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Tilley v. Delci - 1/29/2009

Arizona Court of Appeals Division One Holds That Summary Judgment is Not a Sanction.

Less than a month before the statute of limitations expired, Jerry Tilley (“Tilley”) filed a negligence action against Benjamin Albert Delci (“Delci”) and Delci’s employer arising out of an automobile accident.  Delci answered and served an initial disclosure statement and written discovery requests on Tilley.  Tilley, however, failed to serve initial disclosures and failed to respond to Delci’s written discovery requests for more than ten months, despite numerous extensions and a court order requiring him to do so.  Ultimately, Delci filed a motion to dismiss for failure to prosecute and a motion for summary judgment.  The day before oral argument on Delci’s motions, Tilley served a disclosure statement and discovery responses on Delci.  The next day, Tilley filed a cursory response to the pending motions stating that he had submitted the required disclosures and discovery responses.  Tilley did not attach either his disclosure statement or his discovery responses to this filing. 

Following oral argument, the court denied Delci’s motion to dismiss but ordered Tilley to file a proper response to the motion for summary judgment within ten days.  In response to the court’s order, Tilley filed three documents, none of which constituted a proper response to Delci’s summary judgment motion.  Once again, the trial court ordered Tilley to file and serve a proper response to the motion for summary judgment within thirty days.  Tilley failed to comply.  Thus, following a second oral argument, the trial court granted Delci’s motion for summary judgment, finding that Tilley failed to submit anything that could create a genuine issue of material fact.  Tilley moved for reconsideration, attaching for the first time his discovery responses.  The superior court denied the motion for reconsideration and Tilley timely appealed.

On appeal, Tilley argued that the summary judgment entered against him constituted an inappropriate discovery sanction.  As such, Tilley claimed that the court should have conducted an evidentiary hearing to determine whether he or his counsel was at fault and should have considered less drastic sanctions.  The Court of Appeals rejected this argument as a conflation of a litigant’s discovery and disclosure obligations with the requirements of Rule 56.  Summary judgment is not a sanction, but a final judgment on the merits.  In this case, the trial court properly held that Tilley had failed to submit any evidence creating a genuine issue of material fact.  Without deciding whether the trial court was obligated to independently search the record for evidence of a material factual dispute, the Court held that no such search was possible here because the trial court simply had no evidence before it.  Finally, because summary judgment is a final judgment on the merits and not a discovery sanction, the Court rejected Tilley’s argument that the Arizona “savings statute” set forth in A.R.S. § 12-504 permitted him to re-file his Complaint despite the fact that the statute of limitations for Tilley’s claims had run.

Judge Downie authored the opinion; Presiding Judge Brown and Judge Barker concurred.



Posted On: 2/4/2009