 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Jepson v. Cynthia Joanne New5/10/1990
tion, but the trial court decides how much weight that factor should be given. A "desultory exchange of settlement letters . . . may count for very little." Gorman, 152 Ariz. at 183, 731 P.2d at 78. Flynn argues that the trial court did not give sufficient weight to the settlement negotiations here. Based upon our review of the record, there is very little evidence regarding the extent of such negotiations. Even assuming they were extensive and in earnest, Flynn is not excused from complying with applicable rules of practice or from pursuing his case diligently. Granting the trial court the broad discretion to which it is entitled, see Bickerstaff v. Denny's Restaurant, Inc., 141 Ariz. 629, 688 P.2d 637 (1984), we cannot say the denial of the continuance on the inactive calendar was an abuse of that discretion.
There are also insufficient grounds for setting aside the dismissal. The only basis set forth in Flynn's Rule 60(c) motion was that he had filed a motion to continue the case on the inactive calendar. Flynn did not vigorously pursue his case and was seriously remiss in advising the court of its status. Although the running of the statute of limitations presents an extraordinary hardship to Flynn, this fact alone does not constitute grounds for relief under Rule 60(c)(6). Bickerstaff, supra.
2. Savings Statute
Our discussion of the trial court's denial of relief under § 12-504 requires an overview of the history of the provision and its underlying purposes.
A.R.S. § 12-504(A) provides as follows:
A. If an action is commenced within the time limited for the action, and the action is terminated in any manner other than by abatement, voluntary dismissal,
dismissal for lack of prosecution or a final judgment on the merits, the plaintiff, or a successor or personal representative, may commence a new action for the same cause after the expiration of the time so limited and within six months after such termination. If an action timely commenced is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution, the court in its discretion may provide a period for commencement of a new action for the same cause, although the time otherwise limited for commencement has expired. Such period shall not exceed six months from the date of termination.
This provision was enacted in response to our call to the legislature in Hosogai v. Kadota, 145 Ariz. 227, 700 P.2d 1327 (1985), to enact a general savings statute. In Hosogai, the plaintiff filed a timely wrongful death action and obtained a jury verdict in her favor. That judgment was overturned on grounds of defective service of process and failure to obtain personal jurisdiction over the defendant, a resident of Japan. The plaintiff filed a second lawsuit which was dismissed because the statute of limitations had run. We reversed the dismissal and, in the absence of a savings statute, found that the statute of limitations equitably tolled.
Hosogai is instructive because it discusses the equitable tolling doctrine from which the savings statute evolved. However, the statute goes further than Hosogai, providing automatic relief in cases like Hosogai, as well as discretionary relief where an action is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution. Neither the statute nor the legislative record relating to the provision, however, indicate what factors should be consi
Page 1 2 3 4 5 6 7 8 9 10 11 12 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|