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Jepson v. Cynthia Joanne New5/10/1990
John Flynn's personal injury action was dismissed for lack of prosecution after the trial court denied his motion to continue the case on the court's inactive calendar under Uniform Rule V(e), Ariz.Uni.R.P.Super.Ct., 17B A.R.S. Additionally, the trial court denied his request for relief under Ariz.R.Civ.P. 60(c), 16 A.R.S., and A.R.S. § 12-504, this state's savings statute, and the court of appeals affirmed. Flynn v. Cornoyer-Hedrick Architects & Planners, Inc., 160 Ariz. 187, 772 P.2d 10 (App.1989).
Timothy and Deborah Jepson's personal injury action was also dismissed for lack of prosecution pursuant to Rule V(e). The trial court denied their motion for relief under Rule 60(c) and, alternatively, under the savings statute. The court of appeals affirmed the trial court's denial of Rule 60(c) relief but reversed the denial of relief under A.R.S. § 12-504. Jepson v. New, 160 Ariz. 193, 772 P.2d 16 (App.1989).
Flynn and Jepson were decided by different departments of the same division of the court of appeals, each prescribing a different test for granting relief under the savings statute. Because of the conflict within the appellate court and the uncertainty and confusion among trial courts and practitioners, we consolidated these cases and granted review. We adopt the test applied by the court of appeals in Flynn and reject the tests applied in Jepson. However, we find that the trial court abused its discretion in denying the Jepsons relief under Rule 60(c). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
FACTS AND PROCEDURAL HISTORY
A. Flynn v. Cornoyer-Hedrick
On December 17, 1983, John Flynn fell on a stairway of an office building. In September 1985, his trial counsel sent letters to the liability carriers of potential defendants, outlining Flynn's damages and making a settlement offer. On December 17, 1985, Flynn filed a complaint against the owner, designer, builder and manager of the building. The defendants' liability carriers were not advised that a lawsuit was filed until June 1986.
On August 22, 1986, the court administrator issued a standard Rule V(e) notice placing the case on the inactive calendar on September 22, 1986, for dismissal on November 24, 1986. On September 17 Flynn served the defendants and on November 20, he filed a motion to continue the case on the inactive calendar with oral argument set for January 1987. The defendants opposed the motion and filed a motion to dismiss for lack of prosecution. In the meantime, the case was automatically dismissed for failure to comply with Rule V. Flynn moved to set aside the dismissal under Rule 60(c). The trial court granted the defendants' motion to dismiss, ruled the 60(c) motion was moot, and denied Flynn's subsequent motion for relief under A.R.S. § 12-504. Flynn appealed.
The court of appeals agreed with the trial court that Flynn failed to establish good cause to justify a continuance of the case on the inactive calendar, rejecting Flynn's argument that the trial court abused its discretion under Gorman v. City of Phoenix, 152 Ariz. 179, 731 P.2d 74 (1987). After comparing the facts in Gorman to those in Flynn's case, the court of appeals further concluded that Flynn was neither entitled to a continuance of the case on the inactive calendar nor relief from the judgment of dismissal under Rule 60(c). Ad
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