North v. Vps

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

NORTH STAR CHARTER SCHOOL, INC., an Arizona corporation; KURT
HUZAR, as its authorized representative and individually; and PIERCE
ROBINSON, Plaintiffs/Appellants,

v.

VALLEY PROTECTIVE SERVICES, INC., an Arizona corporation;
DANIEL JAMES VOLLMER, Defendants/Appellees.
_________________________________

VALLEY PROTECTIVE SERVICES, INC., an Arizona corporation,
Counterclaimant/Appellee,

v.

NORTH STAR CHARTER SCHOOL, INC., an Arizona corporation,
Counterdefendant/Appellant.

No. 1 CA-CV 15-0549
FILED 12-13-2016

Appeal from the Superior Court in Maricopa County
No. CV2010-022630
The Honorable Patricia A. Starr, Judge

AFFIRMED
 COUNSEL

Stanley M. Slonaker Attorney at Law, Phoenix
By Stanley M. Slonaker
Counsel for Plaintiffs/Appellants/Counterdefendant

Burch & Cracchiolo P.A., Phoenix
By Gregory A. Rosenthal
Counsel for Defendants/Appellees/Counterclaimant

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.

J O N E S, Judge:

¶1 North Star Charter School, Inc. (North Star), Kurt Huzar, and
Pierce Robinson appeal from final judgments entered in favor of Valley
Protective Services, Inc. and its employee, Daniel Vollmer (collectively,
VPS), on all claims and counterclaims. For the following reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 The material facts are largely undisputed. VPS is an Arizona
corporation operating a security guard company licensed by the Arizona
Department of Public Safety. See Ariz. Rev. Stat. (A.R.S.) § 32-2601 to -2642.2
At all relevant times, VPS employed Vollmer as a security guard.

¶3 North Star is an Arizona non-profit corporation that operates
a charter school in Phoenix. At the relevant time, Huzar served as North

1 We view the evidence, and all inferences to be drawn therefrom, in
the light most favorable to Appellants, the parties against whom summary
judgment and judgment as a matter of law were entered. See Bothell v. Two
Point Acres, Inc., 192 Ariz. 313, 315, ¶ 2 (App. 1998) (motion for summary
judgment); Monaco v. HealthPartners of So. Ariz., 196 Ariz. 299, 302, ¶ 6 (App.
1999) (motion for judgment as a matter of law).

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

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Star’s president and a trustee on the school’s three-member Board of
Trustees, Robinson was the school’s security director, and non-party Aldine
Dickens was also a trustee. Although Huzar was specifically tasked with
North Star’s day-to-day operations and served as the designated
representative with respect to issues involving the school’s charter, the
Board retained the power, as set forth in North Star’s bylaws, “[t]o conduct,
manage and control the affairs and activities of the corporation,” “[t]o elect
and remove trustees,” and “[t]o enter into contracts, leases and other
agreements which are, in the Board’s judgment, necessary or desirable in
obtaining the purposes of promoting the interests of the corporation.”

¶4 In April 2009, Dickens and another Board member noticed a
special meeting for “the restoration, removal if appropriate and election of
persons off and to the Board of Directors of North Star Charter School, Inc.”
Purporting to act on behalf of North Star, Dickens entered into a
Security/Courtesy Patrol Services Agreement (the Agreement) with VPS to
provide four security guards at the April 29, 2009 meeting. Dickens signed
the Agreement as “Trustee” of North Star and “represent[ed] and
warrant[ed] that [she] ha[d] the authority to hire VPS to render service” at
the school. She later advised VPS that Huzar would be terminated at the
meeting and gave detailed instructions, on North Star letterhead, regarding
VPS’s duties in light of how students, teachers, office staff, and board
members might move around the school. The Agreement included the
following indemnification clause:

THIRD-PARTY INDEMNIFICATION: In the event any
person not a party to this Agreement shall make any claim or
file any lawsuit against VPS for any reason relating to [VPS]’s
duties and obligations pursuant to this Agreement, Customer
agrees to indemnify, defend and hold VPS harmless from any
and all such claims and lawsuits, including the payment of all
damages, expenses, costs and attorney’s fees.

Believing that the event “would lead to a heated exchange at the very least,”
and that it would therefore be best to have law enforcement available at the
meeting to “make sure nothing crazy occurred,” Robinson left a message
for local law enforcement advising of the upcoming meeting.

¶5 At approximately 3:00 p.m. on April 29, 2009, Robinson
observed Dickens, accompanied by four VPS security guards, including
Vollmer, enter the school. At the time, Vollmer had a handgun in the
holster of his duty belt. Dickens directed a guard to “keep an eye on”
Robinson to make sure he did not touch anything, and Huzar arrived soon

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after. The guards ignored Robinson and Huzar’s requests to leave and, for
a time, prevented them from entering the meeting room. At 3:09 p.m.,
Phoenix Police officers responded to a call of “unwanted guests” at the
school. Vollmer immediately secured his handgun in his vehicle
“eliminating any handguns at the facility” before the meeting began. The
officers determined the dispute was a civil matter and left the premises.

¶6 Meanwhile, at 3:30 p.m., Dickens called the meeting to order.
Over Huzar’s objections, Dickens moved for a vote that resulted in Huzar’s
termination from his positions at North Star. Vollmer escorted Huzar to his
office to remove his personal belongings and instructed Huzar and
Robinson not to touch anything. Immediately thereafter, Dickens and other
non-parties at her direction changed the school’s computer access codes
and door locks while the VPS guards stood by. VPS remained on scene
while Dickens left the premises to change the signatory on North Star’s
bank accounts.

¶7 The Arizona Attorney General later determined the April 29,
2009 meeting was invalid and the actions taken therein had no legal effect.
Eventually, Huzar obtained a workplace harassment injunction against
Dickens, and in June 2009, Huzar and Robinson resumed their duties at
North Star.

¶8 In July 2010, Appellants filed a complaint against VPS
alleging they suffered damages resulting from trespass, assault, conversion,
trespass to chattels, negligence, negligent supervision, and intentional
infliction of emotional distress, all of which were premised on the theory
that Dickens’ actions during and after the meeting “occurred only because
the on-scene muscle provided by VPS guards prevented interference and
protected Dickens and those acting in concert with her.”3 VPS
counterclaimed against North Star, alleging it was obligated under the
Agreement to indemnify, defend, and hold VPS harmless from the claims
brought by Huzar and Robinson and was in breach of the contract for
failing to do so.

¶9 Between April 2013 and January 2014, VPS moved for
summary judgment on all claims and counterclaims. After briefing and oral
argument, the trial court entered judgment in VPS’s favor on each count
except for Huzar’s and Robinson’s assault claims. Appellants recertified
the only remaining claim as subject to compulsory arbitration, and an

3 Appellants voluntarily dismissed a claim for negligent infliction of
emotional distress in February 2011.

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arbitrator was appointed in July 2014. See A.R.S. § 12-133. The parties did
not proceed to arbitration within the 120-day deadline, Ariz. R. Civ. P. 74(b),
and in January 2015, the court found no good cause for the delay and
dismissed the assault claim for lack of prosecution. The court also awarded
VPS attorneys’ fees and costs as the successful party in a contract action, as
well as double its taxable costs as a sanction pursuant to Arizona Rule of
Civil Procedure 68. Appellants timely appealed the final judgment, and we
have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Summary Judgment

¶10 Appellants first argue the trial court erred in entering
summary judgment in VPS’s favor on various claims. Summary judgment
is appropriate “if the facts produced in support of the claim or defense,”
viewed in the light most favorable to the party against whom judgment is
entered, “have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves,
166 Ariz. 301, 309 (1990); Ariz. R. Civ. P. 56(a). Moreover, a motion for
summary judgment should not be denied simply upon speculation that
some doubt, scintilla of evidence, or dispute over irrelevant or immaterial
facts “might blossom into a real controversy in the midst of trial.” Shaw v.
Petersen, 169 Ariz. 559, 560-61 (App. 1991) (quoting Orme Sch., 166 Ariz. at
311).

¶11 Whether a genuine issue of material fact exists to preclude
summary judgment is a question of law we review de novo. See Parkway
Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, 289, ¶ 10 (App. 2013) (citing L.
Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180 (App.
1997)). We also review de novo the trial court’s application of the law, id.,
and we will affirm if judgment is correct on any basis supported by the
record, Mutschler v. City of Phx., 212 Ariz. 160, 162, ¶ 8 (App. 2006) (citing
Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986)).

A. Dickens’ Authority: Trespass and Breach of Contract

¶12 Appellants first argue a genuine issue of material fact exists
as to Dickens’ authority to either: (1) bind North Star to a contract with VPS
which would give rise to the breach of contract counterclaims, see Thomas v.
Montelucia Villas, L.L.C., 232 Ariz. 92, 96, ¶ 16 (2013) (“To bring an action for
the breach of the contract, the [injured party] has the burden of proving the
existence of the contract, its breach and the resulting damages.”) (emphasis

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added) (citing Graham v. Asbury, 112 Ariz. 184, 185 (1975)), or (2) grant VPS
permission to enter the school premises to provide security services,
thereby vitiating the trespass claim, see Barry v. S. Pac. Co., 64 Ariz. 116, 120-
21 (1946) (“A trespasser is a person who enters or remains upon land in the
possession of another without a privilege to do so created by the possessor’s
consent or otherwise.”) (quoting Restatement (Second) of Torts § 329
(1965)).

¶13 It is well-settled that a principal is bound only by the acts of
an agent for which that agent has authority — whether express, apparent,
or implied. See Tway v. S. Methodist Hosp. & Sanitorium of Tucson, 48 Ariz.
490, 495 (1936); Aetna Loan Co. v. Apache Trailer Sales, 1 Ariz. App. 322, 324
(1965) (citations omitted); Restatement (First) of Agency § 140 (1933). The
record does not contain any evidence of direct communication between
North Star and Dickens, or North Star and VPS, upon which to conclude
Dickens had express or apparent authority to engage VPS’s services on
North Star’s behalf. Therefore, we focus solely upon whether Dickens had
implied authority to enter into the contract.

¶14 Implied authority does not depend upon communication
from the principal but derives from the agent’s “actual authority . . . to do
what is necessary, usual, and proper to accomplish or perform an agent’s
express responsibilities . . . .” Restatement (Third) of Agency § 2.01 cmt. b
(2006), cited favorably by Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz.
589, 597, ¶ 29 (App. 2007). “The test in cases where implied authority is
relied upon is whether, under all the circumstances of the particular case, the
party relying on such authority acted as a reasonable and prudent man who
knows that he is dealing with an agent, in ascertaining the extent of the
authority of that agent.” Lois Grunow Mem’l Clinic v. Davis, 49 Ariz. 277, 285
(1937). If the agent has implied authority by virtue of his position within
the corporation, “[i]t makes no difference that the agent may be
disregarding his principal’s directions, secret or otherwise, so long as he
continues in that larger field measured by the general scope of the business
[e]ntrusted to his care.” Nogales Serv. Ctr. v. Atl. Richfield Co., 126 Ariz. 133,
137 (App. 1980) (quoting Kidd v. Thomas A. Edison, Inc., 239 F. 405, 407
(S.D.N.Y. 1917)). The third party bears the burden of showing that its
reliance upon the agent’s authority was reasonable. See Miller v. Mason-
McDuffie Co. of S. Cal., 153 Ariz. 585, 590 (1987) (citing Lois Grunow, 49 Ariz.
at 284) (citations omitted). Whether an agency relationship exists is a
question of law for the court when the material facts from which it is to be
inferred are undisputed. Cote v. A.J. Bayless Mkts., Inc., 128 Ariz. 438, 444
(App. 1981) (citing Warren v. Mangels Realty, 23 Ariz. App. 318, 321 (1975)).

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¶15 Here, there is no dispute that Dickens was a member of the
Board or that the business of the Board included participating in meetings
and removing trustees, officers, or employees of the corporation. Hiring a
security service to facilitate the Board’s performance of those functions is
incidental to her express duties; Robinson himself believed it appropriate
to put law enforcement on notice of the pending meeting even before
learning that VPS would be present. Therefore, it was within Dickens’
implied authority to act, as a trustee of the Board, on behalf of North Star
in contracting with VPS.

¶16 Appellants argue a dispute exists regarding whether VPS
reasonably relied upon Dickens’ authority because VPS admitted it did not
investigate North Star’s bylaws or Arizona Corporation Commission files.
We disagree. VPS was entitled to rely upon “titles implying general
powers,” such as director and trustee — titles North Star did in fact bestow
upon Dickens. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 7-
8 (App. 1990) (citing Koven v. Saberdyne Sys., Inc., 128 Ariz. 318, 322 (App.
1980)). Appellants have not presented any facts suggesting VPS should
have undertaken a detailed investigation into Dickens’ authority. Dickens
acted in conformity with her asserted position as a trustee: she had
knowledge of and access to non-public areas of the school, gave directions
to staff and vendors, and called and ran a Board meeting in a classroom at
the school in which other persons of authority participated without
complaint. Huzar and Robinson’s actions were also consistent with persons
who were being removed from positions of authority.

¶17 In view of the foregoing, we conclude that Appellants failed
to raise any genuine issues of material fact with regard to the authority of
Dickens to bind North Star to the contract with VPS. When VPS entered
the premises to provide security services on April 29, 2009, it did so
pursuant to a valid contract with North Star, lawfully entered into through
its agent acting under color of her implied authority. Given this conclusion,
Appellants cannot prove VPS acted without permission to enter the
premises, and summary judgment was properly entered in VPS’s favor on
the trespass claim. See State ex rel. Purcell v. Superior Court (Naylor), 111 Ariz.
582, 584 (1975) (defining trespass at common law as “any unauthorized
physical presence on another’s property”) (citing 75 Am. Jur. 2d Trespass
§ 10 (2016)). Appellants do not dispute the remaining elements of VPS’s
breach of contract claims, and summary judgment in VPS’s favor on those
claims was also proper.

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B. Concerted Conduct: Conversion and Trespass to Chattels

¶18 Appellants next argue a genuine issue of material fact exists
regarding whether VPS acted in concert with Dickens to interfere with
North Star’s property rights that would prevent summary judgment in
VPS’s favor on the claims for conversion and trespass to chattels. However,
Appellants did not raise accomplice liability or conspiracy in their direct
claims against VPS or in response to the summary judgment motions, and
we will not address theories raised for the first time on appeal. See Airfreight
Express, Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, 109, ¶ 17 (App. 2007)
(“A party must timely present his legal theories to the trial court so as to
give the trial court an opportunity to rule properly.”) (quoting Payne v.
Payne, 12 Ariz. App. 434, 435 (1970)). Accordingly, we find no error in the
grant of summary judgment in VPS’s favor on the claims of conversion and
trespass to the chattels.

C. Standard of Care: Negligence and Negligent Supervision

¶19 Appellants also argue the trial court erred in dismissing their
claims for negligence and negligent supervision on the grounds that they
had failed to present any expert evidence regarding the standard of care for
security professionals after having been granted an adequate opportunity
to do so. Appellants argue expert testimony is not required because the
claims are not premised upon the provision of “legitimate security services”
but rather on VPS’s purported “negligent belief” that Dickens could
authorize entry to and actions on school grounds. We review the trial
court’s decision whether expert testimony is required for an abuse of
discretion. See Warner v. Sw. Desert Images, L.L.C., 218 Ariz. 121, 128, ¶ 14
(App. 2008) (citing State v. Mosley, 119 Ariz. 393, 400 (1978)).

¶20 To establish a negligence claim, a plaintiff must prove: (1) a
duty requiring the defendants to conform to a certain standard of care; (2)
a breach of the standard; (3) a causal connection between the defendant’s
conduct and the resulting injury; and (4) actual damages. Gipson v. Kasey,
214 Ariz. 141, 143, ¶ 9 (2007) (citing Ontiveros v. Borak, 136 Ariz. 500, 504
(1983)). Ordinarily, the standard of care “focuses on the conduct of a
reasonably prudent person under the circumstances,” Sw. Auto Painting &
Body Repair, Inc. v. Binsfeld, 183 Ariz. 444, 448 (App. 1995) (citation omitted),
and no evidence regarding the standard of care is necessary “because the
jury can rely on its own experience in determining whether the defendant
acted with reasonable care under the circumstances,” Bell v. Maricopa Med.
Ctr., 157 Ariz. 192, 194 (App. 1988) (citation omitted). However, where the
duty arises “because the defendant has held himself out to be trained in a

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particular trade or profession,” Kreisman v. Thomas, 12 Ariz. App. 215, 220
(1970), and the negligence is not “so grossly apparent that a layman would
have no difficulty in recognizing it,” Bell, 157 Ariz. at 195 n.1 (quoting
Riedisser v. Nelson, 111 Ariz. 542, 544 (1975)), expert testimony is required
“as to the care and competence prevalent in the business or profession,” St.
Joseph’s Hosp. & Med. Ctr. v. Reserve Life Ins., 154 Ariz. 307, 315 (1987) (citing
Powder Horn Nursery, Inc. v. Soil & Plant Lab., Inc., 119 Ariz. 78, 81-82 (App.
1978)); see also Stanley v. McCarver, 208 Ariz. 219, 224, ¶ 16 (2004) (“The
standard of care imposes on those with special skills or training, however,
the higher obligation to act in light of that skill, training, or knowledge
. . . .”).

¶21 Here, a duty of care arises from the relationship between
North Star and VPS based upon a contract for professional services, see Delci
v. Gutierrez Trucking Co., 229 Ariz. 333, 336, ¶ 12 (App. 2012) (citing Gipson,
214 Ariz. at 145, ¶¶ 18-19 (explaining a duty of care may arise from a special
relationship based upon contract)), and Appellants claim VPS was
negligent in failing to thoroughly investigate Dickens’ authority to retain
VPS’s services. The alleged negligence is not so grossly apparent that a
layperson could readily identify it. Rather, VPS held itself out as having
particular skill and training, and expert testimony may assist in establishing
the standard of care by which the actions of a licensed security guard
company and its employees are measured. See Baird v. Pace, 156 Ariz. 418,
420 (App. 1987) (discussing the use of expert testimony in a legal
malpractice action); see also Kreisman, 12 Ariz. App. at 221. Moreover, other
jurisdictions have determined expert testimony is either required or
appropriate to establish the standard of care for a claim of negligent hiring,
training, and supervision of security personnel. See Farooq ex rel. Estate of
Farooq v. MDRB Corp., 498 F. Supp. 2d 284, 287 (D.D.C. 2007) (citations
omitted); Harris v. Pizza Hut of La., Inc., 455 So. 2d 1364, 1368 (La. 1984)
(establishing the requisite standard of care for a security guard through
expert testimony); Tucker v. Sandlin, 337 N.W.2d 637, 640 (Mich. Ct. App.
1983) (same); Burns Int’l Sec. Servs. Inc. of Fla. v. Phila. Indem. Ins., 899 So. 2d
361, 363 (Fla. Dist. Ct. App. 2005) (same). But see Deeds v. Am. Sec., 528
N.E.2d 1308, 1312 (Ohio Ct. App. 1987) (concluding expert testimony
regarding the generally accepted standards of conduct for a security guard
would not assist the jury where the scope of the guard’s duties was limited
by contract). We find no abuse of discretion.

¶22 Appellants further suggest within their reply brief that the
trial court erred by not allowing them additional time to obtain an expert
to opine on the standard of care. See A.R.S. § 12-2602(E)-(F) (requiring a
plaintiff pursuing a claim premised upon professional negligence to

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produce a preliminary expert opinion affidavit and permitting the court to
dismiss a claim if the plaintiff does not comply after being given an
opportunity to cure the defect); Kaufman v. Jesser, 884 F. Supp. 2d 943, 955
(D. Ariz. 2012). We reject that argument for several reasons. First,
Appellants did not raise this argument in their opening brief. We will not
consider arguments made for the first time in a reply brief. Dawson v.
Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007) (citing Muchesko v. Muchesko,
191 Ariz. 265, 268 (App. 1997)).

¶23 Second, Appellants failed to comply with the requirements of
A.R.S. § 12-2602 in the trial court. Section 12-2602(A) requires a plaintiff
filing a claim against a licensed professional to file a certification of
“whether or not expert testimony is necessary to prove the licensed
professional’s standard of care or liability.” Had Appellants complied and
certified no expert was required, the burden would have shifted to VPS to
request a determination from the court that expert testimony was required.
A.R.S. § 12-2602(D). But Appellants never filed any certification and cannot
now seek relief under the statute.

¶24 Finally, Appellants failed to follow through on multiple
opportunities to obtain and disclose a standard of care expert. VPS
disclosed its standard of care expert in its initial disclosure statement.
Appellants were therefore on notice that VPS believed expert testimony
was necessary but took no action to obtain a competing opinion during the
course of discovery. Then, after discovery closed and VPS filed the motion
for summary judgment, Appellants disputed whether an expert was
required, but, in the alternative, requested consideration of the motion be
stayed until they could obtain a competing expert “if th[e trial c]ourt
intends to consider the expert opinion regarding provision of security
services.” The court denied the alternative motion without prejudice
because Appellants did not comply with Arizona Rule of Civil Procedure
56(f) (requiring a party seeking additional discovery prior to responding to
a motion for summary judgment submit an “affidavit showing that, for
specified reasons, it cannot present evidence essential to justify its
opposition” and a separate statement certifying the parties have been
unable to resolve the matter “after personal consultation and good-faith
efforts”). Over four months later, when the court issued its ruling granting
summary judgment in VPS’s favor, Appellants still had not complied with
Rule 56(f). Under these circumstances, no basis exists to grant Appellants
additional time to obtain an expert.

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D. Outrageous Conduct: Intentional Infliction of Emotional
Distress

¶25 Appellants characterize VPS’s actions as an “armed invasion”
or an “armed coup d’etat” of the school and argue the trial court erred in
concluding they were not sufficiently extreme and outrageous to support a
claim for intentional infliction of emotional distress. See Johnson v.
McDonald, 197 Ariz. 155, 160, ¶ 23 (App. 1999) (citation omitted);
Restatement (Second) of Torts § 46 cmt. d (1965) (explaining that a claim for
intentional infliction of emotional distress must be based upon conduct “so
outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community”). We review the determination of
whether actions are sufficiently extreme and outrageous for an abuse of
discretion. See Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of
Governors, 184 Ariz. 419, 428 (App. 1995) (citing Mintz v. Bell Atl. Sys. Leasing
Int’l, Inc., 183 Ariz. 550, 554 (App. 1995)).

¶26 Although Appellants’ characterization paints a vivid picture,
the evidence does not sustain that characterization. The record reflects
Phoenix Police officers responded to the school by 3:09 p.m., twenty
minutes before the meeting was called to order. Vollmer had a handgun in
a holster on his duty belt, but when the officers arrived, “Vollmer
immediately went and secured his handgun in his personal vehicle,
eliminating any handguns at the facility.” Although the events upset Huzar
and Robinson and they may have found the presence of VPS security
officers threatening, no physical violence occurred. On this record, we find
no abuse of discretion in the trial court’s determination that the events were
not conducted in a fashion “beyond all possible bounds of decency.”

II. Dismissal for Failure to Arbitrate

¶27 Huzar and Robinson argue the trial court erred in concluding
they lacked good cause for their failure to arbitrate their sole remaining
claim within the court-ordered deadline.

¶28 A plaintiff has a duty to pursue his case diligently and ensure
it is brought to trial within a reasonable time. Price v. Sunfield, 57 Ariz. 142,
148-49 (1941). To determine whether the plaintiff’s prosecution of an action
is adequate, the trial court must consider the activities of all parties and
other factors that might impede prompt resolution of the case. Jepson v.
New, 164 Ariz. 265, 276 (1990). Therefore, we review the court’s order for
an abuse of discretion. See Slaughter v. Maricopa Cty., 227 Ariz. 323, 326,

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¶ 14 (App. 2011) (dismissal for failure to prosecute) (citing Cooper v. Odom,
6 Ariz. App. 466, 469 (1967)); Ugalde v. Burke, 204 Ariz. 455, 458, ¶ 10 (App.
2003) (determination that party failed to show good cause) (citing Nordale
v. Fisher, 93 Ariz. 342, 345 (1963)). “An abuse of discretion occurs when
there is no evidence to support a holding or the court commits an error of
law when reaching a discretionary decision.” Dowling v. Stapley, 221 Ariz.
251, 266, ¶ 45 (App. 2009) (citations omitted); see also Grant v. Ariz. Pub. Serv.
Co., 133 Ariz. 434, 455–56 (1982) (citations omitted).

¶29 We find no abuse of discretion here. The record reflects that
in July 2014, an arbitrator was appointed and the parties were given 120
days to complete arbitration. See Ariz. R. Civ. P. 73, 74(b). The arbitrator
immediately contacted counsel and indicated her available dates from late
August through October. In September 2014, VPS reminded Huzar and
Robinson’s counsel that the assault claim remained pending with an
arbitration deadline of November 10. In October 2014, Huzar and
Robinson’s counsel contacted VPS seeking available dates for the
arbitration, but Huzar and Robinson did not move to continue the
arbitration deadline until after the date had passed. VPS then moved to
dismiss the claim.

¶30 Huzar and Robinson concede they took no steps to schedule
a hearing until late October 2014, ultimately settling on a date occurring
after expiration of the deadline, without requesting an extension. They
suggest, however, that the trial court should have granted their belated
request for an extension because it was only a three-month “lapse in
diligence” compared to the four years they “vigorously litigated” the entire
case. This comparative analysis does not demonstrate good cause. See State
v. Churchill, 82 Ariz. 375, 380 (1957) (“Good cause means substantial reason,
that is, one that [a]ffords a legal excuse.”); cf. Maher v. Urman, 211 Ariz. 543,
548, ¶ 14 (App. 2005) (“In order to show good cause to extend time for
service, a plaintiff must demonstrate he or she exercised due diligence in
trying to serve the defendant.”) (citing Snow v. Steele, 121 Ariz. 82, 83 (1979)).
Huzar and Robinson’s counsel apparently correctly calendared the
deadline, and he was reminded of that deadline by both the arbitrator and
VPS’s counsel. Huzar and Robinson cannot complain they were denied due
process when they chose not to exercise their opportunity to be heard. See
Watahomigie v. Ariz. Bd. of Water Quality Appeals, 181 Ariz. 20, 27 (App. 1994)
(citations omitted); Graf v. Whitaker, 192 Ariz. 403, 407, ¶ 16 (App. 1998)
(“Courts have the power to control the proceedings before them and enter
orders of default or dismissal when a party fails to abide by the procedural
rules of the court.”) (citing AG Rancho Equip. Co. v. Massey-Ferguson, Inc.,

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123 Ariz. 122, 122-23 (1979)). Under the circumstances, we find no abuse of
discretion.

CONCLUSION

¶31 For the foregoing reasons, we affirm.

¶32 VPS requests an award of attorneys’ fees and costs pursuant
to the Agreement and A.R.S. §§ 12-341 and -341.01(A). As the prevailing
party, VPS is awarded its costs and reasonable attorneys’ fees incurred on
appeal upon compliance with ARCAP 21(b).

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

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