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Jepson v. Cynthia Joanne New5/10/1990
ditionally, the court of appeals found that the trial court correctly denied Flynn's request for relief under A.R.S. § 12-504, applying a test derived from Gorman, which balances the prejudice to the respective parties while considering whether the plaintiff acted reasonably and in good faith and prosecuted the case diligently and vigorously, and whether a procedural impediment affected the plaintiff's ability to file a second action.
Flynn petitioned this court for review, contending that the court of appeals test for granting relief under § 12-504(A) is the equivalent of the standard used under Rule
60(c), rendering the savings statute superfluous, and that the test should instead balance the prejudice to the parties, and that the trial court did not give ongoing settlement negotiations sufficient weight.
B. Jepson v. New
On December 18, 1983, a collision occurred between two vehicles, one driven by Irene Hasal (owned by Stephen and Harriet Brown) and one driven by Cynthia New (owned by James and Jane Doe New). The Jepsons, passengers in the Hasal vehicle, were injured; on October 1, 1985, they filed a complaint against the drivers and owners of both vehicles. In July 1986, a Rule V notice was issued that the case would be placed on the court's inactive calendar on August 1, 1986, for dismissal on October 1. The Jepsons obtained an ex parte continuance of the dismissal date to December 1.
In July, August and September of 1986, the Jepsons served the defendants with summonses, complaints and discovery and responded to discovery. On December 1, 1986, the case was automatically dismissed for lack of prosecution, unbeknownst to the parties who continued to engage in discovery. The Jepsons filed their list of witnesses and exhibits in accordance with Rule V(a). After receiving the judgment of dismissal dated December 17, 1986, the Jepsons moved to set aside the judgment under Rule 60(c) and for alternative relief under A.R.S. § 12-504. The motion was denied, and the Jepsons appealed.
The court of appeals found the trial court did not abuse its discretion in denying the Jepsons relief under Rule 60(c)(6) but reversed the court's denial of relief under the savings statute. It found that the trial court erroneously applied the same standard for granting relief under Rule 60(c)(6), a standard emphasizing the plaintiff's diligence in prosecuting the action, to its determination of whether relief was warranted under the savings statute. Rejecting this standard, the standard applied in Flynn, the court of appeals held that trial courts must compare the prejudice to the parties while considering the litigants' reasonable and good faith conduct. Applying that standard, the court concluded the Jepsons were entitled to relief under the savings statute.
The defendants petitioned this court for review, contending that the court of appeals applied the wrong standard and that the standard articulated in Flynn should have been adopted. Under that standard, they argue, relief under A.R.S. § 12-504 must be denied and the trial court affirmed. The Jepsons cross-petitioned, claiming that, based on Gorman, the trial court abused its discretion in denying relief under Rule 60(c)(6).
Discussion
A. Flynn v. Cornoyer-Hedrick
1. Motion to Continue on Inactive Calendar, Dismissal and Rule 60(c)
We first consider whether the trial court abused its discretion in denying Flynn's motion to continue the case on the inactive calendar, dismissing the case for lack of prosecuti
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