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Schwartz v. Arizona Primary Care Physicians8/20/1998
rial court abused its discretion in denying the Schwartzes relief under the savings statute. Although a trial court is granted broad discretion in determining whether to grant relief under the savings statute, in making its decision, the court must analyze whether the plaintiff (1) acted reasonably and in good faith, (2) prosecuted the case diligently and vigorously, and (3) faces a procedural impediment affecting the ability to refile the action. See Jepson, 164 Ariz. at 274, 792 P.2d at 737. Further, the court must consider whether either party will be substantially prejudiced by its decision. See id. The appellate court will not disturb the exercise of the trial court's discretion if it is supported by any reasonable evidence. Peters v. M & O Constr. Inc., 119 Ariz. 34, 36, 579 P.2d 72, 74 (App. 1978).
We have reviewed the record and find that every factor supports granting savings statute relief to the Schwartzes. The Schwartzes acted reasonably and in good faith, they diligently prosecuted the case, and they face the ultimate "procedural impediment" to refiling: Their case is time-barred. The Grass Defendants are not materially prejudiced if the Schwartzes are granted relief; but if relief is denied, the Schwartzes lose their day in court because of the mischance of serving the process on the Grass Defendants a few days after another Defendant removed the case to federal court.
In addition, several equities weigh against the Grass Defendants. Rule 26.1 of the Arizona Rules of Civil Procedure required the Grass Defendants to fully disclose the exact nature of the alleged insufficiency of process. This rule was intended to deter parties from practicing "litigation by ambush," such as occurred here. Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995). The Grass Defendants were directly asked, yet did not tell, the nature of the jurisdictional defense they were asserting. As their counsel admitted at oral argument, they made the tactical decision to not disclose the alleged defect in process until after the statute of limitations had run on the Schwartzes' cause of action. We disapprove of and discourage such hide-the-ball tactics. As officers of the court, attorneys are expected to promote the resolution of cases on their merits. See id. at 288, 896 P.2d at 258. Given all of these factors, we conclude that the trial court abused its discretion in denying the Schwartzes relief under the savings statute.
CONCLUSION
For the foregoing reasons, we reverse the trial court's order denying the Schwartzes relief under the savings statute, and remand this matter for further proceedings consistent with this decision.
REBECCA WHITE BERCH, Judge
Concurring
E. G. NOYES, JR., Presiding Judge
THOMAS C. KLEINSCHMIDT, Judge
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