 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Jepson v. Cynthia Joanne New5/10/1990
argument on his motion and simply allowed the dismissal date to come and go.
We have already found that Flynn failed to diligently and vigorously prosecute the case, the second prong of the test. The lawsuit was filed and permitted to languish. Even assuming he was engaging in vigorous settlement negotiations, as Flynn contends, it does not change the fact that Flynn was dilatory in the prosecution of his claim.
Finally, although the case is now barred by the statute of limitations and in balancing the prejudice in that regard it appears that the hardship is greatest upon Flynn, all factors must be considered together. Under the circumstances, we conclude
that Flynn failed to sustain his burden of establishing circumstances justifying relief under A.R.S. ยง 12-504.
3. Additional Issues
Flynn raises two additional issues, neither of which merit reversal. First, he claims that because the trial court, in its April 7, 1987 minute entry, did not expressly state that it considered his reply memoranda to the defendants' response to Flynn's motion for reconsideration, filed on April 3, 1987, the court must not have considered it, and therefore, the formal order which provided that the court considered all memoranda was erroneous. There is nothing in the record to support this argument. Even assuming the trial court did not consider the reply before entering the minute entry, Flynn brought the matter to the trial court's attention in his objections to the form of order. Additionally, the terms of the judgment are controlling. See McFadden v. McFadden, 22 Ariz. 246, 196 P. 452 (1921). These factors support the inference that the trial court did consider the reply and rejected Flynn's arguments. Assuming the trial court failed to consider Flynn's reply memorandum, Flynn has the burden of establishing prejudice, Gutierrez v. Gutierrez, 20 Ariz. App. 388, 513 P.2d 677 (1973), which will not be presumed but must appear affirmatively from the record, Rimondi v. Briggs, 124 Ariz. 561, 606 P.2d 412 (1980); prejudice has not been established here.
Second, Flynn argues Rule V is discriminatory and constitutionally infirm as applied to residents of Maricopa and Pima counties. Flynn fails to specify how the administrative rule, designed to promote judicial expediency and efficiency, is constitutionally flawed. Moreover, we find the rule provides ample safeguards against unfairness, anticipating that continuances of cases on the inactive calendar may be justified under the circumstances. This argument is meritless.
B. Jepson v. New
We first address the question of whether the trial court abused its discretion in denying the Jepsons' motion to set aside the dismissal of the lawsuit under Rule 60(c)(6), which requires that we revisit our decision in Gorman. Citing Davis v. Davis, supra, we stated that "to obtain relief under Rule 60(c)(6), Gorman must show 'extraordinary circumstances of hardship or injustice' other than or in addition to those circumstances set out in clauses (1) through (5)." 152 Ariz. at 182, 731 P.2d at 77. We distinguished Gorman from Bickerstaff, noting that the record revealed the parties were actively involved in the prosecution of the case.
Uniform Rule V should be used to dispose of abandoned cases and to encourage litigants to resolve their disputes quickly. It should not be used to trap the unwary or the momentarily negligent . . . . Uniform Rule V(e) should no
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.
|
|