Cravens, Dargan and Co. v. Superior Court In and For Pima County

• Decision Date: 02 June 1987
• Docket Number: No. CV-87-0149-PR,CV-87-0149-PR
• Citation: Cravens, Dargan and Co. v. Superior Court In and For Pima County, 737 P.2d 1373, 153 Ariz. 474 (Ariz. 1987)
• Parties: CRAVENS, DARGAN AND COMPANY, Pacific Coast, a Delaware corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, Hon. Lawrence H. Fleischman, a judge thereof; Leslie B. Miller, a judge thereof; and Sharon WILLIAMS, a single woman, Real Party in Interest, Respondents.
• Court: Arizona Supreme Court

Page 1373

737 P.2d 1373

153 Ariz. 474

CRAVENS, DARGAN AND COMPANY, Pacific Coast, a Delaware corporation, Petitioner, v.SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, Hon. Lawrence H. Fleischman, a judge thereof; Leslie B. Miller, a judge thereof; and Sharon WILLIAMS, a single woman, Real Party in Interest, Respondents.

No. CV-87-0149-PR.

Supreme Court of Arizona, In Banc.

June 2, 1987.

Jennings, Kepner & Haug, by Craig R. Kepner, Steven S. Guy, Phoenix, for petitioner.

Law Offices of Ronald D. Mercaldo, Ltd. by Anthony J. Wiggins, Tucson, for respondent Williams.

MOELLER, Justice.

I.Jurisdiction

Cravens, Dargan and Company(Cravens) petitioned this court to review a decision of the court of appeals which dismissed Cravens' petition for special action.We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3)andRule 8, Ariz.R.Sp.Act., 17A A.R.S.

II.Procedural Background

In October 1986, Sharon Williams brought suit in Pima County Superior Court against Cravens and the City of Tucson(City).The complaint alleged that Cravens and the City had breached a settlement agreement that had been entered into in an earlier negligence action that Williams had brought against the City.Specifically, the complaint alleged that the City was self-insured for the first $100,000 of liability, and that Cravens was the City's excess carrier.The earlier settlement was a structured one in which Williams was to receive $400,000 cash plus substantial monthly payments for life.The complaint alleged that Cravens had paid its $300,000 and had made arrangements for the monthly payments, but that the City had not paid its $100,000.The suit sought recovery of the unpaid $100,000 from the City or Cravens or from both of them.Cravens answered Williams' complaint, denying liability for the $100,000.

The City filed a Rule 12(b)(6) motion to dismiss the complaint against it for failure to state a claim.In it, the City denied that it had agreed to pay $100,000.The motion was supported by an affidavit of the Tucson City Attorney asserting that claims against the City in amounts over $10,000 had to be approved first by the City Attorney and then by the mayor and council.According to the affidavit, that procedure had not been followed in the earlier Williams case.Plaintiff responded that the City's motion to dismiss should be treated as a motion for summary judgment, that it was premature, and that plaintiff should be granted additional time to respond pursuant to Rule 56(f), Ariz.R.Civ.P.The motion to dismiss was scheduled for hearing in Tucson for 9:00 a.m., December 22, 1986.

A deposition in the case, attended by attorneys for all three parties, was held on December 17, 1986.At its conclusion, Mr. Kepner, Phoenix attorney for Cravens, advised the other counsel that he did not intend to go to Tucson for the December 22 hearing on the City's motion to dismiss since it did not involve his client.There was discussion among the attorneys that the most likely result of the December 22 hearing would be that plaintiff would be granted some time to conduct discovery and to file a supplemental response.When Kepner returned to his office on January 5, 1987, following a vacation, he was no doubt shocked to find the following minute order of the December 22 hearing:

Parties are not present.

Counsel argue to the Court.

Based upon Mr. Wiggins' [plaintiff's counsel] oral request,

IT IS ORDERED that Cravens, Dargan and Company, Pacific Coast, a Delaware corporation, pay $100,000.00, together with interest and costs accruing, forthwith to plaintiff.

The Court takes the City of Tucson's Motion to Dismiss Complaint UNDER ADVISEMENT.

Kepner promptly filed, on behalf of Cravens, a "Notice of Change of Judge" and a "Motion to Vacate Minute Entry."Plaintiff opposed the notice of change of judge, claiming that Cravens had waived its right to a change of judge by permitting Judge Fleischman to hear the City's motion to dismiss.After some procedural uncertainty (the motions were transferred from Judge Fleischman to Judge Miller, then back to Judge Fleischman and finally back to Judge Miller), the true extent of Cravens' unenviable procedural dilemma became apparent.Should Cravens appear before Judge Fleischman to argue its motion to vacate the minute entry, it would almost surely lose its right to a change of judge, which right plaintiff was already contending had been lost.On the other hand, should Cravens be successful in changing judges, the new judge would not have authority to vacate Judge Fleischman's order of December 22.

At a hearing on January 26, 1987, Judge Miller did indeed rule that no judge except Judge Fleischman could hear the motion to vacate.She also ruled that Cravens had waived its right to a change of judge by permitting Judge Fleischman to hear the City's motion to dismiss.Faced with this situation, Cravens filed a petition for special action with the court of appeals, requesting that both Judge Fleischman's order of December 22, 1986, and Judge Miller's order of January 26, 1987, be reversed.The court of appeals dismissed the petition.In this court, the only relief petitioner seeks is an order setting aside Judge Fleischman's minute order of December 22, 1986.

III.Validity of the December 22, 1986 Minute Order

Because no court reporter was present at the December 22 hearing before Judge Fleischman, the enigmatic minute order of that date can only be explained by reference to another source.The only source in the record is the affidavit of Anthony J. Wiggins, plaintiff's counsel.That affidavit explains what happened at the hearing: Judge Fleischman told counsel for the plaintiff and the City that he questioned why plaintiff was involved in this dispute between the City and Cravens.Judge Fleischman then determined that an order against the City to pay $100,000 to plaintiff would be ineffective since no one at the City was authorized to pay that amount without approval of the mayor and council.Judge Fleischman then requested that plaintiff's counsel request entry of an order directing Cravens to pay $100,000 to plaintiff.Pursuant to the "request" from the court, plaintiff's counsel requested such an order and it was forthwith granted.At no time was any evidence of Cravens' liability presented by affidavit or otherwise.The original object of the hearing, the City's motion to dismiss, was taken under advisement.

The minute entry summarily ordering Cravens to pay $100,000 plus interest and costs is erroneous and patently so.No rule of civil procedure authorizes a trial court to grant its own sua sponte request for judgment without giving notice and an opportunity to be heard...