Opinion
1 CA-CV 21-0028
05-03-2022
VIRGINIA MILLER, Plaintiff/Appellee, v. CURT WAISATH, et al., Defendants/Appellants.
Zachar Law Firm PC, Phoenix By David J. Catanese Counsel for Plaintiff/Appellee Sanders & Parks PC, Phoenix By John C. Quinn, Jeffrey L. Smith Counsel for Defendants/Appellants
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2018-092446 The Honorable Tracey Westerhausen, Judge
Zachar Law Firm PC, Phoenix By David J. Catanese Counsel for Plaintiff/Appellee
Sanders & Parks PC, Phoenix By John C. Quinn, Jeffrey L. Smith Counsel for Defendants/Appellants
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge Maria Elena Cruz joined.
MEMORANDUM DECISION
PERKINS, JUDGE
¶1 Curt Waisath, Karen Waisath, and the Curt and Karen Waisath Family Trust (collectively "Waisaths") appeal the superior court's order granting Virginia Miller's Arizona Rule of Civil Procedure 60(b)(6) motion. For the following reasons, we reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Miller filed a complaint in June 2018, alleging that the Waisaths' negligence caused her injuries. Miller timely served the Waisaths in February 2019. The Waisaths filed an answer that month, asserting affirmative defenses to Miller's allegations. The superior court placed Miller's case on the dismissal calendar, stating it would dismiss the case without further notice on May 13, 2019, unless Miller complied with Rule 38.1(d)(2). Because Miller satisfied none of Rule 38's conditions, the court dismissed her case on August 28, 2019, for failure to prosecute.
¶3 In June 2020, and with a different attorney, Miller moved to vacate the dismissal under Rule 60. Miller requested Rule 60(b)(1) relief, arguing her attorney's failure to file a joint management report and scheduling order before the dismissal date constituted excusable neglect. Miller also requested Rule 60(b)(6) relief, contending her attorney lied to and defrauded her after the court filed the dismissal order. Miller supported her motion with an affidavit and exhibits containing screenshots of text conversations with her attorney in the months following dismissal.
¶4 The exhibits show Miller asked her attorney multiple times to provide information about her case's status. In return, her attorney communicated misleading representations and outright falsehoods. In one instance, several months after the superior court dismissed her case, Miller asked her attorney to return her call. Four days later, her attorney replied, "[t]here is nothing scheduled in your case at the moment. They were busy sending subpoenas to all of your medical providers and the USPS to get copies of all of the documents we already provided to make sure we didn't leave any out…Talk to you soon!" In March 2020, Miller's attorney discussed substituting counsel, but "it [was] taking longer than expected to move things over" to another attorney and because of Covid-19, "it could take awhile."
¶5 The Waisaths argued Miller's Rule 60(b)(1) request was untimely and she did not qualify for relief because her attorney failed to diligently comply with discovery requests and court-ordered deadlines. They also opposed Miller's request Rule 60(b)(6) relief.
¶6 The superior court granted Miller relief under Rule 60(b)(6), vacated the dismissal, and reopened the case. The Waisaths timely appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), -2101(A)(2).
DISCUSSION
¶7 We review the superior court's grant of Rule 60 relief for an abuse of discretion and will affirm "unless undisputed facts and circumstances require a contrary ruling." City of Phoenix v. Geyler, 144 Ariz. 323, 330 (1985) (cleaned up). We review the interpretation of court rules de novo. See Bobrow v. Herrod, 239 Ariz. 180, 182, ¶ 7 (App. 2016).
¶8 Rule 60(b) allows the superior court to grant relief from judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)(1);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason justifying relief.Subsection (6) applies only when the need for finality of judgments is outweighed by "extraordinary circumstances of hardship or injustice." Webb v. Erickson, 134 Ariz. 182, 186-87 (1982).
¶9 In Jepson v. New, our supreme court held that Rule 60(b)(6) relief is available from a dismissal for lack of prosecution only if the moving party establishes: (1) extraordinary circumstances of hardship or injustice justifying relief; (2) the movant diligently and vigorously prosecuted the case before dismissal; (3) the movant took reasonable steps to inform the court of the case's status before dismissal; (4) substantial prejudice will result unless relief is granted; (5) the movant promptly sought relief; and (6) the movant had a meritorious claim. 164 Ariz. 265, 273 (1990).
¶10 Miller invites us to analyze the Jepson factors as "applied to the litigant herself, the real party in interest, rather than [as] applied to her attorney." We decline Miller's invitation and note the well-established precedent that an attorney's neglect is equivalent to the client's neglect when the attorney acts within the scope of her authority. See Balmer v. Gagnon, 19 Ariz.App. 55, 57 (App. 1973). Any disunity between Miller's conduct and that of her attorney which contributed to the dismissal of Miller's case must be addressed separately from this case.
¶11 Miller argues the superior court correctly vacated the dismissal under subsection (6) because her counsel repeatedly lied to her and misled her about the status of her case. She claims her attorney's misconduct precluded her "from taking actions that would have avoided dismissal of her case," or from seeking Rule 60(b)(1) relief shortly after its dismissal. Miller concedes "the mistake of an attorney is usually attributable to the client," but claims this case's facts are extraordinary and warrant an extraordinary disposition.
¶12 Our supreme court addressed arguments comparable to Miller's in Panzino v. City of Phoenix, 196 Ariz. 442 (2000), abrogated on other grounds by Gonzalez v. Nguyen, 243 Ariz. 541 (2018). In Panzino, the supreme court rejected the "positive misconduct rule," which permits "relief from judgment when an attorney's conduct is so egregious as to constitute abandonment of a client." 196 Ariz. at 445, ¶ 8. The court warned that "the rule can encourage lawyers who have lapsed into carelessness to deliberately expand their neglect to a level of egregiousness as a tactic to save their client's case." Id. at 448, ¶ 20 (cleaned up). Consistent with agency law principles, Arizona does not permit a client to escape responsibility for her attorney's negligence. Id. at 447, ¶¶ 16-17. Rule 60(b) relief is thus limited to cases involving an attorney's "legally excusable activity." Id. at 449, ¶ 24; see also Glaze v. Larsen, 207 Ariz. 26, 31, ¶ 20 (2004) ("In the civil context, a party generally cannot obtain post-judgment relief because of the inexcusable neglect of counsel.").
¶13 Miller concedes her attorney did not engage in legally excusable conduct but instead committed "egregious" misconduct. To be sure, the timing and type of misconduct here are unusual. Miller's attorney did more than simply abandon Miller's cause of action. Unlike in Jepson or Panzino, the affirmative misconduct here extended beyond the case's dismissal-Miller's attorney claimed to be actively litigating the case even after its dismissal. After the superior court dismissed Miller's case, but before her window to obtain Rule 60(b)(1) relief closed, Miller's counsel provided multiple assurances that her case remained ongoing. For example, Miller's attorney claimed to be sending subpoenas to medical providers and "nothing [was] scheduled in [her] case at the moment." A months-long conversation about another attorney substituting into Miller's case ensued.
¶14 Miller never argued that her attorney's misconduct was qualitatively different from the type of misconduct considered in Panzino. And yet there remains an open question: what evidence did Miller have to present to obtain relief? Given the Jepson factors' application to failure to prosecute cases, which are wholly dependent on pre-dismissal conduct, our caselaw provides no clarity for this post-dismissal scenario. The superior court's minute entry, which simply grants Miller's motion for "any other reason justifying relief," provides no analysis to guide our review.
¶15 Even assuming, without deciding, Miller's attorney's misconduct permitted the superior court to grant relief under Rule 60(b)(6), Miller fails to satisfactorily explain how misconduct that occurred after the dismissal justifies vacating the dismissal. Miller asserts on appeal that had she been aware of the dismissal, she would have timely brought a Rule 60(b)(1) motion to contest the dismissal. But Miller conceded during oral argument that she did not include this assertion in her Rule 60 motion.
¶16 We do not suggest that the success of a Rule 60(b)(6) claim hinges on proving the viability of a claim under Rule 60(b)(1) through (5). See Gonzalez, 243 Ariz. at 535, ¶ 15 ("[T]he grounds for relief in each of the subsections are separate and distinct."). But Miller straps her entitlement to Rule 60(b)(6) relief to her inability to have timely obtained Rule 60(b)(1) relief. We must, therefore, consider the viability of her (b)(1) claim together with her (b)(6) claim.
¶17 In her argument for Rule 60(b)(1) relief, Miller contended her counsel's failure to file a joint management report and scheduling order constituted "excusable neglect" because her attorney claimed to suffer from health problems. But Miller's only evidence of her counsel's alleged health problems came from texts exchanged several months after dismissal. Miller presented no evidence that these alleged health problems led to counsel's failure to shepherd her case to trial.
¶18 We recognize Rule 60(b)(6) "vests power . . . to vacate judgments whenever such action is appropriate to accomplish justice." Webb, 134 Ariz. at 186 (quoting Klapprott v. United States, 335 U.S. 601, 615 (1949)). And subsection (6) is intended to provide relief from unjust judgments "because of extraordinary circumstances that cannot be remedied by legal review." Panzino, 196 Ariz. at 445, ¶ 5. We also recognize Arizona law imposes additional barriers to subsection (6) relief when a case is dismissed for lack of prosecution. As such, Miller needed to establish "the cause was prosecuted vigorously and diligently, that reasonable steps were taken to inform the court of the status of the case, and that substantial prejudice will result unless relief is granted." Jepson, 164 Ariz. at 273. Miller needed to, and failed to, submit an offer of proof to establish prejudice. See Gonzalez, 243 Ariz. at 535, ¶ 16 ("Although the showing of a meritorious defense need not be strong . . . it must be greater than mere speculation." (cleaned up)). Because Miller failed to substantiate her basis for relief, the superior court erred in vacating the dismissal.
CONCLUSION
¶19 We reverse and remand with instructions to reinstate the dismissal.