Dunn v. Law Offices of Ramon R. Alvarez, P. C.

• Decision Date: 10 May 1978
• Docket Number: No. 2,CA-CIV,2
• Citation: 581 P.2d 282,119 Ariz. 437
• Parties: Joan E. DUNN, Appellant, v. LAW OFFICES OF RAMON R. ALVAREZ, P. C., Ronald Joseph Borane and Rona Borane, husband and wife, Appellees. 2758.
• Court: Arizona Court of Appeals

Page 282

581 P.2d 282

119 Ariz. 437

Joan E. DUNN, Appellant, v.LAW OFFICES OF RAMON R. ALVAREZ, P. C., Ronald Joseph Borane and Rona Borane, husband and wife, Appellees.

No. 2 CA-CIV 2758.

Court of Appeals of Arizona, Division 2.

May 10, 1978.

Rehearing Denied June 14, 1978.

Review Denied July 11, 1978.

Southern Arizona Legal Aid, Inc. by Ruben Teran Sonoqui, Douglas, for appellant.

Ramon R. Alvarez, Douglas, for appellees.

OPINION

HOWARD, Judge.

This is an appeal from an order refusing to set aside a judgment entered against appellant.The record shows that on November 23, 1976, appellees filed against appellant and her husband a "complaint for foreclosure".Attached to the complaint is a promissory note for $12,000 and a realty mortgage on a residence located in Cochise County.The note and mortgage purportedly bear the signatures of appellant and her husband.Process was served upon appellant by leaving a copy of the summons and complaint with her husband at their place of abode.

On December 14, 1976, an answer was filed.On March 21, 1977, appellees file a motion to strike the pleading of the Dunns on the ground that they had twice failed to appear for the taking of depositions.The motion was set for hearing on April 4, 1977 and subsequently continued to April 18, 1977.

At a hearing on the motion to set aside the judgment, appellant testified that she did not learn of the pendency of this lawsuit until early April 1977, when her husband's probation officer came to see her.On April 7, she went to see an attorney from Legal Aid.After seeing him, she went to the office of attorney Nell Burt, the lawyer who had filed the answer on behalf of herself and her husband.She had not previously spoken to Mrs. Burt about this case.She told Mrs. Burt that she did not understand why they could take her house because she had not signed the note and mortgage.Appellant testified that Burt told her that she was going to represent appellant's husband at the hearing on the foreclosure.Although Mrs. Burt did not specifically deny this, she did testify that at all times she represented both Mr. and Mrs. Dunn.On cross-examination appellant stated that she was served with a subpoena to appear for a deposition in January of 1977, but that it involved an automobile accident.In later questioning she described the document she had received as a summons.When shown a copy of the subpoena for the taking of her deposition she said that she didn't think she had ever received it.The process server who had served her with the subpoena for the taking of the deposition testified that he did in fact serve her.

Fernando Almendarez, an attorney with Legal Aid, testified that on April 7, 1977, appellant came to see him and he agreed to be her attorney in connection with several matters, including the foreclosure action.He telephoned Mrs. Burt on April 8, 1977, and spoke with her about the notarization on the mortgage.At that time Mrs. Burt admitted that the document, contrary to her notarization, was not acknowledged by appellant in her presence.According to Mrs. Burt, Mr. Almendarez did not definitely state that he was going to be substituted as attorney of record for Mrs. Burt.

On the same day that Mr. Almendarez spoke to Mrs. Burt, a Friday, he also spoke to Ramon Alvarez.He informed Mr. Alvarez that Mrs. Dunn had been to see him and told Mr. Alvarez the substance of his conversation with Mrs. Dunn.He did not, however, tell Mr. Alvarez that he represented Mrs. Dunn.Mr. Almendarez had looked in the court file and had seen that a hearing on appellees' motion to strike was set for April 18, 1977.He therefore started to do some research in preparation for filing a substitution of counsel and appearing for Mrs. Dunn in opposition to appellees' motion.

On Monday, April 11, without giving notice to Mrs. Dunn or Mr. Almendarez, Mrs. Burt and Mr. Alvarez appeared before the court and stipulated that the hearing set for April 18, 1977, could be held at that time.Mrs. Burt then filed a motion to withdraw as attorney of record for Mr. and Mrs. Dunn, and also filed a consent to the withdrawal signed by Mr. Dunn.The trial court heard testimony from Mr. Alvarez, reserved a ruling on the motion of Mrs. Burt to withdraw and took the matter under advisement.

On April 12, 1977, Mr. Almendarez called Mr. Alvarez in order to get a continuance of the April 18, 1977 hearing.At that time Mr. Alvarez informed him that the hearing had been already held on April 11th.

It is not clear from the record when the court permitted Mrs. Burt to withdraw as attorney of record but an order was subsequently signed by the court permitting such withdrawal.On April 15, 1977, by minute entry, the court rendered judgment in favor of appellees and against appellants.A written judgment was signed the same day.

On May 5,...