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        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


CARRIE BELTZ, a single woman; and LAUREN BELTZ, a single woman,
                        Plaintiffs/Appellants,

                                        v.

 GREYSTAR REAL ESTATE PARTNERS, LLC, a foreign corporation dba
    GREYSTAR PROPERTY MANAGEMENT, Defendant/Appellee.

                             No. 1 CA-CV 14-0779
                               FILED 4-12-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-091883
              The Honorable Mark F. Aceto, Retired Judge

                                  AFFIRMED


                                   COUNSEL

Watters & Watters PLLC, Tucson
By Andrea E. Watters
Counsel for Plaintiffs/Appellants
                           BELTZ v. GREYSTAR
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.


N O R R I S, Judge:

¶1            Carrie and Lauren Beltz appeal from the superior court’s
order dismissing their case for lack of prosecution and its denial of their
combined motion for relief under Arizona Rule of Civil Procedure (“Rule”)
60(c) and Arizona Revised Statutes (“A.R.S.”) section 12-504(A) (2016), the
savings statute. Because the superior court did not abuse its discretion in
denying relief under either the rule or statute, we affirm the order of
dismissal. See Slaughter v. Maricopa Cnty., 227 Ariz. 323, 326, ¶ 14, 258 P.3d
141, 144 (App. 2011) (appellate court reviews superior court’s order of
dismissal for lack of prosecution for abuse of discretion); Copeland v. Ariz.
Veterans Mem’l Coliseum & Exposition Ctr., 176 Ariz. 86, 89, 859 P.2d 196, 199
(App. 1993) (appellate court reviews superior court’s denial of relief under
either Rule 60(c) or A.R.S. § 12-504 for abuse of discretion).

           FACTUAL AND PROCEDURAL BACKGROUND

¶2           The Beltzes sued defendant/appellee Greystar Real Estate
Partners, LLC and other entities (collectively, “Defendants”) for negligence
and breach of contract arising from an apartment lease. Pursuant to the then
current version of Arizona Rule of Civil Procedure Rule 38.1, court
administration issued an order placing the case on the Inactive Calendar for
dismissal on February 3, 2014, unless one of the actions designated under
Rule 38.1 occurred (“Rule 38.1 Order”).1 The Rule 38.1 Order directed the

              1As  discussed in ¶¶ 6-7 infra, the supreme court amended
Rule 38.1 effective April 15, 2014. See Arizona Supreme Court Order R-13-
0017 (filed Aug. 28, 2013), Amended Order Regarding Applicability
Provision (filed Nov. 27, 2013). Former Rule 38.1 and its predecessor,
Uniform Rule V, were procedural rules “designed to rid court calendars of
inactive or abandoned cases and to prod the judge and the attorneys
involved to bring cases to trial as quickly as possible.” Gorman v. City of
Phoenix, 152 Ariz. 179, 183, 731 P.2d 74, 78 (1987). Former Rule 38.1(d)
required the clerk of the court to place a case on the Inactive Calendar if the

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                            Decision of the Court

parties to file a motion to set on or before December 3, 2013, and explained
that “[f]or good cause, the assigned judge may extend time for dismissal or
continue the action on Inactive Calendar to an appropriate date.”

¶3            On January 21, 2014, the Beltzes moved to continue the case
on the Inactive Calendar for 60 days, explaining they had recently filed an
amended complaint and anticipated receiving Defendants’ answer within
60 days.2 On January 28, 2014, the superior court entered an order granting
the motion in part and continued the case on the Inactive Calendar for
dismissal unless a proper motion to set/certificate of readiness was filed by
February 24, 2014 ( “January 28 Order”). The January 28 Order warned that
if such motion/certificate was not filed before February 24, 2014, “all
unadjudicated claims will be dismissed without further notice.”3

¶4             The Beltzes did not comply with the January 28 Order, and
the court dismissed their case on March 28, 2014. Almost six months later,
on September 23, 2014, the Beltzes moved to reinstate the case under Rule
60(c), or in the alternative, to re-file under the savings statute, A.R.S. § 12-



parties did not file a motion to set and certificate of readiness within nine
months after commencement of the case and instructed the clerk to dismiss
a case without prejudice if it remained on the Inactive Calendar for more
than two months. See Ariz. R. Civ. P. 38.1(d) (effective until April 15, 2014).

              2Before  moving to continue on the inactive calendar, the
Beltzes filed a motion to set, which the court denied because no answer had
been filed and the issues had not been joined.

              3The  January 28 Order provided an alternative way for the
parties to avoid dismissal:

              Pursuant to this Division’s normal practice,
              dismissal off of the Inactive Calendar can be
              avoided if the following occurs: (1) Defendant
              files an Answer, and (2) Plaintiffs file a Request
              for Issuance of an Order to File a Joint Proposed
              Scheduling Order (a) after an Answer is filed
              and (b) before the scheduled date for dismissal
              off of the Inactive Calendar.




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                           Decision of the Court

504(A). The superior court denied their motion.4 We have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1) and (2). See Edgar v. Garrett, 10 Ariz.
App. 98, 101 n.5, 456 P.2d 944, 947 n.5 (1969) (dismissal for lack of
prosecution is appealable when statute of limitations has run).5

                               DISCUSSION

I.     Rule 38.1

¶5           The Beltzes first argue the superior court incorrectly
dismissed their case by failing to apply the amended version of Rule 38.1,
which they argue “applies retroactively to this case.”6

¶6          Effective April 15, 2014, our supreme court adopted
comprehensive amendments to the rules of civil procedure governing case
management and trial setting. See Arizona Supreme Court Order R-13-0017



              4In moving for relief under Rule 60(c) and the savings statute,
the Beltzes asserted, inter alia, that their counsel had not received a copy of
the January 28 Order, although they acknowledged their counsel had
received an email from the clerk of the superior court that stated in the
subject line “case continued on the inactive counsel.” The description in the
subject line would not have informed the Beltzes’ counsel how long the
court had continued the case on the inactive calendar, however. In any
event, the superior court initially rejected this “claim.” The Beltzes then
filed two motions asking the court to reconsider its dismissal, and in both
motions attempted to support their argument that their counsel had not
received the January 28 Order. The court denied both motions for reasons
unrelated to whether the Beltzes’ counsel had actually received the January
28 Order. As relevant to our resolution of this appeal, the court found the
Beltzes had failed to timely demonstrate they had a meritorious claim based
on admissible evidence and had failed to timely seek relief under the
savings statute.

              5The record reflects the statute of limitations has run on the
Beltzes’ negligence claim.

              6Greystar   did not file an answering brief on appeal. Although
we could treat this as a confession of error, we exercise our discretion to
address the merits of the Beltzes’ appeal. See In re Marriage of Diezsi, 201
Ariz. 524, 525, ¶ 2, 38 P.3d 1189, 1190 (App. 2002).

                                      4
                            BELTZ v. GREYSTAR
                            Decision of the Court

(filed Aug. 28, 2013). As part of this process, the supreme court amended
Rule 38.1. See id.

¶7             Pursuant to Arizona Supreme Court Order R-13-0017, as
amended November 27, 2013, “the Amendments [did] not affect
administrative dismissals from the Inactive Calendar until the effective date
of April 15, 2014.” See Arizona Supreme Court Order R-13-0017, Amended
Order Regarding Applicability Provision (filed Nov. 27, 2013). The superior
court dismissed the Beltzes’ case from the Inactive Calendar on March 28,
2014, more than two weeks before the effective date of the amendments.
Accordingly, the amended version of Rule 38.1 was inapplicable to the
Beltzes’ case. And, the record reflects the superior court properly complied
with former Rule 38.1 in dismissing the Beltzes’ case.7

II.    Rule 60(c)

¶8           The Beltzes next argue the superior court “abused its
discretion when it refused [their] request to reinstate the case under ARCP
Rule 60(c).”

¶9              The Beltzes sought relief under Rule 60(c)(1) and (6), which,
respectively, allow a court to relieve a party from a final judgment or order
for “mistake, inadvertence, surprise or excusable neglect” or for “any other
reason justifying relief from the operation of the judgment.”8 Ariz. R. Civ.
P. 60(c)(1), (6). To obtain relief under either of these subsections, a plaintiff


              7Relying    on the “Historical Notes” to amended Rule 38.1, see
Ariz. R. Civ. P. 38.1(d) (2015), the Beltzes argue the amended version of Rule
38.1 applied to their case. The Historical Notes, in turn, quote from the
supreme court’s November 27, 2013 Amended Order Regarding
Applicability Provisions. The portion of this order quoted in the Historical
Notes explained that beginning on April 15, 2014, the Amended Rule 38.1
would apply to “pending cases” filed before April 15, 2014, if certain
specified events had or had not occurred. The court had dismissed the
Beltzes’ case, on March 28, 2014, and thus, their case was not a “pending
case” as of April 15, 2014.

              8The Beltzes also sought relief under Rule 60(c)(4), which
provides relief from void judgments. See Ariz. R. Civ. P. 60(c)(4). The
Beltzes have not argued on appeal they were entitled to relief under Rule
60(c)(4).



                                       5
                           BELTZ v. GREYSTAR
                           Decision of the Court

must show the existence of a meritorious claim. Copeland, 176 Ariz. at 89,
859 P.2d at 199. Additionally, a plaintiff must make that showing with
admissible evidence, that is, “by affidavit, deposition or testimony of some
facts which, if proved at the trial” would constitute a valid claim. See United
Imports & Exports, Inc. v. Superior Court of State In & For Maricopa Cnty., 134
Ariz. 43, 46, 653 P.2d 691, 694 (1982). The mere conclusion of a lawyer or
client that a claim exists is “evidence of nothing; it is a conclusion which
carries no weight and is insufficient.” Id.

¶10           When the Beltzes requested relief under Rule 60(c), they failed
to provide the court with any admissible evidence establishing a
“meritorious claim.” Rather, their motion simply restated the allegations
of their complaint. Because the Beltzes did not demonstrate a meritorious
claim with admissible evidence, the superior court acted within its
discretion in denying relief under Rule 60(c).9

III.   The Savings Statute

¶11           Finally, the Beltzes argue the superior court abused its
discretion in failing to apply § 12-504(A), the savings statute. This statute
provides in pertinent part:

              If an action timely commenced is terminated by
              abatement, voluntary dismissal by order of the
              court or dismissal for lack of prosecution, 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




              9The  Beltzes filed an amended Rule 60(c) motion, which
attached an affidavit of counsel. The affidavit made a conclusory statement
that “Plaintiffs have a meritorious case and a dismissal would be
devastating” but provided no showing of merit. Although the superior
court specifically noted in its order denying their motion for relief under
Rule 60(c) and the savings clause that the Beltzes had failed to provide any
admissible evidence of a meritorious claim, the Beltzes did not provide the
court with any admissible evidence of a meritorious claim until they filed
their second motion for reconsideration. The superior court found the
Beltzes had “waived the right to rely on these affidavits.” Under the
circumstances presented here, we agree.

                                      6
                            BELTZ v. GREYSTAR
                            Decision of the Court

              commencement has expired. Such period shall
              not exceed six months from the date of termination.

A.R.S. § 12-504(A) (emphasis added). As this court has held, if the superior
court permits a plaintiff to refile an action under A.R.S. § 12-504, “it must
be accomplished within a maximum of six months” after termination.
Roller Vill., Inc. v. Superior Court of Ariz. In & For Maricopa Cnty., 154 Ariz.
195, 197, 741 P.2d 328, 330 (App. 1987) (“[I]f refiling is permitted by the trial
judge, the period may not exceed six months from the date of
termination.”).

¶12            As noted above, the superior court dismissed the Beltzes’
complaint for lack of prosecution on March 28, 2014. Under A.R.S. § 12-504,
the court could have permitted the Beltzes to refile their complaint any time
before September 29, 2014. See Ariz. R. Civ. P. 6(a) (first day is excluded
when calculating time periods during which a party must act). Although
the Beltzes filed their motion seeking relief under the savings statute on
September 23, 2014, the superior court did not review the motion until
September 30. Accordingly, by the time the superior court considered their
request, the six-month extension authorized by A.R.S. § 12-504 had expired.

¶13           The superior court had no authority to grant relief under the
savings statute. Therefore, the court did not abuse its discretion in denying
relief under the savings statute.

                               CONCLUSION

¶14          For the foregoing reasons, we affirm the superior court’s
order dismissing the Beltzes’ case.




                                     :ama




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