                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                  JOSEPH DOMINGUEZ, Plaintiff/Appellant,

                                         v.

            NATIONAL SHOTCRETE, LLC, Defendant/Appellee.

                              No. 1 CA-CV 17-0212
                                FILED 5-31-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2015-092363
                 The Honorable David King Udall, Judge

                                   AFFIRMED


                                     COUNSEL

Peshkin & Kotalik, PC, Phoenix
By E.J. Kotalik, Jr.
Co-Counsel for Plaintiff/Appellant

J. Ridge Hicks, PLC, Mesa
By J. Ridge Hicks
Co-Counsel for Plaintiff/Appellant

Elardo Bragg & Rossi PC, Phoenix
By Venessa J. Bragg, Jarin K. Giesler, Katy Stewart
Counsel for Defendant/Appellee
               DOMINGUEZ v. NATIONAL SHOTCRETE
                      Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.


C R U Z, Judge:

¶1            Appellant Joseph Dominguez appeals from the final
judgment dismissing his complaint against Appellee National Shotcrete,
LLC, for lack of prosecution. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Dominguez alleges that on April 30, 2013, while he was
driving a truck, an employee of National Shotcrete lost control of a grout
pump hose and the hose sprayed concrete at high pressure as he drove by,
shattering the driver-side window and injuring him.

¶3           On April 23, 2015, Dominguez filed his negligence complaint
against National Shotcrete. On July 29, 2015, the trial court issued a notice
of intent to dismiss for lack of service. Three days before the service
deadline, Dominguez served National Shotcrete.

¶4            On January 27, 2016, the case was placed on the dismissal
calendar, setting the case for dismissal on March 28, 2016. On March 18,
2016, Dominguez filed his first ex parte motion to continue the case on the
dismissal calendar for ninety days to provide time for National Shotcrete to
answer and disclosure statements to be exchanged. The trial court
continued the case on the dismissal calendar until June 20, 2016.

¶5            On June 13, 2016, Dominguez filed his second ex parte motion
to continue the case on the dismissal calendar, informing the trial court that
his counsel made a calendaring error in revoking the extension to file an
answer, and there was not sufficient time for National Shotcrete to answer
before the dismissal deadline. The court granted the second motion and
continued the case on the dismissal calendar until Dominguez’ proposed
deadline, August 19, 2016.

¶6           National Shotcrete filed its answer on June 30, 2016.
Additionally, National Shotcrete also sent Dominguez Requests for
Admission, Requests for Production, and Uniform and Non-Uniform


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               DOMINGUEZ v. NATIONAL SHOTCRETE
                      Decision of the Court

Interrogatories. On August 17, 2016, Dominguez responded to the
Requests for Admission and served his Initial Rule 26.1 Disclosure
Statement. Dominguez did not timely answer and/or object to National
Shotcrete’s Uniform and Non-Uniform Interrogatories within thirty days of
service as required under Arizona Rule of Civil Procedure (“Rule”) 33(b)(1).
The parties agreed to a mutual extension for National Shotcrete to serve its
disclosure statement and for Dominguez to respond to the remaining
discovery. Dominguez served no requests for production, uniform or non-
uniform interrogatories, or requests for admission.

¶7           On October 4, 2016, the trial court dismissed the matter
without prejudice for lack of prosecution. Two days later, Dominguez
moved to vacate the dismissal on Rule 60 grounds of excusable neglect and
extraordinary circumstances because the statute of limitations had expired.
The court denied Dominguez’ motion and entered final judgment in favor
of National Shotcrete.

¶8           Dominguez timely appealed.1 We have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2).2

                               DISCUSSION

¶9          Dominguez argues the trial court abused its discretion in
denying his motion to vacate the judgment of dismissal pursuant to Rule




1      National Shotcrete moved to dismiss this appeal, asserting
Dominguez failed to file a timely notice of appeal. We disagree.
Dominguez filed his notice of appeal within thirty days of the amended
judgment in this case. ARCAP 9(a); see Baker v. Emerson, 153 Ariz. 4, 8 (App.
1986) (providing that a party must file notice of appeal from an amended
judgment that substantially alters the original judgment). We accordingly
deny National Shotcrete’s motion.

2      Although Dominguez is appealing the denial of his motion to vacate,
the underlying judgment is also appealable under A.R.S. § 12-2101(A)(3)
(formerly A.R.S. § 12-2101(D)). See Garza v. Swift Transp. Co., 222 Ariz. 281,
284, ¶ 15 (2009) (noting that “[t]he classic example of an order falling under
A.R.S. § 12-2101(D) is a dismissal without prejudice after the statute of
limitations has run”).




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                DOMINGUEZ v. NATIONAL SHOTCRETE
                       Decision of the Court

60(c)(1) and (6).3 We review a trial court’s ruling on a motion for relief
under Rule 60(c) for an abuse of discretion. Maher v. Urman, 211 Ariz. 543,
550, ¶ 21 (App. 2005). Under this standard of review, we will “affirm where
any reasonable view of the facts and law might support the judgment of the
trial court.” City of Phoenix v. Geyler, 144 Ariz. 323, 330 (1985). Generally,
the trial court has broad discretion when considering motions under Rule
60(c), and we will sustain the court’s decision unless “undisputed facts and
circumstances require a contrary ruling.” Id.

I.     The Trial Court Reasonably Found No Excusable Neglect.

¶10           To obtain relief under Rule 60(c)(1) from a dismissal for lack
of prosecution, Dominguez “must show (1) mistake, inadvertence, surprise
or excusable neglect; (2) that relief was sought promptly; and (3) that a
meritorious claim existed.” Maher, 211 Ariz. at 550, ¶ 21. Courts must
consider the totality of the circumstances when deciding whether to grant
relief under Rule 60(c)(1). Am. Asphalt & Grading Co. v. CMX, L.L.C., 227
Ariz. 117, 119, ¶ 11 (2011); see also Copeland v. Ariz. Veterans Mem’l Coliseum
& Exposition Ctr., 176 Ariz. 86, 90 (App. 1993).

¶11            We focus on the first element, a showing of “mistake,
inadvertence, surprise or excusable neglect.” Dominguez argues his
neglect was excusable. “Neglect is excusable when it is such as might be
the act of a reasonably prudent person in the same circumstances.” Ulibarri
v. Gerstenberger, 178 Ariz. 151, 163 (App. 1993) (citation omitted). However,
“carelessness is not synonymous with excusable neglect.” Hirsch v. Nat'l
Van Lines, Inc., 136 Ariz. 304, 309 (1983).

¶12           Dominguez’ counsel admitted that he received the order
setting the dismissal date from the trial court but failed to print it, so the
dismissal deadline did not get calendared. Dominguez argues that “a
fleeting lapse by counsel” and a “momentary lapse” in failing to print the
e-mail resulted in missing the dismissal deadline.

¶13          There is no basis to find that the trial court abused its
discretion in denying Dominguez’ motion to vacate on grounds of
excusable neglect. The case was dismissed because Dominguez failed to
adhere to a deadline he requested. Despite arguing that he had a


3      Effective January 1, 2017, the former Rule 60(c) was renumbered as
Rule 60(b). Ariz. R. Civ. P., prefatory cmt. to the 2017 amendments. This
memorandum decision will refer to former Rule 60(c) because the relevant
events took place prior to January 1, 2017.


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                DOMINGUEZ v. NATIONAL SHOTCRETE
                       Decision of the Court

“momentary lapse,” it was not the first time Dominguez made a
calendaring error. Failure to properly calendar a deadline was the
confessed reason for Dominguez’ second motion to continue the case on the
dismissal calendar. We do not believe that a reasonably prudent person
under similar circumstances would make repeated serious calendaring
errors. Ulibarri, 178 Ariz. at 163. We therefore find that Dominguez failed
to establish that he is entitled to relief under Rule 60(c)(1).

II.    The Trial Court Did Not Abuse Its Discretion in Denying
       Dominguez’ Motion Under Rule 60(c)(6).

¶14           Dominguez also argues he is entitled to relief under Rule
60(c)(6) because the statute of limitations has run on his claim and a
dismissal will result in substantial prejudice. To obtain Rule 60(c)(6) relief,
a plaintiff must show:

       extraordinary circumstances of hardship or injustice
       justifying relief as well as proof that (1) plaintiff diligently and
       vigorously prosecuted the case; (2) the parties took reasonable
       steps to inform the court of the case status; (3) substantial
       prejudice will result unless relief is granted; (4) plaintiff
       sought relief promptly[;] and (5) plaintiff has a meritorious
       claim.

Copeland, 176 Ariz. at 89. A court must consider the “‘totality of facts and
circumstances’ to determine whether Rule 60(c)(6) relief is appropriate.”
Amanti Elec., Inc. v. Engineered Structures, Inc., 229 Ariz. 430, 433, ¶ 7 (App.
2012), quoting Roll v. Janca, 22 Ariz. App. 335, 337 (1974). “Although the
running of the statute of limitations presents an extraordinary hardship . . .
this fact alone does not constitute grounds for relief under Rule 60(c)(6).”
Jepson v. New, 164 Ariz. 265, 270 (1990).

¶15            Dominguez has not sustained his burden of showing the trial
court abused its discretion in determining he is not entitled to relief under
Rule 60(c)(6) because he has not demonstrated that he vigorously
prosecuted the case. See Copeland, 176 Ariz. at 89. The court ruled that the
case was previously “extended on the dismissal calendar for dismissal
unless specified action was taken before a certain date. The date has passed,
and the specified action has not been taken.” The court implicitly
determined Dominguez had not established he had diligently and
vigorously prosecuted his claim or taken steps to inform the court of the
case’s status. Id.




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               DOMINGUEZ v. NATIONAL SHOTCRETE
                      Decision of the Court

¶16           Dominguez relies on Gorman v. City of Phoenix, 152 Ariz. 179
(1987), to argue he diligently and vigorously prosecuted the case, but
Gorman is distinguishable from this case. In Gorman, the record
demonstrated “vigorous pursuit of a claim,” including the taking of
depositions, the exchange of a settlement letter, the filing of a motion to
compel, and the filing of a motion for summary judgment, in addition to
the exchange of interrogatories and requests for admissions. Id. at 180, 183.
Additionally, the plaintiff’s attorney had contacted the superior court to
inquire about the status of the case and was told the case would not be
dismissed. Id. Finally, the court also heard oral arguments on the motion
to compel and the motion for summary judgment after the dismissal
deadline had passed. Id. at 180.

¶17           Here, by contrast, Dominguez did not vigorously pursue his
claim. No motions for summary judgment were exchanged. No
depositions were taken. Dominguez failed to timely answer or object to
National Shotcrete’s Uniform and Non-Uniform Interrogatories under Rule
33(b)(1). Dominguez never served any of his own requests for production,
uniform or non-uniform interrogatories, or requests for admission. No oral
arguments were conducted. Nor did the court assure Dominguez it would
not dismiss his lawsuit. Although the limitations period has expired,
presenting Dominguez with an “extraordinary hardship,” that alone does
not constitute sufficient grounds for relief under Rule 60(c)(6). See Jepson,
164 Ariz. at 270.

                              CONCLUSION

¶18            We find the trial court could reasonably conclude that
Dominguez did not establish sufficient bases to obtain relief of subsection
(1) or (6) of Rule 60(c). Therefore, the court did not abuse its discretion in
dismissing Dominguez’ claim. We affirm the judgment and award costs to
National Shotcrete upon compliance with Arizona Rule of Civil Appellate
Procedure 21.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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