Copeland v. Arizona Veterans Memorial Coliseum and Exposition Center

• Decision Date: 31 August 1993
• Docket Number: CA-CV,No. 1,1
• Citation: 859 P.2d 196,176 Ariz. 86
• Parties: Robert COPELAND, Plaintiff-Appellant, v. ARIZONA VETERANS MEMORIAL COLISEUM AND EXPOSITION CENTER, and its Board and Employees, Defendants-Appellees. 91-0235.
• Court: Arizona Court of Appeals

Page 196

859 P.2d 196

176 Ariz. 86

Robert COPELAND, Plaintiff-Appellant, v. ARIZONA VETERANS MEMORIAL COLISEUM AND EXPOSITION CENTER, and its Board and Employees, Defendants-Appellees.

No. 1 CA-CV 91-0235.

Court of Appeals of Arizona Division 1, Department C.

Aug. 31, 1993.

[176 Ariz. 87] Ralph Matthew Hess, P.C. by Ralph Matthew Hess, Prescott, for plaintiff-appellant.

Grant Woods, Atty. Gen. by Lisa K. Daniel, Asst. Atty. Gen., Phoenix, for defendants-appellees.

OPINION

McGREGOR, Judge.

Robert Copeland (plaintiff) appeals from the trial court's order dismissing his action pursuant to Uniform Rule V(e), Uniform Rules of Practice for the Superior Court of Arizona. ¹ He claims the trial court abused its discretion (1) by denying his motion to set aside the judgment of dismissal and reinstate the case on the inactive calendar pursuant to Rule 60(c)(1) and (6), Arizona Rules of Civil Procedure ² and (2) by denying his motion to refile the same action under the savings statute, Ariz.Rev.Stat.Ann. ("A.R.S.") § 12-504.A. On the unique facts of this case, we find no abuse of discretion and affirm.

I.

Plaintiff filed a personal injury action against the Arizona Veterans Memorial Coliseum, its Board and employees (defendants) on February 24, 1989. Plaintiff alleged that he was injured when he slipped and fell while walking down an exit ramp at the Coliseum on March 4, 1988. On March 2, 1989, defendants served interrogatories and a request for production and set plaintiff's deposition for May.

Plaintiff was absent from the state for some period of time between March and July 1989, and did not maintain contact with his attorney. At the request of Mr. Hull, plaintiff's attorney, defendants agreed to several extensions of time within which to respond to the discovery and canceled plaintiff's deposition. On May 23, 1989, Hull notified defendants that he could not locate his client and therefore could not respond to the discovery requests. He stated that if he had not responded to discovery by June 22, 1989, he intended to withdraw as counsel of record. When defendants had not received responses by June 30, they moved the court to dismiss the action for lack of prosecution or, alternatively, to compel responses, provide security for the costs of the action and award defendants attorneys' fees.

On July 10, 1989, Hull moved to withdraw as plaintiff's attorney, asserting that plaintiff "had failed and refused to inform his counsel of his current address and telephone number...." By minute entry dated July 12, the trial court set a July 31 hearing on defendants' pending motions. The court mailed the notice to counsel and to plaintiff, using the address provided by plaintiff's counsel.

On July 20, 1989, Hull withdrew his motion to withdraw as counsel, stating that the United States Post Office had provided an incorrect forwarding address for plaintiff, but that plaintiff had now contacted his attorney and wished to proceed. Plaintiff also responded to defendants' motions, which the court had re-scheduled for hearing on August 11, 1989. On August 10, plaintiff responded to defendants' discovery requests. Following argument on August 11, the court denied defendants' motion to dismiss and awarded defendants attorneys' fees for plaintiff's failure to comply with the rules governing discovery.

Defendants served additional discovery requests on August 22, 1989, to which plaintiff responded on September 25.

On November 16, 1989, nine months after plaintiff filed his complaint, the court administrator issued a form minute entry placing the action on the inactive calendar as of December 18, 1989, for dismissal of unadjudicated claims on February 20, 1990. See Rule V(e). ³ This minute entry identified David M. Shapiro as plaintiff's attorney although Shapiro had no relationship to this action. The clerk of court never mailed this minute entry to Hull.

On January 1, 1990, Mr. Hull left the firm of Hess & Hull, P.A. Mr. Hess assumed plaintiff's representation and adopted the firm name Ralph Matthew Hess, P.C., located at an address different than that of Hess & Hull. Neither Hull nor Hess notified the court of the changes in counsel and address until October 12, 1990.

Plaintiff and Hess met on January 26, 1990, to discuss the progress of plaintiff's treatment. On March 1, Hess mailed requests to witnesses asking for their statements. Plaintiff and Hess apparently next communicated on October 29, 1990, when they met to discuss plaintiff's medical status.

On April 13, 1990, the court administrator issued a minute entry order dismissing the action, without prejudice, for lack of prosecution. Because the statute of limitations had expired in March, however, the order effectively dismissed the action with prejudice. The clerk of court again sent the minute entry to David Shapiro as plaintiff's counsel. Shapiro did not contact the court about the error until ten days after the date of dismissal.

Hess filed no formal discovery requests on plaintiff's behalf until October 3, 1990. Only then did Hess discover the order of dismissal entered in April 1990.

On October 12, 1990, plaintiff, relying upon Rule 60(c)(1) and (6), moved to set aside the judgment and reinstate the action on the inactive calendar. As authority, plaintiff relied upon East v. Hedges, 125 Ariz. 188, 608 P.2d 327 (1980), which held that the trial court did not abuse its discretion in granting Rule 60(c) relief from a default judgment to an insurer who had no notice of a pending lawsuit and thus no opportunity to defend. Id. at 189, 608 P.2d at 328. Plaintiff also filed a new complaint alleging the same claims as the dismissed complaint.

On October 25, 1990, the trial court set out in detail its review of the history of this action and found that plaintiff's counsel had not received either the minute entry placing the action on the inactive calendar or the minute entry dismissing the action for lack of prosecution. The court also stated:

The record reflects the first discovery undertaken by plaintiff was 20 months after the complaint was served.

The court requests plaintiff to indicate what diligent prosecution the plaintiff was making of his case pursuant to Rule V(e), Uniform Rules of Practice, and discuss his motion to set aside judgment in view of Jepson v. New, [164 Ariz. 265, 792 P.2d 728 (1990) ].

Due to an overlap in the filing of plaintiff's reply in support of his motion and the court's October 25 order, the court granted plaintiff additional time to file a supplemental memorandum addressing Jepson, which plaintiff filed on November 2, 1990. In his memorandum, plaintiff defined his activities revealing diligence as consisting of (1) his January 26, 1990 meeting with counsel and (2) his conducting "informal discovery" by mailing requests to witnesses on March 1, 1990. On November 23, 1990, the court denied the motion, stating: "The court finds that the plaintiff has failed to actively prosecute this case and show good cause to set aside the order of dismissal."

On December 3, 1990, plaintiff moved for leave to commence a new action for the same cause pursuant to A.R.S. § 12-504.A; the court also denied that motion. The trial court issued a formal judgment, including findings of fact and conclusions of law, on February 19, 1991. This court has jurisdiction to hear plaintiff's timely appeal pursuant to A.R.S. §§ 12-120.21 and -2101.

II.

This court will reverse a trial court's order denying relief under either Rule 60(c) or section 12-504.A only for an abuse of discretion. Gorman v. City of Phoenix, 152 Ariz. 179, 182, 731 P.2d 74, 77 (1987) (discussing Rule 60(c)); Jepson v. New, 164 Ariz. 265, 274, 792 P.2d 728, 737 (1990) (discussing Rule 60(c) and A.R.S. § 12-504.A).

A.

In Jepson v. New, the Arizona Supreme Court set out a detailed analysis of the showing needed to obtain relief through Rule 60(c) ⁴ after a trial court dismisses an action pursuant to Rule V(e). The court held that, to obtain relief under Rule 60(c)(1) from a Rule V(e) dismissal for lack of prosecution, a plaintiff generally must show (1) mistake, inadvertence, surprise or excusable neglect; (2) that relief was sought promptly; and (3) that a meritorious claim existed. Jepson, 164 Ariz. at 272-73, 792 P.2d at 735-36. To obtain Rule 60(c)(6) relief, a plaintiff must show extraordinary circumstances of hardship or injustice justifying relief as well as proof that (1) plaintiff diligently and vigorously prosecuted the case; (2) the parties took reasonable steps to inform the court of the case status; (3) substantial prejudice will result unless relief is granted; (4) plaintiff sought relief promptly and (5) plaintiff has a meritorious claim. Id. at 273, 792 P.2d at 736. The court further instructed that, in assessing the plaintiff's diligence, the trial court must evaluate the totality of the circumstances surrounding the prosecution of the case, including the activities of all parties involved and any impediments to vigorous prosecution. Id. at 276, 792 P.2d at 739.

1.

Despite the clear direction given in Jepson, plaintiff urges this court to forego the analysis established in that decision. We need not undertake the Jepson analysis, he asserts, because the clerk of court's failure to notify him of the status of his case, see Rule V(f), automatically justifies reinstatement and ends any inquiry into other factors involved in obtaining Rule 60(c) relief.

To support his argument, plaintiff relies upon Arizona authority that seems to lend direct support to his position. ⁵ Significantly, however, the decisions upon which plaintiff relies all were issued prior to Jepson, and none address any of the factors the Jepson court found central to review of decisions granting or denying Rule 60(c) relief. See McKinley v. Town of Fredonia, 140 Ariz. 189, 680 P.2d 1250 (App.1984) (trial court abused its discretion in denying plaintiff's motion to reinstate a case dismissed for lack of pr...