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Panzino v. City of Phoenix3/11/1999
e service pursuant to A.R.S. § 28- 2327(A)(1)(b) was pointless wheel-spinning and should have been identified as such by anyone who took the time to read the statute. We decline to find this exercise sufficient to overcome twenty-eight months of functional abandonment of the Karlin claim. The judgments of equity are practical, and equitable courts must not indulge in meaningless distinctions. There is no practical difference between Appleton's neglect of the Karlin claim and his neglect of the City claim. Each was egregious; each was consistent, wide-ranging, and of long duration; each was fatal. And though in each case, Appleton made a futile resuscitative effort, in each it signified nothing, for the claim had died. We therefore conclude that, just as Appleton abandoned his client in her claim against the City, he similarly abandoned her in her claim against Karlin. Under Rule 60(c)(6) Panzino is equally entitled to relief upon both claims.
C. The Client
To qualify for equitable relief under the "positive misconduct" exception, other courts not only have required that the attorney's acts or omissions amount to an abandonment, but also that "the person seeking relief is relatively free from negligence." Buckert, 93 Cal. Rptr. at 64; cf. Daley, 38 Cal Rptr. at 700-01 (While clients must be free of negligence, the courts must not expect them "to act as hawklike inquisitors of their own counsel, suspicious of every step and quick to switch lawyers.").
Neither defendant argues in its briefs that Panzino should be denied the relief she seeks because she negligently oversaw Appleton's handling of her claim. Accordingly, this element does not weigh in our decision.
III. Attorneys' Fees
The City asks us to assess against Appleton the reasonable attorneys' fees and costs that it incurred because of his unreasonable delay and expansion of the proceedings. See A.R.S. § 12-349(A)(3) (permitting fee and cost award against a lawyer who " nreasonably delays or expands the proceedings"). In cases of lawyer neglect, to couple such a sanction with a grant of Rule 60(c) relief serves two purposes. First, it transfers the costs of neglect to the person who caused them to be incurred. Second, it serves to deter the deliberate expansion of neglect to the level of egregiousness as a tactic to save the client's case. See 21, supra.
We may not make such an award in this appeal because Appleton is not a party to it and no longer represents Panzino and because we are not equipped to provide an evidentiary hearing on the subject. However, with appropriate notice to Appleton and an opportunity to be heard, the trial court may consider such a request from either defendant upon remand.
IV. Conclusion
For the foregoing reasons, we affirm the grant of Rule 60(c)(6) relief on the claim against the City, reverse the denial of Rule 60(c)(6) relief on the claim against Karlin, and remand for proceedings consistent with this opinion.
NOEL FIDEL, Presiding Judge
CONCURRING:
RUDOLPH J. GERBER, Judge
JON W. THOMPSON, Judge
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