Martin v. Rossi
| Decision Date | 26 September 1972 |
| Docket Number | No. 1,CA-CIV,1 |
| Parties | Kenneth MARTIN, Appellant, v. John ROSSI, Jr., Appellee. 1659. |
| Court | Arizona Court of Appeals |
Fred R. Esser, Phoenix, for appellant.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Jolyon Grant, Phoenix, for appellee.
On this appeal the plaintiff-appellant contends that the trial court abused its discretion in granting the defendant-appellee's motion to set aside a default judgment entered against the defendant.
Plaintiff Martin filed an action in the Superior Court seeking damages from defendant Rossi alleged to have resulted from an intersection collision. The defendant was a City of Phoenix police officer, and at the time of the collision he was acting within the course and scope of his employment. However, the City of Phoenix was not made a defendant in the action. The affidavits accompanying defendant Rossi's motion to set aside the default judgment indicate that immediately upon service of the summons and complaint upon him, on March 26, 1970, he phoned his supervisor at the City of Phoenix police department. The supervisor advised defendant to take the summons and complaint to Mr. Jack LaSota, the legal advisor to the City of Phoenix police department. Defendant went to see Mr. LaSota on the following day, and advised him of the facts of the accident and further, that he was on duty as a uniformed patrol officer at the time of the collision. He mentioned to Mr. LaSota that the City of Phoenix had not been named as a defendant in the lawsuit, and asked whether or not he would be defended by the City or its insurance carrier. Mr. LaSota advised defendant that he probably would be defended, that he was not to worry, and that in any case the matter would be taken care of, and, if there were any problems, the defendant would be contacted.
From the time defendant Rossi contacted Mr. LaSota he heard nothing further concerning the case until approximately seven months later, when, on or about October 21, 1970, he received a letter from the Arizona Highway Department, Motor Vehicle Division, dated October 19, 1970, advising him that a judgment had been entered against him, and that unless this judgment was satisfied, his driving rights would be suspended. He subsequently learned that his default had been entered on April 16, 1970, and default judgment entered against him on May 12, 1970, all without his knowledge.
On October 30, 1970, some nine days after he first learned of the existence of the judgment, defendant filed a motion to set aside the default on the grounds that his failure to answer the plaintiff's complaint was due to 'mistake, inadvertence, surprise or excusable neglect' and that he had a meritorious defense to the action. The trial judge granted the motion, and this appeal resulted.
Rule 55(c), Rules of Civil Procedure, 16 A.R.S., provides as follows:
'For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(c).'
Referring to the pertinent provisions of Rule 60(c):
Here defendant's motion was filed within six months after the entry of the judgment, and there is no real contention that the filing within nine days after defendant first received knowledge of the judgment was not within the statutorily required 'reasonable time.' Furthermore, the facts alleged in defendant's affidavits, if true, would unquestionably constitute a meritorious defense. Plaintiff does not even argue that defendant's conduct, per se, was unreasonable or not that of a reasonably prudent man under the circumstances. See Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 317 P.2d 550 (1957). Rather, the essence of appellant's contention is that the defendant must be charged with the acts of his agent, Mr. LaSota, and that Mr. LaSota's actions did not constitute 'mistake, inadvertence, surprise or excusable neglect' within the meaning of Rule 60(c). As we have indicated above, Mr. LaSota was the legal advisor to the City of Phoenix police department and was not the defendant's personal attorney in the normal attorney-client sense. He (LaSota) filed an affidavit verifying that defendant advised him of the foregoing facts, and that as an employee of the City of Phoenix, one of his duties was to receive copies of lawsuits filed against...
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Grant v. Arizona Public Service Co., 15761-PR
...if the record fails to provide substantial evidence to support the trial court's finding. This is not a new rule. Martin v. Rossi, 18 Ariz.App. 212, 501 P.2d 53 (1972). Thus, as we indicated in the original opinion, if the improper argument which was explicitly directed toward punitive dama......
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Daou v. Harris, 16693-PR
...The trial court could reasonably have concluded that Harris did not forget but knowingly procrastinated. See Martin v. Rossi, 18 Ariz.App. 212, 215, 501 P.2d 53, 56 (1972). See generally Overson v. Martin, 90 Ariz. 9, 363 P.2d 604 (1961) (reversing a trial court's setting aside a default ju......
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Richas v. Superior Court of Arizona In and For Maricopa County, 15890-SA
...by arguing that "mistake or inadvertence is rarely completely explainable," citing the words of Judge Haire in Martin v. Rossi, 18 Ariz.App. 212, 215, 501 P.2d 53, 56 (1972). Those words, however, are not to be interpreted to mean that one need not explain that which could be explained. Mar......
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State v. Janise
...discretion unless it is plainly wrong. Visco v. Universal Refuse Removal Co., 11 Ariz.App. 73, 462 P.2d (1969); Martin v. Rossi, 18 Ariz.App. 212, 501 P.2d 53 (1972). Since the record contains no evidence of the trial court's rationale for not ordering an evaluation, we will not presume an ......