Burley v. Ali

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DARLENE BURLEY, Plaintiff/Appellant, v. ERIC ALI, Defendant/Appellee. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 03/06/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CV 10-0854 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. CV2009-002491 The Honorable J. Richard Gama, Judge REVERSED AND REMANDED Darlene Burley Plaintiff/Appellant in propria persona Phoenix Eric Ali Tempe Defendant/Appellee in propria persona ________________________________________________________________ J O H N S E N, Judge ¶1 Darlene Burley appeals the dismissal of her complaint pursuant to Arizona Rule of Civil Procedure 38.1 for failure to prosecute. For the reasons that follow, we reverse and remand. FACTS AND PROCEDURAL BACKGROUND ¶2 On July 1, 2009, Burley s lawsuit against Eric Ali was placed on the inactive calendar and set for automatic dismissal on December 22, 2009, unless Burley filed a motion to set and certificate of readiness or an appeal from arbitration. September 18, 2009, Burley filed a motion to set. On The court subsequently appointed an arbitrator and established a March 22, 2010 deadline for the arbitration. On March 24, 2010, after the arbitrator failed to timely set the arbitration hearing, and apparently mistakenly believing the case remained on the inactive calendar, Burley filed a motion to continue the case on the inactive calendar. On May 19, the court granted Burley s motion and continued the case on the inactive calendar until August 19, 2010. ¶3 On June 16, the arbitrator filed his notice of decision, finding in favor of Burley for $1,651 and against Ali on his counterclaim. arbitrator s award by On filing Decision of Arbitrator. June a 23, Motion Burley to appealed Appeal Notice the of Burley s appeal was timely and she posted a bond, as required by Arizona Rule of Civil Procedure 77(b). On October 7, 2010, the superior court dismissed the case off the inactive calendar for failure to prosecute. ¶4 to Burley timely appealed. Arizona Revised Statutes We have jurisdiction pursuant ( A.R.S. ) 2 section 12-2101(A)(1) (2012); see Johnson v. Elson, 192 Ariz. 486, 488, ¶ 6, 967 P.2d 1022, 1024 (App. 1998). DISCUSSION ¶5 Rule calendar shall 38.1(d) be provides dismissed that unless a case (1) a on motion the to inactive set and certificate of readiness is served; (2) the case is continued on the inactive calendar; or (3) a notice of decision has been filed by a court-appointed arbitrator. The arbitrator in this case filed his notice of decision on June 19, well before the August 19 deadline set by the court s May 19 order. Because the notice of arbitrator s decision was filed within the required period, the court erred by dismissing the case for failure to prosecute pursuant to Rule 38.1. CONCLUSION ¶6 We reverse the judgment of dismissal for lack of prosecution under Rule 38.1 and remand to the superior court for further proceedings consistent with this decision. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge 3

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