American Asphalt & Grading Co. v. CMX, L.L.C. – 7/1/2011

July 5, 2011

Arizona Supreme Court Holds That Superior Court’s Failure to Provide Contemporaneous Notice of Placing Case on Inactive Calendar May Be Considered as a Factor in Determining Rule 60(c) Motion for Relief from Judgment of Dismissal for Lack of Prosecution.

The Superior Court dismissed Plaintiff’s civil action without prejudice pursuant to Rule 38.1, Ariz. R. Civ. P., for lack of timely prosecution.  The court denied Plaintiff’s Rule 60(c) motion to set aside the judgment, which argued in part that the Superior Court’s notice to the Plaintiff had been deficient under Rule 38.1(e). 

Plaintiff appealed.  The Court of Appeals affirmed.  Plaintiff petitioned for review.  The Arizona Supreme Court granted review and vacated the Court of Appeals decision.

Rule 38.1(e) requires the Superior Court to “promptly notify counsel in writing of the placing of cases on the Inactive Calendar.”  The Supreme Court determined that the rule “requires contemporaneous (or nearly contemporaneous) notice when a case is placed on the Inactive Calendar.”  The Superior Court’s 150-Day Order gave advance warning that the case would be placed on the Inactive Calendar (and subsequently dismissed unless appropriate action taken) but did not provide notice at the time that the case was placed on the Inactive Calendar.  The notice, therefore, failed to comply with Rule 38.1(e).

The Supreme Court declined, however, to find the Superior Court’s judgment void ab initio.  Rather, the lack of notice required by Rule 38.1(e) was one factor, among many, that the lower court should consider in reviewing the Rule 60(c) motion for relief from the judgment of dismissal.  The Supreme Court therefore vacated and remanded for the Superior Court to determine what effect if any, the absence of a Rule 38.1(e)-compliant notice had on the conduct of Plaintiff’s counsel.

Justice Brutinel authored the opinion; Chief Justice Berch and Justices Hurwitz, Bales and Pelander concurred.