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Panzino v. City of Phoenix3/11/1999
JUDGMENT IN CV 93-16143 AFFIRMED
JUDGMENT IN CV 95-00773 REVERSED AND REMANDED
Attorney David Appleton so neglected the personal injury claims of his client Laura Panzino that the trial court dismissed them for lack of prosecution. Panzino replaced Appleton, but, because Appleton's neglect was not excusable, her new attorney could not achieve the reinstatement of her claims on the ground of excusable neglect. This appeal concerns Panzino's alternative effort to achieve reinstatement on the equitable ground that Appleton had so substantially neglected her claims as to constructively abandon her representation.
I. History
On January 18, 1993, Laura Panzino was struck by a car driven by Denise Karlin as she walked in a Phoenix street to bypass rainwater ponding in her path. Panzino, seriously injured, retained attorney David Appleton to represent her. Appleton eventually, inexplicably, filed two identical personal injury actions against the same defendants, neither of which he timely pursued.
A. Case 1
On July 16, 1993, Appleton filed Maricopa County Cause No. CV 93-16143 ("case 1"), naming Karlin and the City of Phoenix as defendants. In anticipation of suing the City, Appleton had served a timely notice of claim upon the City in May 1993, as required by Ariz. Rev. Stat. Ann. ("A.R.S.") § 12-821. The notice of claim and complaint were the high water marks of Appleton's efforts to advance case 1; after filing it, Appleton ignored it for almost two years. Specifically,
"• Appleton never attempted to serve case 1 upon Karlin. Nor did he respond to inquiries from Karlin's insurer, State Farm, that Panzino forwarded to him in 1993 and 1994. Nor did he respond to direct inquiries from State Farm in 1994. Indeed, he failed even to respond to State Farm's request to acknowledge that he represented Panzino."
"• Although the City repeatedly sought information from Appleton by letter and by phone from the time he filed the notice of claim, Appleton neglected to respond to the City's inquiries either before or after filing the complaint."
"• Although Appleton was obliged to serve the summons and complaint by January 12, 1994, Appleton neither attempted service by that deadline nor sought an extension from the court."
"• Although on May 3, 1995, the court administrator sent Appleton a "Notice of Intent to Dismiss" the lawsuit if it was not served by June 5, 1995, Appleton served neither defendant by that date."
Appleton briefly returned his attention to case 1 on June 7, 1995, two days after the court's deadline for dismissal, when he finally gave the summons and complaint to a process server. The process server served the City two days later. Appleton did not serve case 1 upon Karlin at all.
Delivering the summons and complaint for service was Appleton's first effort to advance the case since filing it twenty-three months earlier and his last effort for four and one- half months more. When the City moved on June 19, 1995, to dismiss the complaint for lack of timely service, Appleton had ten working days within which to respond. See Uniform Rules of Practice for the Superior Court (Unif. R. P.) 4. He did not respond. On July 29, 1995, the court administrator dismissed the complaint for lack of prosecution. Appleton still did not respond.
On September 8, 1995, the trial Judge, apparently unaware that the court administrator had issued an order of dismissal, set the City's motion to dismiss for oral argument and notified Appleton that he had not yet responded to the motion. Appleton still did not respond. For six weeks longer he did
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