253 P.3d 1240
Ariz.2011Background
- American Asphalt sued CMX for professional negligence and implied warranty in April 2008.
- Maricopa County Superior Court issued a 150-Day Order on Oct. 1, 2008, warning dismissal if Rule 38.1(a) requirements were not met.
- American Asphalt did not file a Motion to Set, and the case was dismissed on April 29, 2009.
- American Asphalt moved under Rule 60(c)(1) and (6) to set aside the dismissal; the superior court denied the motion.
- Court of Appeals affirmed, concluding the 150-Day Order satisfied Rule 38.1(e) partly because it provided notice of future action.
- Supreme Court granted review to clarify Rule 38.1(e) interpretive requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 150-Day Order satisfied Rule 38.1(e). | American Asphalt argues notice must be contemporaneous with placing on Inactive Calendar. | CMX contends the 150-Day Order provided adequate notice of future action. | No; contemporaneous notice required. |
| What are the consequences of non-compliant notice under Rule 38.1(e)? | Non-compliance invalidates the notice and supports relief under Rule 60. | Non-compliance is one factor among others; not necessarily void ab initio. | Court adopts Copeland approach; effect analyzed on remand. |
| Should the case be remanded to determine impact of lack of compliant notice? | Remand is appropriate to assess counsel's conduct. | Remand to assess Rule 60(c) implications. | Yes; remand to determine impact of absence of Rule 38.1(e) notice. |
Key Cases Cited
- Cockerham v. Zikratch, 127 Ariz. 230 (1980) (void judgments vs. erroneous judgments; notice considerations in Rule 60(c))
- Copeland v. Arizona Veterans Memorial Coliseum & Exposition Center, 176 Ariz. 86 (App. 1993) (utilized Jepson framework for lack of notice in Rule 60(c) context)
- Jepson v. New, 164 Ariz. 265 (1990) (established framework for evaluating Rule 60(c) motions)
- State ex rel. Romley v. Ballinger, 209 Ariz. 1 (2004) (superior courts cannot abridge civil procedure rules)
- Preston v. Kindred Hosp. W., L.L.C., 226 Ariz. 391 (2011) (uses statutory construction approach to interpret court rules)