Flynn v. Cornoyer-Hedrick Architects & Planners, Inc., CORNOYER-HEDRICK

• Decision Date: 15 December 1988
• Docket Number: CORNOYER-HEDRICK,No. 1,CA-CIV,1
• Citation: 772 P.2d 10,160 Ariz. 187
• Parties: John FLYNN, Plaintiff-Appellant, v.ARCHITECTS & PLANNERS, INC., an Arizona corporation; Okland Construction Company, Inc., a Utah corporation; Charles W. Akerlow and Jane Doe Akerlow, husband and wife; Brent R. Dyer and Jane Doe Dyer, husband and wife; John J. Thomas and Jane Doe Thomas, husband and wife; Okland, Ltd., Inc., a Utah corporation doing business as Camelback and 33rd Street Partnership, Defendants-Appellees. 9652.
• Court: Arizona Court of Appeals

Page 10

772 P.2d 10

160 Ariz. 187

John FLYNN, Plaintiff-Appellant, v. CORNOYER-HEDRICK ARCHITECTS & PLANNERS, INC., an Arizona corporation; Okland Construction Company, Inc., a Utah corporation; Charles W. Akerlow and Jane Doe Akerlow, husband and wife; Brent R. Dyer and Jane Doe Dyer, husband and wife; John J. Thomas and Jane Doe Thomas, husband and wife; Okland, Ltd., Inc., a Utah corporation doing business as Camelback and 33rd Street Partnership, Defendants-Appellees.

No. 1 CA-CIV 9652.

Court of Appeals of Arizona Division 1, Department A.

Dec. 15, 1988.

As Corrected Feb. 15, 1989.

Petition for Review Granted in Part

and Denied in Part May 2, 1989. ^*

[160 Ariz. 188] Law Office of Donald R. Crowell by Donald R. Crowell, Phoenix, for plaintiff-appellant.

Romley & Romley by Arthur E. Romley, Phoenix, for defendant-appellee Cornoyer-Hedrick Architects & Planners, Inc.

Law Offices of Teilborg, Sanders, & Parks, P.C. by Alison Lewis and Bradley R. Jardine, Phoenix, for defendants-appellees Okland Const., Co., Inc., Akerlow, Dyer, Thomas and Okland Ltd., Inc. d/b/a Camelback and 33rd Street Partnership.

OPINION

HAIRE, Judge.

The issues in this appeal are whether the trial court abused its discretion by denying a motion to continue this case on the inactive calendar, refusing to permit a refiling of a new complaint pursuant to A.R.S. § 12-504 (Supp.1987), and signing a formal order that differed from a prior minute entry.

FACTS AND PROCEDURAL HISTORY

On December 17, 1985, John Flynn filed a complaint seeking damages for injuries allegedly suffered in a fall on December 17, 1983, on the stairway to an office building. The complaint stated that Flynn's injuries resulted from the negligence of Cornoyer-Hedrick Architects & Planners, Inc. (CHA), Okland Construction Co., Inc., Charles W. and Jane Doe Ackerlow, Brent R. and Jane Doe Dyer, John J. and Jane Doe Thomas, and Okland, Ltd., Inc., doing business as Camelback and 33rd Street Partnership.

On August 22, 1986, the Maricopa County Superior Court administrator's office sent Flynn's counsel a minute entry pursuant to Rule V(e), Uniform Rules of Practice for the Superior Court, 17A, A.R.S., advising him that the case would be placed on the inactive calendar on September 22, 1986 for dismissal on November 24, 1986 unless a proper motion to set and certificate of readiness were filed. Nevertheless, Flynn failed to serve the complaint on the defendants until September 17, 1986.

On October 7, 1986, CHA filed its answer and two days later served Flynn with interrogatories and a request for production.

Pursuant to an open extension of time for filing agreed to by Flynn's counsel, the other defendants filed their answers on October 17, 1986, and served Flynn with interrogatories on November 4, 1986.

Flynn did not respond to the discovery requests, but filed a motion to continue the case on the inactive calendar on November 20, 1986. However, he did not request an expedited hearing on the motion and the case was dismissed on December 2, 1986.

On January 12, 1987, the trial judge heard oral argument on the motion to continue and on other pending motions. She denied the motion to continue, granted defendants' motion to dismiss, and held that Flynn's motion to set aside the dismissal was moot.

Flynn then filed motions asking the court to reconsider and to grant him permission to refile his complaint pursuant to A.R.S. § 12-504(A). The court denied the motions and Flynn has appealed from the judgment of dismissal and the post-judgment orders.

DISMISSAL FOR FAILURE TO PROSECUTE

Flynn's motion to continue stated that a continuance was necessary because the complaint had not been served until September and answers were not received until October. At the hearing on the motion, Flynn's counsel also argued that settlement negotiations had been conducted prior to the filing of the complaint. He further stated that he had not filed answers to the interrogatories or produced documents that were due in November because he was waiting to see if his motion to continue would be granted. He contended that because discovery had just begun, the matter was not ready to go to trial. The trial judge concluded that this did not establish "good cause" as required by Rule V(e)(2), Uniform Rules of Practice, 17B A.R.S. ¹ We agree.

Flynn argues that the trial court's refusal to continue the case was an abuse of discretion under the principles set forth in Gorman v. City of Phoenix, 152 Ariz. 179, 731 P.2d 74 (1987). In Gorman, the Arizona Supreme Court held:

"Lawyers who fail to comply with Uniform Rule V(e) do so at their peril. [Citation omitted.] However, trial courts should consider carefully a Rule 60 motion to set aside a Uniform Rule V(e) dismissal when, as here, there is evidence that (1) the parties were vigorously pursuing the case, (2) the parties were taking reasonable steps to inform the court of the case's status, and (3) the moving party will be substantially prejudiced by, for example, the running of the limitations period if the dismissal is not set aside. If all these factors are present, even doubtful cases should be resolved in favor of the party moving to set aside the dismissal." (Citation omitted.)

152 Ariz. at 183-84, 731 P.2d at 78-79.

In Gorman, the plaintiff had filed and served a complaint, filed a motion to amend her complaint, sent interrogatories, requested admissions and production, filed a list of witnesses and exhibits, supplemented answers to interrogatories, filed a motion to set, filed a motion to compel and participated in depositions. In addition, the plaintiff's attorney was told by the superior court administrator's office that a motion to continue on the inactive calendar would not be necessary. Id. at 180, 731 P.2d at 75. The Arizona Supreme Court, after reviewing this record, found that the parties were actively involved in pursuing the litigation and stated:

"A desultory exchange of settlement letters, as in Bickerstaff [ v. Denny's Restaurant, 141 Ariz. 629, 688 P.2d 637 (1984) ], may count for very little; a record showing, as in the present case, vigorous pursuit of a claim should count for much. Here, as in similar matters, diligence is the hallmark." (Emphasis added.)

152 Ariz. at 183, 731 P.2d at 78.

See also City of Phoenix v. Geyler, 144 Ariz. 323, 332, 697 P.2d 1073, 1082 (1985); Ace Automotive Products, Inc. v. Van Duyne, 156 Ariz. 140, 143-144, 750 P.2d 898, 901-902 (App.1987). Compare Cline v. Ticor Title Ins. Co., 154 Ariz. 343, 742 P.2d 844 (App.1987).

We note that of the three factors mentioned in Gorman, only substantial prejudice due to the running of the statute of limitations is applicable in this case. The record more than amply supports a conclusion that Flynn was not diligently pursuing this case or taking reasonable steps to keep the court informed of its status.

Flynn's counsel waited nine months after filing the complaint and almost a month after receiving the minute entry setting the dismissal date before serving the defendants. Neither his motion to continue nor his argument to the court attempted to explain why the alleged negotiations prevented him from serving the defendants. In fact, Flynn did not provide the trial court with any details about the negotiations until the filing of his reply memorandum in support of his motion for reconsideration.

Flynn did not file a motion to continue until two months after serving the complaint and he made no attempt to accelerate a hearing on that motion. In addition, he did not respond to discovery requests and did nothing to communicate the status of the case to the trial court between his November 20, 1986 motion and the January 12, 1987 hearing, other than the filing of a motion to set aside the judgment of dismissal. These actions do not demonstrate a vigorous pursuit of the case.

Gorman describes factors to be considered when determining whether extraordinary circumstances exist to justify the granting of relief from a judgment pursuant to Rule 60(c)(6), Arizona Rules of Civil Procedure, 17A, A.R.S. In ruling on a contested motion to dismiss for lack of prosecution or for continuing on the inactive calendar, the trial court's discretion is based "upon the same conditions that permit relief under Ariz.R.Civ.P. 60(c), provided [that] the good cause required by Rule V(d)(2) [now Rule V(e)(2) ] is shown." Campbell v. Deddens, 93 Ariz. 247, 251, 379 P.2d 963, 965 (1963). See also Hyman v. Arden-May Fair, Inc., 150 Ariz. 444, 448, 724 P.2d 63, 67 (App.1986).

Whether the facts in a particular case establish good cause is a question that is within the sound discretion of each trial judge. Walker v. Kendig, 107 Ariz. 510, 489 P.2d 849 (1971). Rule V guidelines were adopted by the civil judges of the Maricopa County Superior Court in April, 1985 to facilitate the uniform application of the rule. In addressing the meaning of "good cause", the guidelines provide, in part, as follows:

"The party seeking the continuance is required to show some substantial basis for the continuance and the court's focus is primarily upon whether there are unusual discovery or procedural problems which have prevented the case from proceeding at the presumptive pace.

"From a qualitative viewpoint the following elements, although not exclusive, will be considered by the court in determining whether 'good cause' exists:

A. Whether the underlying circumstances were unforeseeable;

B. Whether the underlying circumstances were not due to lack of preparation;

C. Whether the grounds are relevant;

D. Whether the matter was brought to the court's attention in a timely manner; and

E. Whether the adversary is prejudiced.

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"Some examples of what does not amount to good cause are:

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B. Motions grounded on the fact that settlement negotiations are pending;

C. Motions grounded upon failure to...