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Copeland v. Arizona Veterans Memorial Coliseum and Exposition Center8/31/1993
Robert Copeland (plaintiff) appeals from the trial court's order dismissing his action pursuant to Uniform Rule V(e), Uniform Rules of Practice for the Superior Court of Arizona. He claims the trial court abused its discretion (1) by denying his motion to set aside the judgment of dismissal and reinstate the case on the inactive calendar pursuant to Rule 60(c)(1) and (6), Arizona Rules of Civil Procedure and (2) by denying his motion to refile the same action under the savings statute, Ariz.Rev.Stat.Ann. ("A.R.S.") ยง 12-504.A. On the unique facts of this case, we find no abuse of discretion and affirm.
I.
Plaintiff filed a personal injury action against the Arizona Veterans Memorial Coliseum, its Board and employees (defendants) on February 24, 1989. Plaintiff alleged that he was injured when he slipped and fell while walking down an exit ramp at the Coliseum on March 4, 1988. On March 2, 1989, defendants served interrogatories and a request for production and set plaintiff's deposition for May.
Plaintiff was absent from the state for some period of time between March and July 1989, and did not maintain contact with his attorney. At the request of Mr. Hull, plaintiff's attorney, defendants agreed to several extensions of time within which to respond to the discovery and canceled plaintiff's deposition. On May 23, 1989, Hull notified defendants that he could not locate his client and therefore could not respond to the discovery requests. He stated that if he had not responded to discovery by June 22, 1989, he intended to withdraw as counsel of record. When defendants had not received responses by June 30, they moved the court to dismiss the action for lack of prosecution or, alternatively, to compel responses, provide security for the costs of the action and award defendants attorneys' fees.
On July 10, 1989, Hull moved to withdraw as plaintiff's attorney, asserting that plaintiff "had failed and refused to inform his counsel of his current address and telephone number . . . ." By minute entry dated July 12, the trial court set a July 31 hearing on defendants' pending motions. The court mailed the notice to counsel and to plaintiff, using the address provided by plaintiff's counsel.
On July 20, 1989, Hull withdrew his motion to withdraw as counsel, stating that the United States Post Office had provided an incorrect forwarding address for plaintiff, but that plaintiff had now contacted his attorney and wished to proceed. Plaintiff
also responded to defendants' motions, which the court had re-scheduled for hearing on August 11, 1989. On August 10, plaintiff responded to defendants' discovery requests. Following argument on August 11, the court denied defendants' motion to dismiss and awarded defendants attorneys' fees for plaintiff's failure to comply with the rules governing discovery.
Defendants served additional discovery requests on August 22, 1989, to which plaintiff responded on September 25.
On November 16, 1989, nine months after plaintiff filed his complaint, the court administrator issued a form minute entry placing the action on the inactive calendar as of December 18, 1989, for dismissal of unadjudicated claims on February 20, 1990. See Rule V(e). This minute entry identified David M. Shapiro as plaintiff's attorney although Shapiro had no relationship to this action. The clerk of court never mailed this minute entry to Hull.
On January 1, 1990, Mr. Hull left the firm of Hess & Hull, P.A. Mr. Hess assumed plaintiff's representation and adopted the firm name Ralph Matthew Hess, P.C., located at an address d
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