Maher v. Urman ( 2005 )

FILED BY CLERK
DEC 20 2005
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
STEVEN A. MAHER, a married man ) 2 CA-CV 2005-0039
dealing in his sole and separate property, ) DEPARTMENT B
)
Plaintiff/Appellant, ) OPINION
)
v. )
)
MICHAEL URMAN and JANE DOE )
URMAN, husband and wife; LISA )
SMITH and JOHN DOE SMITH, wife )
and husband; and DECONCINI, )
MCDONALD, YETWIN & LACY, P.C., )
an Arizona professional corporation, )
)
Defendants/Appellees. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C-20043293
Honorable Deborah Bernini, Judge
AFFIRMED
David Lipartito Tucson
Attorney for Plaintiff/Appellant
Fennemore Craig
By Andrew M. Federhar and Theresa Dwyer Phoenix
Attorneys for Defendants/Appellees
P E L A N D E R, 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.
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 calender 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
2
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
1
The expanded record on appeal reflects, and appellees do not dispute, that Maher
attempted to file his motion for extension of time to serve summons and complaint on
October 22, 2004, but for some reason the trial court apparently struck and denied the
motion on October 25 without actually filing it.
3
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 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,
4
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.
¶9 In Toy v. Katz, 192 Ariz. 73, 82 n.1, 961 P.2d 1021, 1030 n.1 (App. 1997),
Division One of this court stated in dicta the 1996 amendment did “not affect [the rule’s]
substance.” But we question that dicta in view of the amended language of the rule itself
and the amendment’s purpose, which was “to bring various provisions in the Arizona Rules
of Civil Procedure into greater conformity with their counterparts in the Federal Rules of
Civil Procedure, as the latter had been amended in 1993.” Daniel J. McAuliffe, Arizona
Civil Rules Handbook 36 (2005 ed.) Rule 4(m), Fed. R. Civ. P., is identical to Arizona’s
Rule 4(i). Before the federal rule was amended in 1993, its language was identical to
Arizona’s pre-1996 rule. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1304
(3rd Cir. 1995) (citing Fed. R. Civ. P. 4(j), the prior version of Fed. R. Civ. P. 4(m)).
5
Federal courts interpreting the amended rule have recognized that the amendment effected
a substantive change. See Henderson v. United States, 517 U.S. 654, 662-63, 116 S. Ct.
1638, 1643, 134 L. Ed. 2d 880, 889-90 (1996) (1993 amendments accorded courts
discretion to extend 120-day period even when no good cause shown); Horenkamp v. Van
Winkle & Co., 402 F.3d 1129, 1131-32 (11th Cir. 2005) (noting that “[p]rior to the
amendments of 1993, the federal rules required a district court to dismiss an untimely served
complaint absent a showing of good cause,” but that “a majority of . . . circuits . . . have held
that the 1993 amendment permits a district court to exercise discretion under Rule 4 to
extend the time for service of process, even where the plaintiff has not shown good cause for
his failure”).
¶10 In addition, several federal cases support Maher’s position: the language of
Rule 4(i), Ariz. R. Civ. P., allows a trial court to extend the time for service, even absent a
showing of good cause. See Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340
(7th Cir. 1996) (“where good cause is shown, the court has no choice but to extend the time
for service . . . [i]f, however, good cause does not exist, the court may, in its discretion, either
dismiss the action without prejudice or direct that service be effected within a specified
time”); Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir. 1995) (“The plain
language of Rule 4(m) . . . broadens the [trial] court’s discretion by allowing it to extend the
time for service even when the plaintiff has not shown good cause.”). These cases are
particularly compelling in light of the fact that the federal rule was amended to its current
6
version in 1993, and Arizona’s 1996 rule change mirrors the federal change. See Ritchie
v. Grand Canyon Scenic Rides, 165 Ariz. 460, 462, 799 P.2d 801, 803 (1990) (“Whenever
feasible our courts have looked to the origin and interpretation of federal counterparts for
guidance in construing the Arizona rules.”); see also Orme Sch. v. Reeves, 166 Ariz. 301,
304, 802 P.2d 1000, 1003 (1990) (“uniformity in interpretation of our rules and the federal
rules is highly desirable”). In short, we reject appellees’ assertion that current Rule 4(i)
“makes it clear that the court ‘shall’ dismiss the action unless the ‘plaintiff shows good cause
for the failure.’”2
¶11 Nonetheless, based on the record before us, we cannot conclude the trial court
was unaware of or disregarded its discretion under Rule 4(i) as amended. In support of an
opposite conclusion, Maher points to the hearing on appellees’ motion to dismiss for
untimely service, at which the court stated: “I don’t have good cause to grant anything other
than defense counsel’s request that this matter be dismissed for failure to timely serve.”
Maher argues that statement implicitly shows the court was unaware that, in its discretion,
2
At oral argument in this court, appellees retreated from that assertion and accepted
our interpretation of Rule 4(i) in a manner consistent with the federal courts’ interpretation
of federal Rule 4(m).
7
it could extend the time for service under Rule 4(i), even absent a showing of good cause.3
We disagree.
¶12 In neither his multiple responses to appellees’ motion to dismiss nor his oral
argument on the motion did Maher mention, let alone emphasize, the 1996 rule change or
its effect. Rather, he merely argued that good cause or extenuating circumstances existed
for his delay in service, not that the court had discretion to extend the time for service even
without a showing or finding of either.4 Because he did not specifically raise the
implications of the rule as amended, the trial court neither addressed nor rejected Maher’s
current argument. Under the circumstances, we cannot conclude the court failed to
understand the discretionary component of Rule 4(i) or otherwise misinterpreted the rule.
3
At oral argument, Maher contended for the first time that the trial court’s order
denying his motion for extension of time for service also manifests the court’s
misunderstanding of Rule 4(i), as amended. Although the court’s finding in that order of
“no sufficient good legal cause” is confusing or ambiguous, it does not conclusively support
Maher’s new argument, even had it been timely made. See Mitchell v. Gamble, 207 Ariz.
364, ¶ 16, 86 P.3d 944, 949-50 (App. 2004) (“Generally, issues and arguments raised for
the first time at oral argument on appeal are untimely and deemed waived.”).
4
Although Maher referred below to “discretionary deadlines” that the trial court
could extend “in [its] discretion,” Maher merely suggested the time for service could be
expanded for two reasons: good cause or extenuating circumstances, as articulated in Toy
v. Katz, 192 Ariz. 73, 961 P.2d 1021 (App. 1997). As noted earlier, the court in Katz did
not recognize a substantive change to Rule 4(i), and therefore Maher’s reference to that case
would not have alerted the trial court to the argument he now makes based on the 1996
amendment to the rule. See id. at 82 n.1, 961 P.2d at 1030 n.1. We also note that, from
a practical standpoint, a trial court probably will not extend the time for service absent some
reasonable explanation or showing of good cause, even though the current rule theoretically
provides discretion to do so.
8
¶13 To the extent Maher relies on the 1996 amendment to Rule 4(i) to now argue
the trial court had, and should have exercised, a standardless discretion to extend the time
for service for any or no reason, he waived the argument by failing to present it below. See
Orfaly v. Tucson Symphony Society, 209 Ariz. 260, ¶ 15, 99 P.3d 1030, 1035 (App. 2004)
(arguments not raised in trial court waived). With respect to the “good cause” and
“extenuating circumstances” arguments Maher actually made below, we may infer that the
trial court “consider[ed] . . . and rejected [those] arguments” when it granted the motion to
dismiss and denied the relief he requested. Jepson v. New, 164 Ariz. 265, 274, 792 P.2d
728, 737 (1990). In addition, “the trial court is presumed to know and follow the law,”
State v. Ramirez, 178 Ariz. 116, 128, 871 P.2d 237, 249 (1994), and Maher has not
overcome that presumption here.
¶14 We turn now to the second prong of Maher’s argument: the trial court
“abused its discretion by finding that the multiple, undisputed reasons advanced by [him]
did not constitute ‘good cause’ for an extension of time or at least ‘extenuating
circumstances’ within the meaning of Toy v. Katz.” Under both the pre- and post-
amendment version of Rule 4(i) and its federal counterpart, good cause mandates an
extension of the time for service. See Panaras, 94 F.3d at 340. In order to show good cause
to extend time for service, a plaintiff must demonstrate he or she exercised due diligence in
trying to serve the defendant. See Snow v. Steele, 121 Ariz. 82, 83, 588 P.2d 824, 825
(1979) (discussing then Ariz. R. Civ. P. 6(f), the predecessor of Rule 4(i)).
9
¶15 Whether a party has exercised due diligence in obtaining service of process,
and therefore shown good cause for his or her failure to timely serve, is a question of fact
that is left to a trial court’s sound discretion. See Taylor v. Superior Court, 13 Ariz. App.
52, 55, 474 P.2d 59, 62 (1970). “To test whether a trial court has abused its discretion, we
must determine not whether we might have so acted under the circumstances, but whether
the lower court exceeded the bounds of reason by performing the challenged act.” Katz,
192 Ariz. at 83, 961 P.2d at 1031. “It is well established law in Arizona that appellate
courts will not disturb the exercise of discretion of the trial court if it is supported by any
reasonable evidence.” Peters v. M & O Constr., Inc., 119 Ariz. 34, 36, 579 P.2d 72, 74
(App. 1978).
¶16 Maher argues good cause existed because “he was an unrepresented layperson,
untrained in the law; that he was facing a medical situation requiring surgery; and that he
was tied up in other complex litigation.” He also asserts he delayed service “because he
thought that a federal governmental investigation into the subject matter of his [c]omplaint
might make further litigation unnecessary or was necessary to the success of [t]his litigation.”
And, he argues, “he had relied on a Notice of Impending Dismissal from the trial court
stating he had thirty days, to October 25, 2005, to serve his summons and complaint, and
had filed, within that time, a motion for extension of time.”
¶17 Appellees, on the other hand, argue good cause did not exist because Maher
took no specific action to serve them, despite the fact that their whereabouts were public and
10
known by Maher. They further argue Maher “made no showing of a physical, medical or
financial condition that prevented him from hiring a process server or effecting service upon
[the attorneys] by mail.” Appellees also point out that, despite Maher’s explanations for his
not having timely effected service, he was able to draft and file a motion to extend time by
October 22, 2004, just two days after the 120 days afforded by Rule 4(i) had elapsed.
¶18 In a number of Arizona cases, courts have found no good cause under
circumstances arguably more compelling or sympathetic than those presented here. See,
e.g., Grobe v. McBryde, 105 Ariz. 577, 579-81, 468 P.2d 936, 938-40 (1970) (change of
attorney did not constitute good cause where plaintiffs had claimed they were diligently
pursuing discovery and where dismissal would bar their claims because of statute of
limitations); Riley v. Superior Court, 116 Ariz. 89, 91, 567 P.2d 1218, 1220 (App. 1977)
(no good cause despite defendants having been aware of potential lawsuit and plaintiffs
having made unsuccessful attempts to serve defendants, who resided in China); Safeway
Stores, Inc. v. Superior Court, 19 Ariz. App. 210, 214, 505 P.2d 1383, 1387 (1973)
(plaintiff’s excuses of illness and bankruptcy did not constitute good cause); Van Campen
v. The Upjohn Co., 19 Ariz. App. 81, 82-83, 504 P.2d 1304, 1305-06 (1973) (trial court
did not abuse its discretion in failing to find good cause where service was made four days
after the one-year time period); see also Cook v. Superior Court, 135 Ariz. 1, 2, 658 P.2d
801, 802 (1983) (change of attorney did not constitute good cause where plaintiff’s prior
attorney had failed to amend complaint to name proper defendants nearly ten months after
11
ascertaining their identity); Peters, 119 Ariz. at 36, 579 P.2d at 74 (trial court did not abuse
its discretion in denying extension of time where defendants had not prevented service, even
though effect of dismissal was prejudicial because statute of limitations had run).
¶19 In light of those decisions and the record here, we cannot say the trial court
abused its discretion in determining good cause did not exist. Maher gave several reasons
for his failure to timely serve appellees, but he failed to demonstrate affirmative steps he had
taken that might tend to show due diligence. Although he attempted to extend the time for
service on or about October 22, 2004, that date was still outside the time permitted under
Rule 4(i). And we agree with the trial court that calendar services’s notice of impending
dismissal, which the court aptly described as a “courtesy” notice, did not extend Maher’s
time for service.5 In addition, that Maher was unrepresented until December 20, 2004, does
not afford him more leniency under the rules. See Homecraft Corp. v. Fimbres, 119 Ariz.
299, 301, 580 P.2d 760, 762 (App. 1978) (“When one undertakes to represent himself he
is entitled to no more consideration than if he had been represented by counsel.”). The trial
court’s determination that Maher failed to show good cause was well within its discretion.
¶20 Finally, Maher presents an overarching argument that “[t]here is a presumption
in favor of resolving cases on their merits, . . . [and t]his policy should apply with particular
strength where dismissal of the case, even without prejudice, will result in a permanent loss
5
Contrary to Maher’s assertion, the notice of impending dismissal did not “stat[e] he
had thirty days, to October 25, 200[4], to serve his summons and complaint.”
12
of the claimant’s right to a decision on the merits due to the running of a statute of
limitations.”6 But the Arizona cases make clear that a trial court does not abuse its
discretion in refusing to extend the time for service even when a newly filed claim would be
time-barred. See Grobe, 105 Ariz. at 579-81, 468 P.2d at 938-40; Peters, 119 Ariz. at 36,
579 P.2d at 74. Absent an abuse of discretion, the trial court’s ruling must stand.7
II. Rule 60(c)
¶21 Maher next argues that “[t]he trial court erred or abused its discretion by
denying [his] motion for relief under . . . Rule 60(c)[, Ariz. R. Civ. P., 16 A.R.S., Pt. 2].”
He contends his failure to serve “was at worst excusable neglect” under Rule 60(c)(1). We
review a trial court’s ruling on a motion for relief from judgment under Rule 60(c) for an
abuse of discretion. Johnson v. Elson, 192 Ariz. 486, 488, 967 P.2d 1022, 1024 (App.
1998); Copeland v. Ariz. Veterans Mem’l Coliseum, 176 Ariz. 86, 89, 859 P.2d 196, 199
(App. 1993). “The purpose of the rule is to provide relief for those mistakes and errors
6
Because Maher claimed he had discovered the alleged malpractice on June 25, 2002,
the two-year limitations period elapsed, at the latest, on June 25, 2004. See A.R.S. § 12-
542; Walk v. Ring, 202 Ariz. 310, 44 P.3d 990 (2002).
7
Maher also argues the trial court erred by not finding “at least ‘extenuating
circumstances’ within the meaning of Toy v. Katz.” But the “extenuating circumstances”
discussed there involved the plaintiffs’ reliance on explicit orders from the court allowing
them additional time in which to serve their complaint. See Katz, 192 Ariz. at 81-82, 961
P.2d at 1029-30. Although Maher contends the notice of impending dismissal caused
similar reliance, a generic, form notice from the court does not present the type of
extenuating circumstance created by an affirmative court order. Further, because Katz
analyzed the language of former Rule 4(i), which unambiguously required a showing of good
cause before a trial court could extend the time for service, it is not clear “extenuating
circumstance” analysis remains necessary or appropriate.
13
which inevitably occur despite diligent efforts to comply with the rules.” City of Phoenix
v. Geyler, 144 Ariz. 323, 332, 697 P.2d 1073, 1082 (1985). To obtain relief under Rule
60(c)(1), a party must “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.
¶22 “Neglect is excusable if it ‘might be the act of a reasonably prudent person
under the same circumstances.’” Jarostchuk v. Aricol Commc’s, Inc., 189 Ariz. 346, 348,
942 P.2d 1178, 1180 (App. 1997), quoting Geyler, 144 Ariz. at 331, 697 P.2d at 1081. In
Jarostchuk, Division One of this court held that a secretary’s failure to understand a timing
rule did not amount to excusable neglect because the “error was neither inadvertent nor
clerical; it was intentional action on a matter requiring some legal competence.” 189 Ariz.
at 349, 942 P.2d at 1181. Similarly, Maher’s failure to timely serve appellees was not the
result of a clerical error, but was based either on his ignorance of Rule 4(i), see Beal v. State
Farm Mutual Automobile Insurance Co., 151 Ariz. 514, 518, 729 P.2d 318, 322 (App.
1986) (finding trial court was within its discretion in determining a reasonable party would
affirmatively act upon receiving a notice from the court, even if they did not completely
understand it), or a strategic attempt to delay service.
¶23 The trial court might have concluded that, whatever Maher’s reason, his ability
to draft and file a motion to extend time, when he could have simply served appellees within
that same time frame, evidenced a desire to delay service. The court similarly could have
14
concluded that Maher’s failure to timely serve appellees despite warning from the court was
not an inadvertent mistake, but rather an intentional choice. That Maher was unrepresented
did not excuse him from his burden to diligently adhere to the court’s rules. See Homecraft
Corp., 119 Ariz. at 301, 580 P.2d at 762. Because Maher failed to establish excusable
neglect, the trial court did not abuse its discretion in refusing to grant relief pursuant to Rule
60(c).
¶24 Maher also contends the “[i]ssuance of a misleading [n]otice by the trial court,
combined with the other circumstances [he] cited . . . constitutes [sic] ‘extraordinary
circumstances’ requiring relief under Rule 60(c)(6).” As appellees point out, however,
Maher did not present this argument below, but rather solely requested “relief under Rule
60(c) for excusable neglect.” See Webb v. Erickson, 134 Ariz. 182, 186, 655 P.2d 6, 10
(1982) (“the reason for setting aside the [judgment or order under subsection (6)] must not
be one of the reasons set forth in the five preceding clauses”). Maher waived this argument
by failing to make it below and, therefore, we do not address it. See Miller v. Hehlen, 209
Ariz. 462, ¶ 21, 104 P.3d 193, 200 (App. 2005).
III. A.R.S. § 12-504
¶25 Maher lastly argues the “trial court erred or abused its discretion by refusing
[him] permission to refile the [c]omplaint under the savings statute.” We review a trial
court’s grant or denial of relief under § 12-504 for an abuse of discretion. Jepson v. New,
164 Ariz. 265, 274, 792 P.2d 728, 737 (1990); Copeland, 176 Ariz. at 91, 859 P.2d at 201.
15
We “will not disturb the exercise of the trial court’s discretion if it is supported by any
reasonable evidence.” Schwartz v. Ariz. Primary Care Physicians, 192 Ariz. 290, 295-96,
964 P.2d 491, 496-97 (App. 1998).
¶26 Section 12-504(A) provides, in pertinent part, that “[i]f an action timely
commenced is terminated by abatement, . . . 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.” In Jepson, our supreme court articulated a set of factors
a trial court must consider in determining whether to permit relief under that statute. Those
factors include “‘whether the plaintiff acted reasonably and in good faith, whether he
prosecuted his case diligently and vigorously, whether a procedural impediment exists
which affects his ability to file a second action, and whether either party will be
substantially prejudiced.’” Jepson, 164 Ariz. at 272, 792 P.2d at 735, quoting Flynn v.
Cornoyer-Hedrick Architects & Planners, Inc., 160 Ariz. 187, 192, 772 P.2d 10, 15 (App.
1988) (emphasis added in Jepson). “‘The burden is on the plaintiff to present the
particular circumstances that justify relief under § 12-504.’” Id., quoting Flynn, 160
Ariz. at 192, 772 P.2d at 15 (emphasis added in Jepson).
¶27 Further, “[t]o obtain relief under the savings statute where the action has
abated and been terminated, the plaintiff must show that despite diligent efforts, he was
unable to effect service.” Id. at 273, 792 P.2d at 736. Appellees argue, and we agree,
Maher “cannot establish that he vigorously prosecuted his case[; n]or can he demonstrate
16
. . . diligent efforts to effect service on [them] within 120 days of filing his complaint.” See
Perry v. County of Maricopa, 167 Ariz. 458, 461, 808 P.2d 343, 346 (App. 1991) (trial
court did not abuse its discretion in denying relief under § 12-504(A) when defendant, a
government agency, was not difficult to find and plaintiff had made no effort to serve until
ten days before her time elapsed, even when plaintiff’s action was otherwise time-barred).
¶28 As appellees point out, Maher established he was capable of properly effecting
service when he promptly served them upon learning the trial court had denied his motion
to extend the time for service. Additionally, our determination that the trial court did not
abuse its discretion in failing to find Maher had established good cause pursuant to Rule 4(i)
logically compels the same conclusion that Maher failed to demonstrate due diligence for
purposes of § 12-504. Because relief under the savings statute requires a showing of diligent
efforts when an action is abated, we cannot say the trial court abused its “broad discretion”
in denying statutory relief. Jepson, 164 Ariz. at 274, 792 P.2d at 737.
DISPOSITION
¶29 The orders dismissing Maher’s complaint and denying Maher relief are
affirmed. In our discretion, we deny appellees’ request for an award of attorney fees on
appeal, made pursuant to A.R.S. § 12-341.01.
____________________________________
JOHN PELANDER, Chief Judge
CONCURRING:
17
____________________________________
PHILIP G. ESPINOSA, Presiding Judge
____________________________________
JOSEPH W. HOWARD, Judge
18