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Pritchard v. State3/5/1990
le on a motion to dismiss. See Anson v. American Motors Corp., 155 Ariz. 420, 747 P.2d 581 (App.1987).
The dissent in the court of appeals would have found excusable neglect to exist, as a matter of law, in this case. In the dissenter's view, plaintiff "looked to the state and its criminal process for vindication." Pritchard, 161 Ariz. at 456, 778 P.2d at 1352 (emphasis in original) The dissent argues that it is unconscionable to expect plaintiff to "simultaneously explore civil recourse against the state " and at the same time actively, and at great personal expense, assist the state in prosecuting Eddy. Id. at 456, 778 P.2d at 1352 (emphasis in original).
However, we do not think it advisable to hold that the claims period is tolled every time a victim assists a state in prosecuting a case. Rather, the victim's assistance may be a factor in the totality of circumstances that the finder of fact may consider in determining whether excusable neglect exists. We agree with the majority of the court of appeals that this case presents factual issues with respect to plaintiff's diligence and competence.
Finally, we note that the state has waived its contentions that the complaint was defective for failing to state a sum certain or for being filed before the state had properly disallowed the claim. Effective August 1, 1989, Rule 23(e), Ariz. R. of Civ. App. P., requires respondent to list separately and without argument those issues that were presented to, but not decided by, the court of appeals in order to preserve those issues on review. However, the new rule does not apply in this case because the petition for review was filed on June 15, 1989. Therefore, respondent's undecided claims are governed by the law expounded before August 1, 1989, in State v. Ikirt, 160 Ariz. 113, 770 P.2d 1159 (1989). In Ikirt, we held that a respondent must file a cross-petition for review to request this court's consideration of issues left undecided by the court of appeals. Because the state here has failed to cross-petition, it has waived its above-mentioned defenses.
Conclusion
The claims statute, A.R.S. ยง 12-821(A) is not jurisdictional. Therefore, the trial court could not properly dismiss the case for lack of subject matter jurisdiction under Rule 12(b)(1). To the extent the motion was founded on Rule 12(b)(6) (failure to state a claim), it became a motion for summary judgment once materials outside the pleadings were considered. Summary judgment was not appropriate because material issues of fact exist as to plaintiff's
competence and excusable neglect. Such issues of fact are matters properly left to the jury, and could not be resolved by the trial judge.
The trial court judgment of dismissal is reversed, the opinion of the court of appeals is vacated, and the case is remanded to the trial court for further proceedings consistent with this opinion.
Ordered; Petition for Review GRANTED on all issues.
Judges Footnotes
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