Opinion
No. 2 CA-CV 2013-0122
03-06-2014
MONIQUE RODRIGUEZ AND VICTOR RODRIGUEZ, WIFE AND HUSBAND, Plaintiffs/Appellants, v. BRICE LUPE, Defendant/Appellee.
Law Office of Lynn Eric Goar, P.C., Tucson By Lynn Eric Goar Counsel for Plaintiffs/Appellants
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. C20115383
The Honorable Charles V. Harrington, Judge
AFFIRMED
COUNSEL
Law Office of Lynn Eric Goar, P.C., Tucson
By Lynn Eric Goar
Counsel for Plaintiffs/Appellants
MEMORANDUM DECISION
Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Olson concurred. HOWARD, Chief Judge:
A retired judge of the Arizona superior court authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Administrative Order No. 2012104 filed December 12, 2012.
¶1 Appellant Monique Rodriguez appeals from the trial court's denial of her motion to set aside the dismissal of her case through the Inactive Calendar, filed pursuant to Rule 60(c), Ariz. R. Civ. P. Rodriguez argues the court abused its discretion because she did not receive notice her case was on the Inactive Calendar and the statute of limitations would bar the re-filing of her claim. Because the court did not abuse its discretion, we affirm.
Factual and Procedural Background
¶2 The record reflects the following background. In July 2011, Rodriguez sued Brice Lupe, alleging he "violently assaulted and battered" her. Rodriguez also alleged several unnamed defendants negligently failed to take any precautions to prevent Lupe from harming her. After Lupe failed to answer the complaint, Rodriguez filed an application for entry of default, affidavit of default, and entry of default of Lupe. Rodriguez did not file a motion for entry of default judgment, and the case was placed on the Inactive Calendar in May 2012. The case was dismissed without prejudice for lack of prosecution on March 5, 2013. Rodriguez moved to set aside the dismissal pursuant to Rule 60(c), Ariz. R. Civ. P., on April 16 and the trial court denied that motion. Rodriguez appeals from that order.
Jurisdiction
¶3 Pursuant to our duty to determine jurisdiction over this appeal, Reeck v. Mendoza, 232 Ariz. 299, ¶ 3, 304 P.3d 1122, 1123 (App. 2013), we ordered the parties to file supplemental briefs concerning this court's jurisdiction because Rodriguez's case was dismissed without prejudice, which is not a final judgment under A.R.S. § 12-2101. See McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4, 202 P.3d 536, 539 (App. 2009). Only Rodriguez filed a supplemental brief.
Lupe also failed to file an answering brief, which we could consider a confession of reversible error, but, in our discretion we decline to do so. Cardoso v. Soldo, 230 Ariz. 614, n.1, 277 P.3d 811, 813 n.1 (App. 2012).
¶4 We only have jurisdiction pursuant to statute and have no authority to hear an appeal over which we do not have jurisdiction. See Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App. 1995). Under § 12-2101(A)(2), we have jurisdiction over "any special order made after final judgment." This jurisdiction generally includes orders denying Rule 60(c) relief requests. M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App. 1990). But if the trial court did not enter a "final judgment," a subsequent order on a Rule 60(c) motion cannot be a special order after judgment. Ruesga v. Kindred Nursing Cntrs., L.L.C., 215 Ariz. 589, ¶ 11, 161 P.3d 1253, 1257 (App. 2007). And dismissals without prejudice are not final judgments. McMurray, 220 Ariz. 71, ¶ 4, 202 P.3d at 539. Therefore, we do not have jurisdiction of this appeal under § 12-2101(A)(2).
¶5 In her supplemental brief, however, Rodriguez argues that although the order dismissing her claim was without prejudice, it effectively terminated her action in its entirety because the statute of limitations would bar the refilling of her claim. She relies on § 12-2101(A)(3), which gives this court jurisdiction over appeals "[f]rom any order affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken." This exception could apply, for example, when the complaint is dismissed after the statute of limitations has clearly run, precluding the plaintiff from refiling her claims. See Garza v. Swift Transp. Co., 222 Ariz. 281, ¶ 15, 213 P.3d 1008, 1011 (2009) (noting that "[t]he classic example of an order falling under § 12-2101(D) is a dismissal without prejudice entered after the statute of limitations has run."); see also Campbell v. Deddens, 93 Ariz. 247, 250, 379 P.2d 963, 965 (1963) (dismissal for want of prosecution is an appealable order because it "'determines the action and prevents judgment from which an appeal might be taken'"), quoting § 12-2101(D); but see Osuna v. Wal-Mart Stores, Inc., 214 Ariz. 286 , n.4, 151 P.3d 1267, 1271 n.4 (App. 2007) (appellate court will not presume claims voluntarily dismissed without prejudice are time-barred if unclear from record because statute of limitations is not jurisdictional, court will not "raise an affirmative defense" on defendant's behalf that can be waived, and possible tolling events may not appear on appellate record).
Section 12-2101(D) has since been renumbered to § 12-2101(A)(3). See 2011 Ariz. Sess. Laws, ch. 304, § 1.
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¶6 Section 12-542, A.R.S., is the statute of limitations for negligence claims and requires such actions to be pursued within two years after the action accrues. Rodriguez states her original injury occurred on October 22, 2009. The order of dismissal was issued on March 5, 2013. The record on appeal supports Rodriquez's representation that the limitation period has run as to her claims against Lupe.
¶7 We cannot, however, determine whether Rodriguez's claims as to the unnamed defendants are barred by the limitations period because the record does not indicate when she became aware of her cause of action against those defendants. See Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588, 898 P.2d 964, 966 (1995) (cause of action does not accrue until the plaintiff knows, or with reasonable diligence should know, the facts underlying his cause of action). And the order denying Rodriguez's Rule 60(c) motion only addressed her claims against Lupe and makes no mention of the unnamed defendants. Generally judgments that dispose of less than all the parties or claims are not final judgments without Rule 54(b), Ariz. R. Civ. P., language. Maria v. Najera, 222 Ariz. 306, ¶ 6, 214 P.3d 394, 395 (App. 2009). But a judgment that disposes of fewer than all claims against all parties will be considered final and appealable, without Rule 54(b) language, if the remaining claims are against parties who have not been served and fictitious parties. McHazlett v. Otis Eng'g Corp., 133 Ariz. 530, 532, 652 P.2d 1377, 1379 (1982).
¶8 The denial of Rule 60(c) relief from the dismissal of Rodriguez's case was thus an appealable order pursuant to § 12-2101(A)(3), giving this court jurisdiction to hear her appeal. See Garza, 222 Ariz. 281, ¶ 15, 213 P.3d at 1011; M & M Auto Storage Pool, Inc., 164 Ariz. at 141, 791 P.2d at 667.
Rule 60(c) Motion
¶9 Rodriguez argues the trial court abused its discretion in denying her motion to set aside the dismissal pursuant to Rule 60(c), Ariz. R. Civ. P. We review a trial court's ruling on a motion for relief under Rule 60(c) for an abuse of discretion. Maher v. Urman, 211 Ariz. 543, ¶ 21, 124 P.3d 770, 777 (App. 2005). Under this standard of review, we will "affirm where any reasonable view of the facts and law might support the judgment of the trial court." City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985).
¶10 Rodriguez failed to specify which subsection of Rule 60(c) she was seeking relief under in her motion. On appeal, she argues she was entitled to relief under either Rule 60(c)(1) or 60(c)(6). Her assertion that she never received notice that the case had been placed on the Inactive Calendar and was therefore unaware of the impending dismissal for lack of prosecution, could potentially entitle her to relief under Rule 60(c)(1) for "mistake, inadvertence, surprise or excusable neglect." To obtain relief under Rule 60(c)(1) from a dismissal for lack of prosecution, a party "must 'show (1) mistake, inadvertence, surprise or excusable neglect; (2) that relief was sought promptly; and (3) that a meritorious claim existed.'" Maher, 211 Ariz. 543, ¶ 21, 124 P.3d at 777, quoting Copeland v. Ariz. Veterans Mem'l Coliseum & Exposition Ctr., 176 Ariz. 86, 89, 859 P.2d 196, 199 (App. 1993). Courts must consider the totality of the circumstances when deciding whether to grant relief under Rule 60(c)(1), and lack of notice of the impending dismissal alone is not dispositive. Am. Asphalt & Grading Co. v. CMX, L.L.C., 227 Ariz. 117, ¶ 11, 253 P.3d 1240, 1242 (2011); see also Copeland, 176 Ariz. at 90, 859 P.2d at 200.
¶11 Rule 38.1(d), Ariz. R. Civ. P., provides that a case will be placed on the Inactive Calendar if no Motion to Set or Certificate of Readiness has "been served 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." A party may avoid having their case dismissed if, prior to the expiration of the two month period, the party serves "a Proper Motion to Set and Certificate of Readiness," or the court finds good cause and orders the case be continued on the Inactive Calendar. Id.
¶12 Rodriguez has failed to show her case was dismissed due to "mistake, inadvertence, surprise or excusable neglect." Rule 60(c)(1). Although Rodriguez claims she did not receive the Inactive Calendar notice, she appears on the distribution list and the lack of notice would not excuse her from her obligation to keep herself advised of the ongoing status of her case. See Copeland, 176 Ariz. at 90, 859 P.2d at 200; Ariz. R. Civ. P. 5.1(b) ("Each attorney shall be responsible for keeping advised of the status of cases in which that attorney has appeared . . . ."). Furthermore, Rule 38.1(d) provides notice that all cases are subject to dismissal if not prosecuted within eleven months. The trial court could find that failing to take any of the required steps, such as filing a motion for default judgment against Lupe, for nineteen months is not excusable neglect. Thus, the court did not abuse its discretion in denying her relief pursuant to Rule 60(c)(1).
¶13 Rodriguez relies on American Asphalt & Grading Co. as authority that her case should be reinstated. 227 Ariz. 117, ¶ 9, 253 P.3d at 1241. In that case, the supreme court held that a 150-day notice from Maricopa County Superior Court did not fulfill the requirements of the Inactive Calendar Notification required by Rule 38.1(e). Id. But the supreme court held, in accordance with Copeland, that lack of notice was only one factor to be considered. Id. ¶ 11. And, despite Rodriguez's assertion otherwise, the supreme court did not reinstate the case, but rather remanded it to the superior court to conduct a Rule 60(c) analysis in accordance with Copeland to determine whether relief should be granted. Id. ¶ 12. American Asphalt & Grading Co. does not, therefore, require that we find the trial court abused its discretion in denying Rodriguez's motion. Id.
¶14 Rodriguez also relies upon McKinley v. Town of Fredonia as support for her assertion that a trial court abuses its discretion by denying Rule 60(c)(1) relief when the attorney has not received the Inactive Calendar notice. 140 Ariz. 189, 680 P.2d 1250 (App. 1984). In that case, we found that the trial court abused its discretion by denying a motion to set aside a dismissal given the affidavit filed by the attorney's secretary in which she stated she had not received the Inactive Calendar notice. Id. at 190, 193, 680 P.2d at 1251, 1254. However, the court noted that in another Arizona decision the court had found the trial court had not abused its discretion in failing to grant relief based upon the lack of notice, noting the outcome was dependent upon the "circumstances" presented to the trial court. Id. at 193, 680 P.2d at 1254. Furthermore, the supreme court has since made it clear that lack of notice is only one factor a court is to consider when determining whether relief under Rule 60(c)(1) is appropriate. Am. Asphalt & Grading Co., 227 Ariz. 117, ¶ 11, 253 P.3d at 1242. McKinley therefore does not dictate that we find the trial court abused its discretion in denying Rodriguez relief under Rule 60(c)(1) based solely on the lack of notice. 140 Ariz. at 193, 680 P.2d at 1254.
¶15 Rodriguez's additional claim that she is entitled to relief based on the prejudice she would suffer because the limitations period has passed could potentially be covered by Rule 60(c)(6), which allows relief for "any other reason [not set forth in (1)-(5)] justifying relief." 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 willCopeland, 176 Ariz. at 89, 859 P.2d at 199. A court must consider the "'totality of facts and circumstances' to determine whether Rule 60(c)(6) relief is appropriate." Amanti Elec., Inc. v. Engineered Structures, Inc., 229 Ariz. 430, ¶ 7, 276 P.3d 499, 501 (App. 2012), quoting Roll v. Janca, 22 Ariz. App. 335, 337, 527 P.2d 294, 296 (1974). Although "the running of the statute of limitations presents an extraordinary hardship . . . this fact alone does not constitute grounds for relief under Rule 60(c)(6)." Jepson v. New, 164 Ariz. 265, 270, 792 P.2d 728, 733 (1990).
result unless relief is granted; (4) plaintiff sought relief promptly and (5) plaintiff has a meritorious claim.
¶16 Rodriguez has not sustained her burden of showing the trial court abused its discretion in determining she was not entitled to relief under Rule 60(c)(6). See Copeland, 176 Ariz. at 89, 859 P.2d at 199. The court implicitly found Rodriguez had not established she had diligently and vigorously prosecuted her claim, or that she had taken steps to inform the court of the case's status. See id. Throughout the time this case remained open, Rodriguez only filed an application for entry of default and three discovery notices. Rodriguez avowed below that she was trying to determine if any unnamed defendants were liable to her. But, the record establishes the only actions she possibly took in that regard were to take the deposition of a woman and request that she "produce all information, documentation, or correspondence relating to Brice Lupe" in March 2012, and subpoena Lupe's records from St. Mary's Hospital in July 2012. Rodriguez offers no explanation for the time gap between those requests and the dismissal in March 2013. And nothing in the record shows or even suggests the court would have been aware of Rodriguez's investigation before dismissing the case. Finally, Rodriguez's motion for Rule 60(c)(6) relief was filed forty-three days after the dismissal was entered, and the trial court could have reasonably found that this was a failure to seek prompt relief, as required by Copeland, 176 Ariz. at 89, 859 P.2d at 199. Thus, although the limitations period has run as to Lupe, presenting Rodriguez with an "extraordinary hardship," that alone does not constitute sufficient grounds for relief under Rule 60(c)(6). See Jepson, 164 Ariz. at 270, 792 P.2d at 733.
¶17 Because the trial court's ruling is supported by a reasonable view of the facts and law, we find no abuse of discretion. Geyler, 144 Ariz. at 330, 697 P.2d at 1080; Maher, 211 Ariz. 543, ¶ 21, 124 P.3d at 777. The court's denial of Rodriguez's Rule 60(c) motion for relief is therefore affirmed.
Disposition
¶18 For the foregoing reasons, we affirm the trial court's order.