Medlock v. Hon. Hegyi/Midfirst

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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 JAMES MEDLOCK, ) ) Petitioner, ) ) v. ) ) THE HONORABLE HUGH HEGYI, Judge ) of the SUPERIOR COURT OF THE ) STATE OF ARIZONA, in and for the ) County of MARICOPA, ) ) Respondent Judge, ) ) MIDFIRST BANK, a federally ) chartered savings association, ) as successor-in-interest to ) COMMUNITY BANK OF ARIZONA, an ) Arizona financial ) Institution, ) ) Real Party in Interest. ) __________________________________) DIVISION ONE FILED: 04-01-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-SA 10-0046 DEPARTMENT E Maricopa County Superior Court No. CV 2009-005696 DECISION ORDER This special action came on regularly for conference this 31st day of March, 2010, before Presiding Judge Sheldon H. Weisberg and Judges Philip Hall and John C. Gemmill participating, and the matter was taken under advisement. This matter arises out of a complaint Midfirst Bank ("bank") against James Medlock. unsuccessfully attempted to personally serve filed by After the bank the summons and complaint on Medlock, the court granted an extension of time to 1 serve him until August 3, 2009. The bank then took steps to serve Medlock by publication under Rule 4.1(n), Arizona Rules of Civil Procedure ("Rule"). After the bank applied for entry of default, Medlock's counsel filed a motion to strike the application for entry of default and motion to dismiss for insufficiency of service of process by publication. He argued that under the reasoning in Schwartz v. Arizona Primary Care Physicians, 192 Ariz. 290, 295, 964 P.2d 491, 496 (App. 1998) an action "automatically" abates if a summons and complaint is not served within the applicable time allowed. He contended that service by publication was insufficient, the action automatically abated on August 3, 2009, and the court had no jurisdiction to further extend the time for service. The The bank filed a response and an amended complaint. trial court denied Medlock's motion to dismiss and ordered the bank to serve the amended complaint on Medlock no later than May 13, 2010. The court ruled that the action did not abate because former Rule 6(f) was abrogated by Rule 4(i) and that Rule 4(i) required action by the court for dismissal. Petitioner now argues that the trial court's ruling violates the holding in Schwartz. The bank argues that service by publication was sufficient to avoid abatement under Schwartz. In former Schwartz, Rule the 6(f), defendants "eradicated 2 argued the that the defense of repeal of abatement entirely." that the In dicta, this court rejected that argument and held new rule shortened the time limit for service of process from one year to 120 days, but that an action still abates if a summons is not served prescribed by the procedural rules. within the time limits Id., 192 Ariz. at 295, 964 P.2d at 496. The court noted that abatement did not apply anyway defendant's because insufficiency of process." defense Id. "was not abatement, but Contrary to Medlock's argument, there is nothing in the language of Schwartz that states an action "automatically" terminates if a complaint is not served within the prescribed time periods; it merely states that the doctrine of abatement was not eliminated by the rule change. Former Rule 6(f) provided that "[a]n action shall abate if the summons is not issued and served, or the service by publication commenced within one year from the filing of the complaint." Despite that language, cases decided under former Rule 6(f), held that "Rule 6(f) is not self-executing, and the trial court may, where good cause is shown, extend the time within which a defendant may be served." Grobe v. McBryde, 105 Ariz. 577, 579, 468 P.2d 933, 935 (1970); Air Power v. Superior Court, 142 Ariz. 492, 494, 690 P.2d 793, 795 (App. 1984). Although Rule 6(f) was "couched in mandatory language", because the rule was not self-executing, failure to serve the summons after expiration of the prescribed time limit did not divest the 3 trial court of jurisdiction to extend the time for service for good cause. Garcia v. Frey, 7 Ariz. App. 601, 604-05, 442 P.2d 159, 162-63 (1968). Rule 4(i) appears to have included clearer language that reflects the court holdings requiring a court order to dismiss a complaint because of abatement. not automatic. Abatement under Rule 4(i) is The trial court was correct in concluding that the action had not automatically abated and acted within its discretion in extending the time for service of the amended complaint. IT IS ORDERED accepting jurisdiction of this special action but denying relief. __________/S/____________________ SHELDON H. WEISBERG Presiding Judge 4

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