                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                CHARLES EASTWOOD, Plaintiff/Appellant,

                                        v.

 ATLAS LOCKSMITH SOLUTIONS, LLC; MILLER LOCK & SAFE, LLC;
 MILLENNIUM LOCKSMITH LLC; APPLE CONTRACTING, L.L.C. and
            ADAM AVIGDOR, Defendants/Appellees.

                             No. 1 CA-CV 13-0642
                              FILED 10-30-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2010-027605
              The Honorable Katherine M. Cooper, Judge

                                  AFFIRMED


                                   COUNSEL

The Law Offices of David W. Dow, Phoenix
By David W. Dow
Counsel for Plaintiff/Appellant

The Marhoffer Law Firm, PLLC, Scottsdale
By David Marhoffer
Counsel for Defendants/Appellees Atlas and Miller

Burke Panzarella Rich, Phoenix
By Thomas P. Burke, II, Elizabeth L. Fleming
Counsel for Defendants/Appellees Apple Contracting, L.L.C. and Adam Avigdor
                        EASTWOOD v. ATLAS et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.


H O W E, Judge:

¶1             Charles Eastwood appeals the superior court’s dismissal of
his case for lack of prosecution. Finding no error, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           In 2010, Eastwood sued more than 50 locksmith companies,
including appellees Atlas Locksmith Solutions, LLC and Miller Lock & Safe,
LLC (collectively, “Atlas Defendants”), and Apple Contracting, LLC and
Adam Avigdor (collectively, “Apple Defendants”). 1 Eastwood alleged that
they had violated Arizona Revised Statute (“A.R.S.”) § 44-1221(A), which
prohibits misrepresentation of “the geographical origin or location” of a
person’s business. In addition to various tort claims, the complaint
requested injunctive relief. Eastwood took no further action.

¶3              Approximately five months after Eastwood filed his
complaint, the superior court issued a 150 Day Order (the “Order”)
pursuant to Arizona Rule of Civil Procedure 38.1, which instructed the
parties to file a Motion to Set and Certificate of Readiness. The order further
warned the parties that failure to comply with Rule 38.1 would place the
case on the inactive calendar and be dismissed without further notice on or
after August 17, 2011.

¶4            After oral argument on Eastwood’s claim for injunctive relief,
the superior court granted a preliminary injunction prohibiting Atlas
Defendants and Apple Defendants from using false addresses in their
advertising. Atlas Defendants and Apple Defendants sought special action
review of the preliminary injunction (the “Injunction Appeal”). Before this
Court heard oral argument on the Injunction Appeal, however, the superior
court “dismiss[ed] all [of Eastwood’s] unadjudicated claims of this case
without prejudice for lack of prosecution” because Eastwood had failed to


1      The remaining defendants were dismissed upon motion or
stipulation.


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                       EASTWOOD v. ATLAS et al.
                          Decision of the Court

comply with Rule 38.1. This Court subsequently dismissed the Injunction
Appeal as moot “[b]ecause the superior court has dismissed all of the
underlying claims in this case for lack of prosecution . . . .” Eastwood moved
for reconsideration of the dismissal of his claim for lack of prosecution, but
did not move for relief from judgment pursuant to Arizona Rule of Civil
Procedure 60(c).2 He argued that the superior court lacked jurisdiction to
dismiss the case while the Injunction Appeal was pending and requested
relief under the savings statute, A.R.S. § 12–504.3 The superior court denied
Eastwood’s motion and affirmed its prior judgment of dismissal.

¶5             Eastwood again moved for reconsideration, which the
superior court denied. Thereafter, Eastwood moved for a continuance on
the matter on the inactive calendar for 60 days, pending the resolution of
his petition for review filed with the Arizona Supreme Court. The superior
court granted Eastwood’s unopposed motion and continued the matter on
the inactive calendar until August 5, 2013.

¶6            In August 2013, the superior court issued a final judgment of
dismissal. Eastwood timely appealed from that judgment.4 We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(3)5; Campbell v. Deddens, 93

2      “To obtain relief under Rule 60(c), a movant must show that one of
the reasons for relief described in clauses (1) to (6) applies, that she acted
promptly in seeking relief, and that her claim was meritorious.” Bickerstaff
v. Denny’s Restaurant, Inc., 141 Ariz. 629, 631, 688 P.2d 637, 639 (1984)
disapproved of on other grounds by Panzino v. City of Phoenix, 196 Ariz. 442,
445-46 n.3 ¶ 8, 999 P.2d 198, 201–02 n.3 (2000).

3      Two days before moving for reconsideration, Eastwood re-filed the
identical complaint in superior court, under a new case number, CV 2012-
017539. That case remains pending in superior court.

4     Apple Defendants argue that the August 2013 judgment of dismissal
did not apply to either Atlas Defendants or Apple Defendants and was
intended to “clear the non-participating parties off the docket.” We find no
support in the record that the judgment of dismissal was so limited.

5      Although Eastwood purportedly appeals from the second judgment
of dismissal (dated August 23, 2013), his opening and reply briefs reference
the first judgment of dismissal (dated May 23, 2012), the motions to
reconsider that he filed following the first dismissal, and the superior
court’s denial of those motions. We note that Eastwood’s appeal from the



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                        EASTWOOD v. ATLAS et al.
                           Decision of the Court

Ariz. 247, 250, 379 P.2d 963, 965 (1963) (holding that an order dismissing a
case for lack of prosecution is an appealable order).

                                DISCUSSION

¶7             Eastwood appeals the dismissal of his claim for lack of
prosecution. We review the superior court’s order of dismissal for lack of
prosecution for an abuse of discretion. Slaughter v. Maricopa County, 227
Ariz. 323, 326 ¶ 14, 258 P.3d 141, 144 (App. 2011).
“An abuse of discretion occurs where the court’s reasons for its actions are
clearly untenable, legally incorrect, or amount to a denial of justice.” Bowen
Prod., Inc. v. French, 231 Ariz. 424, 427 ¶ 9, 296 P.3d 87, 90 (App. 2013)
(internal quotation marks omitted).

¶8            Eastwood first contends that the Injunction Appeal divested
the superior court of jurisdiction over the remaining claims and rendered
the judgment of dismissal void. Apple Defendants contend that the
superior court retained jurisdiction over the underlying claims, excluding
the injunction, throughout the appeal.

¶9             “When a party appeals a preliminary injunction, the trial
court loses jurisdiction over the injunction but retains jurisdiction over the
remainder of the case.” State ex rel. Corbin v. Tolleson, 152 Ariz. 376, 379, 732
P.2d 1114, 1117 (App. 1986); Castillo v. Indus. Comm’n, 21 Ariz. App. 465,
467-68, 520 P.2d 1142, 1144–45 (1974). In this case, Atlas Defendants and
Apple Defendants appealed from the superior court’s order granting a
preliminary injunction. During the pendency of the Injunction Appeal, the
superior court retained jurisdiction over the remaining claims, remedies,
and parties included in Eastwood’s complaint. State ex rel. Corbin, 152 Ariz.
at 379, 732 P.2d at 1117. Because the superior court retained its jurisdiction,
it did not abuse its discretion by dismissing the underlying claims for lack
of prosecution.

¶10          Eastwood next argues that the superior court erred in
refusing to grant him relief under the savings statute. Apple Defendants
argue that the savings statute applies only if a plaintiff acts diligently in
pursuing his case.



first judgment is untimely and that a ruling denying a motion for
reconsideration is not an appealable order. See Spradling v. Rural Fire Prot.
Co., 23 Ariz. App. 549, 551, 534 P.2d 763, 765 (1975). Nevertheless, we
address the substantive arguments raised in Eastwood’s briefs.


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                        EASTWOOD v. ATLAS et al.
                           Decision of the Court

¶11          Section 12-504, commonly known as the “savings statute,”
provides the superior court discretionary authority to allow a new action
for the same cause to commence when the new action is otherwise time-
barred:

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

A.R.S. § 12-504(A) (emphasis added).

¶12         Our supreme court examined the savings statute in Jepson v.
New, concluding that relief under that statute requires the plaintiff to
demonstrate a diligent pursuit of the case:

       Where an action is terminated for lack of prosecution, relief
       under the savings statute should only be granted where the
       plaintiff demonstrates that despite diligent pursuit of the
       case, it was dismissed. To hold otherwise would undermine
       the policies the savings statute was intended to serve . . . by
       providing an out for litigants who, for no good reason, fail to
       comply with the rule.

164 Ariz. 265, 274, 792 P.2d 728, 737 (1990). The Court emphasized “[t]he
burden is on the plaintiff to present the particular circumstances that justify
relief under § 12–504.” Id. 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)).

¶13           Eastwood requested relief under the savings statute, arguing
that the superior court lacked jurisdiction to dismiss the case because of the
pending Injunction Appeal. See State ex rel. Corbin, 152 Ariz. at 379, 732 P.2d
at 1117. But Eastwood failed to set forth any facts indicating that he had
diligently pursued his case or articulated the circumstances justifying relief
as A.R.S. § 12–504 requires. In denying Eastwood’s request for relief under
the savings statute, the superior court noted: “Plaintiff does not dispute that
he has never filed any disclosure statement, conducted discovery,
requested a scheduling order, or done anything to prosecute the claims for
negligence, gross negligence, unfair business practices, fraud, breach of
fiduciary duty and conspiracy.” Because Eastwood failed to sustain his


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                        EASTWOOD v. ATLAS et al.
                           Decision of the Court

burden of proving circumstances justifying relief under the savings statute,
the superior court appropriately exercised its discretion in denying his
request.6 See Copeland v. Ariz. Veterans Mem’l Coliseum & Exposition Ctr., 176
Ariz. 86, 89, 859 P.2d 196, 199 (App. 1993) (holding that an order denying
relief under the savings clause is reviewed for an abuse of discretion).

¶14             Although Eastwood admitted to having received the Order,
he also argues that the Order provided him with insufficient notice of the
“consequences of failing to file a Motion to Set.”7 Eastwood relies upon our
Supreme Court’s decision in American Asphalt & Grading Co. v. CMX, LLC,
227 Ariz. 117, 253 P.3d 1240 (2011), which involved a plaintiff’s motion for
relief under Rule 60(c) to set aside a dismissal for lack of prosecution. In
American Asphalt, our supreme court held that a 150-Day Order from the
superior court did not fulfill the requirements of the inactive calendar
notification as set forth in Rule 38.1(c). Id. at 118 ¶ 9, 253 P.3d at 1241.
Notwithstanding that finding, the supreme court explained that lack of
notice is just “one factor, among many, that a court should consider in
ruling on a Rule 60(c) motion.” Id. at 119 ¶ 11, 253 P.3d at 1242. Eastwood
never argued the factors necessary for relief under Rule 60(c). See Copeland,
176 Ariz. at 90-91, 859 P.2d at 200-01 (determining that lack of notice alone
is not a sufficient basis for relief under Rule 60(c)). Accordingly, we find no
abuse of discretion in the superior court’s decision to dismiss the case for
lack of prosecution.

¶15          Atlas Defendants and Apple Defendants seek attorneys’ fees
pursuant to A.R.S. § 12-349. Because we find that Eastwood unreasonably
expanded and delayed the proceedings, we award Atlas Defendants and
Apple Defendants reasonable attorneys’ fees and costs upon timely
compliance with Arizona Rule of Civil Appellate Procedure 21.




6      Eastwood contends the superior court erred in finding his request
under the savings statute untimely. He filed his motion six months after the
termination of the action. We decline to decide whether Eastwood’s request
was timely under A.R.S. § 12-504(A) because even assuming his request was
timely, we find sufficient justification for the superior court’s denial of his
motion.

7       Atlas Defendants argue that Eastwood waived this argument by
failing to raise it at trial. We note that Eastwood argued lack of notice in his
second motion for reconsideration.


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               EASTWOOD v. ATLAS et al.
                  Decision of the Court

                     CONCLUSION

¶16   For the foregoing reasons, we affirm.




                                 :10/30/2014




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