Opinion
1 CA-CV 12-0436
05-09-2013
AMERICAN ASPHALT & GRADING COMPANY, an Arizona corporation, Plaintiff/Appellant, v. CMX, L.L.C., an Arizona limited liability company; CMX GROUP, INC., an Arizona corporation, Defendants/Appellees.
Lang Baker & Klain PLC By Kent A. Lang Michael Walter Thal Melinda K. Cekander Attorney at Law By Melinda K. Cekander Attorneys for Plaintiff/Appellant Folk & Associates, PC By P. Douglas Folk Christopher D.C. Hossack Attorneys for Defendants/Appellees
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
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County
Cause No. CV2008-009602
The Honorable John Christian Rea, Judge
REVERSED AND REMANDED
Lang Baker & Klain PLC
By Kent A. Lang
Michael Walter Thal
Scottsdale
And Melinda K. Cekander Attorney at Law
By Melinda K. Cekander
Attorneys for Plaintiff/Appellant
Flagstaff Folk & Associates, PC
By P. Douglas Folk
Christopher D.C. Hossack
Attorneys for Defendants/Appellees
Phoenix GOULD, Judge ¶1 Plaintiff/Appellant American Asphalt & Grading Company ("American Asphalt") appeals the denial of its motion for new trial after its action against CMX, L.L.C. ("CMX") was dismissed for lack of prosecution. Because the trial court did not strictly follow the directions of the supreme court in American Asphalt & Grading Co. v. CMX, L.L.C, 227 Ariz. 117, 118, ¶ 12, 253 P.3d 1240, 1241 (2011), we reverse and remand for proceedings consistent with the supreme court's direction.
FACTS AND PROCEDURAL BACKGROUND
¶2 American Asphalt was a contractor on a residential subdivision development project for Element H-SMR, L.L.C. ("Element Homes"). CMX was the civil engineer and land surveyor on the project. CMX prepared topographical data and mass grading plans, which American Asphalt used to prepare a bid proposal to Element Homes. After American Asphalt began work on the project, it discovered that it had underestimated its bid proposal because it had to incur extra costs to excavate, transport, and stockpile excess material CMX allegedly failed to account for in its mass grading plans. In April 2008, American Asphalt, represented by Lewis & Roca, brought suit against CMX asserting claims for professional negligence and breach of the common-law implied warranty of accuracy and suitability regarding CMX's grading plans. ¶3 Six months later, on October 1, 2008, the superior court issued its standard "150 Day Order," which stated:
A motion to Set and Certificate of Readiness . . . shall be filed on or before 1/20/2009 . . . If Rule 38.1 is not complied with, the case will be placed on Inactive Calendar on the date shown above [1/20/2009] and it will be dismissed pursuant to Rule 38.1 without further notice, on or after 3/23/2009.¶4 In February 2009, new counsel was substituted in for American Asphalt. Lewis & Roca transferred the case file to new counsel, which included two banker's boxes of documents. The 150-Day Order was contained in one of these boxes. However, American Asphalt's new counsel apparently overlooked the 150-Day Order and mistakenly failed to file or seek a further extension to file a certificate of readiness. As a result, the case was dismissed for lack of prosecution and failure to comply with Rule 38.1 on April 29, 2009. ¶5 American Asphalt immediately filed a motion to reinstate the action pursuant to Arizona Rules of Civil Procedure 60(c)(1) and 60(c)(6), as well as A.R.S. § 12-504. The trial court denied American Asphalt's Motion to Reinstate, and American Asphalt appealed. We affirmed the denial, holding the trial court did not abuse its discretion in denying American Asphalt's Motion to Reinstate. Am. Asphalt & Grading Co. v. CMX, L.L.C., No. 1 CA-CV 09-0634, 2010 WL 2889471, *3, ¶ 16 (App. July 22, 2010). Thereafter, American Asphalt filed a petition for review with the Arizona Supreme Court. ¶6 Our supreme court granted review to clarify the requirements of Rule 38.1(e). The supreme court concluded that Rule 38.1(e) requires contemporaneous (or nearly contemporaneous) written notice when a case is placed on the Inactive Calendar. Am. Asphalt & Grading Co. v. CMX, L.L.C., 227 Ariz. 117, 118, ¶ 8, 253 P.3d 1240, 1241 (2011). As a result, the supreme court held that the 150-Day Order issued by the trial court did not comply with Rule 38.1(e) because it failed to notify American Asphalt when the case was actually placed on the Inactive Calendar; rather, the Order only provided notice of the court's intention to place the case on the Inactive Calendar on some date in the future. Am. Asphalt & Grading Co., 227 Ariz. at 118, ¶ 9, 253 P.3d at 1241. ¶7 Having found that the 150-Day Order did not comply with Rule 38.1(e), the supreme court vacated our memorandum decision and remanded the case to the trial court with very specific directions. Id. 227 Ariz. at 119, ¶¶ 11-12, 253 P.3d at 1242. First, as to the motion to reinstate/refile, the trial court was directed to consider the factors identified in Copeland v. Arizona Veterans Memorial Coliseum & Exposition Center, 176 Ariz. 86, 859 P.2d 196 (App. 1993); Id. 227 Ariz. at 119, ¶¶ 11-12, 253 P.3d at 1242. Second, with that analysis in mind, the trial court was then directed to "determine what effect, if any, the absence of Rule 38.1(e)-compliant notice had on the conduct of [American Asphalt's] counsel." Id. ¶8 On remand, American Asphalt filed a motion to reinstate the case pursuant to Rule 60(c)(1) and (6), or in the alternative to refile the action pursuant to Arizona Revised Statutes ("A.R.S.") section 12-504(A). In its motion, American Asphalt's counsel avowed that "[h]ad Rule 38.1(e)- compliant notice been issued in this matter, American Asphalt would have filed a motion to continue the case on the Inactive Calendar." The trial court denied the motion, concluding that a "timely Rule 38.1(e)-compliant notice" would not have had any effect on the conduct of American Asphalt's counsel. Based on the trial court's ruling, a judgment was entered dismissing American Asphalt's case. American Asphalt then filed a Motion for New Trial pursuant to Rule 59(a)(8), arguing the trial court's decision to deny its motion to reinstate/refile was contrary to the law and the evidence. The trial court denied the motion for new trial, and American Asphalt appealed. We have jurisdiction pursuant to A.R.S. § 12-2101 (West 2013).
Arizona Rule of Civil Procedure 60(c)(1) gives the court discretion to relieve a party from a final judgment, order or proceeding for "mistake, inadvertence, surprise or excusable neglect."
Arizona Rule of Civil Procedure 60(c)(6) gives the court discretion to relieve a party from a final judgment, order or proceeding for "any other reason" not listed in Rule 60(c) "justifying relief from the operation of the judgment."
Arizona Rule of Civil Procedure Rule 38.1(e) states: "[t]he clerk of the court or court administrator, whoever is designated by the presiding judge, shall promptly notify counsel in writing of the placing of cases on the Inactive Calendar, and no further notice shall be required prior to dismissal."
STANDARD OF REVIEW
¶9 On remand, a superior court must "strictly follow" the mandate of an appellate decision. Vargas v. Superior Court, 60 Ariz. 395, 397, 138 P.2d 287, 288 (1943); Bogard v. Cannon & Wendt Elec. Co., 221 Ariz. 325, 334, ¶ 30, 212 P.3d 17, 26 (App. 2009) (a superior court must "strictly follow" the specific instructions contained in the mandate from an appellate court). We review a trial court's order granting or denying a motion for new trial for an abuse of discretion. Warne Invs., Ltd. v. Higgins, 219 Ariz. 186, 194, ¶ 33, 195 P.3d 645, 653 (App. 2008). Under this standard, we will "affirm where any reasonable view of the facts and law might support the judgment of the trial court." City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985).
DISCUSSION
¶10 We begin our analysis by examining the supreme court's remand directions to the trial court. The supreme court directed the trial court to (1) conduct the analysis set forth in Copeland, and (2) consider what actions, if any, American Asphalt's counsel may have taken if it had received notice the case had been placed on the Inactive Calendar. Under Copeland, in order for American Asphalt to obtain relief pursuant to Rule 60(c)(1), it was required to show: (1) mistake, inadvertence, surprise or excusable neglect; (2) that relief was sought promptly; and (3) that a meritorious claim existed. Copeland, 176 Ariz. at 89, 859 P.2d at 199. In addition, for American Asphalt to obtain relief under Rule 60(c)(6), it was required to show "extraordinary circumstances of hardship or injustice justifying relief," as well as proof that it (1) diligently and vigorously prosecuted the case; (2) took reasonable steps to inform the court of the status of the case; (3) would suffer substantial prejudice unless relief was granted; (4) sought relief promptly from the dismissal and (5) had a meritorious claim. Copeland, 176 Ariz. at 89, 859 P.2d at 199; Ariz. R. Civ. P. 60(c)(1), (6). ¶11 Based on our review of the record, we conclude the trial court did not understand the directions of the supreme court on remand, and therefore failed to fulfill such directions. First, in denying American Asphalt's motion, it appears the trial court improperly relied upon the rulings and findings of the vacated appellate court decision. This was error. The findings of the trial court as stated in its original ruling and as referenced and relied upon in our memorandum decision were vacated by the supreme court, in part because of the erroneous conclusion that the 150-Day Order complied with Rule 38.1(e) - a conclusion that was also vacated by the supreme court. See Am. Asphalt & Grading Co. v. CMX, L.L.C., No. 1 CA-CV 09-0634 2010 WL 2889471, *3-4, ¶¶ 13-16. As a result, the conclusions of neither the trial court nor this court have any force and effect, and should not have been cited as authority by the trial court on remand. See Stroud v. Dorr-Oliver, Inc., 112 Ariz. 403, 411 n.2, 542 P.2d 1102, 1110 n.2 (1975) ("Once an opinion of the Court of Appeals has been vacated by this court, it is of no force and effect and is not authority.") ¶12 Second, we are unable to discern in the record before us that the trial court engaged in a Copeland analysis. We recognize that the trial court was not required to make express factual findings, and we ordinarily would assume the trial court considered each factor that was necessary in denying American Asphalt's motion. Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13, 29 P.3d 870, 873 (App. 2001) (When the trial court does not make specific findings of fact, "we 'must assume that the trial court found every fact necessary to support its [ruling] and must affirm if any reasonable construction of the evidence justifies the decision.'") (internal citations omitted). Nonetheless, in light of the explicit direction of our supreme court, some reference to the Rule 60(c)(1) or 60(c)(6) factors to be examined under the Copeland analysis would have been of assistance in determining whether that part of the mandate from our supreme court was met. ¶13 More importantly and contrary to our supreme court's explicit direction, the trial court did not determine what effect the lack of a Rule 38.1(e)-compliant notice had on the recently-substituted counsel for American Asphalt. Instead, in analyzing the Rule 38.1(e) issue, the trial court examined what effect a "timely" Rule 38.1(e)-compliant notice would have had on American Asphalt's counsel. Thus, the trial court analyzed what would have happened if a proper notice had been sent on or about January 20, 2009, the date the 150-Day Order stated the case would be placed on the Inactive Calendar. However, the effect of when a proper Rule 38.1(e) notice was sent was not the issue remanded to the trial court. The supreme court had already determined that no 38.1(e)-compliant notice had ever been sent to American Asphalt's counsel. Rather, the issue explicitly remanded to the trial court was what effect, if any, the absence of a Rule 38.1(e)-compliant notice may have had on American Asphalt's counsel's failure to timely file a certificate of readiness or seek an extension on the Inactive Calendar.
Copeland deals with former Rule V(e), Uniform Rules of Practice for the Superior Court of Arizona, which was abrogated and incorporated into new Rule 38.1, Ariz. R. Civ. P. See Rule 38.1, Ariz. R. Civ. P., State Bar Committee Note, 2000 Amendment.
Similarly, Copeland sets forth the analysis the trial court was to follow in assessing American Asphalt's request to refile its action pursuant to A.R.S. § 12-504(A). A.R.S. § 12-504(A) provides in part, "[i]f 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. Such period shall not exceed six months from the date of termination."
The trial court states in its order, "[t]he previous findings and rulings by the trial court, including lack of diligent prosecution and lack of excusable neglect, were affirmed by the Court of Appeals and not reviewed by the Supreme Court. This court accepts those findings and rulings."
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CONCLUSION
¶14 We reverse the trial court's decision denying American Asphalt's Motion for New Trial, and remand the case to the trial court to conduct proceedings consistent with the supreme court's directions on remand in American Asphalt & Grading Co. v. CMX, L.L.C., 227 Ariz. 117, 118, ¶ 12, 253 P.3d 1240, 1241 (2011).
________________________
ANDREW W. GOULD, Judge
CONCURRING: ________________________
LAWRENCE F. WINTHROP, Chief Judge
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RANDALL M. HOWE, Judge