Air Power, Inc. v. Superior Court

690 P.2d 793, 142 Ariz. 492, 1984 Ariz. App. LEXIS 501
CourtCourt of Appeals of Arizona
DecidedSeptember 11, 1984
DocketNos. 1 CA-CIV 7775-SA, 1 CA-CIV 7826-SA
StatusPublished
Cited by6 cases

This text of 690 P.2d 793 (Air Power, Inc. v. Superior Court) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Air Power, Inc. v. Superior Court, 690 P.2d 793, 142 Ariz. 492, 1984 Ariz. App. LEXIS 501 (Ark. Ct. App. 1984).

Opinion

OPINION

OGG, Judge.

In these consolidated special actions we must determine whether the trial court abused its discretion, acted arbitrarily and capriciously, contrary to law, or in excess of its jurisdiction in failing to grant peti[493]*493tioners’ separate motions to dismiss on grounds of abatement.

By order dated August 15, 1984, we accepted jurisdiction, indicating that a decision on the merits would follow. We begin by reviewing the facts giving rise to these special actions. According to the complaint which was filed, the respondent, Karl Phillips, was injured in an airplane crash on August 27, 1981. The airplane was equipped with a used engine which had been rebuilt by petitioner Air Power Inc., a California corporation. It was installed in the aircraft by petitioner Ayres Corporation, a Georgia corporation. Respondent filed his complaint in Maricopa County, Arizona on August 19, 1982, alleging negligence and strict liability against both petitioners. The date on which the complaint was filed was well within the two-year statute of limitations. See A.R.S. § 12-542. As previously noted, both petitioners are out-of-state corporations. Rule 6(f) of the Arizona Rules of Civil Procedure provides a one-year time limit within which to serve summons upon a defendant after the complaint has been filed. One day before the one-year time limit for service had run, respondent made an ex parte motion for a six-month extension of time within which to accomplish service upon defendants. Judge James Moeller, a Maricopa County superior court judge, granted the motion, including the following proviso which he specifically added to the order which respondent’s counsel had prepared:

This order is without prejudice to the rights of any person or parties not yet served.

Inexplicably, four days after Judge Moeller’s order was entered, Judge Peter D’Angelo, who is also a superior court judge in Maricopa County, granted the same motion. Judge D’Angelo’s order did not include the proviso which Judge Moeller added to the order presented to him.

Thereafter, respondent served Ayres Corporation on October 31, 1983 with a copy of the summons and complaint. This was more than fourteen months after the complaint was filed and summons issued. There is a dispute with respect to the date on which Air Power, Inc. was served. Service was made either on August 15, 1983, within the one-year time period for service, or on August 23,1983, a few days after the year for service had elapsed. Following service on petitioners, each filed a motion to dismiss the complaint filed against it on the grounds that the action had abated due to respondent’s failure to timely serve petitioners. As part of Air Power’s motion to dismiss, it contested the claim of respondent’s process server that Air Power had been served on August 15, 1983.

The motions were heard by Judge Moroney, who denied Air Power’s motion to dismiss on January 9, 1984, without stating the reasons for the denial. Thereafter, Air Power filed a motion for rehearing and for clarification to determine whether the court’s ruling contained a finding that Air Power had in fact been served on August 15, 1983, or whether the court had not reached this question because it had determined that the extension of time within which to serve the petitioners had been properly entered. The court denied petitioner Ayres’ motion to dismiss, as well as petitioner Air Power’s motion for rehearing and clarification on May 16, 1984. Both petitioners filed special actions in this court which have been consolidated by order of this court.

Denials of motions to dismiss pursuant to Rule 6(f) have frequently been the subject of special action review. See e.g., Grobe v. McBryde, 105 Ariz. 577, 468 P.2d 936 (1970); Riley v. Superior Court, 116 Ariz. 89, 567 P.2d 1218 (App.1977); Gittner-Louviere Engineering v. Superior Court, 115 Ariz. 409, 565 P.2d 915 (App.1977). If special action relief is granted, the action against Ayres would be terminated, since the statute of limitations has now run. The action against Air Power is in a different posture. Depending upon the factual determination of when service was made upon Air Power, the action may or may not be terminated. There is no “equally plain, speedy, and adequate remedy by appeal.” Rule 8(a), Rules of Proce[494]*494dure for Special Actions. Hence we have accepted special action jurisdiction in both cases.

Turning now to the merits, Rule 6(f), Arizona Rules of Civil Procedure provides:

An 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, (emphasis added)

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, supra; Snow v. Steele, 121 Ariz. 82, 588 P.2d 824 (1978); Garcia v. Frey, 7 Ariz.App. 601, 442 P.2d 159 (1968). However, the rule does impose a legal duty upon the plaintiff to exercise due diligence in serving a defendant within the prescribed one-year period. Grobe v. McBryde, supra; Snow v. Steele, supra. Before the trial court may grant an extension of time within which to serve a defendant, plaintiff must demonstrate that he has exercised due diligence in attempting to serve defendant within the one-year period. Riley v. Superior Court, supra.

In his motion to extend the time within which to serve petitioners, respondent’s attorney merely asserted that “[tjhis [mjotion is based upon the fact that defendants are out of state and service attempts are being made through out of state agencies.” No reason or explanation is provided as to why service was not or could not have been accomplished within the prescribed one-year period. Clearly, respondent’s motion fails to demonstrate either due diligence in attempting to accomplish service within the one-year period or good cause for an extension of time within which to serve petitioners. See Snow v. Steele, supra; Riley v. Superior Court, supra.

Respondent argues that a showing of good cause was not required since he obtained an extension for service before the year had elapsed, as opposed to failing to serve within the year and thereafter seeking additional time to accomplish service. Rather, asserts respondent, he was required to show merely “cause” prior to obtaining an extension of time. This assertion is based upon Rule 6(b), Arizona Rules of Civil Procedure, which provides in pertinent part:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed

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Bluebook (online)
690 P.2d 793, 142 Ariz. 492, 1984 Ariz. App. LEXIS 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/air-power-inc-v-superior-court-arizctapp-1984.