Jepson v. New
| Decision Date | 10 May 1990 |
| Docket Number | CORNOYER-HEDRICK,CV-89-0106-PR,Nos. CV-89-0058-P,s. CV-89-0058-P |
| Citation | 792 P.2d 728,164 Ariz. 265 |
| Parties | Timothy W. JEPSON and Deborah J. Jepson, husband and wife, Plaintiffs/Appellants, v. Cynthia Joanne NEW, a single woman; James New and Jane Doe New, husband and wife; Irene Hasal, a single woman; and Stephen Brown and Harriet Brown, husband and wife, Defendants/Appellees. 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. |
| Court | Arizona Supreme Court |
Mariscal, Weeks, McIntyre & Friedlander, P.A. by Gerald Gaffaney and Leslie A. Kresin, Phoenix, for plaintiffs/appellants Jepson.
Crampton, Woods, Broening & Oberg by Brian Holohan, Phoenix, for defendants/appellees New.
Johnston, Maynard, Grant & Parker by Daniel D. Maynard and Clifford J. Roth and M. Robert Dauber, Phoenix, for defendants/appellees Hasal and Brown.
Donald R. Crowell, Phoenix, for plaintiff/appellant Flynn.
Romley & Romley by Arthur E. Romley, Phoenix, for defendant/appellee Cornoyer-Hedrick Architects & Planners, Inc.
Teilborg, Sanders & Parks by Bradley R. Jardine and Alison Lewis, Phoenix, for defendants/appellees Okland Const. Co., Inc. Akerlow, Dyer, Thomas, Okland, Ltd. and Camelback and 33rd Street Partnership.
John Flynn's personal injury action was dismissed for lack of prosecution after the trial court denied his motion to continue the case on the court's inactive calendar under Uniform Rule V(e), Ariz.Uni.R.P.Super.Ct., 17B A.R.S. Additionally, the trial court denied his request for relief under Ariz.R.Civ.P. 60(c), 16 A.R.S., and A.R.S. § 12-504, this state's savings statute, and the court of appeals affirmed. Flynn v. Cornoyer-Hedrick Architects & Planners, Inc., 160 Ariz. 187, 772 P.2d 10 (App.1989).
Timothy and Deborah Jepson's personal injury action was also dismissed for lack of prosecution pursuant to Rule V(e). The trial court denied their motion for relief under Rule 60(c) and, alternatively, under the savings statute. The court of appeals affirmed the trial court's denial of Rule 60(c) relief but reversed the denial of relief under A.R.S. § 12-504. Jepson v. New, 160 Ariz. 193, 772 P.2d 16 (App.1989).
Flynn and Jepson were decided by different departments of the same division of the court of appeals, each prescribing a different test for granting relief under the savings statute. Because of the conflict within the appellate court and the uncertainty and confusion among trial courts and practitioners, we consolidated these cases and granted review. We adopt the test applied by the court of appeals in Flynn and reject the tests applied in Jepson. However, we find that the trial court abused its discretion in denying the Jepsons relief under Rule 60(c). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
On December 17, 1983, John Flynn fell on a stairway of an office building. In September 1985, his trial counsel sent letters to the liability carriers of potential defendants, outlining Flynn's damages and making a settlement offer. On December 17, 1985, Flynn filed a complaint against the owner, designer, builder and manager of the building. The defendants' liability carriers were not advised that a lawsuit was filed until June 1986.
On August 22, 1986, the court administrator issued a standard Rule V(e) notice placing the case on the inactive calendar on September 22, 1986, for dismissal on November 24, 1986. On September 17 Flynn served the defendants and on November 20, he filed a motion to continue the case on the inactive calendar with oral argument set for January 1987. The defendants opposed the motion and filed a motion to dismiss for lack of prosecution. In the meantime, the case was automatically dismissed for failure to comply with Rule V. Flynn moved to set aside the dismissal under Rule 60(c). The trial court granted the defendants' motion to dismiss, ruled the 60(c) motion was moot, and denied Flynn's subsequent motion for relief under A.R.S. § 12-504. Flynn appealed.
The court of appeals agreed with the trial court that Flynn failed to establish good cause to justify a continuance of the case on the inactive calendar, rejecting Flynn's argument that the trial court abused its discretion under Gorman v. City of Phoenix, 152 Ariz. 179, 731 P.2d 74 (1987). After comparing the facts in Gorman to those in Flynn's case, the court of appeals further concluded that Flynn was neither entitled to a continuance of the case on the inactive calendar nor relief from the judgment of dismissal under Rule 60(c). Additionally, the court of appeals found that the trial court correctly denied Flynn's request for relief under A.R.S. § 12-504, applying a test derived from Gorman, which balances the prejudice to the respective parties while considering whether the plaintiff acted reasonably and in good faith and prosecuted the case diligently and vigorously, and whether a procedural impediment affected the plaintiff's ability to file a second action.
Flynn petitioned this court for review, contending that the court of appeals test for granting relief under § 12-504(A) is the equivalent of the standard used under Rule 60(c), rendering the savings statute superfluous, and that the test should instead balance the prejudice to the parties, and that the trial court did not give ongoing settlement negotiations sufficient weight.
On December 18, 1983, a collision occurred between two vehicles, one driven by Irene Hasal (owned by Stephen and Harriet Brown) and one driven by Cynthia New (owned by James and Jane Doe New). The Jepsons, passengers in the Hasal vehicle, were injured; on October 1, 1985, they filed a complaint against the drivers and owners of both vehicles. In July 1986, a Rule V notice was issued that the case would be placed on the court's inactive calendar on August 1, 1986, for dismissal on October 1. The Jepsons obtained an ex parte continuance of the dismissal date to December 1.
In July, August and September of 1986, the Jepsons served the defendants with summonses, complaints and discovery and responded to discovery. On December 1, 1986, the case was automatically dismissed for lack of prosecution, unbeknownst to the parties who continued to engage in discovery. The Jepsons filed their list of witnesses and exhibits in accordance with Rule V(a). After receiving the judgment of dismissal dated December 17, 1986, the Jepsons moved to set aside the judgment under Rule 60(c) and for alternative relief under A.R.S. § 12-504. The motion was denied, and the Jepsons appealed.
The court of appeals found the trial court did not abuse its discretion in denying the Jepsons relief under Rule 60(c)(6) but reversed the court's denial of relief under the savings statute. It found that the trial court erroneously applied the same standard for granting relief under Rule 60(c)(6), a standard emphasizing the plaintiff's diligence in prosecuting the action, to its determination of whether relief was warranted under the savings statute. Rejecting this standard, the standard applied in Flynn, the court of appeals held that trial courts must compare the prejudice to the parties while considering the litigants' reasonable and good faith conduct. Applying that standard, the court concluded the Jepsons were entitled to relief under the savings statute.
The defendants petitioned this court for review, contending that the court of appeals applied the wrong standard and that the standard articulated in Flynn should have been adopted. Under that standard, they argue, relief under A.R.S. § 12-504 must be denied and the trial court affirmed. The Jepsons cross-petitioned, claiming that, based on Gorman, the trial court abused its discretion in denying relief under Rule 60(c)(6).
We first consider whether the trial court abused its discretion in denying Flynn's motion to continue the case on the inactive calendar, dismissing the case for lack of prosecution and denying his motion for Rule 60(c) relief.
Rule V(e) provides in part as follows:
(e) Inactive Calendar. The clerk of the court or court administrator shall place on the Inactive Calendar every case in which a Motion to Set and Certificate of Readiness has not been filed within nine months after the commencement thereof,.... All cases remaining on the Inactive Calendar for two months shall be dismissed without prejudice for lack of prosecution, and the court shall make an appropriate order as to any bond or other security filed therein, unless prior to the expiration of such two months period:
(1) A proper Motion to Set and Certificate of Readiness is filed; or
(2) The court, on motion for good cause shown, orders the case to be continued on the Inactive Calendar for a specified period of time without dismissal.
In exercising its discretion to grant a continuance, the trial court considers the same conditions that permit relief under Rule 60(c), provided that the good cause required by Rule V(e)(2) is shown. Campbell v. Deddens, 93 Ariz. 247, 251, 379 P.2d 963, 965 (1963); Hyman v. Arden-May Fair, Inc., 150 Ariz. 444, 448, 724 P.2d 63, 67 (App.1986). Thus, the litigant must first establish any of the Rule 60(c) bases for relief and, where the basis is under Rule 60(c)(6), the litigant must show extraordinary circumstances of hardship or injustice justifying relief. Davis v. Davis, 143 Ariz. 54, 57, 691 P.2d 1082, 1085 (1985). Where the case will be dismissed...
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