AA MECHANICAL v. Superior Court

Court of Appeals of Arizona

AA MECHANICAL v. Superior Court

948 P.2d 492, 190 Ariz. 364, 1997 Ariz. App. LEXIS 204

CourtCourt of Appeals of Arizona

DecidedNovember 18, 1997

Docket1 CA-SA 96-0239, 1 CA-SA 97-0012

StatusPublished

Cited by2 cases

This text of 948 P.2d 492 (AA MECHANICAL v. Superior Court) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

AA MECHANICAL v. Superior Court, 948 P.2d 492, 190 Ariz. 364, 1997 Ariz. App. LEXIS 204 (Ark. Ct. App. 1997).

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Opinions

OPINION

KLEINSCHMIDT, Judge.

The real parties in interest, Robert and Judy Vree, sued both AA Mechanical and Devenney Architects, among others, alleging that Robert Vree was injured by environmental toxins caused by the defendants’ negligent design and construction of the building in which Vree worked. The Petitioners filed separate motions to dismiss which asserted, [365]*365in part, that the Vrees failed to comply with Arizona Revised Statutes Annotated (“A.R.S.”) section 12-2602. The Petitioners seek special action review of the trial court’s denial of these motions to dismiss.

Section 12-2602 requires a party asserting a claim against a registered professional or contractor to submit an expert’s affidavit with the complaint attesting to the acts that gave rise to the claim and how they caused damage. The Petitioners assert that the Vrees failed to meet such requirements. Another panel of this court has recently held, in Hunter Contracting Co. v. Superior Court, 190 Ariz. 318, 947 P.2d 892 (App.1997), that A.R.S. section 12-2602 “infringes on the fundamental right of action,” does not survive a strict scrutiny analysis, and is therefore unconstitutional. We agree that Hunter is correct, and it disposes of the Petitioners’ claims based on section 12-2602.

The dissent criticizes Hunter for “putfting] review into the fatal category of strict scrutiny by extending the intended reach” of A.R.S. section 12-2602 to include “simple” negligence as well as “professional” negligence. The dissent draws a distinction the statute neither mentions nor supports. For example, the alleged negligence in Hunter — leaving a barricade lying in the road— was both “simple” and “professional.” One of the common professional duties of a general contractor is to keep the work site safe. See, e.g., Lewis v. N.J. Riebe Enterprises, Inc., 170 Ariz. 384, 388, 825 P.2d 5, 9 (1992); Cohen v. Salt River Project, 153 Ariz. 326, 330, 736 P.2d 809, 813 (App.1987). In any event, the case before us is indisputably within the reach of the statute because the alleged negligence was professional in nature.

The dissent concludes that A.R.S. section 12-2602 does not infringe on a fundamental right, and is thus not subject to a strict scrutiny analysis, which the dissent concedes the statute cannot survive. This puts the cart before the horse. In Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984), the supreme court said that the right to bring an action to recover for damages is a fundamental right. Any statute that infringes on that right is subject to strict scrutiny. The legislative hurdle section 12-2602 erects is no less an infringement than was the restrictive statute of limitations the supreme court was dealing with in Kenyon. The whole purpose of A.R.S. section 12-2602 is to infringe on the right to bring a claim.

The remaining issue is whether the service of the complaint on AA Mechanical was timely. It is undisputed that the original complaint was filed on November 17, 1995, and that AA Mechanical was served on March 18, 1996. Rule 4(i), Arizona Rules of Civil Procedure, requires service of the summons and complaint to be made upon a defendant within 120 days after the filing of the complaint. AA Mechanical asserts that the 120 days should include the day the complaint was filed and that the 120th day fell on Friday, March 15, 1996. We disagree.

Rule 6(a), Arizona Rules of Civil Procedure, states that “[i]n computing any period of time prescribed or allowed by these rules, ... the day of the act, event or default from which the designated period of time begins to run shall not be included.” Thus, the day of filing, November 17,1995, does not count and the last day for service would then be Saturday, March 16, 1996. Rule 6(a), however, excludes weekends and holidays from being counted as the last day of a time period and therefore Monday, March 18, 1996, was the last day for timely service. See Maciborski v. Chase Service Corp., 161 Ariz. 557, 560, 779 P.2d 1296, 1299 (App.1989) (first day is excluded when computing time in which an act is required to be done). The trial judge’s ruling that the complaint was timely served was proper.

For the reasons set forth above, review is granted but relief denied.

GRANT, J., concurs.

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OPINION

KLEINSCHMIDT, Judge.

The real parties in interest, Robert and Judy Vree, sued both AA Mechanical and Devenney Architects, among others, alleging that Robert Vree was injured by environmental toxins caused by the defendants’ negligent design and construction of the building in which Vree worked. The Petitioners filed separate motions to dismiss which asserted, [365]*365in part, that the Vrees failed to comply with Arizona Revised Statutes Annotated (“A.R.S.”) section 12-2602. The Petitioners seek special action review of the trial court’s denial of these motions to dismiss.

Section 12-2602 requires a party asserting a claim against a registered professional or contractor to submit an expert’s affidavit with the complaint attesting to the acts that gave rise to the claim and how they caused damage. The Petitioners assert that the Vrees failed to meet such requirements. Another panel of this court has recently held, in Hunter Contracting Co. v. Superior Court, 190 Ariz. 318, 947 P.2d 892 (App.1997), that A.R.S. section 12-2602 “infringes on the fundamental right of action,” does not survive a strict scrutiny analysis, and is therefore unconstitutional. We agree that Hunter is correct, and it disposes of the Petitioners’ claims based on section 12-2602.

The dissent criticizes Hunter for “putfting] review into the fatal category of strict scrutiny by extending the intended reach” of A.R.S. section 12-2602 to include “simple” negligence as well as “professional” negligence. The dissent draws a distinction the statute neither mentions nor supports. For example, the alleged negligence in Hunter — leaving a barricade lying in the road— was both “simple” and “professional.” One of the common professional duties of a general contractor is to keep the work site safe. See, e.g., Lewis v. N.J. Riebe Enterprises, Inc., 170 Ariz. 384, 388, 825 P.2d 5, 9 (1992); Cohen v. Salt River Project, 153 Ariz. 326, 330, 736 P.2d 809, 813 (App.1987). In any event, the case before us is indisputably within the reach of the statute because the alleged negligence was professional in nature.

The dissent concludes that A.R.S. section 12-2602 does not infringe on a fundamental right, and is thus not subject to a strict scrutiny analysis, which the dissent concedes the statute cannot survive. This puts the cart before the horse. In Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984), the supreme court said that the right to bring an action to recover for damages is a fundamental right. Any statute that infringes on that right is subject to strict scrutiny. The legislative hurdle section 12-2602 erects is no less an infringement than was the restrictive statute of limitations the supreme court was dealing with in Kenyon. The whole purpose of A.R.S. section 12-2602 is to infringe on the right to bring a claim.

The remaining issue is whether the service of the complaint on AA Mechanical was timely. It is undisputed that the original complaint was filed on November 17, 1995, and that AA Mechanical was served on March 18, 1996. Rule 4(i), Arizona Rules of Civil Procedure, requires service of the summons and complaint to be made upon a defendant within 120 days after the filing of the complaint. AA Mechanical asserts that the 120 days should include the day the complaint was filed and that the 120th day fell on Friday, March 15, 1996. We disagree.

Rule 6(a), Arizona Rules of Civil Procedure, states that “[i]n computing any period of time prescribed or allowed by these rules, ... the day of the act, event or default from which the designated period of time begins to run shall not be included.” Thus, the day of filing, November 17,1995, does not count and the last day for service would then be Saturday, March 16, 1996. Rule 6(a), however, excludes weekends and holidays from being counted as the last day of a time period and therefore Monday, March 18, 1996, was the last day for timely service. See Maciborski v. Chase Service Corp., 161 Ariz. 557, 560, 779 P.2d 1296, 1299 (App.1989) (first day is excluded when computing time in which an act is required to be done). The trial judge’s ruling that the complaint was timely served was proper.

For the reasons set forth above, review is granted but relief denied.

GRANT, J., concurs.

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948 P.2d 492, 190 Ariz. 364, 1997 Ariz. App. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aa-mechanical-v-superior-court-arizctapp-1997.

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