Firestone v. Safire

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

FIRESTONE PIZZA EXPRESS, LLC, Plaintiff/Appellant,

v.

SAFIRE RESTAURANT, INC, et al., Defendants/Appellees.

No. 1 CA-CV 21-0471
FILED 6-28-2022

Appeal from the Superior Court in Apache County
No. S0100CV201900116
The Honorable Garrett L. Whiting, Judge Pro Tempore

AFFIRMED

COUNSEL

Nicholas D. Patton, Show Low
Counsel for Plaintiff/Appellant

Hamblin Law Office, PLC, Eager
By Bryce M. Hamblin
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Angela K. Paton joined.
 FIRESTONE v. SAFIRE, et al.
Decision of the Court

T H U M M A, Judge:

¶1 Plaintiff Firestone Pizza Express, LLC (Firestone) challenges
the denial of its motion for relief from an order dismissing this case without
prejudice and a resulting entry of judgment awarding defendant Safire
Restaurant, Inc., (Safire) attorneys’ fees and costs. Because Firestone has
shown no error, the order and judgment are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2017, Firestone rented from Safire real property
in Springerville, Arizona. Disputes arose and, by June 2018, Safire had
evicted Firestone. In July 2019, Firestone filed this case against Safire for
breach of contract and conversion. Safire answered in November 2019.

¶3 An August 2020 order placed the case on the inactive
(dismissal) calendar, stating that if “no action is taken in this matter within
the next 60 days it shall be dismissed without prejudice.” See Ariz. R. Civ.
P. 38.1(d)(1). Firestone moved for a scheduling conference 58 days later,
asking that the case be removed from the dismissal calendar. The court set
a November 2020 scheduling conference and removed the case from the
dismissal calendar.

¶4 At the scheduling conference, the court imposed a December
11, 2020 deadline for the parties to provide a joint report and scheduling
order. See Ariz. R. Civ. P. 38.1(d)(2)(A). That deadline passed with no
submission being made. A December 16, 2020 order noted a lack of
“’substantive progress in the prosecution of the case’” and placed the case
on the dismissal calendar. That order stated that if “no action is taken in this
matter within the next 60 days it shall be dismissed without prejudice.” See
Ariz. R. Civ. P. 38.1(d)(2).

¶5 No joint report and scheduling order were ever provided. On
February 11, 2021, three days before the 60-day deadline, Firestone filed a
motion to remove the case from the dismissal calendar, also asking for a
scheduling conference and, in the alternative, that the case be continued on
the dismissal calender for another 90 days. The motion cited no authority
for the relief requested. Although Safire did not respond, the court denied
the motion and dismissed the case without prejudice. The court noted that
no joint report and scheduling order had been provided and the December
11, 2020 court-ordered deadline had long passed. The court also noted that
Firestone’s motion did not comply with Rule 38.1(d)(2).

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Decision of the Court

¶6 A month later, Firestone filed a “Rule 60(b) Motion for Relief,”
citing on information from 2020 and stating counsel “became ill” on January
9, 2021 and was quarantined with COVID-19 through January 24, 2021. The
motion stated that the requested scheduling conference “would have taken
the place of the scheduling order.” Without discussing Rule 60(b), Firestone
asked that the case be reinstated or that the court “set a deadline within
which it can refile the case under A.R.S. § 12-504(A),” Arizona’s savings
statute.

¶7 In a five-page final judgment, the court denied the motion and
awarded Safire attorneys’ fees and costs. The judgment found Firestone
failed to prosecute the case before COVID “complications had any effect on
[the] case or counsel,” failed to show any grounds for relief and failed to
show any prejudice or impediment to refiling. This court has jurisdiction
over Firestone’s timely appeal under Article 6, Section 9, of the Arizona
Constitution and A.R.S. § 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶8 The denial of a Rule 60(b) motion is reviewed for an abuse of
discretion. Ruffino v. Lokosky, 245 Ariz. 165, 168 ¶ 9 (App. 2018). An abuse
of discretion “is discretion manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.” Quigley v. Tucson City Court, 132 Ariz. 35, 37 (1982). Firestone has shown no abuse of discretion.

¶9 The court properly noted that Firestone’s “Rule 60(b) Motion
for Relief” did not comply with the procedural rules. A motion must both
“state with particularity the grounds for granting the motion” and include
“citations to the specific parts or pages of supporting authorities and
evidence.” Ariz. R. Civ. P. 7.1(a)(1) & (2). Firestone’s motion failed to do
these things. On that procedural basis alone, the court properly could have
denied the motion. Ariz. R. Civ. P. 7.1(b)(1).

¶10 Firestone also failed to act as required to prevent dismissal of
the case. The court ordered a joint report and proposed scheduling order be
provided by December 11, 2020. That did not happen; no report and
proposed order were provided to the court at any time. Nor did Firestone
ask the court to extend the December 11, 2020 deadline, either showing
good cause (if made before that date) or excusable neglect (if made after).
See Ariz. R. Civ. P. 6(b)(1)(A) & (B).

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Decision of the Court

¶11 Apart from the December 11, 2020 deadline, Firestone did not
act to prevent dismissal without prejudice. As applicable here, to prevent
such a dismissal, by mid-February 2021, Firestone needed to either (1)
submit a joint report and scheduling order, or (2) file a motion showing
good cause continuing the case on the dismissal calendar for a specified
time. Ariz. R. Civ. P. 38.1(d)(2)(A) & (C). Firestone did neither.

¶12 Despite this failure to comply with the December 11, 2020
deadline and the applicable rules, Firestone argues it “acted as any
reasonably prudent attorney would have under the circumstances” and the
failures were because of “excusable neglect.” Excusable neglect can provide
a basis for relief from a judgment or order. See Ariz. R. Civ. P. 60(b)(1). On
the record presented, however, the superior court properly could conclude
that Firestone failed to show excusable neglect.

¶13 Firestone argues counsel’s COVID-19 quarantine in January
2021 is excusable neglect. That argument, however, does not address or
explain the failure to comply with the December 11, 2020 deadline. Nor
does it address the failure to provide a joint report and order before the
January 2021 diagnosis. And Firestone’s counsel filed the Rule 60(b) Motion
for Relief on February 11, 2021, negating any argument that, on or after that
time, COVID-related issues mandated a finding of excusable neglect. For
these reasons, the authority Firestone cites in arguing excusable neglect
does not apply. See Walker v. Kendig, 107 Ariz. 510, 511-12 (1971) (attorney,
who filed an affidavit stating he contracted Valley Fever before the case was
placed on the inactive calendar, but with symptoms lasting “several months
thereafter,” and showing “he did not see the notice that the case had been
placed on the Inactive Calendar” and failed to prevent its dismissal
constituted excusable neglect). For these same reasons, Firestone has not
shown that Arizona Supreme Court Administrative Order 2020-197
required a finding of excusable neglect.

¶14 Firestone next argues that the superior court “erred in
refusing to set a scheduling conference in this matter,” meaning the
dismissal should be vacated. Firestone argues Rule 16(d) required the court
to set a scheduling conference any time a party requests one in writing. See
Ariz. R. Civ. P. 16(d) (“On a party’s written request the court must – or on
its own the court may – set a Scheduling Conference.”). This argument fails
for various reasons.

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Decision of the Court

¶15 To the extent Rule 16(d) contemplates setting one (“a”)
scheduling conference, the court did so at Firestone’s request and held a
November 2020 scheduling conference. To the extent Firestone argues Rule
16(d) requires the court to hold a scheduling conference anytime a party
requests one in writing, such an argument fails. See Reed v. Burke, 219 Ariz.
447, 450 ¶ 15 (App. 2008) (“We are to construe rules to avoid absurd
results.”). Finally, Firestone has not shown how the court setting another
scheduling conference in 2021 would have excused its failure to comply
with the December 11, 2020 deadline or with Rule 38.1(d)(2).

¶16 Firestone argues the court erred in denying its request for
relief under Arizona’s savings statute. The superior court, “in its
discretion,” may specify the time “for commencement of a new action for
the same cause” where a case is dismissed “for lack of prosecution.” A.R.S.
§ 12-504(A). “[T]he very nature of the discretionary portion of the provision
requires a case-by-case application and evaluation.” Jepson v. New, 164 Ariz.
265, 271 (1990). Firestone had the burden to present “particular
circumstances that justify relief” under the statute. See Flynn v. Cornoyer-
Hendrick Architects & Planners, 160 Ariz. 187, 192 (App. 1988). In considering
such a request, the court is to address: (1) whether the movant acted in good
faith and reasonably and prosecuted the case diligently and vigorously; (2)
whether a procedural impediment affects the ability to file a second action;
and (3) whether either party will be substantially prejudiced. Jepson, 164 at
272 (quoting Flynn, 160 Ariz. at 192).

¶17 In total, Firestone’s savings statute request was the following:
“In the alternative, [Firestone] requests that this Court set a deadline within
which it can refile the case under A.R.S. § 12-504(A).” There is no suggestion
that Firestone did not act in good faith. As to the other factors, however, on
“the facts and circumstances presented,” the superior court found Firestone
did not present particular circumstances justifying relief, concluding it did
not act reasonably, did not prosecute its case diligently and vigorously and
presented no proof of any procedural impediment or prejudice. Firestone
has not shown those findings were an abuse of discretion. Jepson, 164 Ariz.
at 274.

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Decision of the Court

CONCLUSION

¶18 The judgment is affirmed. Safire requests attorneys’ fees and
costs under A.R.S. §§ 12-341, -341.01 and -349. Although Safire’s request
under A.R.S. § 12-349 is denied, its request under A.R.S. §§ 12-341 and -
341.01 is granted. Safire is awarded its reasonable attorneys’ fees and
taxable costs on appeal contingent upon its compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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