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Panzino v. City of Phoenix5/10/2000
Appeal from the Superior Court of Arizona in Maricopa County The Honorable Frank T. Galati, Judge JUDGMENT IN CV 93-16143 REVERSED AND REMANDED JUDGMENT IN CV 95-00773 AFFIRMED
Opinion of the Court of Appeals Division One 195 Ariz. 453, 990 P.2d 654 (App. 1999)
VACATED
The issue presented is whether Arizona should adopt the positive misconduct rule, which permits a client whose attorney has abandoned him or her to obtain relief from a judgment by invoking Rule 60(c)(6) of the Arizona Rules of Civil Procedure. We decline to adopt the rule because doing so would require us to abandon our long-standing interpretation of Rule 60(c) and to overturn established principles of law.
I.
On January 18, 1993, a car driven by Denise Karlin struck Laura Panzino as she walked in a street to avoid rainwater ponding in her path. Panzino, seriously injured, retained attorney David Appleton to represent her. Appleton eventually filed two identical personal injury actions against the same defendants, neither of which he timely pursued. On the motion of defendants, the trial court dismissed both actions. Panzino then retained new counsel, who moved for relief under Rule 60(c)(6), Arizona Rules of Civil Procedure. The trial court, relying upon the positive misconduct rule, granted relief in one action and denied relief in the other. The court of appeals, also adopting the positive misconduct rule, held that Rule 60(c)(6) provided Panzino relief in both actions. The court concluded that Appleton's omissions and actions in representing Panzino demonstrated "longstanding and pervasive neglect" and constituted complete and total abandonment of his client. See Panzino v. City of Phoenix, 195 Ariz. 453, 459, 990 P.2d 654, 660 (App. 1999). Although Appleton disputes that characterization, we assume for purposes of this opinion that Appleton's actions comprised longstanding and pervasive neglect, that he completely abandoned his client, and that Panzino was relatively free from negligence.
We granted review to decide whether Arizona should adopt the positive misconduct rule. We exercise jurisdiction pursuant to article VI, section 5.3 of the Arizona Constitution, Rule 23 of the Arizona Rules of Civil Appellate Procedure, and Arizona Revised Statutes Annotated (A.R.S.) section 12-120.24.
II.
Rule 60(c) of the Arizona Rules of Civil Procedure allows a trial court to grant relief from judgment for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(d); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. ARIZ. R. CIV. P. 60(c).
This rule "'is primarily intended to allow relief from judgments that, although perhaps legally faultless, are unjust because of extraordinary circumstances that cannot be remedied by legal review.'" Hyman v. Arden-Mayfair, Inc., 150 Ariz. 444, 447, 724 P.2d 63, 66 (App. 1986) (quoting Tippit v. Lahr, 132 Ariz. 406, 408-09, 646 P.2d 291, 293-94 (App. 1982)). Thus, " he purpose of the rule is to provide relief for those mistakes and errors which inevitably occur despite diligent efforts to comply with the rules." City
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