IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County

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1 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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ROBERT MCLUCAS and CAROL ANN MCLUCAS, individually and as husband and wife, Plaintiffs/Appellees, v. SCOTT ALAN MURAVNICK and ELIZABETH OLGA MURAVNICK, husband and wife, Defendants/Appellants. 1 CA-CV DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court Appeal from the Superior Court in Maricopa County Cause No. CV The Honorable John A. Buttrick, Judge AFFIRMED Law Office of Mark J. Berardoni By Mark J. Berardoni Attorney for Appellees Ehmann DeCiancio PLLC By Robert L. Ehmann and Christopher Robbins Attorneys for Appellants Phoenix Tempe N O R R I S, Judge 1 Scott Alan Muravnick and Elizabeth Olga Muravnick ( Muravnicks appeal the superior court s judgment in favor of

2 Robert and Carol Ann McLucas ( McLucases, setting aside a judgment of dismissal for failure to prosecute. Because the superior court did not abuse its discretion in setting aside the dismissal, we affirm. FACTS AND PROCEDURAL HISTORY 2 The McLucases and Muravnicks were involved in a car accident on June 24, On June 21, 2007, the McLucases sued the Muravnicks arising out of that accident and the Muravnicks timely answered. 3 On November 28, the court issued a 150 Day Order, pursuant to Rule 38.1 of the Arizona Rules of Civil Procedure, stating the case would be placed on the inactive calendar on March 17, 2008, for dismissal, without further notice, on May 16, On March 17, the parties stipulated to continue the matter on the inactive calendar, and in accordance with that stipulation, the court ordered the matter continued on the inactive calendar until September The McLucases failed to file a motion to set and certificate of readiness by that date, and on October 9, the court dismissed the case without prejudice for lack of prosecution. Relying on Rule 60(c(1 and (6, on October 17 the McLucases moved to set aside the dismissal explaining the September 15 deadline had not been properly noted on counsel s calendars. The McLucases also outlined the steps they had 2

3 taken to prosecute the case, explained the dismissal would have the effect of being a dismissal with prejudice because of the expiration of the statute of limitations, and noted the Muravnicks had admitted the accident had been caused by their own negligence. That same day, before the Muravnicks could respond, the court granted the motion and extended the case on the inactive calendar. 5 On November 3, the Muravnicks filed a combined response and motion for reconsideration of the order setting aside the dismissal and placing the matter on the inactive calendar. Four days later, by minute entry, the court acknowledged receipt of the Muravnicks motion for reconsideration and informed the McLucases that they could respond to the motion on or before November 21. Before the McLucases could respond to the motion, however, the Muravnicks filed, on November 17, a notice of appeal from the court s order setting aside the dismissal. On November 21, the McLucases filed their response to the Muravnicks motion for reconsideration. On December 24, after reviewing both the motion and the response, the court denied the motion by minute entry. 1 1 The superior court had no power to rule on the Muravnicks motion for reconsideration because it had lost jurisdiction over the case, except with regard to matters in furtherance of the appeal, when the Muravnicks filed their 3

4 6 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A(1, -2101(C 2 (2003. DISCUSSION 7 The Muravnicks argue the superior court abused its discretion in granting the McLucases motion to set aside the dismissal for failure to prosecute because the McLucases failed to show excusable neglect under Rule 60(c( As a general matter, the test of excusable neglect by a lawyer is whether the neglect might befall a reasonably prudent lawyer under similar circumstances. Ellman Land Corp. v. Maricopa County, 180 Ariz. 331, 339, 884 P.2d 217, 225 (App Because this test gives no guidance concerning the kinds of mistakes that are allowable, courts resolve these issues on a case-by-case basis. Id. In this individualized evaluation, diligence is the final arbiter of whether mistake or neglect is excusable. City of Phoenix v. Geyler, 144 Ariz. notice of appeal on November 17. See Lightning A Ranch Venture v. Tankersley, 161 Ariz. 497, 499, 779 P.2d 812, 814 (App [A]n order vacating an order of dismissal is appealable.... Edgar v. Garrett, 10 Ariz. App. 98, 98-99, 456 P.2d 944, (1969 (citing Young Mines Co., Ltd. v. Blackburn, 22 Ariz. 199, 196 P. 167 ( Because we have resolved this appeal under Rule 60(c(1, we do not need to address the Muravnicks Rule 60(c(6 argument. 4

5 323, 332, 697 P.2d 1073, 1082 (1985. A superior court is vested with broad discretion in determining excusable neglect and we will not overturn its decision absent an abuse of discretion. Copeland v. Arizona Vet. Mem. Coliseum and Expo. Ctr., 176 Ariz. 86, 89, 859 P.2d 196, 199 (App Here, we see no abuse of discretion. Counsel explained the McLucases missed the September 15 deadline for what was, in essence, a clerical error. Counsel moved quickly in asking the court to set aside the dismissal, explained what the McLucases had done to prosecute the case, and alerted the court to the prejudice they would suffer if the dismissal was not set aside. Rule 60(c is designed to afford relief for mistakes and errors that inevitably occur despite diligent efforts to comply with the rules. City of Phoenix, 144 Ariz. at 332, 697 P.2d at The pivotal question before us is whether the superior court abused its discretion in granting Rule 60(c(1 relief. The test we must apply is not whether we might have acted as did the superior court under the circumstances, but whether the court s ruling exceeded the bounds of reason. Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App We cannot say it did. 5

6 CONCLUSION 10 For the reasons stated above, we affirm the superior court s order setting aside the dismissal. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ SHELDON H. WEISBERG, Judge /s/ MARGARET H. DOWNIE, Judge 6