Maher v. Urman

124 P.3d 770, 211 Ariz. 543, 467 Ariz. Adv. Rep. 29, 2005 Ariz. App. LEXIS 165
Court of Appeals of Arizona·Decided December 20, 2005·No. 2 CA-CV 2005-0039·Published·Cited by 31 cases

Opinion

OPINION

PELANDER, Chief Judge.

¶ 1 Appellant Steven Maher appeals from the trial court’s dismissal of his complaint without prejudice for failure to timely serve the defendants/appellees and from the court’s denial of his motions for relief pursuant to Rule 60(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, and A.R.S. § 12-504, Arizona’s savings statute. Finding no error, we affirm.

*546 BACKGROUND

¶ 2 On June 22, 2004, Maher filed a complaint against appellees, his former attorneys — Michael Urman, Lisa Smith, and the law firm of DeConcini, McDonald, Yetwin & Lacy, P.C. In his complaint, Maher alleged those attorneys had negligently represented him in a securities matter and had breached the contract of representation. Maher alleged the parties had entered into the contract “[i]n or about April, 2001,” but further asserted he did not, and could not, discover his claims until he received his file from the attorneys on June 25, 2002.

¶ 3 The parties agree that a summons was issued on June 22, 2004, the same day Maher filed the action. But, he had failed to serve any of the defendants by September 24, 2004, when the trial court’s calendar services department issued a notice of impending dismissal. The notice informed Maher that his action would be dismissed without prejudice “30 days from [its] date ... unless good cause is shown why service was not made within the time limits established by Rule 4, Rules of Civil Procedure.” On October 22, Maher attempted to file a request to extend his time to serve the defendants. 1 The trial court denied Maher’s request on October 25, finding “no sufficient good legal cause provided.”

¶ 4 Defendants were then served with the summons and complaint on October 29, nine days after the time limit prescribed in Rule 4(i), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, and thirty-five days after the notice of impending dismissal. On November 17, defendants moved for an “order dismissing [Maher’s] complaint for failure to serve the summons and complaint in a timely fashion.” In his response and supplemental response, Maher claimed he had demonstrated “good cause” or at least “extenuating circumstances” to extend the time for service and, alternatively, relief should be granted pursuant to either Rule 60(c), Ariz. R. Civ. P., or § 12-504. The trial court granted defendants’ motion to dismiss and denied Maher’s alternate requests for relief. This appeal followed.

DISCUSSION

I. Dismissal for untimely service

¶ 5 In a two-pronged argument, Maher first contends the trial court erred in dismissing his complaint for untimely service. Specifically, he asserts the trial court (1) misinterpreted Rule 4(i), Ariz. R. Civ. P., and (2) abused its discretion by finding he had not shown “good cause,” or by failing to find “extenuating circumstances,” to extend the time for service.

¶ 6 The first prong of Maher’s argument raises a legal issue subject to our de novo review. See Vega v. Sullivan, 199 Ariz. 504, ¶ 8, 19 P.3d 645, 648 (App.2001) (we review de novo questions involving interpretation and application of court rules). Maher claims the trial court incorrectly interpreted Rule 4(i) as requiring a showing of good cause before it could extend the time for service even though the rule provided the court with “the option of setting a time for service (even absent a showing of good cause) rather than dismissing outright.” We agree with Maher’s interpretation of the rule but disagree with his conclusion that the trial court clearly misinterpreted it.

¶ 7 As amended in 1996, Rule 4(i) states in pertinent part:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court ... shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Maher asserts the rule allows a trial court to extend the time for service without a showing of good cause but separately mandates an extension if good cause is shown. He argues the trial court denied his request for an *547 extension of time because “[it] was unaware [it] had discretion under the rule to set a period for service instead of dismissing without prejudice____[It] seemed to believe that it had no choice but to dismiss.” Conversely, appellees argue the rule permits a trial court to extend the time for service beyond 120 days if, and only if, good cause is shown.

¶ 8 As noted above, Rule 4(i) was amended in 1996. Before that amendment, the rule unambiguously required a showing of good cause in order to extend the time for service, stating “[i]f service ... is not made upon the defendant within 120 days after the filing of the complaint and the party on whose behalf ... service was required cannot show good cause why such service was not made ... the action shall be dismissed.” See 186 Ariz. LI (order amending Rule 4, effective December 1, 1996). As amended, however, the rule authorizes a court to “direct that service be effected within a specified time,” apparently with or without a predicate showing of good cause.

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Maher v. Urman, 124 P.3d 770, 211 Ariz. 543, 467 Ariz. Adv. Rep. 29, 2005 Ariz. App. LEXIS 165 (Ark. Ct. App. 2005).

124 P.3d 770 (Maher v. Urman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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