Opinion
No. 1 CA-CV 15-0145
03-01-2016
ROSE CRUTCHER and JERRY CRUTCHER, wife and husband, Plaintiffs/Appellants, v. LOWE'S HOME CENTERS, LLC, Defendant/Appellee.
COUNSEL Schneider Wallace Cottrell Konecky Wotkyns LLP, Scottsdale By Jeffrey R. Finley Counsel for Plaintiffs/Appellants Thies Lihn & Simpson PLLC, Phoenix By Bradley M. Thies Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2014-006501
The Honorable Sally Schneider Duncan, Judge
AFFIRMED
COUNSEL Schneider Wallace Cottrell Konecky Wotkyns LLP, Scottsdale
By Jeffrey R. Finley
Counsel for Plaintiffs/Appellants Thies Lihn & Simpson PLLC, Phoenix
By Bradley M. Thies
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge John C. Gemmill and Judge Margaret H. Downie joined. GOULD, Judge:
¶1 Appellants Rose and Jerry Crutcher (the "Crutchers") appeal the trial court's judgment dismissing their lawsuit on the grounds of abatement. For the reasons discussed below, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On April 5, 2012, while Rose Crutcher was in a Lowe's retail store, a box of tiles fell and injured her toe. The Crutchers' attorney personally filed a complaint against Lowe's on April 4, 2014.
¶3 In handling the filing personally, the Crutchers' attorney did not follow the standard docketing procedures of his law firm. The standard procedure involved (1) a designated employee filing the complaint, and (2) providing a copy of the complaint to a paralegal for the purpose of docketing the service deadline. However, because the Crutchers' attorney filed the complaint himself, he did not provide the complaint to the paralegal, and the deadline for service was never docketed.
¶4 On July 9, 2014, the court issued a Notice of Intent to Dismiss for Lack of Service. This document specified the deadline for completing service was August 4, 2014. The Crutchers' attorney, however, claims he never received a copy of the minute entry. Nonetheless, "[d]uring the month of July 2014" he was "cognizant that the complaint needed to be served," so he checked the Maricopa County Superior Court's docket. The docket "reflected a minute entry from the clerk having been entered on July 9, 2014," and, although he could not view the actual minute entry online, the Crutchers' attorney assumed such notices were typically "issued thirty days prior to the date of dismissal." As a result, he incorrectly assumed the last day for service was August 8, 2014. The Crutchers served Lowe's on August 7, 2014, three days after the actual deadline for serving the complaint.
¶5 Lowe's filed a motion to dismiss on the grounds of abatement pursuant to Rule 4(i), Arizona Rules of Civil Procedure. On October 3, 2014, the Crutchers filed a response to the motion to dismiss and a motion to enlarge time for service of complaint. The court denied the Crutchers' motion to enlarge time and granted the motion to dismiss. The Crutchers filed a motion to reconsider and a motion to set aside the judgment, both of which were denied. The Crutchers timely appealed.
DISCUSSION
I. Abatement
¶6 The Crutchers argue the court abused its discretion in denying their motion to enlarge time and granting the motion to dismiss because "good cause" existed to extend the deadline for serving the complaint. We disagree.
The Crutchers also contend the trial court misapplied the law. They assert the court stated at the hearing on the motion to enlarge that it had no discretion to grant the motion. However, the Crutchers have not cited any portion of the record supporting this contention, and, as a result, we will not consider this unsupported assertion. State v. One Single Family Residence, 193 Ariz. 1, 2 n.2 (App. 1997); ARCAP 13(a)(7)(A) (appellant's arguments must contain "appropriate references to the portions of the record on which the appellant relies"). --------
¶7 We review a trial court's determination as to whether good cause exists to extend the time for service of a complaint for an abuse of discretion. Maher v. Urman, 211 Ariz. 543, 548-49, ¶ 15 (App. 2005).
¶8 Rule 4(i), Ariz. R. Civ. P., states that a court "shall" dismiss a complaint if service "is not made upon a defendant within 120 days after the filing of the complaint." Rule 4(i) also provides that a court may, upon its own initiative or the motion of a party, "extend the time for service, even absent a showing of good cause." Maher, 211 Ariz. at 548, ¶ 10. However, an extension of time for service is mandatory if a plaintiff establishes good cause. Id., at 548, ¶ 14. In order to show good cause, "a plaintiff must demonstrate he or she exercised due diligence in trying to serve the defendant." Maher, 211 Ariz. at 548, ¶ 14; see Toy v. Katz, 192 Ariz. 73, 82 (App. 1997).
¶9 The trial court did not abuse its discretion. The Crutchers did not establish good cause for failing to serve Lowe's within the 120 day deadline. The Crutchers did not assert they had difficulty locating Lowe's to effect service, nor did they claim there were extenuating circumstances delaying or preventing service; indeed, it is undisputed they made no effort to serve Lowe's within the 120-day deadline. See Air Power, Inc. v. Superior Court, In and For Maricopa Cty., 142 Ariz. 492, 496 (App. 1984) (court properly dismissed case where plaintiff inadvertently missed the service deadline by one day, but failed to provide the court with an adequate reason for missing the deadline).
II. Excusable Neglect
¶10 The Crutchers also claim the trial court erred in denying their motion to set aside the judgment pursuant to Arizona Rule of Civil Procedure 60(c)(1). Specifically, the Crutchers contend their failure to serve the Defendant within the required time limit was the result of "excusable neglect."
¶11 We review the trial court's order denying the Crutchers' motion to set aside the judgment for an abuse of discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328 (1985); Maher, 211 Ariz. at 550, ¶ 21.
¶12 Rule 60(c) (1) allows a court to set aside a judgment based on "excusable neglect." "The purpose of the rule is to provide relief for those mistakes and errors which inevitably occur despite diligent efforts to comply with the rules." Geyler, 144 Ariz. at 332. However, "carelessness is not synonymous with excusable neglect." Hirsch v. Nat'l Van Lines, 136 Ariz. 304, 309 (1983). Rather, "the test of what is excusable is whether the neglect or inadvertence is such as might be the act of a reasonably prudent person under similar circumstances." Daou v. Harris, 139 Ariz. 353, 359 (1984).
¶13 Here, the Crutchers claim excusable neglect exists because the docketing system in Finley's law firm failed to notify him about the filing deadline. As a result, the Crutchers contend this case is analogous to Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 120-21 (1957). In Marvin, a default judgment was entered against the defendant when his attorney missed the deadline for filing an answer. The court determined there was excusable neglect to set aside the judgment because the attorney had relied on established office procedures for docketing filing deadlines and, due to the clerical error of a secretary, he had not received the proper docketing notification. Marvin, 83 Ariz. at 120-21.
¶14 The Crutcher's reliance on Marvin is misplaced. Here, by filing the complaint himself, the Crutchers' attorney was aware he was not following his firm's docketing procedure. As a result, the deadline for serving the complaint was never entered into the system.
¶15 Additionally, by July 2014, the Crutchers' attorney was aware the deadline for serving the complaint was near. This concern lead him to review the Maricopa County Superior Court's docket, where he saw the entry concerning the court's notice of intent to dismiss the case. Nonetheless, he assumed, without verifying, the service deadline was August 8, 2014. Under the circumstances, this assumption was careless, not reasonable. Almarez v. Superior Court, In & For Pima Cty., 146 Ariz. 189, 192 (App. 1985).
¶16 Accordingly, the Crutchers failed to show excusable neglect, and the court did not err in denying their motion to set aside the judgment.
CONCLUSION
¶17 For the foregoing reasons, we affirm.