the cause of her

                                            8
injury, Doe, 191 Ariz. 313, ¶ 29, 955 P.2d at 960, and we would not hold that reasonable

diligence requires a lay person to ignore the opinion of a trained medical expert.

¶15           However, the documents do not reflect, and Wyckoff does not allege, that

she presented her suspicions regarding the mold to a medical professional before her

retirement. The first mention of mold in any of Wyckoff’s medical records is dated

April 13, 2009, more than one year after Wyckoff’s retirement. Wyckoff’s own affidavit

states that when her primary care doctor “was made aware of [her] problems, . . . [he]

was not able to determine whether or not they were caused by the mold,” and he referred

her to a specialist for further consultation. Moreover, at no point was Wyckoff ever

definitively advised that her health problems were unrelated to the mold exposure. To

the contrary, the record suggests that once she raised the issue to her physician in April of

2009, he eventually referred her to a specialist who confirmed mold toxicity as the cause

of her ailments. Accordingly, when viewed in the light most favorable to Wyckoff, the

record before the trial court does not support the inference that contradictory medical

opinion overrode her initial belief about the cause of her injury. Rather, the record

suggests that, once she sought a medical opinion to confirm those suspicions, she

eventually received that confirmation, albeit after several months had passed.3



       3
        Wyckoff does not argue the statute of limitations should be tolled for the period
between when she first saw her primary care physician, who could not confirm that
suspicion, and when she received the diagnosis of mold toxicity, and therefore we do not
consider it. See Van Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d 214, 216 (1977)
(“[F]ailure to raise an issue either at the trial level or in briefs on appeal constitutes a
waiver of the issue.”).

                                             9
¶16          The trial court therefore did not err in granting summary judgment in favor

of Mogollon based on the statute of limitations.

                                       Disposition

¶17          For the foregoing reasons, the judgment of the trial court is affirmed.


                                             /s/ Peter J. Eckerstrom
                                             PETER J. ECKERSTROM, Judge

CONCURRING:


/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Presiding Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




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