Opinion
No. 1 CA-CV 12-0111
03-14-2013
JOHN PAUL SEXTON and SARAH M. JUELLER-SEXTON, husband and wife, Plaintiffs/Appellants, v. JANET L. FELTZ; NAPIER, ABDO, COURY & BAILLIE, P.C.; and MICHAEL NAPIER, P.C., Defendants/Appellees.
The Nathanson Law Firm By Philip J. Nathanson Attorneys for Plaintiffs/Appellants Jennings Haug & Cunningham By John R. Cunningham Christopher R. Stovall Attorneys for Defendants/Appellees
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(Not for Publication -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 Maricopa County
Cause No. CV2009-054003
The Honorable Linda H. Miles, Judge
AFFIRMED
The Nathanson Law Firm
By Philip J. Nathanson
Attorneys for Plaintiffs/Appellants
Scottsdale Jennings Haug & Cunningham
By John R. Cunningham
Christopher R. Stovall
Attorneys for Defendants/Appellees
Phoenix DOWNIE, Judge ¶1 John Paul Sexton and Sarah M. Jueller-Sexton appeal the dismissal of their complaint for lack of prosecution and the denial of their motion to reinstate or, alternatively, for relief under the savings statute. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On September 17, 2009, the Sextons filed a legal malpractice complaint against Janet L. Feltz; Napier, Abdo, Coury & Baillie, P.C.; and Michael Napier, P.C. (collectively, "Attorneys"). Attorneys filed an answer on October 9, 2009, served an offer of judgment in December 2009, and provided an initial disclosure statement in February 2010. On the first page of their disclosure statement, Attorneys included a "Prefatory Note" that read, in pertinent part:
Notwithstanding the requirements of Rule 26.1(b), Ariz.R.Civ.P. and A.R.S. § 12-2602, Plaintiffs have neither provided an Initial Disclosure Statement (or any other form of disclosure of information) regarding their claim, or the Preliminary Expert Opinion Affidavit required by A.R.S. § 12-2602. Nor did Plaintiffs file the required written statement certifying whether expert opinion testimony is required in the case. This Initial Disclosure Statement is therefore filed by Defendants in a vacuum of disclosure and dearth of information from the Plaintiffs.¶3 On February 24, 2010, the superior court issued an order ("150-day order") stating:
This action was filed more than 150 days ago. . . . This order provides notice of requirements, pursuant to Rule 38.1, Arizona Rules of Civil Procedure. Rule 38.1 applies to all civil actions, including those subject to arbitration.The 150-day order advised the parties that the rules "require a Motion to Set within nine months after the action is filed" and that for "good cause, the assigned judge may extend time for dismissal or continue the action on Inactive Calendar to an appropriate date." ¶4 By May 20, 2010, the Sextons had not served a disclosure statement or a preliminary expert opinion affidavit. Counsel for Attorneys wrote to the Sextons' counsel, stating: "We are long past the dates for Disclosure Statements and . . . a preliminary expert opinion affidavit . . . I have not received anything from your office since the Answer was filed." ¶5 The Sextons still did not serve a disclosure statement, and they failed to file a motion to set by June 14, 2010, as the 150-day order directed. Instead, on August 9, 2010, they requested a Rule 16 scheduling conference. Attorneys opposed the request, arguing the Sextons had "done absolutely nothing in prosecution of their case since its commencement and service, and have filed their Rule 16 Motion (which was not served on Defendants) as a transparent dodge instead of complying with the requirements of Rule 38.1(d)." Attorneys pointed out that the case was "ready for administrative dismissal" based on the 150-day order and that the Sextons had not filed a motion to set. ¶6 Notwithstanding Attorneys' objection, the court set a scheduling conference for December 1, 2010, and ordered the parties to file a joint pretrial memorandum regarding enumerated topics. Prior to the Rule 16 conference, Attorneys filed a "Notice of Defendants' Inability to File Joint Pretrial Memorandum," explaining that they could not fully comply with the court's order because: (1) the Sextons had not provided a preliminary expert opinion affidavit; (2) the Sextons had not provided formal or informal disclosures "during the entire pendency of this litigation"; and (3) the Sextons' counsel had not contacted Attorneys' counsel or provided a draft of their portion of the pretrial memorandum. ¶7 On October 5, 2010, Attorneys filed a motion to dismiss for lack of prosecution and alternatively moved for summary judgment. The Sextons responded in opposition, and the court set oral argument for March 4, 2011. In the meantime, the December 1 scheduling conference took place, at which the court set various deadlines, including an April 15, 2011 discovery cut-off. The court also continued the case on the inactive calendar "for dismissal on February 28, 2011." ¶8 After the March oral argument, the superior court denied Attorneys' motion to dismiss, as well as their motion for summary judgment. However, the court admonished the Sextons that "any further discovery failures shall result in the exclusion of information or witnesses not timely disclosed pursuant to this order except for good cause shown." The court set some new deadlines, including an April 30, 2011 discovery cut-off, but it did not continue the case on the inactive calendar. ¶9 On the deadline set for propounding written discovery, the Sextons served interrogatories and a request for production of documents on Attorneys, who responded on May 23, 2011. In early June, the Sextons' counsel contacted Attorneys' counsel, asking him to waive the court-ordered deadline for depositions, which had expired on April 30. Attorneys' counsel declined to do so. ¶10 The superior court docket reflects no filings by the Sextons between March 10, 2011, and June 15, 2011, when the court issued its judgment of dismissal without prejudice for lack of prosecution. On June 27, the Sextons moved to reinstate the case and alternatively requested six months within which to refile their action under the savings statute -- A.R.S. § 12-504. Attorneys opposed the motion. After five months passed with no action by the court, the Sextons filed an emergency request for hearing, explaining that the six month re-filing period would soon expire. ¶11 On December 12, 2011, the superior court denied the Sextons' motion "[f]or the reasons stated in [Attorneys'] Response and because [the Sextons] have not established a sufficient basis for relief under Rule 60(c)(1) or (6), Ariz.R.Civ.P., or A.R.S. 12-504(A)." The Sextons timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101.
IT IS HEREBY ORDERED:
Rule 38.1 of the Arizona Rules of Civil Procedure will be strictly enforced. The parties shall file and serve on court and counsel the following documents:
A motion to Set and Certificate of Readiness . . . shall be filed on or before 6/14/2010. . . . If Rule 38.1 is not complied with, the case will be placed on Inactive Calendar on the date shown above and it will be dismissed pursuant to Rule 38.1, without further notice, on or after 8/13/2010.
Unless otherwise stated, all references to "Rule" are to the Arizona Rules of Civil Procedure and references to A.R.S. are to Arizona Revised Statutes.
Section 12-504(A) provides, in pertinent part:
If an action timely commenced is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution, the court in its discretion may provide a period for commencement of a new action for the same cause, although the time otherwise limited for commencement has expired. Such period shall not exceed six months from the date of termination.
DISCUSSION
¶12 "We will not disturb a dismissal for failure to prosecute unless the trial court abused its discretion." Slaughter v. Maricopa County, 227 Ariz. 323, 326, ¶ 14, 258 P.3d 141, 144 (App. 2011). An order denying relief under A.R.S. § 12-504(A) is similarly reviewed for an abuse of discretion. Copeland v. Ariz. Veterans Mem'l Coliseum & Exposition Ctr., 176 Ariz. 86, 89, 859 P.2d 196, 199 (App. 1993) (citations omitted). ¶13 The June 2011 dismissal order read:
Court records reflect this case was previously place[d] or extended on the Inactive Calendar for dismissal per Rule 38.1(d), Arizona Rule of Civil Procedure, unless specified action was taken before a certain date. The date has passed, and the specified action has not been taken. IT IS THEREFORE ORDERED dismissing all unadjudicated claims of this case without prejudice for lack of prosecution.The dismissal order was factually correct and legally appropriate. The Sextons did not file a motion to set by either of the court-ordered deadlines in this case -- the latter of which was issued by the assigned trial judge. Nor did they move to continue those deadlines. Their case was properly dismissed for lack of prosecution. ¶14 We also find no abuse of discretion in denying the motion to reinstate. "A court abuses its discretion if it commits an error of law in reaching a discretionary conclusion, it reaches a conclusion without considering the evidence, it commits some other substantial error of law, or the record fails to provide substantial evidence to support the trial court's finding." Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007) (internal quotation marks omitted). "A difference in judicial opinion is not synonymous with abuse of discretion." Quigley v. City Court, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982) (internal quotation marks omitted). Thus, even if we might have decided the underlying motion differently, "[t]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason. We cannot substitute our discretion for that of the trial judge." Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985) (quoting Davis v. Davis, 78 Ariz. 174, 179, 277 P.2d 261, 265 (1954) (Windes, J., specially concurring)). ¶15 The Sextons' motion advanced only two arguments: (1) the court abused its discretion in dismissing the case for lack of prosecution, requiring reinstatement; and (2) relief under the savings statute was appropriate if the case was not reinstated. The Sextons neither cited nor discussed Rule 60. They also failed to file a reply in support of their motion, notwithstanding Attorneys' response identifying numerous factual and legal deficiencies in the motion. ¶16 The superior court could properly consider the entirety of the proceedings in determining whether reinstatement or relief under the savings statute was appropriate. See Copeland, 176 Ariz. at 90, 859 P.2d at 200 (courts consider the totality of circumstances in deciding whether a party has diligently prosecuted a case). The Sextons' reliance on American Asphalt & Grading Co. v. CMX, L.L.C., 227 Ariz. 117, 253 P.3d 1240 (2011), is unavailing. The court's duty to "give notice of impending dismissal" is a non-dispositive factor to consider. Copeland, 176 Ariz. at 90, 859 P.2d at 200. However, the Sextons have never claimed they were unaware of the inactive calendar deadlines in this case. And it is the duty of counsel to ensure that he is "advised of the ongoing status of any action in which he has appeared." Id. Moreover, unlike American Asphalt, this case involves both a 150-day administrative order and a specific order by the assigned judge setting the case for dismissal off the inactive calendar on a date certain. ¶17 The only argument the Sextons made in their motion regarding the savings statute was as follows:
Plaintiffs bear no fault whatsoever for the current status of this case. If the individual plaintiff[s'] innocence is not enough to keep the current case in court, then plaintiffs' counsel requests that plaintiffs be given a six-month refiling period to refile his action, which action¶18 Parties may not generally argue legal issues and theories on appeal that they failed to raise in the trial court. See Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) (citation omitted); Winters v. Ariz. Bd. of Educ., 207 Ariz. 173, 177, 83 P.3d 1114, 1118 (App. 2004) (when a challenge is not raised with specificity and addressed in the trial court, it will not typically be considered on appeal). Because the Sextons never mentioned, let alone analyzed, Rule 60 in their superior court filings, they have waived any appellate arguments predicated on Rule 60(c). The motion also failed to address the factors set forth in Jepson v. New, 164 Ariz. 265, 792 P.2d 728 (1990), which the Sextons discuss for the first time in their opening brief. ¶19 Even if we were to consider Rule 60(c) and the Jepson factors, we would find no abuse of discretion. Beginning five months after the complaint was filed, Attorneys repeatedly raised the Sextons' lack of diligence, which a reasonable trier of fact could conclude was pervasive over the course of the proceedings and not a momentary oversight, minor procedural error, or excusable neglect under Rule 60(c)(1). See Copeland, 176 Ariz. at 89, 859 P.2d at 199; see also Ulibarri v. Gerstenberger, 178 Ariz. 151, 163, 871 P.2d 698, 710 (App. 1993) ("Carelessness does not equate with excusable neglect.") . The Sextons' motion also failed to establish "extraordinary circumstances of hardship or injustice." See Rule 60(c)(6); Webb v. Erickson, 134 Ariz. 182, 187, 655 P.2d 6, 11 (1982) (the purpose of Rule 60(c)(6) is to allow for relief in "extraordinary circumstances of hardship or injustice"). And to obtain relief under Rule 60(c)(6), the plaintiff must demonstrate diligent and vigilant prosecution, Copeland, 176 Ariz. at 89, 859 P.2d at 199, which the Sextons did not do. ¶20 "Where an action is terminated for lack of prosecution, relief under the savings statue should only be granted where the plaintiff demonstrates that despite diligent pursuit of the case, it was dismissed." Jepson, 164 Ariz. at 274, 792 P.2d at 737 (emphasis added). The savings statutes may not be "misused as a safe haven for the dilatory and a loophole through which parties may avoid the applicable rules of practice and procedure." Id. at 271, 792 P.2d at 734. In the case at bar, the superior court could reasonably conclude that the Sextons' motion failed to articulate a basis for relief under A.R.S. § 12-504(A).
may otherwise be barred by the statute of limitations without the presence of such a refiling period.
We do not address the Sextons' "horizontal appeal" argument, raised for the first time in the reply brief. See State v. Watson, 198 Ariz. 48, 51, ¶ 4, 6 P.3d 752, 755 (App. 2000) (arguments not presented until the reply brief will not be considered); Anderson v. Country Life Ins. Co., 180 Ariz. 625, 636, 886 P.2d 1381, 1392 (App. 1994) (same).
--------
CONCLUSION
¶21 For the reasons stated, we affirm the judgment of the superior court.
_____________
MARGARET H. DOWNIE,
Presiding Judge
CONCURRING: _____________
MAURICE PORTLEY, Judge
_____________
PHILIP HALL, Judge
The statute of limitations on the Sextons' legal malpractice claim expired in February 2011.