Cochennour v. Deloughery

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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 GARY COCHENNOUR, a married man dealing with his sole and separate property, ) ) ) ) Plaintiff/Appellant, ) ) v. ) ) PAUL E. DELOUGHERY and JANE DOE ) DELOUGHERY, husband and wife; ) GOODSON, MANLEY, FORAKIS AND ) DELOUGHERY, PLC, ) ) Defendants/Appellees. ) ) 1 CA-CV 11-0182 DIVISION ONE FILED: 05/17/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT B MEMORANDUM DECISION (Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2010-029287 The Honorable Eileen S. Willett AFFIRMED The Law Office of Randall M. Sammons P.L.L.C. By Randall M. Sammons Attorneys for Plaintiff/Appellant Tucson Hinshaw & Culbertson LLP By Victoria L. Orze Attorneys for Defendants/Appellees Phoenix H A L L, Judge ¶1 Gary dismissing Cochennour with appeals prejudice his the lawsuit trial for court s legal order malpractice against Paul E. Deloughery and the law firm of Goodson, Manley, Forakis and Deloughery, PLC (collectively, Deloughery ). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In amendment 2007, to documents. Cochennour his mother s hired trust Deloughery and other to prepare an estate-planning After her death, a petition was filed to invalidate these documents. In April 2009, four months before the statute of on limitations Cochennour commenced his legal this malpractice lawsuit alleging claim that expired, Deloughery negligently prepared the trust and estate-planning documents. ¶3 being Cochennour did the bare minimum to keep the case from dismissed prosecute. for failure to serve and for failure to The case was continued on the inactive calendar twice despite the fact that Cochennour provided little or no explanation for his Cochennour waited failure five to months prepare after the filing case the for trial. complaint to serve Deloughery and then provided it an indefinite extension of time to answer, subject to ten days written notice, assuring that no progress would be made readying the case for trial. 2 The case languished on the court s docket for nearly eighteen months before Deloughery filed a motion to dismiss. ¶4 for Deloughery s motion to dismiss provided five reasons dismissal, including failure to prosecute Rules of Civil Procedure ( Rule ) 41(b).1 under Arizona The trial court granted the motion on the merits, finding that [n]o Response was filed. Cochennour immediately moved to extend the time to file a response to the motion to dismiss and simultaneously filed the response. for new trial. Two weeks later, Cochennour filed a motion After considering the motion for new trial, Deloughery s response and Cochennour s reply, the trial court issued a written judgment granting timely appealed. Deloughery s motion to dismiss. ¶5 Cochennour We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (West 2012).2 1 Deloughery filed a motion to dismiss under Rules 12, 38.1 and 41(b) arguing that (1) the lawsuit abated due to Cochennour s failure to timely serve Deloughery; (2) the case was placed on the inactive calendar twice; (3) Cochennour failed to demonstrate good cause why the case should remain on the inactive calendar; (4) Cochennour failed to comply with the requirements of Arizona Revised Statutes ( A.R.S. ) section 122602(A), by filing a certification regarding the need for an expert opinion; and (5) Cochennour filed the lawsuit in the wrong county. Because the case was transferred to the proper venue by the time the motion was decided, the last issue is moot. 2 The Arizona Legislature recently renumbered A.R.S. § 122101. See 2011 Ariz. Sess. Laws, ch. 304, § 1 (1st Reg. Sess.) 3 DISCUSSION ¶6 court The determinative issue on appeal is whether the trial abused its discretion by dismissing with prejudice for failure to prosecute. Cochennour s claim On this record, we find no error. ¶7 The trial court dismissed Cochennour s complaint based in part on Rule 41(b), which allows for involuntary dismissal if the plaintiff fails to prosecute or to comply with these rules or any order of court. pursuant to Rule 41(b) Involuntary dismissal of an action is a discretion of the trial court. matter directed to the sound Troxler v. Holohan, 9 Ariz. App. 304, 306, 451 P.2d 662, 664 (App. 1969). Trial courts have the inherent power to dismiss a case on their own motion if the case has not been diligently prosecuted. In this respect the discretion exercised by the trial court will not be reviewed on appeal in the absence of an abuse of discretion. Cooper v. Odom, 6 Ariz. App. 466, 469, 433 P.2d 646, 649 (1967). ¶8 The record shows that Cochennour did not diligently prosecute his claim. Cochennour failed to After filing a complaint on April 8, 2009, serve Deloughery within 120 days, as required by Rule 4(i). On July 10, 2009, the clerk of court (effective July 20, 2011). We cite to the current Westlaw version of applicable statutes unless a material revision has since occurred. 4 issued a notice that the case would be dismissed after thirty days unless complete Cochennour service and showed why good cause additional why time he should failed have to been granted. ¶9 Instead of complying with that directive, Cochennour filed a motion to continue the case on the inactive calendar without any extension explanation should summarily granted. an amended be for the delay granted. in service Nonetheless, the or why motion an was Then on September 3, 2009, Cochennour filed complaint dismissing one of the defendants and finally completed service against Deloughery a few days later. ¶10 When Cochennour made no further effort to prosecute the case, the clerk of court issued a notice on June 25, 2010, that Cochennour s case had been placed on the inactive calendar and would be dismissed after sixty days. Five days before the case was to be dismissed, Cochennour filed an application for default against Deloughery. Cochennour filed another On the last day to avoid dismissal, motion to continue on the inactive calendar, contending that he recently applied for default, and a response was properly serve After presently due. Deloughery Deloughery moved to Cochennour, with the strike application the for application, withdrew it, admitting to improper service. 5 however, did not default. Cochennour ¶11 Even after Deloughery moved to dismiss on September 28, 2010, Cochennour failed to act diligently. About a month after it Deloughery filed its motion to dismiss, moved for summary disposition because Cochennour had not filed a response. The superior court granted the motion to dismiss on October 29, 2010. About an hour after the ruling was entered, Cochennour filed an untimely motion to extend the time to respond and an untimely response to the motion to dismiss. Cochennour filed reference the a motion reasons for stated new in A few days later, trial, his incorporating untimely response by to Deloughery s motion to dismiss, but providing no factual basis for a new trial. ¶12 claim In sum, Cochennour made no effort to prosecute his and only involuntarily minimal dismissed efforts for lack to of prevent it prosecution. from being Besides not making any effort to serve Deloughery in a timely manner, he had done nothing to advance the case on the court s calendar before Deloughery moved to dismiss it nearly sixteen months after the complaint was filed. See Paul v. Paul, 28 Ariz. 598, 603, 238 P. 399, 401 (1925) (holding that no action taken for sixteen months sufficient to warrant dismissal). Even then, Cochennour failed to timely respond to Deloughery s motion to dismiss. 6 ¶13 The record is silent as to Cochennour s reasons for not prosecuting the case, and he likewise provides no reasonable explanation on appeal for the delay. On this record, and because [m]ere delay can be the basis of dismissal, the trial court did not abuse its discretion in dismissing his case pursuant to Rule 41(b). Cooper, 6 Ariz. App. at 469, 433 P.2d at 649 (noting that plaintiff, under penalty of dismissal, has the duty to see that his case is brought up for trial within a reasonable time). ¶14 have Cochennour nonetheless contends that the case should been dismissed without prejudice because there was no prejudice to Deloughery, and Cochennour should not be penalized for his attorney s misconduct. We are not persuaded. ¶15 in court Rule in dismissal 41(b) its order under adjudication states, for this upon the pertinent dismissal subdivision merits. part, otherwise . The . . Unless specifies, operates judgment the here as did a an not otherwise specify; therefore, it operated as an adjudication on the merits. Even if the dismissal had been denominated as one without prejudice, the applicable statute of limitations had expired, and any new complaint filed by Cochennour would have been subject to dismissal with prejudice. avoid this scenario would have 7 been for The only way to Cochennour to seek relief pursuant to A.R.S. § 12-504, the savings statute.3 He did not do so; and we are not inclined to grant him relief on appeal based on a statute that he did not invoke in the trial court. ¶16 Moreover, Cochennour is mistaken in his premise that a dismissal for lack of prosecution should be without prejudice unless the defendant can show that it was prejudiced by the delay. Even had Cochennour urged in the trial court that he be granted relief under the savings statute, the court would not have abused its discretion had it denied the request based on Cochennour s demonstrable lack of diligence. See Jepson v. New, 164 Ariz. 265, 274, 792 P.2d 728, 737 (1990) ( Where an action is terminated for lack of prosecution, relief under the savings statute should only be granted where the plaintiff demonstrates that despite diligent pursuit of the case, it was dismissed. ). ¶17 Finally, Arizona has rejected the positive misconduct rule, which permits a client to seek relief from judgment based on an attorney s abandonment of the claim. Panzino v. City of Phoenix, 196 Ariz. 442, 444, 446, ¶¶ 1, 10, 999 P.2d 198, 200, 202 (2000). Because a failure to prosecute is tantamount to abandonment of a claim, any delays caused by 3 If an action timely commenced is terminated by . . . 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. A.R.S. § 12-504(A). 8 Cochennour s attorney are attributable to Cochennour for the purpose of determining whether the dismissal should have been with or without prejudice. CONCLUSION ¶18 Based on the totality of circumstances, we conclude that the trial court did not abuse its discretion by dismissing Cochennour s complaint with prejudice. Therefore, we affirm the trial court s judgment of dismissal. /s/ PHILIP HALL, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ DONN KESSLER, Judge 9

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