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Ulibarri v. Gerstenberger5/20/1993
GRANT, Presiding Judge
This is an appeal from summary judgment entered against the plaintiff, Patricia Ann Ulibarri, on the grounds that her action was barred by the statute of limitations. The defendant's motion for summary judgment was granted after the plaintiff failed to file a timely response. She then filed a motion to set aside the summary judgment asserting that her failure to respond was the result of excusable neglect. The trial court found there was no excusable neglect. The court further reaffirmed the summary judgment, holding the plaintiff's "supplemental" response to the motion for summary judgment failed to refute the defendant's showing that the action was time-barred.
FACTS AND PROCEDURAL HISTORY
On June 14, 1990, the plaintiff filed her verified complaint. In it she alleged that while she was being treated by the defendant, Dr. Dean Gerstenberger, in 1983 and 1984, he engaged in improper conduct, including sexual fondling and intercourse with her. She asserted causes of action for medical malpractice, sexual touching (of a negligent, willful, wanton and/or malicious nature), intentional infliction of emotional distress and invasion of privacy. The defendant filed an answer and counterclaim on August 24, 1990. The answer admits that the parties had a sexual affair but claims that the affair was consensual. The counterclaim asserts that plaintiff blackmailed defendant in 1986 for the very affair that forms the basis of her complaint. The counterclaim also alleges that the current suit constitutes abuse of process. The plaintiff filed a reply to the counterclaim on September 5, 1990.
On October 17, 1990, the defendant filed a motion for summary judgment. The motion certifies that service on the plaintiff's attorney, Peter T. Van Baalen, was accomplished by mail on October 16. Under the Arizona Rules of Civil Procedure ("Ariz. R. Civ. P.") 56(e) and 6(e), the response was due November 6, 1990. As of Wednesday, November 21, 1990, the plaintiff had not filed a response. On that date, which was the day before Thanksgiving, Judge Anderson's office called Van Baalen's secretary to inquire if a response would be filed. Van Baalen had already left town for Las Vegas for the four-day weekend. His secretary did not call him in Las Vegas.
Van Baalen's secretary informed him of the phone call when he returned on Monday, November 26, 1990. At his direction, the secretary called the defendant's attorney's secretary to request a fax copy of the motion. The motion was not faxed but was placed in the mail. Van Baalen also dictated a letter to defendant's attorney, with a copy to Judge Anderson, noting that he had not received a copy of the motion and asking that one be sent. The letter was mailed on Tuesday, November 27.
Van Baalen received the motion on Wednesday, November 28. The same day, Judge Anderson granted the motion as unopposed and also received his copy of Van Baalen's letter to defense counsel. On December 24, 1990, the Judge signed the formal judgment, which was entered on December 27, 1990.
On December 18, 1990, Van Baalen filed a "motion for reconsideration/motion for new trial: and motion to vacate judgment." The motion asserted cause under Rules 59(a) and 60(c)(1) and (6) Ariz. R. Civ. P. but contained no affidavits, only arguments of counsel. He also filed a "supplemental" response to the motion for summary judgment. This response contained no statement of facts, but attached affidavits of the plaintiff and Dr. John Ritland, a purported expert in hypnosis. On December 28, 1990, the defendant filed a response to the motion to vacate and reply to the response to the m
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