Fenton v. Hunt

• Decision Date: 13 December 2011
• Docket Number: No. 1 CA-CV 11-0136,1 CA-CV 11-0136
• Parties: ALVIN C. FENTON and MELODIE A. FENTON, husband and wife, Plaintiffs/Appellants, v. RICHARD A. HUNT and OMA LONETTE HUNT, husband and wife; and TRULY NOLEN OF AMERICA, INC., an Arizona corporation, Defendants/Appellees.
• Court: Arizona Court of Appeals

ALVIN C. FENTON and MELODIE A. FENTON, husband and wife, Plaintiffs/Appellants, v. RICHARD A. HUNT and OMA LONETTE HUNT, husband and wife; and TRULY NOLEN OF AMERICA, INC., an Arizona corporation, Defendants/Appellees.

No. 1 CA-CV 11-0136

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT A

Dated: December 13, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Mohave County

Cause No. CV-2004-0160

The Honorable Charles W. Gurtler, Jr., Judge

AFFIRMED

The Sutherland Law Firm

by Douglas D. Sutherland

Attorneys for Plaintiffs/Appellants

Kingman

Sippel Law Firm PLLC

by Mark A. Sippel

Attorneys for Defendants/Appellees Hunt

Kingman

Quarles & Brady LLP

by Edward A. Salanga

Lauren Elliott Stine

Attorneys for Defendant/Appellee Truly Nolen of America, Inc.

Phoenix

TIMMER, Presiding Judge

¶1 Alvin C. Fenton and Melodie A. Fenton (the "Fentons") appeal the superior court's dismissal of their complaint against Richard A. Hunt and Oma Lonette Hunt (the "Hunts") and Truly Nolen of America, Inc. ("Truly Nolen") alleging a variety of claims arising from the Fentons' purchase of a home from the Hunts. The court dismissed the complaint pursuant to Arizona Rule of Civil Procedure 41(b) for failure to prosecute. For the reasons that follow, we affirm.

BACKGROUND

¶2 The Fentons entered in a contract to purchase a home in Kingman from the Hunts in August 2003. Soon after taking possession of the home that Fall, the Fentons discovered extensive termite damage, which ultimately lead to demolition of the home in May 2004. The Fentons sued the Hunts and Truly Nolen, alleging a variety of claims related to the termite infestation.¹

¶3 The case was inactive from February 2005 through March 2010, when the Fentons served defendants with an unverified Rule 26.1 Initial Disclosure Statement. The record does not reflect that the superior court placed the case on the inactive calendar during that time.

¶4 In May 2010, Truly Nolen filed a notice of change of judge. Next, the Fentons filed a motion to set and certificate of readiness on June 29, 2010, which the defendants controverted. The Hunts and Truly Nolen then moved to dismiss the Fentons' claims for lack of prosecution pursuant to Arizona Rule of Civil Procedure 41(b) and Mohave County Local Rule CV-2. Following briefing and oral argument, the superior court ruled that the Fentons had offered no legitimate excuse for their failure to prosecute the case and therefore dismissed the lawsuit.

¶5 After denying the Fentons' motion for reconsideration, and awarding partial attorneys' fees to Truly Nolen and the Hunts, the court entered a judgment dismissing the case with prejudice on December 27, 2010. This timely appeal followed.²We review the superior court's ruling for an abuse of discretion. Cooper v. Odom, 6 Ariz. App. 466, 469, 433 P.2d 646, 649 (1967).

DISCUSSION

¶6 The superior court has inherent power to dismiss a case for lack of prosecution. Hartford Acc. & Indem. Co. v. Sorrells, 50 Ariz. 90, 93-94, 69 P.2d 240, 242 (1937); see also Ariz. R. Civ. P. 41(b) (authorizing a party to move to dismiss a complaint for failure to prosecute); Rule CV-2(A)(2), Mohave County Local Rules of Practice (permitting court to dismiss a complaint for "appropriate reasons"). Although, as the Fentons submit, courts prefer to resolve cases on their merits, "there is a limit to which judicial leniency can be stretched." Adams v. Valley Nat. Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984). To justify a dismissal, the record must reflect that the delay in prosecution demonstrates "either that the cause of action has been abandoned by plaintiff or else that it has resulted in injury to some one [sic] not responsible forthe delay." Price v. Sunfield, 57 Ariz. 142, 148, 112 P.2d 210, 212 (1941); Cooper, 6 Ariz. App. at 469, 433 P.2d at 649 (same).

¶7 The Fentons argue the superior court erred by dismissing their complaint because they did not abandon the case, no party was prejudiced by the delay, and the clerk of the court failed to place the case on the inactive calendar. Alternatively, the Fentons assert the court erred by dismissing the complaint against Truly Nolen because it had waived its right to seek dismissal due to its active participation in the case. We address each argument in turn.

1. Abandonment

¶8 As the superior court noted, after the Fentons were designated plaintiffs, five years passed in this lawsuit without any activity. No disclosure statements were exchanged during that time, no discovery conducted, and no documents filed with the court. Courts have granted dismissal motions following substantially shorter periods of inactivity. See Price, 57 Ariz. at 148, 112 P.2d at 212 (four years); Paul v. Paul, 28 Ariz. 598, 603, 238 P. 399, 401 (1925) (sixteen months); Copeland v. Ariz. Veterans Mem'l Coliseum & Exposition Ctr., 176 Ariz. 86, 87-88, 859 P.2d 196, 197-98 (App. 1993) (fourteen months); Old Republic Nat'l Title Ins. Co. v. New Falls Corp., 224 Ariz. 526, 530, ¶ 16, 233 P.3d 639, 643 (App. 2010) (two and one-half years).

¶9 The Fentons nevertheless justify their inactivity by pointing to a lack of resources and insufficient time to pursue the matter due to their extensive work on the home. They also blame the Hunts for prematurely forcing them into the litigation by filing the initial declaratory judgment action, which required the Fentons to file a compulsory counterclaim and third party complaint. We reject both contentions.

¶10 Our supreme court has held that "financial inability to prosecute a suit is not an excuse for an unreasonable delay." Price, 57 Ariz. at 149, 112 P.2d at 213. Regardless, as the superior court noted, the Fentons had sufficient funds to pay to demolish the home, and they failed to explain why they could not take a loan on the property or make other arrangements to pay counsel. Nor did the Fentons explain why they could not proceed without counsel. The court did not err by rejecting the Fentons' financial shortages as evidence they did not abandon their lawsuit.

¶11 The record further supports that the five-year delay is attributable to the Fentons alone rather than to the Hunts' act in filing their complaint. The Hunts were entitled to file their complaint, and they did not engage in wrongdoing simply because they spurred the Fentons to file claims against the Hunts and Truly Nolen before the Fentons felt ready to proceed. Once the Fentons asserted their claims, they had a duty toensure their case was brought to trial within a reasonable time frame; the Hunts and Truly Nolen bore no such obligation. Price, 57 Ariz. at 148-49, 112 P.2d at 212-13.

¶12 In light of the record, the superior court did not abuse its discretion by concluding the Fentons abandoned the lawsuit.

2. Prejudice

¶13 The Fentons also argue the superior court erred by ruling that defendants were prejudiced by the five-year period of inactivity. They point out that Truly Nolen actually inspected the home before it was demolished and the Hunts were given an opportunity to inspect, so the physical evidence of termite infestation is available. Additionally, the Fentons contest defendants' representations about the availability of necessary witnesses. We cannot say the court abused its discretion by concluding defendants were prejudiced by the delay.

¶14 Robert W. Hartley, Truly Nolen's Vice President of Safety and Insurance from 1980 through 2010, submitted an affidavit, attesting that he wrote the Fentons' attorney a letter in February 2004 advising that Truly Nolen had fulfilled its obligations regarding the home. Truly Nolen never heard from the Fentons or the attorney in the coming years, and Hartley assumed the Fentons had abandoned their lawsuit.Consequently, in October 2007, Truly Nolen removed the claim from its active claims files. Hartley additionally attested that none of the technicians who had serviced the home are current Truly Nolen employees.

¶15 The Hunts submitted a joint affidavit stating the Fentons destroyed evidence during the five-year period by removing trees and grading the property.³ During that time, the health of the Hunts and their realtor deteriorated. Many former neighbors who might have been witnesses had moved, had unknown locations, or were in poor health. The Hunts no longer knew the whereabouts of a plumber who might be a witness. The Hunts also inferred from the passage of time that personnel associated with relevant realtors and title offices were no longer employed by those entities.

¶16 From this evidence, the court was justified in finding that defendants suffered prejudice due to the lengthy period of inactivity in the case. In sum, as the case grew stale, memories about details either faded or were lost. Witnesses scattered or died. As the superior court concluded, permitting the Fentons to pursue their suit after doing nothing for five years would violate the policy in Arizona requiring timely redress of injuries, as reflected in the pertinent statutes oflimitation. Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 464, 799 P.2d 801, 805 (1990). Significantly, had the Fentons waited until March 2010 to file suit, they would have been barred from doing so under the applicable limitations period. See A.R.S. §§ 12-541(5) (2003) (one-year period for liability created by statute), 12-542 (2003) (two-year limitation period for negligence), 12-543 (2003) (three-year limitation period for fraud), 12-548 (2003) (six-year limitation period for written contract).⁴ We see no reason why the Fentons should get a better result by filing suit in a timely manner and then doing nothing until after the expiration of the limitations period.

3. Inactive calendar

¶17 The Fentons contend...