                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


       MIGUEL T. VALENZUELA, individually, Plaintiff/Appellant,

                                         v.

  MARICOPA COUNTY, a political subdivision of the State of Arizona;
        SIMON PETER JARAMILLO, Defendants/Appellees.

                              No. 1 CA-CV 14-0666
                                FILED 3-15-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2012-003337
              The Honorable Sally Schneider Duncan, Judge

                                   AFFIRMED


                                    COUNSEL

Phillips Law Group, P.C., Phoenix
Timothy G. Tonkin, Kurt D. Maahas
Co-Counsel for Plaintiff/Appellant

Mandel Young PLC, Phoenix
By Taylor C. Young, Peter A. Silverman
Co-Counsel for Plaintiff/Appellant

Maricopa County Attorney’s Office, Phoenix
By Ann T. Uglietta
Counsel for Defendant/Appellee Maricopa County
Udall Law Firm, LLP, Phoenix
By Erin E. Byrnes
Counsel for Defendant/Appellee Jaramillo


                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.


J O N E S, Judge:

¶1             Miguel Valenzuela appeals the trial court’s denial of his
motion to set aside the dismissal of his lawsuit for failure to prosecute his
claims against Simon Jaramillo and Jaramillo’s employer, Maricopa County
(collectively Jaramillo). For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In January 2012, Valenzuela filed suit against Jaramillo for
injuries suffered when his vehicle was involved in a traffic accident after
Jaramillo ran a stop light. Valenzuela successfully moved to continue the
matter on the trial court’s dismissal calendar1 in December 2012 and August
2013, advising that Jaramillo had been given an open extension to respond
to the complaint while Valenzuela continued to receive treatment for his
injuries. When Valenzuela failed to certify that the case was ready to
proceed to trial or to seek further continuances by October 2013, the lawsuit
was dismissed without prejudice for lack of prosecution. See Ariz. R. Civ.
P. 38.1(f) (“A case remaining on the Dismissal Calendar for 60 days shall be
dismissed without prejudice for lack of prosecution . . . unless prior to the
expiration of such 60-day period . . . the court, on motion for good cause
shown, orders the case to be continued on the Dismissal Calendar.”).

¶3            Five days after the trial court entered its order of dismissal,
Valenzuela filed a pleading (hereinafter, the Response) purporting to
respond to an objection by Jaramillo to continuing the matter on the
dismissal calendar and requesting a scheduling order. However, Jaramillo
had not appeared in the action or filed any objection to the continuance.

1      The Arizona Rules of Civil Procedure were amended in 2013 to
replace the term “inactive calendar” with “dismissal calendar.” The terms
are used interchangeably within this decision.



                                      2
                    VALENZUELA v. MARICOPA et al.
                         Decision of the Court

Although the title of the Response included the words “motion for
reinstatement,”2 Valenzuela did not request reinstatement within the body
of the Response, or otherwise acknowledge the case had, by then, been
dismissed. The following day, Valenzuela moved to withdraw the
Response, stating counsel “mistakenly believed an objection had been filed
when it had not.” On November 5, 2013, the trial court entered an order
stating the Response “is considered withdrawn and no further action will
be taken.”

¶4            Indeed, no further action was taken by Valenzuela or the trial
court following the November 2013 order until April 2014, when
Valenzuela filed “Plaintiff’s Second Motion for Reinstatement,” seeking
relief pursuant to Arizona Rule of Civil Procedure 60(c). Valenzuela’s
counsel asserted he had been diligently prosecuting the case, albeit
informally, while Valenzuela continued to receive medical treatment. The
motion asserted Valenzuela’s failure to timely file a request for a third
continuance on the dismissal calendar was “[d]ue to changes in paralegal
and staff,” which resulted in the date for dismissal from the inactive
calendar being “calendared inappropriately.”             Valenzuela’s counsel
characterized the resulting failure as an administrative or clerical error,
which, he asserted, constituted “mistake, inadvertence, or excusable
neglect” or “other reason justifying relief” sufficient to warrant setting aside
the dismissal under Rule 60(c)(1) and (6). Jaramillo entered a special
appearance to oppose the motion.

¶5            After considering the pleadings and hearing oral argument,
the trial court denied the motion to set aside. In doing so, the court
ultimately concluded Valenzuela did not act promptly because he waited
to file the motion until nearly six months after the court’s order advising it
would take no further action.

¶6          Valenzuela filed a timely motion for new trial, which was
denied. Valenzuela timely appealed, and we have jurisdiction pursuant to




2     The caption of the October 29, 2013 motion reads: “Plaintiff’s Motion
to Withdraw Its Response to Defendant Maricopa County’s Objection to
Continue on the Inactive Calendar, Motion for Reinstatement and, in the
Alternative, Motion to Set and for Rule 16 Scheduling Order.”



                                       3
                    VALENZUELA v. MARICOPA et al.
                         Decision of the Court

Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1)3 and -2101(A)(2),
(A)(5)(a).

                                 DISCUSSION

¶7             As an initial matter, Jarmillo argues we lack jurisdiction over
this appeal, asserting the order dismissing for lack of prosecution in
October 2013 was an appealable order affecting a substantial right pursuant
to A.R.S. § 12-2101(A)(3), and Valenzuela did not file his notice of appeal
within thirty days thereafter. See ARCAP 9(a) (requiring a notice of appeal
be filed “no later than 30 days after entry of the judgment from which the
appeal is taken”). However, the subsequent orders denying the motion to
set aside the judgment and motion for new trial are separately appealable,
and Valenzuela properly appealed those orders within thirty days of their
entry. See A.R.S. § 12-2101(A)(2), (A)(5)(a); M & M Auto Storage Pool, Inc. v.
Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141 (App. 1990) (“An order denying
or granting a motion to set aside a judgment under Rule 60(c) . . . is
appealable as a ‘special order made after final judgment.’”) (citations
omitted).

¶8             Valenzuela argues the trial court erred in determining he did
not take prompt action to reinstate the case because he “acted within five
days of the dismissal order to correct the error and acted again within six
months of the dismissal order when his first motion had not resulted in a
signed order.” We review an order denying a motion to set aside under
Rule 60(c), including the determination as to whether the motion was
promptly filed, for an abuse of discretion. See Skydive Ariz., Inc. v. Hogue,
238 Ariz. 357, 364, ¶ 24 (App. 2015); Old Pueblo Plastic Surgery, P.C. v. Fields,
146 Ariz. 178, 179 (App. 1985) (noting the trial court is “in a better position
in a particular case to balance the principle of finality of judgments and the
principle of resolving issues on the merits”) (citing Daou v. Harris, 139 Ariz.
353, 359 (1984), and Hirsch v. Nat’l Van Lines, Inc., 136 Ariz. 304, 308 (1983)).

¶9            To set aside a dismissal resulting from the failure to continue
a matter on the dismissal calendar:

       [T]he litigant must first establish one or more of the grounds
       set forth in Rule 60(c). . . . If this is done, the Court should also
       consider whether (1) the parties were vigorously pursuing the


3     Absent material changes from the relevant date, we cite a statute’s
current version.



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                   VALENZUELA v. MARICOPA et al.
                        Decision of the Court

       case, (2) steps were taken to inform the court of the case’s
       status, and (3) substantial prejudice will inure to the moving
       party if the dismissal is not set aside.

Resolution Trust Corp. v. Maricopa Cnty., 176 Ariz. 631, 634 (Tax Ct. 1993)
(citing Jepson v. New, 164 Ariz. 265, 270 (1990), and Gorman v. City of Phx.,
152 Ariz. 179, 183 (1987)). However, whether these elements have been
established is irrelevant where a litigant does not act promptly to set aside
the dismissal. See Richas v. Superior Court, 133 Ariz. 512, 514-15 (1982)
(noting an unexplained thirty-four day delay in filing a motion to set aside
provided no basis under which the trial court could determine whether the
elements had been established); see also Ariz. R. Civ. P. 60(c) (stating a
motion to set aside on the grounds of mistake, inadvertence, or excusable
neglect must be made “within a reasonable time . . . not more than six
months after the judgment or order was entered or proceeding was taken”).
“What is a ‘reasonable time’ within which to make the motion must depend
on the circumstances of the particular case.” Marquez v. Rapid Harvest Co.,
99 Ariz. 363, 366 (1965). The burden to explain any delay is upon the party
seeking to have the order set aside, Richas, 133 Ariz. at 515 (citing Marquez,
99 Ariz. at 366), and should be supported by either affidavit or testimony,
Marquez, 99 Ariz. at 366 (citing Benjamin v. Dalmo Mfg. Co., 190 P.2d 593, 596
(Cal. 1948)).

¶10           When the trial court asked Valenzuela’s counsel about the
nearly six-month delay in filing the motion to set aside, he explained he had
previously intended to withdraw only “portions” of the Response and had
been “hopeful” the court would address the “other parts” of the motion.
Counsel stated he was unaware the entirety of the Response had been
ordered withdrawn and was prompted to further pursue the issue only
after Valenzuela’s condition stabilized and he was ready to prepare a
formal settlement demand. Valenzuela’s counsel also stated he needed
time “to research the factual and legal issues arising out of the dismissal
and need for reinstatement.” Valenzuela did not support his explanation
with any affidavit or testimony.

¶11            Valenzuela describes his situation as a “lack of notice,”
analogous to Black v. Greer, in which this Court affirmed the determination
that a motion to set aside, filed nearly ten months after entry of dismissal,
was timely where the plaintiff provided affidavits indicating he was
actively engaged in settlement discussions with the opposing party and had
never received the clerk’s letter giving notice the case would be dismissed
if no further action was taken within sixty days. 17 Ariz. App. 383, 384-85
(1972). We do not find Black analogous.


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                    VALENZUELA v. MARICOPA et al.
                         Decision of the Court

¶12          Here, although the title of the Response includes the phrase
“Motion for Reinstatement,” the body of the Response does not contain any
form of the word “reinstate” and does not request relief under Rule 60(c) or
otherwise suggest the order of dismissal should be set aside. The two-page
motion to withdraw states only that counsel mistakenly believed Jaramillo
had appeared and objected to a continuance, concluding, “Accordingly,
Plaintiff moves to withdraw its Response to Defendant Maricopa County’s
Objection to Continue on the Inactive Calendar and Motion to Set.” The
motion says nothing about seeking reinstatement of the case from
dismissal. Moreover, the trial court’s order granting Valenzuela’s motion
to withdraw the Response unequivocally states, “no further action will be
taken.” Consistent with its assertion, thereafter, the court took no further
action.

¶13           Valenzuela argues this order is ambiguous because it was
made “pursuant to Plaintiff’s motion to withdraw,” which Valenzuela
asserts only requested portions of the Response be withdrawn. However,
Valenzuela’s counsel’s belief that the asserted motion for reinstatement
remained pending was not a reasonable interpretation of the court’s order,
especially given that the motion never sought reinstatement; nor can we
conclude that Valenzuela otherwise lacked notice the case had been
dismissed and the Response, along with the purported first motion to
reinstate, was withdrawn by the court.

¶14             Although we are cognizant that any doubt should be resolved
in favor of securing a trial upon the merits, Richas, 133 Ariz. at 514, it is
ultimately within the purview of the trial court to “determine whether the
explanation is sufficient to justify the granting of the relief sought.”
Marquez, 99 Ariz. at 366 (citing Benjamin, 190 P.2d at 596); United Imps. &
Exps., Inc. v. Superior Court, 134 Ariz. 43, 46 (1982) (“In the absence of any
reasonable explanation of such a delay, the trial court has no facts upon which
to exercise its discretion.”) (emphasis added) (citing Richas, 133 Ariz. at 515).
The record suggests the trial court carefully considered Valenzuela’s
explanation and reasonably concluded Valenzuela did not meet his burden
to establish he had acted promptly to reinstate his case. See Goff v. Guyton,
86 Ariz. 349, 352 (1959) (“[I]f two inferences may be drawn we must accept
the one chosen by the trial court.”) (citing Stewart v. Schnepf, 62 Ariz. 440,
444 (1945)). And, we are unpersuaded the asserted need to research the
possible reinstatement of a case dismissed as a result of a docketing error
would necessitate a six-month study in seeking that relief. See, e.g., Richas,
133 Ariz. at 515 (“We are unable to agree that the trial court could assume
that a thirty-four day delay in filing a six-page motion is prima facie
reasonable.”).


                                       6
                   VALENZUELA v. MARICOPA et al.
                        Decision of the Court

¶15            Lastly, Valenzuela argues the trial court erred in even
considering the promptness of his action because the November 2013 order
withdrawing the Response was unsigned and therefore “did not trigger any
prompt action requirement under Rule 60(c).” In advancing this argument,
Valenzuela implies he is seeking relief from the order withdrawing the
Response, a position wholly inconsistent with his argument to the trial
court and the nature of his request on appeal, whereby he seeks relief from
the October 2013 order dismissing the case for lack of prosecution.
Regardless, because Valenzuela makes this argument for the first time on
appeal, we will not consider it. See Brenteson Wholesale, Inc. v. Ariz. Pub.
Serv. Co., 166 Ariz. 519, 523 (App. 1990) (noting an appellant’s assertion not
raised with the trial court “comes too late on appeal”).

¶16           Because Valenzuela did not act promptly in seeking to have
the order of dismissal set aside, the trial court did not abuse its discretion
in denying the motion to set aside. We therefore need not address
Valenzuela’s arguments regarding the other elements of his claim for relief.

                              CONCLUSION

¶17           The trial court’s order denying Valenzuela’s motion to set
aside the order of dismissal is affirmed.




                                  :ama




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