NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

WILLIAM HILLER, an individual; LAURENCE M. BERLIN, on behalf of

the estate of SUZANN RANDT a.k.a. SUZANN HILLER,

Plaintiffs/Appellants,

v.

HUALAPAI MOUNTAIN MEDICAL CENTER, L.L.C., a North Carolina

limited liability company, d/b/a HUALAPAI MOUNTAIN MEDICAL

CENTER; HUALAPAI MOUNTAIN MEDICAL PROFEES, L.L.C., an

Arizona limited liability company, d/b/a HUALAPAI MOUNTAIN

MEDICAL CENTER; HUALAPAI MOUNTAIN MEDICAL CENTER

MANAGEMENT, L.L.C., a North Carolina limited liability company, 

d/b/a HUALAPAI MOUNTAIN MEDICAL CENTER; MEDCATH

INCORPORATED, a North Carolina corporation; MEDCATH 

CORPORATION, a Delaware corporation; DOUGLAS BUSHELL, M.D.;

MIKE IMHOLZ, R.N.; GRACE WOOD, R.N.; FAITH MARIE SMITH, the 

natural born child of Suzann Randt; MICHAEL DANIEL SMITH, the

natural born child of Suzann Randt, 

Defendants/Appellees.

No. 1 CA-CV 14-0087

Appeal from the Superior Court in Mohave County

No. S8015CV201101627

The Honorable Charles W. Gurtler, Judge

REVERSED AND REMANDED
2

COUNSEL

Law Office of Bradley L. Booke, Jackson, WY

By Bradley L. Booke

Counsel for Plaintiffs/Appellants

Slattery Petersen PLLC, Phoenix

By Elizabeth A. Petersen 

Counsel for Defendant/Appellee Michael Imholz, R.N.

Quintairos Prieto Wood & Boyer LLC, Phoenix

By Thomas G. Bakker

Counsel for Defendant/Appellee Douglas Bushell, M.D.

Sanders Parks, Phoenix

By Mandi J. Karvis

Counsel for Defendant/Appellee Hualapai Mountain Medical Center

MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in 

which Judge Peter B. Swann joined. Judge Lawrence F. Winthrop

dissented.

C A T T A N I, Judge:

¶1 William Hiller and the estate of Suzann Randt (collectively, 

“Hiller”) appeal from the superior court’s order dismissing his wrongful 

death action for failure to prosecute and for failing to follow court orders. 

For reasons that follow, we reverse.

FACTS AND PROCEDURAL BACKGROUND

¶2 On October 27, 2010, Suzann Randt, a critically-ill indigent 

woman with terminal liver cancer, died after seeking treatment for 

abdominal pain at Hualapai Mountain Medical Center (“HMMC”). 
HILLER v. HUALAPAI, et al.

Decision of the Court

3

Randt’s husband, William Hiller,1 sued HMMC, Kingman Hospital Inc.,2

Douglas Bushell, M.D., Mike Imholz, R.N., and Grace Wood, R.N.

(collectively, the “defendants”). The complaint asserted that, rather than 

providing necessary medical care, emergency room personnel at HMMC 

tied Randt with a bed sheet into a wheelchair and left her in a waiting area. 

Police officers, responding to HMMC’s request that Randt be removed from 

the premises, found her dead in the wheelchair. The complaint alleged 

several causes of action, including: wrongful death; medical malpractice;

negligent hiring, training, and management; negligence per se; assault and 

battery; and abuse of a vulnerable adult. The defendants individually 

answered Hiller’s complaint by March 9, 2012. The complaint and 

responsive pleadings framed the central dispute as whether the defendants 

had appropriately evaluated Randt and offered her proper medical care, as 

well as any causal connection between the defendants’ conduct and Randt’s

death.

¶3 Beginning in June 2012, several defendants moved to dismiss 

the case, arguing that Randt’s two adult children were indispensable parties 

because they were statutory beneficiaries under the wrongful death 

statutes. While that motion remained pending, HMMC (later joined by 

other defendants) moved to dismiss based on Hiller’s failure to attach 

preliminary expert opinion affidavits as required by Arizona Revised 

Statutes (“A.R.S.”) § 12-2603.3 The superior court granted Hiller leave to 

amend the complaint to include the requisite affidavits, and Hiller filed 

compliant preliminary expert affidavits in September 2012.

¶4 By October 2012, in supplemental briefing on the 

indispensable party motion, Hiller indicated that Randt’s daughter had 

been located in an Oregon prison, but that Hiller was unable to speak with 

her because of her mental health issues. The superior court denied the 

motion to dismiss, but ruled the adult children were indispensable parties 

 

1 The superior court appointed a guardian ad litem (“GAL”) for 

William Hiller in December 2011 due to diminished mental competency.

2 The superior court later granted summary judgment for Kingman

Hospital on the grounds that it had only purchased HMMC’s assets after 

HMMC ceased operations, and had not become HMMC’s successor in 

interest. That ruling is not challenged on appeal.

3 Absent material revisions after the relevant date, we cite a statute’s 

current version.
HILLER v. HUALAPAI, et al.

Decision of the Court

4

and gave Hiller leave to amend the complaint to name Randt’s adult 

children as involuntary plaintiffs.4 The court also ordered Hiller to seek 

appointment of a GAL for Randt’s daughter, and to either locate and 

personally serve Randt’s son or serve him by publication if necessary.

¶5 In mid-December 2012, Hiller filed an amended complaint 

naming Randt’s adult children as statutory beneficiaries. Hiller served 

Randt’s daughter on January 31, 2013, but did not seek appointment of a 

GAL for the daughter, or take additional steps to locate Randt’s son or 

otherwise attempt to serve him by publication.

¶6 In late October 2013, the defendants filed a joint motion to 

dismiss for failure to prosecute and failure to comply with court orders. In 

response, Hiller’s counsel acknowledged inefficient prosecution of the case, 

but argued that Hiller had not abandoned the case and that the delay 

related to “the unexpected loss of substantial members of [] counsel’s staff 

over a short period of time, without any corresponding reduction in 

caseload.” The superior court granted the motion to dismiss.

¶7 Hiller timely appealed. We have jurisdiction under A.R.S. §

12-2101(A)(1).

DISCUSSION

¶8 We review a dismissal for failure to prosecute for an abuse of 

discretion. Slaughter v. Maricopa County, 227 Ariz. 323, 326, ¶ 14, 258 P.3d 

141, 144 (App. 2011); see also Quigley v. City Court, 132 Ariz. 35, 37, 643 P.2d 

738, 740 (App. 1982) (“An ‘abuse of discretion’ is discretion manifestly 

unreasonable, or exercised on untenable grounds, or for untenable 

reasons.”). Dismissal is only appropriate when a delay, given all of the 

circumstances, demonstrates that the plaintiff has effectively abandoned 

the action or that the adverse party is prejudiced by plaintiff’s delay. Cooper 

v. Odom, 6 Ariz. App. 466, 469, 433 P.2d 646, 649 (1967). In assessing failure 

to prosecute, the superior court considers the activities of both parties, the 

information provided to the court regarding the status of the case, and other 

factors that may explain or excuse lack of diligence in prosecuting the case. 

Jepson v. New, 164 Ariz. 265, 276, 792 P.2d 728, 739 (1990).

¶9 Arizona courts have long recognized a preference for 

resolving cases on their merits. See, e.g., Clemens v. Clark, 101 Ariz. 413, 414, 

420 P.2d 284, 285 (1966) (reiterating preference to “decide cases on their 

 

4 Hiller has not challenged the court’s ruling that the adult children 

were indispensable parties.
HILLER v. HUALAPAI, et al.

Decision of the Court

5

merits and not to punish litigants because of the inaction of their counsel”);

Walker v. Kendig, 107 Ariz. 510, 512, 489 P.2d 849, 851 (1971) (stating that, 

although dismissal from inactive calendar for lack of prosecution is without 

prejudice, “such an order must be issued only after careful consideration 

because justice requires that when possible a matter be determined upon its 

merits”); Montano v. Browning, 202 Ariz. 544, 546, ¶ 4, 48 P.3d 494, 496 (App. 

2002). Here, the superior court dismissed the case more than two months 

before the first scheduled trial date even though all of the relevant 

documentary evidence had been disclosed and even though Hiller’s 

counsel had avowed they were prepared to go to trial. The court did not 

address any alternatives to dismissal and dismissed the case 

notwithstanding the absence of any prior warnings. Moreover, the court 

ordered dismissal—the death knell to the client’s case—without a finding 

that Hiller himself, rather than his attorney, was at fault for the delay. Cf.

Lund v. Donahoe, 227 Ariz. 572, 581, ¶¶ 33–34, 261 P.3d 456, 465 (App. 2011) 

(describing the purpose of a “culprit hearing,” which assesses whether 

lawyer or party should be held responsible for a discovery violation, as 

“protecting a party from dispositive sanctions when the fault lies only with 

counsel”).

¶10 Although Hiller should have complied with the court’s order 

directing him to seek the appointment of a GAL for Randt’s daughter, his 

failure to do so does not justify dismissal. After Hiller advised the court 

that the daughter had been served but may have mental health issues 

requiring appointment of a GAL, the court could have done so sua sponte. 

See Ariz. R. Civ. P. 17(g) (authorizing superior court to appoint a GAL for 

an incompetent person not otherwise represented in the action). Moreover, 

although the statutory beneficiaries’ interests are aligned regarding thirdparty liability in a wrongful death action, any recovery to which the 

daughter might be entitled would theoretically diminish Hiller’s potential 

recovery. See A.R.S. § 12-612(C) (recovery in wrongful death action 

distributed proportionally among statutory beneficiaries). Hiller’s counsel

was not representing the daughter and his responsibilities regarding the 

daughter were arguably satisfied by locating her, amending the complaint 

and serving her with a copy of the complaint. Similarly, although Hiller 

should have served Randt’s son, that failure did not warrant dismissal, 

particularly since the superior court made no finding that service by 

publication was no longer feasible given the scheduled trial date, and the 

court did not address whether other alternatives for dealing with the adult 

son had been considered.

¶11 The superior court’s findings regarding the alleged prejudice 

suffered by the defendants does not withstand scrutiny. The court found, 
HILLER v. HUALAPAI, et al.

Decision of the Court

6

for example, that, without Randt’s adult children participating, the 

defendants could not be expected to initiate pre-trial discovery to 

investigate and defend against the merits of Hiller’s allegations. But there 

is no indication as to what information Randt’s two adult children (who 

apparently had not seen her in more than 15 years) could have provided 

regarding the merits of the case. And the record establishes that the 

defendants were well aware of the circumstances giving rise to the 

complaint. The parties had in fact disclosed and exchanged detailed 

information about all of the factual and legal claims asserted, including all 

relevant medical records, police records, records from the medical 

examiner concerning the cause of the decedent’s death, and all of Randt’s

employment and income records. The parties had also identified and 

exchanged information concerning all proposed trial witnesses.

¶12 The superior court further found that the defendants had 

been prejudiced because the allegedly inordinate delay affected the ability 

of some of the defendants to timely seek reemployment after operations at 

HMMC ceased. But the case was dismissed prior to the initial trial date, 

and the asserted prejudice would have resulted even if Hiller had complied 

with every court directive and the case had gone to trial. Thus, this 

prejudice is not tied to Hiller’s failure to comply with court orders. 

Moreover, the facts underlying the incident were known and would 

presumably have needed to be addressed by the defendants seeking 

employment regardless whether anyone pursued litigation following 

Randt’s death.

¶13 Similarly, the court relied on the fact that the continued 

pendency of the action had to be documented and explained in various 

credentialing and insurance applications. Again, however, these facts are 

unrelated to Hiller’s conduct and instead relate to the underlying incident

resulting in Randt’s death. Because this alleged prejudice is not linked to 

Hiller’s delay, these facts are not a proper basis for dismissing the case.

¶14 The superior court also noted that more than three years had 

passed since the events giving rise to this action, resulting in potential 

memory issues for witnesses and in problems with conducting witness 

interviews and depositions. But such concerns overlook the fact that 

dismissal occurred prior to the first scheduled trial date, and thus are 

similarly unrelated to Hiller’s failure to properly deal with Randt’s adult 

children. More importantly, the concerns do not support dismissal in light 

of the discovery that had been conducted and given Hiller’s avowal that he

would be ready to proceed with trial on the first scheduled trial date.
HILLER v. HUALAPAI, et al.

Decision of the Court

7

¶15 Implicitly recognizing the weakness in the superior court’s 

prejudice analysis, our dissenting colleague states that “the real prejudice

to the defendants lies in the deleterious effect of continuing delay.” The 

dissent posits that although Hiller’s counsel stated that he would have been 

ready for trial on the scheduled date, there is no reason to believe that by 

such date Hiller would have either located and served the adult son, or 

would have filed the petition to have a GAL appointed for the adult 

daughter. The dissent further notes that even assuming this case survived 

to the scheduled trial date, the superior court would likely have either 

dismissed the case at that point for failure to join indispensable parties or 

would have continued the trial to some later date.

¶16 But any assessment of what “likely” would have happened 

by the time of trial is premature. If the superior court had warned Hiller of 

the possibility the case would be dismissed, and if Hiller had thereafter 

immediately served the son by publication and had sought the 

appointment of a GAL for the decedent’s adult daughter (or if the superior 

court had sua sponte appointed a GAL), it is entirely possible that the trial 

could have gone forward as scheduled. Neither the defendants nor the 

superior court suggested any likelihood that the adult son or daughter has 

information critical to the resolution of the merits of this case. And in any 

event, any determination by this court regarding whether the trial could 

have gone forward is speculative in light of the time remaining prior to trial 

during which Hiller or the superior court could possibly have cured any 

deficiencies relating to the decedent’s son and daughter’s status as 

plaintiffs.

¶17 In sum, the superior court has denied Hiller a decision on the 

merits based on a prejudice analysis that does not withstand scrutiny, and 

based on technical requirements imposed on Hiller without an express 

warning that failure to comply would result in outright dismissal. Under 

the circumstances, Hiller has been denied access to justice, and we reverse 

the superior court’s order dismissing the case.

CONCLUSION

¶18 For the foregoing reasons, we reverse the dismissal and 

remand for further proceedings.
HILLER v. HUALAPAI, et al.

Winthrop, J., dissenting

8

W I N T H R O P, Judge, Dissenting:

¶19 I respectfully dissent. The majority contends neither basis for 

the trial court’s dismissal can withstand scrutiny. I disagree.

¶20 With regard to Hiller’s failure to properly join Randt’s adult 

children, an order that Hiller has failed to contest or otherwise address in 

this appeal, the majority overlooks several relevant factors. First, although 

the trial court could have sua sponte appointed a guardian ad litem for 

Randt’s adult daughter, it had no obligation to do so; instead, it expressly 

directed Hiller to file the appropriate motion to designate a guardian ad 

litem. Hiller’s failure to file the motion or otherwise seek an appointment 

of a guardian violated that explicit court order. Next, after October 2012,

the record does not demonstrate that Hiller made any further attempts to 

locate Randt’s adult son or serve him by publication, also in violation of the 

court order. Hiller did not request authorization to utilize an alternative

method of service, did not seek a ruling that service by publication was not 

feasible under these circumstances, did not request reconsideration of the 

court’s order or otherwise seek a judicial determination that the case should 

now proceed in the absence of the adult son. Another potential alternative, 

not raised or explored by Hiller, would have been to propose that, at a 

minimum, the mandatory settlement conference required by court rule 

proceed, and that the issue of the missing son be dealt with in a probate 

court setting as part of that court’s consideration and approval of any such 

settlement.

¶21 From the time of the court’s order to the filing of the motion 

to dismiss, Hiller had nearly one year to comply with the court’s orders or 

take any of these alternative actions, and failed to do anything. Instead, 

Hiller only argued that the case had stalled because his attorney’s office was 

short-staffed and had “fallen behind the deadlines in this case.” Without 

more, can this court really say the trial court abused its discretion in 

determining that Hiller had not demonstrated sufficient diligence or that 

such lack of diligence should be excused? I think not.

¶22 Hiller also failed to actively prosecute this case, and the real 

prejudice to the defendants lies in the deleterious effect of continuing delay. 

Even under the best case scenario, further delay here was inevitable. Hiller 

claims on appeal that he would have been ready for trial on the scheduled 

date; however, there is no reason to believe that by such date Hiller would 

have either located and served the adult son, or would have filed the 

petition to have a guardian ad litem appointed for the adult daughter, or 

would have scheduled and participated in a settlement conference as 
HILLER v. HUALAPAI, et al.

Winthrop, J., dissenting

9

mandated by Rule 16.1, Ariz. R. Civ. P.

5 In other words, even assuming this 

case survived to the scheduled trial date, the trial court would likely have 

either dismissed the case at that point for failure to join indispensable

parties and/or for failure to prosecute, or would have had to consider 

whether to continue the trial to some later date. On this record, it is hard to 

imagine what type of good cause Hiller could present to the trial court to 

justify continuing the case at that point.

¶23 Finally, the majority argues dismissal was inappropriate 

because the trial court had never previously warned Hiller about 

potentially dismissing this case. Defendants, however, had previously filed 

two other motions to dismiss based upon Hiller’s failure to comply with 

Arizona statutes and rules. The trial court denied these motions, but 

directed Hiller to correct the deficiencies in his complaint, and ordered that 

Randt’s adult children be properly joined and served. Suffice to say Hiller

was implicitly aware that continued failure to comply with explicit court 

orders, or to advance the case on the merits, could result in the dismissal of 

his case. See Rule 41(b), Ariz. R. Civ. P.; see also Rule CV-2, Mohave County 

Local Rules of Practice.

¶24 The trial court was in the best position to evaluate the 

credibility of Hiller’s actions and his excuses for inaction, and to determine 

the significance of the prejudice caused by Hiller’s failure to comply with 

the court’s orders. I see no basis on appeal to conclude that the trial judge 

abused his discretion, and I therefore respectfully dissent from my 

colleagues’ conclusion to the contrary.

 

5 The majority emphasizes Hiller’s avowal that he didn’t need to take 

witness depositions and would have been ready for trial on the scheduled 

trial date; however, Hiller himself alternatively requested that the court 

deadlines be extended in order for the parties to conduct the necessary 

depositions.